EXHIBIT 4.1
================================================================================
STRUCTURED ASSET SECURITIES CORPORATION II,
as Depositor
and
--------------------------,
as Master Servicer
and
--------------------------,
as Special Servicer
and
--------------------------,
as Trustee
and
--------------------------,
as Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of _________, _____
------------------------------
$--------------
LB-___ Commercial Mortgage Trust _________
Commercial Mortgage Pass-Through Certificates,
Series _________
================================================================================
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
SECTION 1.01. Defined Terms..................................................................................8
SECTION 1.02. General Interpretive Principles...............................................................81
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Creation of Trust; Conveyance of Mortgage Loans...............................................82
SECTION 2.02. Acceptance of Trust Fund by Trustee...........................................................84
SECTION 2.03. Repurchase of Mortgage Loans for Document Defects and Breaches of Representations and
Warranties..................................................................................86
SECTION 2.04. Representations, Warranties and Covenants of the Depositor....................................88
SECTION 2.05. Acceptance of Grantor Trust Assets by Trustee; Issuance of the Class V Certificates...........90
SECTION 2.06. Execution, Authentication and Delivery of Class R-LR Certificates; Creation of Loan
REMIC Regular Interests.....................................................................91
SECTION 2.07. Conveyance of Loan REMIC Regular Interests; Acceptance of the Loan REMICs by Trustee..........91
SECTION 2.08. Execution, Authentication and Delivery of Class R-I Certificates; Creation of REMIC I
Regular Interests...........................................................................91
SECTION 2.09. Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by Trustee....................92
SECTION 2.10. Execution, Authentication and Delivery of Class R-II Certificates; Creation of REMIC
II Regular Interests........................................................................92
SECTION 2.11. Conveyance of REMIC II Regular Interests; Acceptance of REMIC III by Trustee..................92
SECTION 2.12. Execution, Authentication and Delivery of REMIC III Certificates..............................92
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Loans...................................................................94
SECTION 3.02. Collection of Loan Payments...................................................................96
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts; Reserve
Accounts....................................................................................99
-i-
SECTION 3.04. Pool Custodial Account, Defeasance Deposit Account, Collection Account, Interest
Reserve Account and Excess Liquidation Proceeds Account....................................100
SECTION 3.04A. _______________ Custodial Account............................................................104
SECTION 3.05. Permitted Withdrawals From the Pool Custodial Account, the Collection Account, the
Interest Reserve Account and the Excess Liquidation Proceeds Account.......................106
SECTION 3.05A. Permitted Withdrawals From the _______________ Custodial Account.............................111
SECTION 3.06. Investment of Funds in the Servicing Accounts, the Reserve Accounts, the Defeasance
Deposit Account, the Custodial Accounts and the REO Accounts...............................115
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage;
Environmental Insurance....................................................................117
SECTION 3.08. Enforcement of Alienation Clauses............................................................121
SECTION 3.09. Realization Upon Defaulted Loans; Required Appraisals; Appraisal Reduction Calculation.......123
SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage Files................................128
SECTION 3.11. Servicing Compensation; Payment of Expenses; Certain Matters Regarding Servicing
Advances...................................................................................129
SECTION 3.12. Property Inspections; Collection of Financial Statements; Delivery of Certain Reports........135
SECTION 3.12A. Delivery of Certain Reports to the _______________ Companion Loan Noteholder.................137
SECTION 3.12B. Statements to the _______________ Companion Loan Noteholder..................................138
SECTION 3.13. Annual Statement as to Compliance............................................................139
SECTION 3.14. Reports by Independent Public Accountants....................................................139
SECTION 3.15. Access to Certain Information................................................................140
SECTION 3.16. Title to REO Property; REO Accounts..........................................................141
SECTION 3.17. Management of REO Property...................................................................143
SECTION 3.17A. Management and Disposition of the _______________ Mortgaged Property After Becoming
REO Property...............................................................................146
SECTION 3.18. Sale of Mortgage Loans and REO Properties....................................................149
SECTION 3.19. Additional Obligations of the Master Servicer; Obligations to Notify Ground Lessors;
the Special Servicer's Right to Request the Master Servicer to Make Servicing
Advances...................................................................................153
SECTION 3.20. Modifications, Waivers, Amendments and Consents; Defeasance..................................154
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special Servicer; Record Keeping...........160
SECTION 3.22. Sub-Servicing Agreements.....................................................................161
SECTION 3.23. Representations and Warranties of the Master Servicer........................................164
SECTION 3.24. Representations and Warranties of the Special Servicer.......................................165
SECTION 3.25. Certain Matters Regarding the Purchase of the _______________ Mortgage Loan..................167
SECTION 3.26. Application of Default Charges...............................................................167
-ii-
PAGE
----
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions................................................................................170
SECTION 4.02. Statements to Certificateholders; CMSA Loan Periodic Update File.............................185
SECTION 4.03. P&I Advances.................................................................................193
XXXXXXX 0.00X. X&X Advances on the _______________ Loan Pair................................................195
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund Expenses.............................198
SECTION 4.05. Calculations.................................................................................200
SECTION 4.06. Use of Agents................................................................................200
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.............................................................................201
SECTION 5.02. Registration of Transfer and Exchange of Certificates........................................201
SECTION 5.03. Book-Entry Certificates......................................................................209
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates............................................210
SECTION 5.05. Persons Deemed Owners........................................................................211
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE
CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and Special Servicer.................................212
SECTION 6.02. Continued Qualification and Compliance of Master Servicer; Merger, Consolidation or
Conversion of Depositor, Master Servicer or Special Servicer...............................212
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer and Special Servicer...................212
SECTION 6.04. Resignation of Master Servicer and the Special Servicer......................................214
SECTION 6.05. Rights of Depositor, Trustee and the _______________ Companion Loan Noteholder in
Respect of the Master Servicer and the Special Servicer....................................214
SECTION 6.06. Depositor, Master Servicer and Special Servicer to Cooperate with Trustee....................215
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate with Master Servicer....................215
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate with Special Servicer....................215
SECTION 6.09. Designation of Special Servicer and Controlling Class Representative by the
Controlling Class..........................................................................215
SECTION 6.10. Master Servicer or Special Servicer as Owner of a Certificate................................217
-iii-
PAGE
----
SECTION 6.11. Certain Powers of the Controlling Class Representative.......................................217
SECTION 6.11A. Certain Powers of the _______________ Companion Loan Noteholder..............................221
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default............................................................................224
SECTION 7.02. Trustee to Act; Appointment of Successor.....................................................229
SECTION 7.03. Notification to Certificateholders...........................................................230
SECTION 7.04. Waiver of Events of Default..................................................................230
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.........................................231
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee............................................................................233
SECTION 8.02. Certain Matters Affecting Trustee............................................................234
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity or Sufficiency of Certificates or
Loans......................................................................................235
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates................................................235
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and by Trustee..............................235
SECTION 8.06. Eligibility Requirements for Trustee.........................................................236
SECTION 8.07. Resignation and Removal of Trustee...........................................................237
SECTION 8.08. Successor Trustee............................................................................238
SECTION 8.09. Merger or Consolidation of Trustee and Fiscal Agent..........................................239
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee................................................239
SECTION 8.11. Appointment of Custodians....................................................................240
SECTION 8.12. Appointment of Authenticating Agents.........................................................240
SECTION 8.13. Appointment of Tax Administrators............................................................241
SECTION 8.14. Access to Certain Information................................................................242
SECTION 8.15. Reports to the Securities and Exchange Commission and Related Reports........................244
SECTION 8.16. Representations and Warranties of Trustee....................................................246
SECTION 8.17. The Fiscal Agent.............................................................................247
SECTION 8.18. Representations and Warranties of Fiscal Agent...............................................248
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage Loans.............................250
SECTION 9.02. Additional Termination Requirements..........................................................258
SECTION 9.03. _______________ Mortgage Loan................................................................259
-iv-
PAGE
----
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration.........................................................................260
SECTION 10.02. Grantor Trust Administration.................................................................263
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment....................................................................................266
SECTION 11.02. Recordation of Agreement; Counterparts.......................................................268
SECTION 11.03. Limitation on Rights of Certificateholders and the _______________ Companion Loan
Noteholder.................................................................................268
SECTION 11.04. Governing Law; Consent to Jurisdiction.......................................................269
SECTION 11.05. Notices......................................................................................269
SECTION 11.06. Severability of Provisions...................................................................270
SECTION 11.07. Grant of a Security Interest.................................................................270
SECTION 11.08. Xxxxxx Act...................................................................................270
SECTION 11.09. Successors and Assigns; Beneficiaries........................................................271
SECTION 11.10. Article and Section Headings.................................................................271
SECTION 11.11. Notices to Rating Agencies...................................................................271
SECTION 11.12. Global Opinions..............................................................................272
SECTION 11.13. Complete Agreement...........................................................................273
-v-
SCHEDULES AND EXHIBITS
Schedule No. Schedule Description
------------ --------------------
I Mortgage Loan Schedule
II Schedule of Exceptions to Mortgage File Delivery
III Exceptions to the Representations and Warranties of the Depositor
IV Loan REMIC Mortgage Loans
V Environmentally Insured Mortgage Loans
VI Reference Rate Schedule
Exhibit No. Exhibit Description
----------- -------------------
A-1 Form of Class [A-1] [A-2] [A-3] [A-4] Certificate
A-2 Form of Class [X-CL] [X-CP] [X-______] Certificate
A-3 Form of Class [B] [C] [D] [E] [F] [G] Certificate
A-4 Form of Class [H] [J] [K] [L] [M] [N]Certificate
A-5 Form of Class [P] [Q] [S] [T] [U] Certificate
A-6 Form of Class [R-I] [R-II] [R-III] [R-LR] Certificate
A-7 Form of Class V Certificate
B Form of Distribution Date Statement
C Form of Custodial Certification
D-1 Form of Master Servicer Request for Release
D-2 Form of Special Servicer Request for Release
E Form of Loan Payoff Notification Report
F-1 Form of Transferor Certificate for Transfers of Definitive Non-
Registered Certificates
F-2A Form I of Transferee Certificate for Transfers of Definitive Non-
Registered Certificates
F-2B Form II of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2C Form of Transferee Certificate for Transfers of Interests in Rule
144A Global Certificates
F-2D Form of Transferee Certificate for Transfers of Interests in
Regulation S Global Certificates
G-1 Form I of Transferee Certificate in Connection with ERISA
(Definitive Non-Registered Certificates)
G-2 Form II of Transferee Certificate in Connection with ERISA (Book-
Entry Non-Registered Certificates)
H-1 Form of Transfer Affidavit and Agreement regarding Residual
Interest Certificates
H-2 Form of Transferor Certificate regarding Residual Interest
Certificates
I-1 Form of Notice and Acknowledgment
I-2 Form of Acknowledgment of Proposed Special Servicer
J Form of UCC-1 Financing Statement Schedule
K Sub-Servicers in respect of which Sub-Servicing Agreements are in
effect or being negotiated as of the Closing Date
L-1 Form of Information Request/Investor Certification for Website
Access from Certificate Owner
L-2 Form of Information Request/Investor Certification for Website
Access from Prospective Investor
M Form of Defeasance Certification
-vi-
This Pooling and Servicing Agreement (this "Agreement") is
dated and effective as of _________, _____, among STRUCTURED ASSET SECURITIES
CORPORATION II, as Depositor, __________________________, as Master Servicer,
__________________________, as Special Servicer, __________________________, as
Trustee, and __________________________, as Fiscal Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell the Certificates, which are to
be issued hereunder in multiple Classes and which in the aggregate will evidence
the entire beneficial ownership interest in the Trust Fund.
As provided herein, the Trustee will elect to treat each Loan
REMIC Mortgage Loan as the primary asset of a separate REMIC for federal income
tax purposes, and each such REMIC will be designated as a "Loan REMIC". The
Class R-LR Certificates will represent the sole class of "residual interests" in
each and every Loan REMIC for purposes of the REMIC Provisions under federal
income tax law. Each Loan REMIC Regular Interest will relate to the
corresponding Loan REMIC Mortgage Loan. Each Loan REMIC Regular Interest will:
(i) accrue interest at the related per annum rate described in the definition of
"Loan REMIC Remittance Rate"; and (ii) have an initial Uncertificated Principal
Balance equal to the Cut-off Date Balance of the related Loan REMIC Mortgage
Loan. The Legal Final Distribution Date of each Loan REMIC Regular Interest is
the Distribution Date immediately following the third anniversary of the end of
the remaining amortization term (as determined as of the Closing Date) of the
related Loan REMIC Mortgage Loan. The Loan REMIC Regular Interests will not be
certificated.
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the Mortgage Loans (exclusive of the
Loan REMIC Mortgage Loans and exclusive of any collections of Additional
Interest on the ARD Mortgage Loans after their respective Anticipated Repayment
Dates), the Loan REMIC Regular Interests and certain other related assets
subject to this Agreement as a REMIC for federal income tax purposes, and such
segregated pool of assets will be designated as "REMIC I". The Class R-I
Certificates will represent the sole class of "residual interests" in REMIC I
for purposes of the REMIC Provisions under federal income tax law. A separate
REMIC I Regular Interest will, on the Closing Date, be issued with respect to,
and will thereafter relate to, each Mortgage Loan in REMIC I (other than the
_______________ Mortgage Loan [and the _______________ Mortgage Loan]) and each
Loan REMIC Regular Interest. Each REMIC I Regular Interest shall bear a numeric
designation that is the same as the Mortgage Loan number for the related
Mortgage Loan set forth on the Mortgage Loan Schedule. [Two separate REMIC I
Regular Interests will, on the Closing Date, be issued with respect to, and will
thereafter relate to, the _______________ Mortgage Loan, and such REMIC I
Regular Interests will bear the alphanumeric designations "______-1" and
"______-2", respectively;] and [two separate REMIC I Regular Interests will, on
the Closing Date, be issued with respect to, and will thereafter relate to, the
_______________ Mortgage Loan, and such REMIC I Regular Interests will bear the
alphanumeric designations "______-1" and "______-2", respectively]. [Each of the
_______________ Mortgage Loan and the _______________ Mortgage Loan consist of
multiple Loan Components; and, in the case of each such Mortgage Loan, each of
the related REMIC I Regular Interests corresponds to a separate Loan Component
of such Mortgage Loan. With respect to the _______________ Mortgage Loan, REMIC
I Regular Interest ______-1 will relate to that portion of the _______________
Mortgage Loan that consists of and is defined as "Component A-1" in the related
loan agreement, and REMIC I Regular Interest ______-2 will relate to that
portion of the _______________ Mortgage Loan that consists of and is defined as
"Component A-2" in the related loan agreement; and, with respect to the
_______________ Mortgage Loan, REMIC I Regular Interest ______-1 will relate to
that portion of the _______________ Mortgage Loan that consists of and is
defined as "Component A-1" in the related loan agreement, and REMIC I Regular
Interest ______-2 will relate to that portion of the _______________ Mortgage
Loan that consists of and is defined as "Component A-2" in the related loan
agreement. Each REMIC I Regular Interest will (i) accrue interest at a per annum
rate described in the definition of "REMIC I Remittance Rate", and (ii) have an
initial Uncertificated Principal Balance equal to: $_______________________, in
the case of REMIC I Regular Interest ______-1; $________________, in the case of
REMIC I Regular Interest ______-2; $________________, in the case of REMIC I
Regular Interest ______-2; $________________, and in the case of REMIC I Regular
Interest ______-2; $________________. The Legal Final Distribution Date of each
of the REMIC I Regular Interests is the Distribution Date immediately following
the third anniversary of the end of the remaining amortization term (as
determined as of the Closing Date) of the related Mortgage Loan. None of the
REMIC I Regular Interests will be certificated.]
-2-
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the REMIC I Regular Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II". The Class R-II Certificates will represent the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. The following table sets forth the designation,
the REMIC II Remittance Rate and the initial Uncertificated Principal Balance
for each of the REMIC II Regular Interests. The Legal Final Distribution Date
for each REMIC II Regular Interest is the latest Rated Final Distribution Date.
None of the REMIC II Regular Interests will be certificated.
Initial
REMIC II Uncertificated
Designation Remittance Rate Principal Balance
----------- --------------- -----------------
A-1 Variable (1) $
A-2-1 Variable (1) $
A-2-2 Variable (1) $
A-2-3 Variable (1) $
A-3-1 Variable (1) $
A-3-2 Variable (1) $
A-3-3 Variable (1) $
A-4-1 Variable (1) $
A-4-2 Variable (1) $
B Variable (1) $
C Variable (1) $
D Variable (1) $
E Variable (1) $
F-1 Variable (1) $
F-2 Variable (1) $
F-3 Variable (1) $
G-1 Variable (1) $
G-2 Variable (1) $
H-1 Variable (1) $
H-2 Variable (1) $
J-1 Variable (1) $
J-2 Variable (1) $
K Variable (1) $
L Variable (1) $
M Variable (1) $
N Variable (1) $
P Variable (1) $
Q Variable (1) $
S Variable (1) $
T Variable (1) $
U Variable (1) $
X-______ ____% per annum (2)
--------------------
-3-
(1) The REMIC II Remittance Rate for each REMIC II Regular
Interest (other than REMIC II Regular Interest X-______) shall
be a variable rate per annum calculated in accordance with the
definition of "REMIC II Remittance Rate".
(2) REMIC II Regular Interest X-______ will not have an
Uncertificated Principal Balance and will not entitle REMIC
III as the holder thereof to any deemed distributions of
principal. As more specifically provided herein, interest in
respect of REMIC II Regular Interest X-______ will be
calculated based on its fixed REMIC II Remittance Rate and an
Uncertificated Notional Amount equal to the aggregate
Uncertificated Principal Balance of the two REMIC I Regular
Interests that relate to the _______________ Mortgage Loan.
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the REMIC II Regular Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as "REMIC III". The Class R-III Certificates will evidence the
sole class of "residual interests" in REMIC III for purposes of the REMIC
Provisions under federal income tax law. The following table irrevocably sets
forth the Class designation, Pass-Through Rate and original Class Principal
Balance for each Class of the Regular Interest Certificates. For federal income
tax purposes, each Class of the Regular Interest Certificates (exclusive of the
Class X-CL and Class X-CP Certificates), each of the ___ REMIC III Components of
the Class X-CL Certificates and each of the ___ REMIC III Components of the
Class X-CP Certificates will be designated as a separate "regular interest" in
REMIC III. The Legal Final Distribution Date for each Class of Regular Interest
Certificates (exclusive of the Class X-CL and Class X-CP Certificates), for each
of the ___ REMIC III Components of the Class X-CL Certificates and for each of
the ___ REMIC III Components of the Class X-CP Certificates is the latest Rated
Final Distribution Date.
-4-
Class Original Class
Designation Pass-Through Rate Principal Balance
----------- ----------------- -----------------
Class A-1 ____% per annum $
Class A-2 ____% per annum $
Class A-3 ____% per annum $
Class A-4 ____% per annum (1) $
Class B ____% per annum (1) $
Class C ____% per annum (1) $
Class D ____% per annum (1) $
Class E ____% per annum (1) $
Class F ____% per annum (1) $
Class G ____% per annum (1) $
Class H ____% per annum (1) $
Class J ____% per annum (1) $
Class K ____% per annum (1) $
Class L ____% per annum (1) $
Class M ____% per annum (1) $
Class N ____% per annum (1) $
Class P ____% per annum (1) $
Class Q ____% per annum (1) $
Class S ____% per annum (1) $
Class T ____% per annum (1) $
Class U ____% per annum (1) $
Class X-CL Variable (2) (3)
Class X-CP Variable (2) (4)
Class X-______ ____% per annum (5)
----------------------
(1) If the Weighted Average REMIC I Remittance Rate for any
Interest Accrual Period is ever less than the specified rate,
the Pass-Through Rate for the subject Class for such Interest
Accrual Period will equal such Weighted Average REMIC I
Remittance Rate.
(2) The respective Pass-Through Rates for the Class X-CL and Class
X-CP Certificates will, in the case of each of those Classes,
be a variable rate per annum calculated in accordance with the
definition of "Pass-Through Rate".
(3) The Class X-CL Certificates will not have a Class Principal
Balance and will not entitle their Holders to receive
distributions of principal. The Class X-CL Certificates will
have a Class Notional Amount which will be equal to the
aggregate of the Component Notional Amounts of such Class'
REMIC III Components from time to time. As more specifically
provided herein, interest in respect of such Class of
Certificates will consist of the aggregate amount of interest
accrued on the respective Component Notional Amounts of such
Class' REMIC III Components from time to time.
(4) The Class X-CP Certificates will not have a Class Principal
Balance and will not entitle their Holders to receive
distributions of principal. The Class X-CP Certificates will
have a Class Notional Amount which will be equal to the
aggregate of the Component Notional Amounts of such Class'
REMIC III Components from time to time. As more specifically
provided herein, interest in respect of such Class of
Certificates will consist of the aggregate amount of interest
accrued on the respective Component Notional Amounts of such
Class' REMIC III Components from time to time.
-5-
(5) The Class X-______ Certificates will not have a Class
Principal Balance and will not entitle their Holders to
receive distributions of principal. As more specifically
provided herein, interest in respect of the Class X-______
Certificates will be calculated based upon their fixed
Pass-Through Rate (which will be the same as the REMIC II
Remittance Rate for REMIC II Regular Interest X-______) and
their Class Notional Amount from time to time (which will be
the same as the Uncertificated Notional Amount of REMIC II
Regular Interest X-______ from time to time).
As provided herein, the Trustee shall take all actions
necessary to ensure that the portion of the Trust Fund consisting of the Grantor
Trust Assets maintains its status as a Grantor Trust under the Code.
The Initial Pool Balance will be $____________. The initial
aggregate Uncertificated Principal Balance of the REMIC I Regular Interests, the
initial aggregate Uncertificated Principal Balance of the REMIC II Regular
Interests and the initial aggregate Class Principal Balance of the respective
Classes of Regular Interest Certificates (other than the Class X-CL and Class
X-CP Certificates) will, in each case, be $______________.
There exists one Mortgage Loan, in the unpaid principal amount
of $_________ (the "_______________ Mortgage Loan"), which is part of a split
loan structure, and is secured by the same Mortgage that also secures the other
mortgage loan in that split loan structure (the "_______________ Companion Loan"
and, together with the _______________ Mortgage Loan, the "_______________ Loan
Pair"). The _______________ Companion Loan is not part of the Trust Fund but has
been separately securitized and is the sole asset that backs the _______________
Commercial Mortgage Trust, Commercial Mortgage Trust Pass-Through Certificates,
Series _________. The relative rights of the holder of the _______________
Mortgage Loan and the _______________ Companion Loan are set forth in a
Co-Lender Agreement dated as of ________________, _____ (the "_______________
Co-Lender Agreement"), between the holder of the Mortgage Note for the
_______________ Mortgage Loan and the holder of the mortgage note for the
_______________ Companion Loan. Pursuant to the _______________ Co-Lender
Agreement, the _______________ Loan Pair is to be serviced and administered in
accordance with this Agreement, by the Trustee, the Master Servicer and the
Special Servicer hereunder. The _______________ Companion Loan will be held as
of the Closing Date by __________________________, in its capacity as trustee
for the registered holders of the _______________ Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series _________ (in such capacity, the
"_______________ Trustee").
There exists another Mortgage Loan, in the unpaid principal
amount of $_________ (the "_______________ Mortgage Loan"), which is also part
of a split loan structure, and is secured by the same Mortgage that also secures
the other mortgage loan in that split loan structure (the "_______________
Non-Trust Loan" and, together with the _______________ Mortgage Loan, the
"_______________ Loan Pair"). The _______________ Non-Trust Loan is not part of
the Trust Fund but is included in another securitization (the "_______________
Other Securitization") and is the sole asset that backs the _______________
Commercial Mortgage Trust ____-__, Commercial Mortgage Trust Pass-Through
Certificates, Series ____-__. The relative rights of the holder of the
_______________ Mortgage Loan and the holder of the _______________ Non-Trust
Loan are set forth in an Intercreditor Agreement dated as of ____________, ____
(the "_______________ Intercreditor Agreement"), between the holder of the
Mortgage Note for the _______________ Mortgage Loan and the holder of the
mortgage note for the _______________ Non-Trust Loan. Pursuant to the
_______________ Intercreditor Agreement, the _______________ Loan Pair is to be
serviced and
-6-
administered in accordance with the Trust and Servicing Agreement dated as of
________________, ____ (the "_______________ Trust and Servicing Agreement"),
among Structured Asset Securities Corporation II as depositor,
[__________________________] as master servicer, __________________________ as
special servicer, __________________________ as trustee (in such capacity, the
"_______________ Trustee") and _____________ as fiscal agent.
Accordingly, as and to the extent provided herein, (i) the
_______________ Companion Loan, although not part of the Trust Fund, will be
serviced and administered in accordance with this Agreement, by the Master
Servicer and Special Servicer hereunder and (ii) the _______________ Mortgage
Loan, although part of the Trust Fund, will be serviced and administered in
accordance with the _______________ Trust and Servicing Agreement, by the
_______________ Master Servicer and the _______________ Special Servicer.
Capitalized terms used but not otherwise defined in this
Preliminary Statement have the respective meanings assigned thereto in Section
1.01 of this Agreement.
In consideration of the mutual agreements herein contained,
the Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Fiscal Agent hereby agree, in each case, as follows:
-7-
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, unless the context otherwise requires:
"30/360 Basis" shall mean the accrual of interest calculated
on the basis of a 360-day year consisting of twelve 30-day months.
"_______________ Intercreditor Agreement" shall have the
meaning assigned thereto in the Preliminary Statement.
["_______________ Interim Servicing Agreement" shall mean the
letter agreement, dated as of _______________________, ____, which references
the form trust and servicing agreement attached thereto as an exhibit.]
"_______________ Loan Pair" shall have the meaning assigned
thereto in the Preliminary Statement, together with any successor REO Loans.
"_______________ Master Servicer" shall mean the master
servicer under the _______________ Servicing Agreement.
"_______________ Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement, which mortgage loan is identified
on the Mortgage Loan Schedule as mortgage loan number __ and is, together with
the _______________ Non-Trust Loan, secured by a Mortgage on the _______________
Mortgaged Property.
"_______________ Mortgaged Property" shall mean the property
that is identified on the Mortgage Loan Schedule as the _______________.
"_______________ Non-Trust Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"_______________ Non-Trust Loan Noteholder" shall mean the
holder of the mortgage note for the _______________ Non-Trust Loan.
"_______________ Noteholders" shall mean, collectively, the
holder of the Mortgage Note for the _______________ Mortgage Loan and the
_______________ Non-Trust Loan Noteholder.
"_______________ Other Securitization" shall have the meaning
assigned thereto in the Preliminary Statement.
"_______________ Trust and Servicing Agreement" shall have the
meaning assigned thereto in the Preliminary Statement.
-8-
"_______________ REO Property" shall mean the _______________
Mortgaged Property at such time that it becomes an "REO Property" under the
_______________ Servicing Agreement.
"_______________ Servicer" shall mean either the
_______________ Master Servicer or the _______________ Special Servicer, as
applicable.
"_______________ Servicing Agreement" shall mean either the
_______________ Trust and Servicing Agreement or [the _______________ Interim
Servicing Agreement, as applicable].
"_______________ Special Servicer" shall mean the special
servicer under the _______________ Servicing Agreement.
"_______________ Trustee" shall have the meaning assigned
thereto in the Preliminary Statement.
"_______________ Co-Lender Agreement" shall have the meaning
assigned thereto in the Preliminary Statement.
"_______________ Companion Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"_______________ Companion Loan Noteholder" shall mean the
holder of the Mortgage Note for the _______________ Companion Loan.
"_______________ Companion Loan Securities" shall mean, for so
long as the _______________ Mortgage Loan or a successor REO Mortgage Loan with
respect to the _______________ Mortgage Loan is part of the Mortgage Pool, any
class of securities backed by the _______________ Companion Loan.
"_______________ Custodial Account" shall mean the segregated
account or accounts created and maintained by the Master Servicer pursuant to
Section 3.04A on behalf of the _______________ Noteholders, which shall be
entitled "[NAME OF MASTER SERVICER], as Master Servicer, in trust for [NAMES OF
_______________ NOTEHOLDERS], as their interests may appear".
"_______________ Fiscal Agent" shall mean _____________, in
its capacity as fiscal agent under that certain Trust Agreement, dated as of
_________ __, ____, between SASCO as depositor, _________ as trustee and
_____________ as fiscal agent.
"_______________ Loan Pair" shall have the meaning assigned
thereto in the Preliminary Statement (and shall include any successor REO
Loans).
"_______________ Loan Pair Remittance Amount" shall mean, with
respect to any Master Servicer Remittance Date, an amount equal to: (a) the
aggregate amount of (i) all payments and other collections on or with respect to
the _______________ Loan Pair and the _______________ Mortgaged Property (if it
becomes an REO Property) that (A) were received as of the close of business on
the immediately preceding Determination Date and (B) are on deposit or are
required to be on deposit in the _______________ Custodial Account as of 12:00
noon (New York City time) on such Master
-9-
Servicer Remittance Date, including any such payments and other collections
transferred to the _______________ Custodial Account from the _______________
REO Account (if established), and (ii) any and all P&I Advances made with
respect to the _______________ Loan Pair that are available for remittance to
the Pool Custodial Account and the _______________ Companion Loan Noteholder on
such Master Servicer Remittance Date; net of (b) the portion of the aggregate
amount described in clause (a) of this definition that represents one or more of
the following--(i) Monthly Payments that are due on a Due Date following the end
of the related Collection Period, (ii) any amount payable or reimbursable to any
Person from the _______________ Custodial Account pursuant to clauses (ii)
through (xiii) of Section 3.05A, and (iii) any amounts deposited in the
_______________ Custodial Account in error.
"_______________ Mortgaged Property" shall mean the retail
property identified on the Mortgage Loan Schedule as the _______________.
"_______________ Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement, which mortgage loan is identified
on the Mortgage Loan Schedule by mortgage loan number _____, and is, together
with the _______________ Companion Loan, secured by a Mortgage on the
_______________ Mortgaged Property.
"_______________ Noteholders" shall mean, collectively, the
holder of the Mortgage Note for the _______________ Mortgage Loan and the
_______________ Companion Loan Noteholder.
"_______________ REO Account" shall mean the segregated
account or accounts created and maintained by the Special Servicer pursuant to
Section 3.16 on behalf of the _______________ Noteholders, which shall be
entitled "[NAME OF SPECIAL SERVICER], as Special Servicer, in trust for [NAMES
OF _______________ NOTEHOLDERS], as their interests may appear".
"_______________ REO Property" shall mean the _______________
Mortgaged Property, if such Mortgaged Property becomes an REO Property
hereunder.
"_______________ Reserve Account" shall have the meaning
assigned thereto in Section 3.03(d).
"_______________ Servicing Account" shall have the meaning
assigned thereto in Section 3.03(a).
"_______________ Trustee" shall have the meaning assigned thereto in the
Preliminary Statement.
"Acceptable Insurance Default" shall mean, with respect to any
Mortgage Loan, any default under the related loan documents resulting from (a)
the exclusion of acts of terrorism from coverage under the related all risk
casualty insurance policy maintained on the subject Mortgaged Property and (b)
the related Mortgagor's failure to obtain insurance that specifically covers
acts of terrorism, but only if the Special Servicer has determined, in its
reasonable judgment, that (i) such insurance is not available at commercially
reasonable rates and the subject hazards are not commonly insured against by
prudent owners of similar real properties in similar locales (but only by
reference to such insurance that has been obtained by such owners at current
market rates), or (ii) such insurance is
-10-
not available at any rate. Subject to the Servicing Standard, in making any of
the determinations required in subclause (i) or (ii) of this definition, the
Special Servicer shall be entitled to rely on the opinion of an insurance
consultant.
"Accrued Certificate Interest" shall mean the interest accrued
from time to time with respect to any Class of Regular Interest Certificates,
the amount of which interest shall equal: (a) in the case of any Class of
Principal Balance Certificates for any Interest Accrual Period, one-twelfth of
the product of (i) the Pass-Through Rate applicable to such Class of
Certificates for such Interest Accrual Period, multiplied by (ii) the Class
Principal Balance of such Class of Certificates outstanding immediately prior to
the related Distribution Date; (b) in the case of the Class X-______
Certificates for any Interest Accrual Period, one-twelfth of the product of (i)
the Pass-Through Rate applicable to such Class of Certificates for such Interest
Accrual Period, multiplied by (ii) the Class Notional Amount of such Class of
Certificates outstanding immediately prior to the related Distribution Date; and
(c) in the case of each other Class of Interest Only Certificates for any
Interest Accrual Period, the aggregate amount of Accrued Component Interest for
all of such Class' REMIC III Components for such Interest Accrual Period. The
Accrued Certificate Interest with respect to the Class X-______ Certificates for
any Interest Accrual Period will equal 100% of the Uncertificated Accrued
Interest with respect to REMIC II Regular Interest X-______ for such Interest
Accrual Period.
"Accrued Component Interest" shall mean the interest accrued
from time to time with respect to any REMIC III Component of the Class X-CP
Certificates or the Class X-CL Certificates, the amount of which interest shall
equal, for any Interest Accrual Period, one-twelfth of the product of (i) the
Pass-Through Rate applicable to such REMIC III Component for such Interest
Accrual Period, multiplied by (ii) the Component Notional Amount of such REMIC
III Component outstanding immediately prior to the related Distribution Date.
"Acquisition Date" shall mean, with respect to any REO
Property, the first day on which such REO Property is considered to be acquired
by (or, in the case of the _______________ Mortgaged Property, for the benefit
of) the Trust Fund within the meaning of Treasury regulations section
1.856-6(b)(1), which shall be the first day on which the Trust Fund is treated
as the owner of such REO Property for federal income tax purposes.
"Actual/360 Basis" shall mean the accrual of interest
calculated on the basis of the actual number of days elapsed during any interest
accrual period in a year assumed to consist of 360 days.
"Additional Information" shall have the meaning assigned
thereto in Section 4.02(a).
"Additional Interest" shall mean, with respect to any ARD Loan
after its Anticipated Repayment Date, all interest accrued on the principal
balance of such ARD Loan at the Additional Interest Rate and, if so provided in
the related loan documents, compounded at the related Mortgage Rate (the payment
of which interest shall, under the terms of such ARD Loan, be deferred until the
entire outstanding principal balance thereof has been paid). For purposes of
this Agreement, Additional Interest on an ARD Loan or any successor REO Loan
with respect thereto shall be deemed not to constitute principal or any portion
thereof and shall not be added to the unpaid principal balance or Stated
Principal Balance of such ARD Loan or any successor REO Loan with respect
thereto, notwithstanding that the terms of the related loan documents so permit.
To the extent that any Additional Interest is not paid on a current basis, it
shall, for purposes of this Agreement, be deemed to
-11-
be deferred interest (regardless of whether it is added to principal outstanding
with respect to the related ARD Loan in accordance with the related loan
documents).
"Additional Interest Rate" shall mean, with respect to any ARD
Loan after its Anticipated Repayment Date, the incremental increase in the
Mortgage Rate for such loan resulting from the passage of such Anticipated
Repayment Date.
"Additional Trust Fund Expense" shall mean any expense
incurred with respect to the Trust Fund and not otherwise included in the
calculation of a Realized Loss that would result in the Holders of Regular
Interest Certificates receiving less than the full amount of principal and/or
Distributable Certificate Interest to which they are entitled on any
Distribution Date.
"Adjusted Actual/360 Accrued Interest Amount" shall mean:
(1) [with respect to either of REMIC I Regular Interest
______-1 and REMIC I Regular Interest ______-2, respectively, for any
Interest Accrual Period, an amount of interest equal to the product of
(a) the ["Applicable Interest Rate"] (within the meaning of the related
loan documents) in effect for the corresponding Loan Component of the
related Mortgage Loan as of the Closing Date (without regard to any
modifications, extensions, waivers or amendments of such Mortgage Loan
subsequent to the Closing Date), multiplied by (b) a fraction, the
numerator of which is the number of days in such Interest Accrual
Period, and the denominator of which is 360, multiplied by (c) the
Uncertificated Principal Balance of such REMIC I Regular Interest
immediately prior to the Distribution Date that corresponds to such
Interest Accrual Period];
(2) [With respect to any of REMIC I Regular Interest ______-1
and REMIC I Regular Interest ______-2, for any Interest Accrual Period,
an amount of interest equal to the product of (a) a rate per annum
equal to the ["Initial Interest Rate"] (within the meaning of the
related loan documents) in effect for the corresponding Loan Component
of the _______________ Mortgage Loan as of the Closing Date (without
regard to any modifications, extensions, waivers or amendments of such
Mortgage Loan subsequent to the Closing Date), less __ basis points,
multiplied by (b) a fraction, the numerator of which is the number of
days in such Interest Accrual Period, and the denominator of which is
360, multiplied by (c) the Uncertificated Principal Balance of such
REMIC I Regular Interest immediately prior to the Distribution Date
that corresponds to such Interest Accrual Period]; and
(3) with respect to any other REMIC I Regular Interest, for
any Interest Accrual Period, an amount of interest equal to the product
of (a) the Mortgage Rate in effect for such Mortgage Loan as of the
Closing Date (without regard to any modifications, extensions, waivers
or amendments of such Mortgage Loan subsequent to the Closing Date),
multiplied by (b) a fraction, the numerator of which is the number of
days in such Interest Accrual Period, and the denominator of which is
360, multiplied by (c) the Uncertificated Principal Balance of such
REMIC I Regular Interest immediately prior to the Distribution Date
that corresponds to such Interest Accrual Period;
provided that, if the subject Interest Accrual Period begins during (x) December
of ____ or December of any year thereafter that does not immediately precede a
leap year or (y) January of ___ or January of any year thereafter, then the
amount of interest calculated with respect to any particular REMIC I Regular
-12-
Interest pursuant to any of clauses (1) through (3), as applicable, of this
definition for such Interest Accrual Period without regard to this proviso shall
be decreased by the Interest Reserve Amount, if any, with respect to the related
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) [(or, in
the case of each of REMIC I Regular Interest ______-1, REMIC I Regular Interest
______-1 and REMIC I Regular Interest ______-2, the portion of such Interest
Reserve Amount allocable to the corresponding Loan Component of the related
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto))]
transferred, in accordance with Section 3.04(c), from the Collection Account to
the Interest Reserve Account in the calendar month in which such Interest
Accrual Period ends; and provided, further, that, if the subject Interest
Accrual Period begins during February of ___ or February of any year thereafter,
then the amount calculated with respect to any particular REMIC I Regular
Interest pursuant to any of clauses (1) through (3), as applicable, of this
definition for such Interest Accrual Period without regard to this proviso shall
be increased by the Interest Reserve Amount(s), if any, with respect to the
related Mortgage Loan (or any successor REO Mortgage Loan with respect thereto)
[(or, in the case of each of REMIC I Regular Interest ______-1, REMIC I Regular
Interest ______-2, REMIC I Regular Interest ______-1 and REMIC I Regular
Interest ______-2, the portion of such Interest Reserve Amount(s) allocable to
the corresponding Loan Component of the related Mortgage Loan (or any successor
REO Mortgage Loan with respect thereto))] transferred, in accordance with
Section 3.05(c), from the Interest Reserve Account to the Collection Account in
the calendar month in which such Interest Accrual Period ends.
"Adjusted REMIC II Remittance Rate" shall mean:
(a) with respect to REMIC II Regular Interest A-1, for any
Interest Accrual Period, ____% per annum;
(b) with respect to REMIC II Regular Interest A-2-1, for any
Interest Accrual Period, ____% per annum;
(c) with respect to REMIC II Regular Interest A-2-2, (i) for
any Interest Accrual Period from and including the Interest Accrual
Period ending in __________ ____ through and including the Interest
Accrual Period ending in __________ 2005, an annual rate equal to the
greater of (A) ____% per annum and (B) the Reference Rate for such
Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in ________ 2005,
____% per annum;
(d) with respect to REMIC II Regular Interest A-2-3, (i) for
any Interest Accrual Period from and including the Interest Accrual
Period ending in __________ ____ through and including the Interest
Accrual Period ending in __________ 2006, an annual rate equal to the
greater of (A) ____% per annum and (B) the Reference Rate for such
Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in ________ 2006,
____% per annum;
(e) with respect to REMIC II Regular Interest A-3-1, (i) for
any Interest Accrual Period from and including the Interest Accrual
Period ending in __________ ____ through and including the Interest
Accrual Period ending in __________ 2006, an annual rate equal to the
greater of (A) ____% per annum and (B) the Reference Rate for such
Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in ________ 2006,
____% per annum;
-13-
(f) with respect to REMIC II Regular Interest A-3-2, (i) for
any Interest Accrual Period from and including the Interest Accrual
Period ending in __________ ____ through and including the Interest
Accrual Period ending in __________ 2007, an annual rate equal to the
greater of (A) ____% per annum and (B) the Reference Rate for such
Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in ________ 2007,
____% per annum;
(g) with respect to REMIC II Regular Interest A-3-3, (i) for
any Interest Accrual Period from and including the Interest Accrual
Period ending in __________ ____ through and including the Interest
Accrual Period ending in __________ 2008, an annual rate equal to the
greater of (A) ____% per annum and (B) the Reference Rate for such
Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in ________ 2008,
____% per annum;
(h) with respect to REMIC II Regular Interest A-4-1, (i) for
any Interest Accrual Period from and including the Interest Accrual
Period ending in __________ ____ through and including the Interest
Accrual Period ending in __________ 2008, an annual rate (in no event
in excess of the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period) equal to the greater of (A) ____% per annum
and (B) the Reference Rate for such Interest Accrual Period, and (ii)
for any Interest Accrual Period subsequent to the Interest Accrual
Period ending in ________ 2008, an annual rate equal to the lesser of
(X) ____% per annum and (Y) the Weighted Average REMIC I Remittance
Rate for such Interest Accrual Period;
(i) with respect to REMIC II Regular Interest A-4-2, (i) for
any Interest Accrual Period from and including the Interest Accrual
Period ending in __________ ____ through and including the Interest
Accrual Period ending in __________ 2009, an annual rate (in no event
in excess of the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period) equal to the greater of (A) ____% per annum
and (B) the Reference Rate for such Interest Accrual Period, and (ii)
for any Interest Accrual Period subsequent to the Interest Accrual
Period ending in ________ 2009, an annual rate equal to the lesser of
(X) ____% per annum and (Y) the Weighted Average REMIC I Remittance
Rate for such Interest Accrual Period;
(j) with respect to REMIC II Regular Interest B, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in __________ ____ through and including the Interest Accrual
Period ending in __________ 2009, an annual rate (in no event in excess
of the Weighted Average REMIC I Remittance Rate for such Interest
Accrual Period) equal to the greater of (A) ____% per annum and (B) the
Reference Rate for such Interest Accrual Period, and (ii) for any
Interest Accrual Period subsequent to the Interest Accrual Period
ending in ________ 2009, an annual rate equal to the lesser of (X)
____% per annum and (Y) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period;
(k) with respect to REMIC II Regular Interest C, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in __________ ____ through and including the Interest Accrual
Period ending in __________ 2009, an annual rate (in no event in excess
of the Weighted Average REMIC I Remittance Rate for such Interest
Accrual Period) equal to the greater of (A) ____% per annum and (B) the
Reference Rate for such Interest Accrual Period, and (ii) for any
Interest Accrual Period subsequent to the Interest Accrual Period
-14-
ending in ________ 2009, an annual rate equal to the lesser of (X)
____% per annum and (Y) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period;
(l) with respect to REMIC II Regular Interest D, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in __________ ____ through and including the Interest Accrual
Period ending in __________ 2009, an annual rate (in no event in excess
of the Weighted Average REMIC I Remittance Rate for such Interest
Accrual Period) equal to the greater of (A) ____% per annum and (B) the
Reference Rate for such Interest Accrual Period, and (ii) for any
Interest Accrual Period subsequent to the Interest Accrual Period
ending in ________ 2009, an annual rate equal to the lesser of (X)
____% per annum and (Y) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period;
(m) with respect to REMIC II Regular Interest E, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in __________ ____ through and including the Interest Accrual
Period ending in __________ 2009, an annual rate (in no event in excess
of the Weighted Average REMIC I Remittance Rate for such Interest
Accrual Period) equal to the greater of (A) ____% per annum and (B) the
Reference Rate for such Interest Accrual Period, and (ii) for any
Interest Accrual Period subsequent to the Interest Accrual Period
ending in ________ 2009, an annual rate equal to the lesser of (X)
____% per annum and (Y) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period;
(n) with respect to REMIC II Regular Interest F-1, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in __________ ____ through and including the Interest Accrual
Period ending in __________ 2007, an annual rate (in no event in excess
of the Weighted Average REMIC I Remittance Rate for such Interest
Accrual Period) equal to the greater of (A) ____% per annum and (B) the
Reference Rate for such Interest Accrual Period, and (ii) for any
Interest Accrual Period subsequent to the Interest Accrual Period
ending in ________ 2007, an annual rate equal to the lesser of (X)
____% per annum and (Y) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period;
(o) with respect to REMIC II Regular Interest F-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in __________ ____ through and including the Interest Accrual
Period ending in __________ 2008, an annual rate (in no event in excess
of the Weighted Average REMIC I Remittance Rate for such Interest
Accrual Period) equal to the greater of (A) ____% per annum and (B) the
Reference Rate for such Interest Accrual Period, and (ii) for any
Interest Accrual Period subsequent to the Interest Accrual Period
ending in ________ 2008, an annual rate equal to the lesser of (X)
____% per annum and (Y) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period;
(p) with respect to REMIC II Regular Interest F-3, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in __________ ____ through and including the Interest Accrual
Period ending in __________ 2009, an annual rate (in no event in excess
of the Weighted Average REMIC I Remittance Rate for such Interest
Accrual Period) equal to the greater of (A) ____% per annum and (B) the
Reference Rate for such Interest Accrual Period, and (ii) for any
Interest Accrual Period subsequent to the Interest Accrual Period
ending in ________ 2009, an annual rate equal to the lesser of (X)
____% per annum and (Y) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period;
-15-
(q) with respect to REMIC II Regular Interest G-1, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in __________ ____ through and including the Interest Accrual
Period ending in __________ 2006, an annual rate (in no event in excess
of the Weighted Average REMIC I Remittance Rate for such Interest
Accrual Period) equal to the greater of (A) ____% per annum and (B) the
Reference Rate for such Interest Accrual Period, and (ii) for any
Interest Accrual Period subsequent to the Interest Accrual Period
ending in ________ 2006, an annual rate equal to the lesser of (X)
____% per annum and (Y) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period;
(r) with respect to REMIC II Regular Interest G-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in __________ ____ through and including the Interest Accrual
Period ending in __________ 2007, an annual rate (in no event in excess
of the Weighted Average REMIC I Remittance Rate for such Interest
Accrual Period) equal to the greater of (A) ____% per annum and (B) the
Reference Rate for such Interest Accrual Period, and (ii) for any
Interest Accrual Period subsequent to the Interest Accrual Period
ending in ________ 2007, an annual rate equal to the lesser of (X)
____% per annum and (Y) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period;
(s) with respect to REMIC II Regular Interest H-1, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in __________ ____ through and including the Interest Accrual
Period ending in __________ 2005, an annual rate (in no event in excess
of the Weighted Average REMIC I Remittance Rate for such Interest
Accrual Period) equal to the greater of (A) ____% per annum and (B) the
Reference Rate for such Interest Accrual Period, and (ii) for any
Interest Accrual Period subsequent to the Interest Accrual Period
ending in ________ 2005, an annual rate equal to the lesser of (X)
____% per annum and (Y) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period;
(t) with respect to REMIC II Regular Interest H-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in __________ ____ through and including the Interest Accrual
Period ending in __________ 2006, an annual rate (in no event in excess
of the Weighted Average REMIC I Remittance Rate for such Interest
Accrual Period) equal to the greater of (A) ____% per annum and (B) the
Reference Rate for such Interest Accrual Period, and (ii) for any
Interest Accrual Period subsequent to the Interest Accrual Period
ending in ________ 2006, an annual rate equal to the lesser of (X)
____% per annum and (Y) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period;
(u) with respect to REMIC II Regular Interest J-1, for any
Interest Accrual Period, an annual rate equal to the lesser of (i)
____% per annum and (ii) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period;
(v) with respect to REMIC II Regular Interest J-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in __________ ____ through and including the Interest Accrual
Period ending in __________ 2005, an annual rate (in no event in excess
of the Weighted Average REMIC I Remittance Rate for such Interest
Accrual Period) equal to the greater of (A) ____% per annum and (B) the
Reference Rate for such Interest Accrual Period, and (ii) for any
Interest Accrual Period subsequent to the Interest Accrual Period
-16-
ending in ________ 2005, an annual rate equal to the lesser of (X)
____% per annum and (Y) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period;
(w) with respect to REMIC II Regular Interest K, for any
Interest Accrual Period, an annual rate equal to the lesser of (i)
____% per annum and (ii) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period; and
(x) with respect to each of REMIC II Regular Interest L, REMIC
II Regular Interest M, REMIC II Regular Interest N, REMIC II Regular
Interest P, REMIC II Regular Interest Q, REMIC II Regular Interest S,
REMIC II Regular Interest T and REMIC II Regular Interest U, for any
Interest Accrual Period, ____% per annum.
"Administered REO Property" shall mean any REO Property that
is, as contemplated by Section 3.01, to be administered by the Special Servicer
hereunder. Notwithstanding anything herein to the contrary, no _______________
REO Property shall constitute an Administered REO Property hereunder.
"Administrative Cost Rate" shall mean, with respect to each
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto), the
rate per annum specified as the "Administrative Cost Rate" on the Mortgage Loan
Schedule, which, for each such Mortgage Loan (or successor REO Mortgage Loan) is
equal to the sum of the related Master Servicing Fee Rate and the Trustee Fee
Rate.
"Advance" shall mean any P&I Advance or Servicing Advance.
"Adverse Grantor Trust Event" shall mean any endangerment to
the status of the Grantor Trust as a grantor trust under the Grantor Trust
Provisions or any imposition of a tax on the Grantor Trust or any of its assets
or transactions.
"Adverse Rating Event" shall mean, with respect to any Class
of Certificates or any class of _______________ Companion Loan Securities, as of
any date of determination, the qualification, downgrade or withdrawal of any
rating then assigned to such Class of Certificates or such class of
_______________ Companion Loan Securities by either Rating Agency.
"Adverse REMIC Event" shall mean, with respect to any REMIC
Pool, any endangerment of the status of such REMIC Pool as a REMIC under the
REMIC Provisions or, except as permitted by Section 3.17(a), any imposition of a
tax on such REMIC Pool or any of its assets or transactions (including the tax
on prohibited transactions as defined in Section 860F(a)(2) of the Code and the
tax on prohibited contributions set forth in Section 860G(d) of the Code).
"Affiliate" shall mean, with respect to any specified Person,
any other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control", when used with
respect to any specified Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
-17-
"Agreement" shall mean this Pooling and Servicing Agreement,
together with all amendments hereof and supplements hereto.
"Annual Accountants' Report" shall have the meaning assigned
thereto in Section 3.14
"Annual Performance Certification" shall have the meaning
assigned thereto in Section 3.13.
"Anticipated Repayment Date" shall mean, with respect to any
ARD Loan, the date specified in the related Mortgage Note after which the
Mortgage Rate for such ARD Loan will increase as specified in the related
Mortgage Note.
"Appraisal Reduction Amount" shall mean, with respect to any
Required Appraisal Loan, an amount (calculated initially as of the Determination
Date immediately following the later of the date on which the subject Mortgage
Loan or Loan Pair became a Required Appraisal Loan and the date on which the
applicable Required Appraisal was obtained) equal to the excess, if any, of: (a)
the sum of, without duplication, (i) the Stated Principal Balance of such
Required Appraisal Loan, (ii) to the extent not previously advanced by or on
behalf of the Master Servicer, the Trustee or the Fiscal Agent, all unpaid
interest on such Required Appraisal Loan through the most recent Due Date prior
to the date of calculation (exclusive of any portion thereof that represents
Additional Interest and/or Default Interest), (iii) all accrued and unpaid
Special Servicing Fees, Liquidation Fees and Workout Fees in respect of such
Required Appraisal Loan, (iv) all related unreimbursed Advances made by or on
behalf of (plus all accrued interest on such Advances payable to) the Master
Servicer, the Special Servicer, the Trustee and/or the Fiscal Agent with respect
to such Required Appraisal Loan, (v) any other unpaid Additional Trust Fund
Expenses in respect of such Required Appraisal Loan, and (vi) all currently due
and unpaid real estate taxes and assessments, insurance premiums and, if
applicable, ground rents, and any unfunded improvement or other applicable
reserves, in respect of the related Mortgaged Property or REO Property, as the
case may be (in each case, net of any amounts escrowed with the Master Servicer
or the Special Servicer for such items); over (b) the Required Appraisal Value.
Notwithstanding the foregoing, if (i) any Mortgage Loan or Loan Pair becomes a
Required Appraisal Loan, (ii) either (A) no Required Appraisal or update thereof
has been obtained or conducted, as applicable, in accordance with Section
3.09(a), with respect to the related Mortgaged Property during the 12-month
period prior to the date such Mortgage Loan or Loan Pair became a Required
Appraisal Loan or (B) there shall have occurred since the date of the most
recent Required Appraisal or update thereof a material change in the
circumstances surrounding the related Mortgaged Property that would, in the
Special Servicer's reasonable judgment, materially affect the value of the
related Mortgaged Property, and (iii) no new Required Appraisal is obtained or
conducted, as applicable, in accordance with Section 3.09(a), within 60 days
after such Mortgage Loan or Loan Pair became a Required Appraisal Loan, then (x)
until such new Required Appraisal is obtained or conducted, as applicable, in
accordance with Section 3.09(a), the Appraisal Reduction Amount shall equal 25%
of the Stated Principal Balance of such Required Appraisal Loan, and (y) upon
receipt or performance, as applicable, in accordance with Section 3.09(a), of
such Required Appraisal or update thereof by the Special Servicer, the Appraisal
Reduction Amount for such Required Appraisal Loan shall be recalculated in
accordance with the preceding sentence of this definition. For purposes of this
definition, each Required Appraisal Loan that is part of a Cross-Collateralized
Group shall be treated separately for the purposes of calculating any Appraisal
Reduction Amount.
-18-
"Appraised Value" shall mean, with respect to each Mortgaged
Property (other than the _______________ Mortgaged Property) or Administered REO
Property, the appraised value thereof based upon the most recent appraisal or
update thereof prepared by an Independent Appraiser that is contained in the
related Servicing File or, in the case of any such property with or that had, as
the case may be, an allocated loan amount of, or securing a Loan or relating to
an REO Loan, as the case may be, with a Stated Principal Balance of, less than
$2,000,000, either (a) the most recent appraisal or update thereof that is
contained in the related Servicing File or (b) the most recent "desktop" value
estimate performed by the Special Servicer that is contained in the related
Servicing File.
"ARD Loan" shall mean any Loan (or any successor REO Loan with
respect thereto) that provides that if the unamortized principal balance thereof
is not repaid on its Anticipated Repayment Date, such Loan (or successor REO
Loan) will accrue additional interest at the rate specified in the related
Mortgage Note and the related Mortgagor is required to apply certain excess
monthly cash flow generated by the related Mortgaged Property to the repayment
of the outstanding principal balance on such Loan.
"ARD Mortgage Loan" shall mean any Mortgage Loan that is an
ARD Loan.
"Assignment of Leases" shall mean, with respect to any
Mortgaged Property, any assignment of leases, rents and profits or similar
document or instrument executed by the Mortgagor in connection with the
origination of the related Loan.
"Assumed Monthly Payment" shall mean: (a) with respect to any
Balloon Mortgage Loan delinquent in respect of its Balloon Payment, for each Due
Date coinciding with or following its Stated Maturity Date as of which such
Mortgage Loan remains outstanding and part of the Trust Fund (provided that such
Mortgage Loan was not paid in full, and no other Liquidation Event occurred in
respect thereof, before the end of the Collection Period in which the related
Stated Maturity Date occurs), the scheduled monthly payment of principal and/or
interest deemed to be due in respect of such Mortgage Loan on such Due Date
equal to the amount that would have been due in respect thereof on such Due Date
if such Mortgage Loan had been required to continue to accrue interest (other
than Default Interest) in accordance with its terms, and to pay principal in
accordance with the amortization schedule (if any) in effect immediately prior
to, and without regard to the occurrence of, the related Stated Maturity Date;
(b) with respect to any REO Loan (other than an REO Loan related to the
_______________ Mortgage Loan), for any Due Date as of which the related REO
Property remains part of the Trust Fund, the scheduled monthly payment of
principal and/or interest deemed to be due in respect thereof on such Due Date
equal to the Monthly Payment (or, in the case of a Balloon Mortgage Loan
described in clause (a) of this definition, the Assumed Monthly Payment) that
was due (or deemed due) in respect of the related Loan on the last Due Date
prior to its becoming an REO Loan; and (c) with respect to the _______________
Mortgage Loan, the term "Assumed Monthly Payment" shall have the meaning
assigned thereto in the _______________ Servicing Agreement.
"ASTM" shall mean the American Society for Testing and
Materials.
"Authenticating Agent" shall mean any authenticating agent
appointed pursuant to Section 8.12 (or, in the absence of any such appointment,
the Trustee).
"Available Distribution Amount" shall mean, with respect to
any Distribution Date, an amount equal to: (a) the sum, without duplication, of
(i) the aggregate amount of all payments and other
-19-
collections on or with respect to the Mortgage Loans and any REO Properties
(including, in the case of the initial Distribution Date, the Initial Deposit)
that (A) were Received by the Trust as of the end of the related Collection
Period and (B) are on deposit in the Collection Account as of 12:00 noon (New
York City time) on such Distribution Date, (ii) the aggregate amount of any P&I
Advances made by the Master Servicer, the Trustee and/or the Fiscal Agent for
distribution on the Certificates on such Distribution Date pursuant to Section
4.03 and Section 4.03A, (iii) the aggregate amount deposited by the Master
Servicer in the Collection Account for such Distribution Date pursuant to
Section 3.19(a) in connection with Prepayment Interest Shortfalls, (iv) to the
extent not included in clause (a)(i) of this definition, the aggregate amount
transferred from the Excess Liquidation Proceeds Account to the Collection
Account pursuant to Section 3.05(d) in respect of such Distribution Date and (v)
to the extent not included in the amount described in clause (a)(i) of this
definition, if such Distribution Date occurs during March of ___ or March of any
year thereafter, the aggregate of the Interest Reserve Amounts transferred from
the Interest Reserve Account to the Collection Account in respect of the
Interest Reserve Mortgage Loans and any Interest Reserve REO Mortgage Loans for
distribution on such Distribution Date; net of (b) the portion of the aggregate
amount described in clause (a) of this definition that represents one or more of
the following--(i) Monthly Payments that are due on a Due Date following the end
of the related Collection Period, (ii) any amounts payable or reimbursable to
any Person from the Collection Account pursuant to clauses (ii) through (viii)
of Section 3.05(b), (iii) (A) Prepayment Premiums, Yield Maintenance Charges
and/or Additional Interest, and/or (B) any yield maintenance payment made by the
__ Mortgage Loan Seller in connection with a repurchase of a Loan REMIC Mortgage
Loan as contemplated by Section 2.03(d), (iv) if such Distribution Date occurs
during January of ___ or January of any year thereafter that is not a leap year
or during February of ___ or February of any year thereafter, the Interest
Reserve Amounts with respect to the Interest Reserve Mortgage Loans and any
Interest Reserve REO Mortgage Loans to be withdrawn from the Collection Account
and deposited into the Interest Reserve Account in respect of such Distribution
Date and held for future distribution, all pursuant to Section 3.04(c), and (v)
amounts deposited in the Collection Account in error. For purposes of this
definition and for purposes of the last paragraph of Section 4.03(a), in the
case of the _______________ Mortgage Loan or any related REO Property,
"Collection Period" shall mean, with respect to any Distribution Date, the
period ending at 12:00 noon (New York City time) on such Distribution Date and
beginning immediately following the end of the prior Collection Period (or, in
the case of the initial Collection Period, beginning on the Closing Date).
"Balloon Loan" shall mean any Loan that by its original terms
or by virtue of any modification entered into as of the Closing Date provides
for an amortization schedule extending beyond its Stated Maturity Date and as to
which, in accordance with such terms, the Scheduled Payment due on its Stated
Maturity Date is significantly larger than the Scheduled Payment due on the Due
Date next preceding its Stated Maturity Date.
"Balloon Mortgage Loan" shall mean any Mortgage Loan that is a
Balloon Loan.
"Balloon Payment" shall mean, with respect to any Balloon Loan
as of any date of determination, the payment, other than any regularly scheduled
monthly payment, due with respect to such Loan at maturity.
"Bid Allocation" shall mean, with respect to the Master
Servicer or any Sub-Servicer and the proceeds of any bid pursuant to Section
7.01(c), the amount of such proceeds (net of any expenses incurred in connection
with such bid and the transfer of servicing), multiplied by a fraction equal to
(a)
-20-
the Servicer Fee Amount for the Master Servicer or such Sub-Servicer, as the
case may be, as of such date of determination, over (b) the aggregate of the
Servicer Fee Amounts for the Master Servicer and all of the Sub-Servicers as of
such date of determination.
"Book-Entry Certificate" shall mean any Certificate registered
in the name of the Depository or its nominee.
"Book-Entry Non-Registered Certificate" shall mean any
Non-Registered Certificate that constitutes a Book-Entry Certificate.
"Book-Entry Subordinate Certificate" shall mean any
Subordinate Certificate that constitutes a Book-Entry Certificate.
"Breach" shall have the meaning assigned thereto in Section
2.03(a).
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions in New York, New York, or in any
of the cities in which the Corporate Trust Office of the Trustee, the Primary
Servicing Office of the Master Servicer or the Primary Servicing Office of the
Special Servicer are located, are authorized or obligated by law or executive
order to remain closed.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate" shall mean any one of the LB-___ Commercial
Mortgage Trust _________, Commercial Mortgage Pass-Through Certificates, Series
_________, as executed by the Certificate Registrar and authenticated and
delivered hereunder by the Authenticating Agent.
"Certificate Factor" shall mean, with respect to any Class of
Regular Interest Certificates, as of any date of determination, a fraction,
expressed as a decimal carried to six places, the numerator of which is the then
current Class Principal Balance or Class Notional Amount, as the case may be, of
such Class of Regular Interest Certificates, and the denominator of which is the
Original Class Principal Balance or Original Class Notional Amount, as the case
may be, of such Class of Regular Interest Certificates.
"Certificate Notional Amount" shall mean, with respect to any
Interest Only Certificate, as of any date of determination, the then notional
amount of such Certificate equal to the product of (a) the then Certificate
Factor for the Class of Interest Only Certificates to which such Certificate
belongs, multiplied by (b) the amount specified on the face of such Certificate
as the initial Certificate Notional Amount thereof.
"Certificate Owner" shall mean, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such Certificate as
reflected on the books of the Depository or on the books of a Depository
Participant or on the books of an indirect participating brokerage firm for
which a Depository Participant acts as agent.
"Certificate Principal Balance" shall mean, with respect to
any Principal Balance Certificate, as of any date of determination, the then
outstanding principal balance of such Certificate equal to the product of (a)
the then Certificate Factor for the Class of Principal Balance Certificates to
-21-
which such Certificate belongs, multiplied by (b) the amount specified on the
face of such Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register" shall mean the register maintained
pursuant to Section 5.02.
"Certificate Registrar" shall mean the registrar appointed
pursuant to Section 5.02.
"Certificateholder" shall mean the Person in whose name a
Certificate is registered in the Certificate Register, except that: (i) neither
a Disqualified Organization nor a Disqualified Non-United States Tax Person
shall be Holder of a Residual Interest Certificate for any purpose hereof; and
(ii) solely for the purposes of giving any consent, approval or waiver pursuant
to this Agreement that relates to the rights and/or obligations of any of the
Depositor, the Master Servicer, the Special Servicer, the Fiscal Agent or the
Trustee in its respective capacity as such, any Certificate registered in the
name of the Depositor, the Master Servicer, the Special Servicer, the Fiscal
Agent or the Trustee, as the case may be, or any Certificate registered in the
name of any of its Affiliates, shall be deemed not to be outstanding, and the
Voting Rights to which it is entitled shall not be taken into account in
determining whether the requisite percentage of Voting Rights necessary to
effect any such consent, approval or waiver that relates to it has been
obtained. The Certificate Registrar shall be entitled to request and rely upon a
certificate of the Depositor, the Master Servicer or the Special Servicer in
determining whether a Certificate is registered in the name of an Affiliate of
such Person. All references herein to "Certificateholders" shall reflect the
rights of Certificate Owners as they may indirectly exercise such rights through
the Depository and the Depository Participants, except as otherwise specified
herein; provided, however, that the parties hereto shall be required to
recognize as a "Certificateholder" only the Person in whose name a Certificate
is registered in the Certificate Register.
"Certificateholder Reports" shall mean, collectively, the
Distribution Date Statement, the Mortgage Pool Data Update Report, the Loan
Payoff Notification Report, the CMSA Investor Reporting Package (excluding the
CMSA Operating Statement Analysis Report, the CMSA NOI Adjustment Worksheet) and
any reports comparable to the foregoing with respect to the _______________
Mortgage Loan or any related REO Property that are deliverable under the
_______________ Servicing Agreement to the Trustee as holder of the
_______________ Mortgage Loan.
"Class" shall mean, collectively, all of the Certificates
bearing the same alphabetical and, if applicable, numerical class designation.
"Class A Certificates" shall mean the Class A-1, Class A-2,
Class A-3 and Class A-4 Certificates.
"Class A-1 Certificate" shall mean any one of the Certificates
with a "Class A-1" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-2 Certificate" shall mean any one of the Certificates
with a "Class A-2" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
-22-
"Class A-3 Certificate" shall mean any one of the Certificates
with a "Class A-3" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-4 Certificate" shall mean any one of the Certificates
with a "Class A-4" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A Principal Distribution Cross-Over Date" shall mean
the first Distribution Date as of the commencement of business on which (i) the
Class A-1, Class A-2, Class A-3 and Class A-4 Certificates, or any two or more
of such Classes, remain outstanding and (ii) the aggregate of the Class
Principal 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, Class N, Class P, Class Q, Class S,
Class T and Class U Certificates have been reduced to zero as a result of the
allocation of Realized Losses and Additional Trust Fund Expenses pursuant to
Section 4.04(a).
"Class B Certificate" shall mean any one of the Certificates
with a "Class B" designation on the face thereof, substantially in the form of
Exhibit A-3 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class C Certificate" shall mean any one of the Certificates
with a "Class C" designation on the face thereof, substantially in the form of
Exhibit A-3 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class D Certificate" shall mean any one of the Certificates
with a "Class D" designation on the face thereof, substantially in the form of
Exhibit A-3 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class E Certificate" shall mean any one of the Certificates
with a "Class E" designation on the face thereof, substantially in the form of
Exhibit A-3 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class F Certificate" shall mean any one of the Certificates
with a "Class F" designation on the face thereof, substantially in the form of
Exhibit A-3 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class G Certificate" shall mean any one of the Certificates
with a "Class G" designation on the face thereof, substantially in the form of
Exhibit A-3 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class H Certificate" shall mean any of the Certificates with
a "Class H" designation on the face thereof, substantially in the form of
Exhibit A-4 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class J Certificate" shall mean any one of the Certificates
with a "Class J" designation on the face thereof, substantially in the form of
Exhibit A-4 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
-23-
"Class K Certificate" shall mean any of the Certificates with
a "Class K" designation on the face thereof, substantially in the form of
Exhibit A-4 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class L Certificate" shall mean any of the Certificates with
a "Class L" designation on the face thereof, substantially in the form of
Exhibit A-4 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class M Certificate" shall mean any of the Certificates with
a "Class M" designation on the face thereof, substantially in the form of
Exhibit A-4 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class N Certificate" shall mean any of the Certificates with
a "Class N" designation on the face thereof, substantially in the form of
Exhibit A-4 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class Notional Amount" shall mean the aggregate notional
amount of a Class of Interest Only Certificates outstanding as of any date of
determination. As of any date of determination, the Class Notional Amount of the
Class X-______ Certificates shall equal the then Uncertificated Notional Amount
of REMIC III Regular Interest X-______. As of any date of determination, the
Class Notional Amount of each other Class of Interest Only Certificates shall
equal the then aggregate of the Component Notional Amounts of all the REMIC III
Components of such other Class of Interest Only Certificates; provided that, for
reporting purposes, the Class Notional Amount of the Class X-CP Certificates:
(i) following the Distribution Date in _________ 2005 through and including the
Distribution Date in _________ 2006, shall equal the aggregate of the Component
Notional Amounts of REMIC III Component X-XX-X-0-0, X-XX-X-0-0, X-XX-X-0-0,
X-XX-X-0-0, X-XX-X-0-0, X-CP-A-4-2, X-CP-B, X-CP-C, X-CP-D, X-CP-E, X-CP-F-1,
X-CP-F-2, X-CP-F-3, X-CP-G-1, X-CP-G-2 and X-CP-H-2; (ii) following the
Distribution Date in _________ 2006 through and including the Distribution Date
in _________ 2007, shall equal the aggregate of the Component Notional Amounts
of REMIC III Component X-XX-X-0-0, X-XX-X-0-0, X-XX-X-0-0, X-XX-X-0-0, X-XX-X,
X-XX-X, X-CP-D, X-CP-E, X-CP-F-1, X-CP-F-2, X-CP-F-3 and X-CP-G-2; (iii)
following the Distribution Date in _________ 2007 through and including the
Distribution Date in _________ 2008, shall equal the aggregate of the Component
Notional Amounts of REMIC III Component X-XX-X-0-0, X-XX-X-0-0, X-XX-X-0-0,
X-XX-X, X-XX-X, X-CP-D, X-CP-E, X-CP-F-2 and X-CP-F-3; (iv) following the
Distribution Date in _________ 2008 through and including the Distribution Date
in _________ 2009, shall equal the aggregate of the Component Notional Amounts
of REMIC III Component X-CP-A-4-2, X-CP-B, X-CP-C, X-CP-D, X-CP-E and X-CP-F-3;
and (v) following the Distribution Date in _________ 2009, shall equal zero (0).
"Class P Certificate" shall mean any of the Certificates with
a "Class P" designation on the face thereof, substantially in the form of
Exhibit A-5 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class Principal Balance" shall mean the aggregate principal
balance of any Class of Principal Balance Certificates outstanding as of any
date of determination. As of the Closing Date, the Class Principal Balance of
each Class of Principal Balance Certificates shall equal the Original Class
Principal Balance thereof. On each Distribution Date, the Class Principal
Balance of each Class of Principal Balance Certificates shall be permanently
reduced by the amount of any distributions of
-24-
principal made thereon on such Distribution Date pursuant to Section 4.01 or
9.01, as applicable, and shall be further permanently reduced by the amount of
any Realized Losses and Additional Trust Fund Expenses deemed allocated thereto
on such Distribution Date pursuant to Section 4.04(a).
"Class Q Certificate" shall mean any of the Certificates with
a "Class Q" designation on the face thereof, substantially in the form of
Exhibit A-5 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class R-I Certificate" shall mean any one of the Certificates
with a "Class R-I" designation on the face thereof, substantially in the form of
Exhibit A-6 attached hereto, and evidencing a portion of the sole class of
"residual interests" in REMIC I for purposes of the REMIC Provisions.
"Class R-II Certificate" shall mean any one of the
Certificates with a "Class R-II" designation on the face thereof, substantially
in the form of Exhibit A-6 attached hereto, and evidencing a portion of the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions.
"Class R-III Certificate" shall mean any one of the
Certificates with a "Class R-III" designation on the face thereof, substantially
in the form of Exhibit A-6 attached hereto, and evidencing a portion of the sole
class of "residual interests" in REMIC III for purposes of the REMIC Provisions.
"Class R-LR Certificate" shall mean any one of the
Certificates with a "Class R-LR" designation on the face thereof, substantially
in the form of Exhibit A-6 attached hereto, and evidencing a portion of the sole
class of "residual interests" in each Loan REMIC for purposes of the REMIC
Provisions.
"Class S Certificate" shall mean any of the Certificates with
a "Class S" designation on the face thereof, substantially in the form of
Exhibit A-5 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class T Certificate" shall mean any of the Certificates with
a "Class T" designation on the face thereof, substantially in the form of
Exhibit A-5 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class U Certificate" shall mean any of the Certificates with
a "Class U" designation on the face thereof, substantially in the form of
Exhibit A-5 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class V Certificate" shall mean any of the Certificates with
a "Class V" designation on the face thereof, substantially in the form of
Exhibit A-7 attached hereto, and evidencing a pro rata undivided interest in the
Grantor Trust Assets.
"Class V Sub-Account" shall mean a sub-account of the
Collection Account established pursuant to Section 3.04(b), which sub-account
shall constitute an asset of the Trust Fund and the Grantor Trust, but not an
asset of any REMIC Pool.
"Class X-CL Certificate" shall mean any one of the
Certificates with a "Class X-CL" designation on the face thereof, substantially
in the form of Exhibit A-2 attached hereto, and evidencing (i) a portion of ____
separate "regular interests" in REMIC III for purposes of the REMIC Provisions
-25-
and (ii) a pro rata undivided interest in the portion of the Grantor Trust
Assets consisting of any yield maintenance payment made by the ___ Mortgage Loan
Seller in connection with a repurchase of a Loan REMIC Mortgage Loan as
contemplated by Section 2.03(d)..
"Class X-CP Certificate" shall mean any one of the
Certificates with a "Class X-CP" designation on the face thereof, substantially
in the form of Exhibit A-2 attached hereto, and evidencing a portion of ____
separate "regular interests" in REMIC III for purposes of the REMIC Provisions.
"Class X-______ Certificate" shall mean any one of the
Certificates with a "Class X-______" designation on the face thereof,
substantially in the form of Exhibit A-2 attached hereto, and evidencing a
portion of a class of "regular interests" in REMIC III for purposes of the REMIC
Provisions.
"Clearstream" shall mean Clearstream Banking, Societe Anonyme
or any successor.
"Closing Date" shall mean ________, ____.
"CMSA" shall mean 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 Controlling Class Representative.
"CMSA Bond Level File" shall mean 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 Closing Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be approved
by the CMSA for commercial mortgage securities transactions generally and,
insofar as it requires the presentation of information in addition to that
called for by the form of the "Bond Level File" available as of the Closing Date
on the CMSA Website, is reasonably acceptable to the Trustee.
"CMSA Collateral Summary File" shall mean 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 Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be approved by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Collateral Summary File"
available as of the Closing Date on the CMSA Website, is reasonably acceptable
to the Trustee.
-26-
"CMSA Comparative Financial Status Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Comparative Financial Status Report" available as
of the Closing Date on the CMSA Website, or such other form for the presentation
of such information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "CMSA Comparative Financial Status Report" available as of the
Closing Date on the CMSA Website, is reasonably acceptable to the Master
Servicer or the Special Servicer, as applicable.
"CMSA Delinquent Loan Status Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Delinquent Loan Status Report" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Delinquent Loan Status
Report" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Financial File" shall mean 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 Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Financial File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable. The initial data for this report shall be provided by
the respective Mortgage Loan Sellers.
"CMSA Historical Liquidation Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Historical Liquidation Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Historical Liquidation Report"
available as of the Closing Date on the CMSA Website, is reasonably acceptable
to the Master Servicer or the Special Servicer, as applicable.
"CMSA Historical Loan Modification Report" shall mean 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 Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Historical Loan Modification
Report" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Investor Reporting Package" shall mean, collectively:
-27-
(a) the following six electronic files: (i) CMSA Loan Setup
File, (ii) CMSA Loan Periodic Update File, (iii) CMSA Property File,
(iv) CMSA Bond 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" shall mean 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 Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be approved by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Loan Periodic Update File"
available as of the Closing Date on the CMSA Website, is reasonably acceptable
to the Master Servicer or the Special Servicer, as applicable, and the Trustee.
The initial data for this report shall be provided by the respective Mortgage
Loan Sellers.
"CMSA Loan Setup File" shall mean 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 Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Loan Setup File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable, and the Trustee.
"CMSA NOI Adjustment Worksheet" shall mean a report prepared
by the Master Servicer with respect to all the Performing Serviced Loans, and by
the Special Servicer with respect to Specially Serviced Loans and REO Loans,
which report shall be substantially in the form of, and contain the information
called for in, the downloadable form of the "NOI Adjustment Worksheet" available
as of the Closing Date on the CMSA Website, or such other form for the
presentation of such information and containing such additional information as
may from time to time be approved by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "NOI Adjustment
Worksheet" available as of the Closing Date on the CMSA Website, is acceptable
to the Master Servicer or the Special Servicer, as applicable.
"CMSA Operating Statement Analysis Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Operating Statement Analysis Report" available as
of the Closing Date on the CMSA Website or in such other form for the
presentation of such information and containing such additional information as
may from time to time be approved by the CMSA for commercial mortgage-backed
securities transactions generally and, insofar as it requires the presentation
of information in addition to that called for by the
-28-
form of the "CMSA Operating Statement Analysis Report" available as of the
Closing Date on the CMSA Website, is reasonably acceptable to the Master
Servicer.
"CMSA Property File" shall mean 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 Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Property File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA REO Status Report" shall mean a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "REO Status Report" available as of the Closing Date on the CMSA Website,
or in such other form for the presentation of such information and containing
such additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "REO Status Report" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA Servicer Watch List" shall mean a report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Servicer Watch List" available as of the Closing Date on the CMSA
Website, or in such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Servicer Watch List" available as of the Closing Date on the
CMSA Website, is reasonably acceptable to the Master Servicer or Special
Servicer, as applicable, and in any event, identifying as of the Determination
Date immediately preceding the delivery of such report each Performing Serviced
Loan (i) with a debt service coverage ratio of less than 1.05x, (ii) that has a
Stated Maturity Date occurring in the next 60 days, (iii) that is delinquent in
respect of its real estate taxes, (iv) for which any outstanding Advances exist,
(v) that has been a Specially Serviced Loan in the past 90 days, (vi) for which
the debt service coverage ratio has decreased by more than 10% in the prior 12
months, (vii) for which any lease relating to more than 25% of the related
Mortgaged Property has expired, been terminated, is in default or will expire
within the next three months (with no replacement tenant having occupied or
reasonably expected, within the next 45 days, to occupy the space on comparable
terms), (viii) that has been late in making its Monthly Payment three or more
times in the preceding twelve months, (ix) with an expired material deferred
maintenance at the related Mortgaged Property, (x) that is 30 or more days
delinquent, (xi) to the extent the Master Servicer has actual knowledge thereof,
with respect to which a tenant or tenants occupying 25% of the related Mortgaged
Property are involved in bankruptcy or insolvency proceedings, or (xii) in
respect of which an inspection carried out pursuant to Section 3.12(a) revealed
a problem reasonably expected to materially and adversely affect the cash flow
of the related Mortgaged Property.
"CMSA Website" shall mean the CMSA's Website located at
"xxx.xxxxxxxx.xxx" or such other primary website as the CMSA may establish for
dissemination of its report forms.
-29-
"Code" shall mean the Internal Revenue Code of 1986 and
regulations promulgated thereunder, including temporary regulations and proposed
regulations to the extent that, by reason of their proposed effective date,
could, as of the date of any determination or opinion as to the tax consequences
of any action or proposed action or transaction, be applied to the Certificates.
"Collection Account" shall mean the segregated account or
accounts created and maintained by the Trustee pursuant to Section 3.04(b),
which shall be entitled "__________________________ [OR NAME OF ANY SUCCESSOR
TRUSTEE], as Trustee, in trust for the registered holders of LB-___ Commercial
Mortgage Trust _________, Commercial Mortgage Pass-Through Certificates, Series
_________".
"Collection Period" shall mean, with respect to any
Distribution Date or Master Servicer Remittance Date, the period commencing on
the day immediately following the Determination Date in the calendar month
preceding the month in which such Distribution Date or Master Servicer
Remittance Date, as the case may be, occurs (or, in the case of each of the
initial Distribution Date and the initial Master Servicer Remittance Date,
commencing immediately following the Cut-off Date) and ending on and including
the Determination Date in the calendar month in which such Distribution Date or
Master Servicer Remittance Date, as the case may be, occurs.
"Co-Lender Agreement" shall mean any of the _______________
Co-Lender Agreement or the _______________ Intercreditor Agreement.
"Commission" shall mean the Securities and Exchange Commission
or any successor agency.
"Component Notional Amount" shall mean the notional amount on
which any REMIC III Component of either Class of Interest Only Certificates
accrues interest, which, as of any date of determination, is equal to the then
current Uncertificated Principal Balance of such REMIC III Component's
Corresponding REMIC II Regular Interest.
"Condemnation Proceeds" shall mean all cash amounts Received
by the Trust in connection with the taking of all or a part of a Mortgaged
Property or REO Property by exercise of the power of eminent domain or
condemnation, subject, however, to the rights of any tenants and ground lessors,
as the case may be, and the terms of the related Mortgage.
"Controlling Class" shall mean, as of any date of
determination, the outstanding Class of Principal Balance Certificates that (a)
bears the latest alphabetic Class designation and (b) has a Class Principal
Balance which is greater than 25% of the Original Class Principal Balance of
such Class; provided that if no Class of Principal Balance Certificates has as
of such date of determination a Class Principal Balance greater than 25% of its
Original Class Principal Balance, then the Controlling Class shall be the then
outstanding Class of Principal Balance Certificates bearing the latest
alphabetic Class designation that has a Class Principal Balance greater than
zero; and provided, further, that, for purposes of determining the Controlling
Class, the Class A-1, Class A-2, Class A-3 and Class A-4 Certificates shall be
deemed a single Class of Certificates.
"Controlling Class Certificateholder" shall mean any Holder of
a Certificate of the Controlling Class.
-30-
"Controlling Class Representative" shall have the meaning
assigned thereto in Section 6.09(b).
"Corporate Trust Office" shall mean 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
______________________, Attention: ______________________.
"Corrected Loan" shall mean any Loan that had been a Specially
Serviced Loan but has ceased to be such in accordance with the definition of
"Specially Serviced Loan" (other than by reason of a Liquidation Event occurring
in respect of such Loan or the related Mortgaged Property's becoming an REO
Property). Notwithstanding anything to the contrary contained herein, the
_______________ Mortgage Loan shall not constitute a Corrected Loan under this
Agreement.
"Corrected Mortgage Loan" shall mean any Mortgage Loan that is
a Corrected Loan. Notwithstanding anything to the contrary contained herein, the
_______________ Mortgage Loan shall not constitute a Corrected Mortgage Loan
under this Agreement.
"Corresponding REMIC II Regular Interest" shall mean: (a) with
respect to any Class of Principal Balance Certificates, the REMIC II Regular
Interest that has an alphabetic or alphanumeric designation that is the same as
the alphabetic or alphanumeric, as the case may be, designation for such Class
of Principal Balance Certificates (provided that each of REMIC II Regular
Interest A-2-1, REMIC II Regular Interest A-2-2 and REMIC II Regular Interest
A-2-3 shall be a Corresponding REMIC II Regular Interest with respect to the
Class A-2 Certificates; each of REMIC II Regular Interest A-3-1 and REMIC II
Regular Interest A-3-2 shall be a Corresponding REMIC II Regular Interest with
respect to the Class A-3 Certificates; each of REMIC II Regular Interest A-4-1,
REMIC II Regular Interest A-4-2 and REMIC II Regular Interest A-4-3 shall be a
Corresponding REMIC II Regular Interest with respect to the Class A-4
Certificates; each of REMIC II Regular Interest F-1, REMIC II Regular Interest
F-2 and REMIC II Regular Interest F-3 shall be a Corresponding REMIC II Regular
Interest with respect to the Class F Certificates; each of REMIC II Regular
Interest G-1 and REMIC II Regular Interest G-2 shall be a Corresponding REMIC II
Regular Interest with respect to the Class G Certificates; each of REMIC II
Regular Interest H-1 and REMIC II Regular Interest H-2 shall be a Corresponding
REMIC II Regular Interest with respect to the Class H Certificates; and each of
REMIC II Regular Interest J-1 and REMIC II Regular Interest J-2 shall be a
Corresponding REMIC II Regular Interest with respect to the Class J
Certificates); (b) with respect to any REMIC III Component of the Class X-CL
Certificates, the REMIC II Regular Interest that has an alphabetic or
alphanumeric designation that, when preceded by "X-CL-", is the same as the
alphabetic or alphanumeric, as the case may be, designation for such REMIC III
Component of the Class X-CL Certificates; (c) with respect to any REMIC III
Component of the Class X-CP Certificates, the REMIC II Regular Interest that has
an alphabetic or alphanumeric designation that, when preceded by "X-CP-", is the
same as the alphabetic or alphanumeric, as the case may be, designation for such
REMIC III Component of the Class X-CP Certificates; and (d) with respect to the
Class X-______ Certificates, REMIC II Regular Interest X-______.
"Cross-Collateralized Group" shall mean any group of
Cross-Collateralized Mortgage Loans.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage
Loan that is cross-defaulted and cross-collateralized with any other Mortgage
Loan.
-31-
"Custodial Account" shall mean either of the Pool Custodial
Account or the _______________ Custodial Account.
"Custodian" shall mean a Person who is at any time appointed
by the Trustee pursuant to Section 8.11 as a document custodian for the Mortgage
Files, which Person shall not be the Depositor, a Mortgage Loan Seller or an
Affiliate of the Depositor or a Mortgage Loan Seller. If no such custodian has
been appointed, or if such custodian has been so appointed but the Trustee shall
have terminated such appointment, then the Trustee shall be the Custodian.
"Cut-off Date" shall mean _________, ____.
"Cut-off Date Balance" shall mean, (i) with respect to the
__________ Mortgage Loan, the outstanding principal balance of such Loan as of
its date of origination, and (ii) with respect to any other Loan, the
outstanding principal balance of such Loan as of the Cut-off Date, net of all
unpaid payments of principal due in respect thereof on or before such date.
"Default Charges" shall mean Default Interest and/or late
payment charges that are paid or payable, as the context may require, to the
Trust in respect of any Serviced Loan or any successor REO Loan with respect
thereto.
"Default Interest" shall mean, with respect to any Serviced
Loan or any successor REO Loan with respect thereto, any amounts Received by the
Trust thereon (other than late payment charges, Prepayment Premiums or Yield
Maintenance Charges) that represent penalty interest (arising out of a default)
in excess of: (i) interest accrued on the principal balance of such Loan (or
successor REO Loan), at the related Mortgage Rate (net of any applicable
Additional Interest Rate); and (ii) in the case of an ARD Loan after the related
Anticipated Repayment Date, any Additional Interest.
"Defaulting Party" shall have the meaning assigned thereto in
Section 7.01(b).
"Defeasance Certificate" shall have the meaning assigned
thereto in Section 3.20(k).
"Defeasance Collateral" shall mean, with respect to any
Defeasance Loan, the Government Securities required or permitted to be pledged
in lieu of prepayment pursuant to the terms thereof in order to obtain a release
of the related Mortgaged Property.
"Defeasance Deposit Account" shall have the meaning assigned
thereto in Section 3.04(a).
"Defeasance Loan" shall mean any Loan which requires the
related Mortgagor (or permits the holder of such loan to require the related
Mortgagor) to pledge Defeasance Collateral to the holder of such loan in lieu of
prepayment.
"Definitive Certificate" shall have the meaning assigned
thereto in Section 5.03(a).
"Definitive Non-Registered Certificate" shall mean any
Non-Registered Certificate that has been issued as a Definitive Certificate.
-32-
"Definitive Subordinate Certificate" shall mean any
Subordinate Certificate that has been issued as a Definitive Certificate.
"Depositor" shall mean SASCO.
"Depository" shall mean The Depository Trust Company or any
successor Depository hereafter named as contemplated by Section 5.03(c). The
nominee of the initial Depository for purposes of registering those Certificates
that are to be Book-Entry Certificates, is Cede & Co. The Depository shall at
all times be a "clearing corporation" as defined in Section 8-102(3) of the
Uniform Commercial Code of the State of New York and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act.
"Depository Participant" shall mean a broker, dealer, bank or
other financial institution or other Person for whom from time to time the
Depository effects book-entry transfers and pledges of securities deposited with
the Depository.
"Determination Date" shall mean the 11th calendar day of each
month (or, if such 11th day is not a Business Day, the Business Day immediately
following), commencing in _________ ____.
"Directly Operate" shall mean, with respect to any
Administered 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 or lease, the performance of any
construction work thereon or any use of such REO Property in a trade or business
conducted by REMIC I (or, if held thereby, the related Loan REMIC) other than
through an Independent Contractor; provided, however, that the Trustee (or the
Special Servicer or any Sub-Servicer on behalf of the Trustee) shall not be
considered to Directly Operate an Administered REO Property solely because the
Trustee (or the Special Servicer or any Sub-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.
"Discount Rate" shall mean, with respect to any prepaid
Mortgage Loan or REO Mortgage Loan, for purposes of allocating any Prepayment
Premium or Yield Maintenance Charge Received by the Trust with respect thereto
among the respective Classes of the Principal Balance Certificates (other than
any Excluded Class thereof), a rate equal to the yield (when compounded monthly)
on the U.S. Treasury issue (primary issue) with a maturity date closest to the
maturity date or, in the case of an ARD Mortgage Loan, the anticipated repayment
date for such prepaid Mortgage Loan or REO Mortgage Loan, as published in
Federal Reserve Statistical Release H.15 (519) published by the Federal Reserve
Board; provided that if there are two such U.S. Treasury issues (a) with the
same coupon, the issue with the lower yield shall apply, and (b) with maturity
dates equally close to the maturity date for such prepaid Mortgage Loan or REO
Mortgage Loan, the issue with the earliest maturity date shall apply.
"Disqualified Non-United States Tax Person" shall mean, with
respect to any Residual Interest Certificate, any Non-United States Tax Person
or agent thereof other than: (1) a Non-United States Tax Person that (a) holds
such Residual Interest Certificate and, for purposes of Treasury regulation
section 1.860G-3(a)(3), is subject to tax under Section 882 of the Code, (b)
certifies that it understands that, for purposes of Treasury regulation section
1.860E-1(c)(4)(ii), as a holder of such Residual Interest Certificate for United
States federal income tax purposes, it may incur tax liabilities in
-33-
excess of any cash flows generated by such Residual Interest Certificate and
intends to pay taxes associated with holding such Residual Interest Certificate,
and (c) has furnished the Transferor and the Trustee with an effective IRS Form
W-8ECI or successor form and has agreed to update such form as required under
the applicable Treasury regulations; or (2) a Non-United States Tax Person that
has delivered to the Transferor, the Trustee and the Certificate Registrar an
opinion of nationally recognized tax counsel to the effect that (x) the Transfer
of such Residual Interest Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and (y) such
Transfer of such Residual Interest Certificate will not be disregarded for
United States federal income tax purposes.
"Disqualified Organization" shall mean any of the following:
(i) the United States, any State or any political subdivision thereof, any
foreign government, international organization, or any agency or instrumentality
of any of the foregoing; (ii) any organization (except certain farmers'
cooperatives described in Section 521 of the Code) that 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 on unrelated business income); (iii) rural
electric and telephone cooperatives described in Section 1381 of the Code; or
(iv) any other Person so designated by the Trustee or the Tax Administrator
based upon an Opinion of Counsel that the holding of an Ownership Interest in a
Residual Interest Certificate by such Person may cause the Trust Fund or any
Person having an Ownership Interest in any Class of Certificates, other than
such Person, to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Interest Certificate to such Person. The terms "United
States", "State" and "international organization" shall have the meanings set
forth in Section 7701 of the Code or successor provisions.
"Disqualified Partnership" shall mean any domestic entity
classified as a partnership under the Code if any of its beneficial owners are
Disqualified Non-United States Tax Persons.
"Distributable Certificate Interest" shall mean, with respect
to any Class of Regular Interest Certificates for any Distribution Date, an
amount of interest equal to the amount of Accrued Certificate Interest in
respect of such Class of Certificates for the related Interest Accrual Period,
reduced (to not less than zero) by that portion, if any, of the Net Aggregate
Prepayment Interest Shortfall for such Distribution Date allocated to such Class
of Certificates as provided below. The Net Aggregate Prepayment Interest
Shortfall, if any, for each Distribution Date shall be allocated among the
respective Classes of Regular Interest Certificates on a pro rata basis in
accordance with, the respective amounts of Accrued Certificate Interest for each
such Class of Certificates for the related Interest Accrual Period.
"Distributable Component Interest" shall mean, with respect to
any REMIC III Component of any Class of Interest Only Certificates (other than
the Class X-______ Certificates) for any Distribution Date, an amount of
interest equal to the amount of Accrued Component Interest in respect of such
REMIC III Component for the related Interest Accrual Period, reduced (to not
less than zero) by the product of (i) the entire portion of any Net Aggregate
Prepayment Interest Shortfall for such Distribution Date that was allocated to
such Class of Interest Only Certificates in accordance with the definition of
"Distributable Certificate Interest", multiplied by (ii) a fraction, the
numerator of which is the amount of any Accrued Component Interest in respect of
such REMIC III Component for the related Interest Accrual Period, and the
denominator of which is the amount of the Accrued Certificate Interest in
respect of such Class of Interest Only Certificates for the related Interest
Accrual Period.
-34-
"Distribution Date" shall mean the date each month, commencing
in _________ ____, on which, among other things, the Trustee is to make
distributions on the Certificates, which date shall be the fourth Business Day
following the Determination Date in such calendar month.
"Distribution Date Statement" shall have the meaning assigned
thereto in Section 4.02(a).
"Document Defect" shall have the meaning assigned thereto in
Section 2.03(a).
"Due Date" shall mean: (i) with respect to any Loan on or
prior to its Stated Maturity Date, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on such Loan is scheduled to be
first due; (ii) with respect to any Loan after its Stated Maturity Date, the day
of the month set forth in the related Mortgage Note on which each Monthly
Payment on such Loan had been scheduled to be first due; and (iii) with respect
to any REO Loan, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment on the related Loan had been scheduled to be first
due.
"XXXXX" shall mean the Commission's Electronic Data Gathering,
Analysis and Retrieval system.
"Eligible Account" shall mean any of: (i) an account
maintained with a federal or state chartered depository institution or trust
company, the long-term deposit or unsecured debt obligations of which are rated
at least ["AA-"] by _________ (if then rated by _________, and if not then rated
by _________, then an equivalent rating by at least one nationally recognized
statistical rating agency besides _____) and at least "AA-" (or, if such
depository institution or trust company has short-term unsecured debt
obligations rated at least "A-1" by _____, at least "A-") by _____ (or, in the
case of either Rating Agency, such lower rating as will not result in an Adverse
Rating Event with respect to any Class of Certificates and, in the case of an
account that relates solely to the _______________ Loan Pair, with respect to
any class of _______________ Companion Loan Securities, as evidenced in writing
by such Rating Agency) at any time such funds are on deposit therein (if such
funds are to be held for more than 30 days), or the short-term deposits of which
are rated at least ["A-1"] by _________ (if then rated by _________, and if not
then rated by _________, then an equivalent rating by at least one nationally
recognized statistical rating agency besides _____) and at least "A-1" by _____
(or, in the case of either Rating Agency, such lower rating as will not result
in an Adverse Rating Event with respect to any Class of Certificates and, in the
case of an account that relates solely to the _______________ Loan Pair, with
respect to any class of _______________ Companion Loan Securities, as evidenced
in writing by such Rating Agency) at any time such funds are on deposit therein
(if such funds are to be held for 30 days or less); or (ii) a segregated trust
account maintained with the trust department of a federal or state chartered
depository institution or trust company acting in its fiduciary capacity (which
may be the Trustee), which has a combined capital and surplus of at least
$50,000,000, is subject to supervision or examination by federal or state
authority and, in the case of a state chartered depository institution or trust
company, is subject to regulations regarding fiduciary funds on deposit therein
substantially similar to 12 CFR ss. 9.10(b); or (iii) any other account, the use
of which would not, in and of itself, cause an Adverse Rating Event with respect
to any Class of Certificates and, in the case of an account that relates solely
to the _______________ Loan Pair, with respect to any class of _______________
Companion Loan Securities, as evidenced in writing by each Rating Agency.
-35-
"Environmental Assessment" shall mean a "Phase I assessment"
as described in and meeting the criteria of Chapter 5 of the Xxxxxx Mae
Multifamily Guide and the ASTM Standard for Environmental Site Assessments, each
as amended from time to time.
"Environmental Insurance Policy" shall mean, with respect to
any Mortgaged Property or REO Property, any insurance policy covering pollution
conditions and/or other environmental conditions that is maintained from time to
time in respect of such Mortgaged Property or REO Property, as the case may be,
for the benefit of, among others, the Trustee on behalf of the
Certificateholders.
"Environmentally Insured Mortgage Loans" shall mean the
Mortgage Loans identified on Schedule VI hereto.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"Escrow Payment" shall mean any payment received by the Master
Servicer or the Special Servicer for the account of any Mortgagor for
application toward the payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and other items for which an escrow has
been created in respect of the related Mortgaged Property.
"Euroclear" shall mean The Euroclear System or any successor.
"Event of Default" shall have the meaning assigned thereto in
Section 7.01(a).
"Excess Liquidation Proceeds" shall mean the excess, if any,
of (a) the Net Liquidation Proceeds from the sale or liquidation of a Specially
Serviced Mortgage Loan or REO Property, net of (i) interest on any related
Advances, (ii) any related Servicing Advances and (iii) any Liquidation Fee
payable from such Net Liquidation Proceeds, over (b) the amount needed to pay
off the Mortgage Loan or related REO Loan in full.
"Excess Liquidation Proceeds Account" shall mean the
segregated account created and maintained by the Trustee pursuant to Section
3.04(d) in trust for the Certificateholders, which shall be entitled
"__________________________ [OR THE NAME OF ANY SUCCESSOR TRUSTEE], as Trustee,
in trust for the registered holders of LB-___ Commercial Mortgage Trust
_________, Commercial Mortgage Pass-Through Certificates, Series _________".
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Excluded Classes" shall mean, collectively, the Class L
Certificates, the Class M Certificates, the Class N Certificates, the Class P
Certificates, the Class Q Certificates, the Class S Certificates, the Class T
Certificates and the Class U Certificates.
"Exemption-Favored Party" shall mean any of (i) Xxxxxx
Brothers, (ii) any Person directly or indirectly, through one or more
intermediaries, controlling, controlled by or under common control with Xxxxxx
Brothers, and (iii) any member of any underwriting syndicate or selling group of
which any Person described in clauses (i) and (ii) is a manager or co-manager
with respect to a Class of Investment Grade Certificates.
-36-
"Xxxxxx Xxx" shall mean the Federal National Mortgage
Association or any successor.
"FDIC" shall mean the Federal Deposit Insurance Corporation or
any successor.
"FHLMC" shall mean the Federal Home Loan Mortgage Corporation
or any successor.
"Final Distribution Date" shall mean the Distribution Date on
which the final distribution is to be made with respect to the Certificates in
connection with a termination of the Trust Fund pursuant to Article IX.
"Final Recovery Determination" shall mean a determination by
the Special Servicer with respect to any Specially Serviced Loan or Administered
REO Property that there has been a recovery of all Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and other payments or recoveries
that the Special Servicer has determined, in accordance with the Servicing
Standard, will be ultimately recoverable; provided that the term Final Recovery
Determination shall not apply to: (i) a Loan that was paid in full; or (ii) a
Loan or REO Property, as the case may be, that was purchased by (A) the
Depositor pursuant to Section 2.03(a), (B) the ___ Mortgage Loan Seller pursuant
to the UBS/Depositor Mortgage Loan Purchase Agreement, (C) a Purchase Option
Holder or its assignee pursuant to Section 3.18, (D) the Depositor, Xxxxxx
Brothers, the Special Servicer, a Controlling Class Certificateholder or the
Master Servicer pursuant to Section 9.01, (E) the holder of a related mezzanine
loan in connection with a Loan default, as set forth in the related
intercreditor agreement, and (F) in the case of the _______________ Mortgage
Loan, the _______________ Companion Loan Noteholder or its designee pursuant to
the _______________ Co-Lender Agreement; and provided, further, that, in the
case of the _______________ Mortgage Loan or any related REO Property, any such
determination is to be made by the _______________ Special Servicer.
"Fiscal Agent" shall mean _____________, in its capacity as
fiscal agent hereunder, or any successor fiscal agent appointed as herein
provided.
"_________" shall mean _________, Inc. or its successor in
interest. If neither such rating agency nor any successor remains in existence,
"_________" shall be deemed to refer to such other nationally recognized
statistical rating agency or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Trustee, the Fiscal
Agent, the Master Servicer and the Special Servicer, and specific ratings of
_________ _____ herein referenced shall be deemed to refer to the equivalent
ratings of the party so designated.
"FV Bid" shall have the meaning assigned thereto in Section
3.18(d).
"FV Price" shall have the meaning assigned thereto in Section
3.18(c).
"GAAP" shall mean generally accepted accounting principles in
the United States of America.
"Global Certificate" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates, either the related Rule 144A Global
Certificate or the Regulation S Global Certificate.
"Global Opinion" shall have the meaning assigned thereto in
Section 11.12.
-37-
"Government Securities" shall mean "Government Securities" as
defined in Section 2(a)(16) of the Investment Company Act of 1940, excluding any
such securities that are not acceptable to either Rating Agency as Defeasance
Collateral.
"Grantor Trust" shall mean that certain "grantor trust"
(within the meaning of the Grantor Trust Provisions) consisting of the Grantor
Trust Assets.
"Grantor Trust Assets" shall mean (i) any Additional Interest
Received by the Trust with respect to an ARD Mortgage Loan after its Anticipated
Repayment Date and (ii) any yield maintenance payment made by the ___ Mortgage
Loan Seller in connection with a repurchase of a Loan REMIC Mortgage Loan as
contemplated by Section 2.03(d).
"Grantor Trust Provisions" shall mean Subpart E of Subchapter
J of the Code, including Treasury regulation section 301.7701-4(c)(2).
"Ground Lease" shall mean, with respect to any Mortgage Loan
for which the related Mortgagor has a leasehold interest in the related
Mortgaged Property, the lease agreement(s) creating such leasehold interest.
"Hazardous Materials" shall mean any dangerous, toxic or
hazardous pollutants, chemicals, wastes, or substances, including those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations now existing or hereafter enacted, and specifically
including asbestos and asbestos-containing materials, polychlorinated biphenyls,
radon gas, petroleum and petroleum products and urea formaldehyde.
"Holder" shall mean a Certificateholder.
"HUD-Approved Servicer" shall mean a servicer that is a
mortgagee approved by the Secretary of Housing and Urban Development pursuant to
Sections 203 and 211 of the National Housing Act.
"Independent" shall mean, when used with respect to any
specified Person, any such Person who (i) is in fact independent of the
Depositor, each Mortgage Loan Seller, the Master Servicer, the Special Servicer,
any Controlling Class Certificateholder, the _______________ Companion Loan
Noteholder 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, either Mortgage Loan Seller, the Master Servicer, the Special
Servicer, any Controlling Class Certificateholder, the _______________ Companion
Loan Noteholder or any Affiliate thereof, and (iii) is not connected with the
Depositor, either Mortgage Loan Seller, the Master Servicer, the Special
Servicer, any Controlling Class Certificateholder, the _______________ Companion
Loan Noteholder or any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions;
provided, however, that a Person shall not fail to be Independent of the
Depositor, a Mortgage Loan Seller, the Master Servicer, the Special Servicer, a
Controlling Class Certificateholder, the _______________ Companion Loan
Noteholder or any Affiliate thereof merely because such Person is the beneficial
owner of 1% or less of any class of securities issued by the Depositor, such
Mortgage Loan Seller, the Master Servicer, the Special Servicer, such
Controlling Class Certificateholder, the _______________ Companion Loan
Noteholder or any Affiliate thereof, as the case may be, provided that such
ownership constitutes less than 1% of the total assets owned by such Person.
-38-
"Independent Appraiser" shall mean an Independent professional
real estate appraiser who (i) is a member in good standing of the Appraisal
Institute, (ii) if the state in which the subject Mortgaged Property is located
certifies or licenses appraisers, is certified or licensed in such state, and
(iii) has a minimum of five years experience in the subject property type and
market.
"Independent Contractor" shall mean: (a) any Person that would
be an "independent contractor" with respect to REMIC I (or, solely for the
purposes of each Loan REMIC Mortgage Loan and any corresponding REO Property,
the related Loan REMIC) within the meaning of Section 856(d)(3) of the Code if
REMIC I (or, if applicable, the related Loan REMIC) were a real estate
investment trust (except that the ownership test set forth in that section shall
be considered to be met by any Person that owns, directly or indirectly, 35
percent or more of any Class of Certificates, or such other interest in any
Class of Certificates as is set forth in an Opinion of Counsel, which shall be
at no expense to the Master Servicer, the Special Servicer, the Trustee or the
Trust Fund, delivered to the Trustee (and, if the _______________ Loan Pair is
affected, to the _______________ Companion Loan Noteholder)), provided that (i)
such REMIC Pool does not receive or derive any income from such Person and (ii)
the relationship between such Person and such REMIC Pool is at arm's length, all
within the meaning of Treasury regulations section 1.856-4(b)(5); or (b) any
other Person upon receipt by the Trustee (and, if the _______________ Loan Pair
is affected, by the _______________ Companion Loan Noteholder) of an Opinion of
Counsel, which shall be at no expense to the Master Servicer, the Special
Servicer, the Trustee or the Trust Fund, to the effect that the taking of any
action in respect of any REO Property by such Person, subject to any conditions
therein specified, that is otherwise herein contemplated to be taken by an
Independent Contractor, will not cause such REO Property to cease to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code for
purposes of Section 860D(a) of the Code, or cause any income realized in respect
of such REO Property to fail to qualify as Rents from Real Property, due to such
Person's failure to be treated as an Independent Contractor.
"Initial Bidder" shall have the meaning assigned thereto in
Section 3.18(d).
"Initial Deposit" shall mean an amount with respect to each
Initial Deposit Mortgage Loan equal to (a) the aggregate amount of interest that
would have accrued at the related Mortgage Rate on the Cut-off Date Balance of
the subject Initial Deposit Mortgage Loan had such Initial Deposit Mortgage Loan
been originated on the Cut-off Date, for the period from and including the
Cut-off Date to but excluding _________ ___, ____, reduced by (b) any interest
payment scheduled to be received by the Trust in [_________ ____ or _________
____] with respect to such Initial Deposit Mortgage Loan, which interest payment
is intended to cover any interest actually accrued on such Initial Deposit
Mortgage Loan during any portion of such period.
"Initial Deposit Mortgage Loan" shall mean the Mortgage Loans
identified on the Mortgage Loan Schedule as __________________,
_________________, __________________, ______________ and _____________,
respectively.
"Initial Pool Balance" shall mean the aggregate of the Cut-off
Date Balances of the Mortgage Loans.
"Institutional Accredited Investor" or "IAI" shall mean an
"accredited investor" as defined in any of paragraphs (1), (2), (3) and (7) of
Rule 501(a) under the Securities Act or any entity in which all of the equity
owners come within such paragraphs.
-39-
"Insurance Policy" shall mean, with respect to any Loan, any
hazard insurance policy, flood insurance policy, title policy, Environmental
Insurance Policy or other insurance policy that is maintained from time to time
in respect of such Loan or the related Mortgaged Property.
"Insurance Proceeds" shall mean the proceeds paid under any
Insurance Policy, to the extent such proceeds are not applied to the restoration
of the related Mortgaged Property, released to the Mortgagor, or any tenants or
ground lessors, as the case may be, pursuant to the terms of the related
Mortgage or lease, in accordance with the Servicing Standard.
"Insured Environmental Event" shall have the meaning assigned
thereto in Section 3.07(d).
"Interest Accrual Basis" shall mean the basis on which
interest accrues in respect of any Loan, any Loan REMIC Regular Interest, any
REMIC I Regular Interest, any REMIC II Regular Interest, any Class of Regular
Interest Certificates or any particular REMIC III Component of a Class of
Interest Only Certificates, in each case consisting of one of the following: (i)
a 360-day year consisting of twelve 30-day months; (ii) actual number of days
elapsed in a 360-day year; (iii) actual number of days elapsed in a 365-day
year; or (iv) actual number of days elapsed in an actual calendar year (taking
account of leap year).
"Interest Accrual Period" shall mean, with respect to any Loan
REMIC Regular Interest, any REMIC I Regular Interest, any REMIC II Regular
Interest, any Class of Regular Interest Certificates or any particular REMIC III
Component of a Class of Interest Only Certificates, for any Distribution Date,
the period commencing on the 11th calendar day of the month immediately
preceding the month in which such Distribution Date occurs and ending on the
10th calendar day of the month in which such Distribution Date occurs.
"Interested Person" shall mean the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Fiscal Agent, any
Certificateholder, or any Affiliate of any such Person.
"Interest Only Certificates" shall mean, collectively, the
Class X-CL, Class X-CP and Class X-______ Certificates.
"Interest Reserve Account" shall mean the segregated account
or sub-account created and maintained by the Trustee pursuant to Section 3.04(c)
in trust for Certificateholders, which shall be entitled
"__________________________ [OR THE NAME OF ANY SUCCESSOR TRUSTEE], as Trustee,
in trust for the registered holders of LB-___ Commercial Mortgage Trust
_________, Commercial Mortgage Pass-Through Certificates, Series _________".
"Interest Reserve Amount" shall mean, with respect to each
Interest Reserve Mortgage Loan and Interest Reserve REO Mortgage Loan, for any
Distribution Date that occurs during February of ___ or February of any year
thereafter or during January of ___ or January of any year thereafter that is
not a leap year, an amount equal to one day's interest accrued at the related
Mortgage Rate (net of the related Additional Interest Rate in the case of an ARD
Mortgage Loan or related REO Mortgage Loan after the related Anticipated
Repayment Date and [net of __ basis points in the case of the _______________
Mortgage Loan and any related REO Mortgage Loan)] on the related Stated
Principal Balance as of the Due Date in the month in which such Distribution
Date occurs (but prior to the application of any amounts due on such Due Date),
to the extent that a Monthly Payment (or, in the case
-40-
of the _______________ Mortgage Loan or any related REO Mortgage Loan, a P&I
Advance) is Received by the Trust in respect thereof for such Due Date as of the
related Determination Date (or, in the case of the _______________ Mortgage Loan
or any related REO Mortgage Loan, by such Distribution Date) or a P&I Advance is
made under this Agreement in respect thereof for such Due Date by such
Distribution Date.
"Interest Reserve Mortgage Loan" shall mean any Mortgage Loan
that accrues interest on an Actual/360 Basis.
"Interest Reserve REO Mortgage Loan" shall mean any REO
Mortgage Loan that relates to a predecessor Interest Reserve Mortgage Loan.
"Investment Account" shall have the meaning assigned thereto
in Section 3.06(a).
"Investment Grade Certificate" shall mean, as of any date of
determination, a Certificate that is rated in one of the four highest generic
rating categories by at least one Rating Agency.
"IRS" shall mean the Internal Revenue Service or any successor
agency.
"Late Collections" shall mean: (a) with respect to any Loan,
all amounts Received by the Trust in connection therewith during any Collection
Period, whether as payments, Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds or otherwise, which represent late collections of the
principal and/or interest portions of a Monthly Payment (other than a Balloon
Payment) or an Assumed Monthly Payment in respect of such Loan due or deemed due
on a Due Date in a previous Collection Period, or on a Due Date coinciding with
or preceding the Cut-off Date, and not previously recovered; and (b) with
respect to any REO Loan, all amounts Received by the Trust in connection with
the related REO Property during any Collection Period, whether as Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which represent late collections of the principal and/or interest
portions of a Monthly Payment (other than a Balloon Payment) or an Assumed
Monthly Payment in respect of the predecessor Loan, or the principal and/or
interest portions of an Assumed Monthly Payment in respect of such REO Loan, due
or deemed due on a Due Date in a previous Collection Period and not previously
recovered. For purposes of this definition and for purposes of the last
paragraph of Section 4.03(a), in the case of the _______________ Mortgage Loan
or any related REO Property, "Collection Period" shall mean the period ending at
12:00 noon (New York City time) on each Distribution Date and beginning
immediately following the end of the prior Collection Period (or, in the case of
the initial Collection Period, beginning on the Closing Date).
"Legal Final Distribution Date" shall mean, with respect to
any Loan REMIC Regular Interest, any REMIC I Regular Interest, any REMIC II
Regular Interest, any Class of Regular Interest Certificates or any particular
REMIC III Component of the Class X-CP or Class X-CL Certificates, the "latest
possible maturity date" thereof, calculated solely for purposes of satisfying
Treasury regulation section 1.860G-1(a)(4)(iii).
"Xxxxxx Brothers" shall mean Xxxxxx Brothers Inc. or its
successor in interest.
"Xxxxxx/Depositor Mortgage Loan Purchase Agreement" shall mean
that certain Mortgage Loan Purchase Agreement dated as of ________________,
____, between the Xxxxxx Mortgage Loan Seller and the Depositor.
-41-
"Xxxxxx Mortgage Loan" shall mean any Mortgage Loan
transferred by the Xxxxxx Mortgage Loan Seller to the Depositor, pursuant to the
Xxxxxx/Depositor Mortgage Loan Purchase Agreement.
"Xxxxxx Mortgage Loan Seller" shall mean Xxxxxx Brothers
Holdings Inc., doing business as Xxxxxx Capital, a Division of Xxxxxx Brothers
Holdings Inc., or its successor in interest.
"Legal Final Distribution Date" shall mean, with respect to
any REMIC I Regular Interest, any REMIC II Regular Interest, any Class of
Regular Interest Certificates or any particular REMIC III Component of a Class
of Interest Only Certificates, the "latest possible maturity date" thereof,
calculated solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii).
"Liquidation Event" shall mean: (a) with respect to any Loan,
any of the following events--(i) such Loan is paid in full, (ii) a Final
Recovery Determination is made with respect to such Loan, (iii) such Loan is
repurchased by the Depositor pursuant to Section 2.03(a) or by the ___ Mortgage
Loan Seller pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement
(including a repurchase of a Loan REMIC Mortgage Loan in connection with the
related Mortgagor's early exercise of its right to defease the Mortgage Loan),
(iv) such Loan is purchased by a Purchase Option Holder or its assignee pursuant
to Section 3.18, (v) such Loan is purchased by the Depositor, Xxxxxx Brothers,
the Special Servicer, a Controlling Class Certificateholder or the Master
Servicer pursuant to Section 9.01, (vi) such Loan is purchased by the holder of
a related mezzanine loan on behalf of the related Mortgagor in connection with a
Loan default, as set forth in the related intercreditor agreement, or (vii) in
the case of the _______________ Mortgage Loan, such Loan is purchased by the
_______________ Companion Loan Noteholder or its designee pursuant to the
_______________ Co-Lender Agreement; and (b) with respect to any REO Property
(and the related REO Loan), any of the following events--(i) a Final Recovery
Determination is made with respect to such REO Property, or (ii) such REO
Property is purchased by the Depositor, Xxxxxx Brothers, the Special Servicer, a
Controlling Class Certificateholder or the Master Servicer pursuant to Section
9.01.
"Liquidation Fee" shall mean the fee designated as such in,
and payable to the Special Servicer in connection with certain specified events
in respect of a Specially Serviced Loan or an Administered REO Property pursuant
to, Section 3.11(c).
"Liquidation Fee Rate" shall mean, with respect to each
Specially Serviced Loan or Administered REO Property as to which a Liquidation
Fee is payable, ____%.
"Liquidation Proceeds" shall mean all cash amounts (other than
Insurance Proceeds and REO Revenues) Received by the Trust in connection with:
(i) the full or partial liquidation of a Mortgaged Property or other collateral
constituting security for a defaulted Loan, through trustee's sale, foreclosure
sale, REO Disposition or otherwise, exclusive of any portion thereof required to
be released to the related Mortgagor in accordance with applicable law and the
terms and conditions of the related Mortgage Note and Mortgage; (ii) the
realization upon any deficiency judgment obtained against a Mortgagor; (iii) the
purchase of a Specially Serviced Mortgage Loan by a Purchase Option Holder or
its assignee pursuant to Section 3.18; (iv) the repurchase of a Mortgage Loan by
the Depositor pursuant to Section 2.03(a) or by the ___ Mortgage Loan Seller
pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement (including a
repurchase of a Loan REMIC Mortgage Loan in connection with the related
Mortgagor's early exercise of its right to defease the Mortgage Loan); (v) the
purchase of a Mortgage Loan or REO Property by the Depositor, Xxxxxx Brothers,
the Special Servicer, a Controlling
-42-
Class Certificateholder or the Master Servicer pursuant to Section 9.01; (vi)
the purchase of a Loan by the holder of a related mezzanine loan on behalf of
the related Mortgagor in connection with a Loan default, as set forth in the
related intercreditor agreement; or (vii) in the case of the _______________
Mortgage Loan, the purchase of such Mortgage Loan by the _______________
Companion Loan Noteholder or its designee pursuant to the _______________
Co-Lender Agreement.
"Loan" shall mean any Mortgage Loan or Companion Loan.
["Loan Component" shall mean any of the following loan
components: Component A-1 and Component A-2 of the _______________ Mortgage Loan
or any successor REO Mortgage Loan with respect thereto, and Component A-1 and
Component A-2 of the _______________ Mortgage Loan or any successor REO Mortgage
Loan with respect thereto. References to any of the foregoing loan components
are intended to be references to such loan components as defined in the loan
agreement related to the subject Mortgage Loan.]
["Loan Pair" shall mean the _______________ Loan Pair.]
"Loan Pair Servicing Reports" shall mean, with respect to the
_______________ Loan Pair, each of the CMSA Delinquent Loan Status Report, CMSA
Historical Loan Modification Report, CMSA Historical Liquidation Report, CMSA
REO Status Report, Loan Payoff Notification Report, CMSA Loan Periodic Update
File, CMSA Property File, CMSA Financial File, CMSA Loan Setup File, CMSA
Servicer Watch List, CMSA Operating Statement Analysis, CMSA NOI Adjustment
Worksheet and CMSA Comparative Financial Status Report, each as may be modified
to reflect the fact that a single Mortgaged Property or REO Property, as the
case may be, is the subject of such report.
"Loan Payoff Notification Report" shall mean a report
containing substantially the information described in Exhibit E attached hereto,
and setting forth for each Serviced Loan as to which written notice of
anticipated payoff has been received by the Master Servicer as of the
Determination Date preceding the delivery of such report, among other things,
the mortgage loan number, the property name, the ending scheduled loan balance
for the Collection Period ending on such Determination Date, the expected date
of payment, the expected related Distribution Date and the estimated amount of
the Yield Maintenance Charge or Prepayment Premium due (if any).
"Loan REMIC" shall mean, with respect to each Loan REMIC
Mortgage Loan, and any related REO Property and corresponding REO Loan, if any,
the segregated pool of assets consisting primarily of the related Loan REMIC
Mortgage Loan, and any related REO Property, together with all payments under
and the proceeds of such Mortgage Loan received after the Startup Day; provided
that such Loan REMIC shall not include any yield maintenance payment paid by the
___ Mortgage Loan Seller in connection with a repurchase of the related Loan
REMIC Mortgage Loan as contemplated by Section 2.03(d).
"Loan REMIC Mortgage Loan" shall mean each Mortgage Loan
identified on Schedule IV hereto as the primary asset of a Loan REMIC.
"Loan REMIC Interest" shall mean either a Loan REMIC Regular
Interest or a Loan REMIC Residual Interest.
-43-
"Loan REMIC Regular Interest" shall mean the uncertificated
"regular interest" within the meaning of Section 860G(a)(1) of the Code, in a
Loan REMIC.
"Loan REMIC Remittance Rate" shall mean ____% per annum in the
case of each of the Loan REMIC Mortgage Loans identified on Schedule IV hereto
as being secured by _______________ and _______________, respectively.
"Lockout Period" shall mean, with respect to any Loan that
prohibits the Mortgagor from prepaying such loan until a date specified in the
related Mortgage Note or other loan document, the period from the Closing Date
until such specified date.
"Master Servicer" shall mean _________, in its capacity as
master servicer hereunder, or any successor master servicer appointed as herein
provided.
"Master Servicer Remittance Amount" shall mean, with respect
to any Master Servicer Remittance Date, an amount equal to: (a) the aggregate
amount of all payments and other collections on or with respect to the Serviced
Mortgage Loans and any related REO Properties that (A) were Received by the
Trust as of the close of business on the immediately preceding Determination
Date and (B) are on deposit or are required to be on deposit in the Pool
Custodial Account as of 12:00 noon (New York City time) on such Master Servicer
Remittance Date, including any such payments and other collections transferred
to the Pool Custodial Account from the Pool REO Account (if established); net of
(b) the portion of the aggregate amount described in clause (a) of this
definition that represents one or more of the following--(i) Monthly Payments
that are due on a Due Date following the end of the related Collection Period,
(ii) any amount payable or reimbursable to any Person from the Pool Custodial
Account pursuant to clauses (ii) through (xvi) of Section 3.05(a), (iii) any
Excess Liquidation Proceeds and (iv) any amounts deposited in the Pool Custodial
Account in error.
"Master Servicer Remittance Date" shall mean the date each
month, commencing in _________ ____, on which, among other things, the Master
Servicer is required to (i) make P&I Advances and (ii) transfer the Master
Servicer Remittance Amount and any Excess Liquidation Proceeds to the Trustee,
which date shall be the Business Day immediately preceding each Distribution
Date.
"Master Servicing Fee" shall mean, with respect to each
Serviced Loan (and any successor REO Loan with respect thereto), the fee
designated as such and payable to the Master Servicer pursuant to Section
3.11(a).
"Master Servicing Fee Rate" shall mean: (a) with respect to
each other Mortgage Loan and REO Mortgage Loan [(including the _______________
Mortgage Loan)], a rate per annum equal to the related Administrative Cost Rate
minus the Trustee Fee Rate; and (c) with respect to the _______________
Companion Loan and any related REO Loan, _________% per annum;
"Material Breach" shall have the meaning assigned thereto in
Section 2.03(a).
"Material Document Defect" shall have the meaning assigned
thereto in Section 2.03(a).
-44-
"Modified Loan" shall mean any Serviced Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the Special
Servicer pursuant to Section 3.20 in a manner that:
(a) affects the amount or timing of any payment of principal
or interest due thereon (other than, or in addition to, bringing
Monthly Payments current with respect to such Loan);
(b) except as expressly contemplated by the related loan
documents, results in a release of the lien of the related Mortgage on
any material portion of the related Mortgaged Property without a
corresponding Principal Prepayment in an amount, or the delivery of
substitute real property collateral with a fair market value (as is),
that is not less than the fair market value (as is) of the property to
be released, as determined by an appraisal delivered to the Special
Servicer (at the expense of the related Mortgagor and upon which the
Special Servicer may conclusively rely); or
(c) in the reasonable, good faith judgment of the Special
Servicer, otherwise materially impairs the security for such Loan or
materially reduces the likelihood of timely payment of amounts due
thereon.
"Monthly Payment" shall mean, with respect to any Loan, as of
any Due Date, the scheduled monthly debt service payment (or, in the case of an
ARD Loan after its Anticipated Repayment Date, the monthly debt service payment
required to be paid on a current basis) on such Loan that is actually payable by
the related Mortgagor from time to time under the terms of the related Mortgage
Note (as such terms may be changed or modified in connection with a bankruptcy
or similar proceeding involving the related Mortgagor or by reason of a
modification, extension, waiver or amendment granted or agreed to by the Special
Servicer pursuant to Section 3.20 (or, in the case of the _______________
Mortgage Loan, by the _______________ Special Servicer pursuant to the
_______________ Servicing Agreement), including any Balloon Payment payable in
respect of such Loan on such Due Date; provided that the Monthly Payment due in
respect of any Loan shall not include Default Interest; and provided, further,
that the Monthly Payment due in respect of any ARD Loan after its Anticipated
Repayment Date shall not include Additional Interest.
"_____" shall mean _____ Investors Service, Inc. or its
successor in interest. If neither such rating agency nor any successor remains
in existence, "_____" shall be deemed to refer to such other nationally
recognized statistical rating agency or other comparable Person designated by
the Depositor, notice of which designation shall be given to the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, and specific ratings
of _____ Investors Service, Inc. herein referenced shall be deemed to refer to
the equivalent ratings of the party so designated.
"Mortgage" shall mean, with respect to any Loan, the mortgage,
deed of trust, deed to secure debt or similar instrument that secures the
related Mortgage Note and creates a lien on the related Mortgaged Property.
"Mortgage File" shall mean:
(a) with respect to any Mortgage Loan (other than the
_______________ Mortgage Loan) and, in the case of the _______________
Loan Pair, the _______________ Companion Loan, the following documents
collectively (which, in the case of the _______________ Loan
-45-
Pair, except for the Mortgage Note referred to in clause (i) and clause
(vi) of this definition, relate to the entire Loan Pair):
(i) (A) the original executed Mortgage Note for such
Mortgage Loan, endorsed (without recourse, representation or
warranty, express or implied) to the order of "_______________
______________, as trustee for the registered holders of
LB-___ Commercial Mortgage Trust _________, Commercial
Mortgage Pass-Through Certificates, Series _________" or in
blank, and further showing a complete, unbroken chain of
endorsement from the originator (if such originator is other
than the related Mortgage Loan Seller) (or, alternatively, if
the original executed Mortgage Note has been lost, a lost note
affidavit and indemnity with a copy of such Mortgage Note),
and (B) in the case of the _______________ Loan Pair, a copy
of the executed Mortgage Note for the _______________
Companion Loan;
(ii) an original or copy of the Mortgage, together
with originals or copies of any and all intervening
assignments thereof, in each case (unless the particular item
has not been returned from the applicable recording office)
with evidence of recording indicated thereon;
(iii) an original or copy of any related Assignment
of Leases (if such item is a document separate from the
Mortgage), together with originals or copies of any and all
intervening assignments thereof, in each case (unless the
particular item has not been returned from the applicable
recording office) with evidence of recording indicated
thereon;
(iv) an original executed assignment, in recordable
form (except for recording information not yet available if
the instrument being assigned has not been returned from the
applicable recording office), of (A) the Mortgage and (B) any
related Assignment of Leases (if such item is a document
separate from the Mortgage), in favor of "__________________,
in its capacity as trustee for the registered holders of
LB-___ Commercial Mortgage Trust _________, Commercial
Mortgage Pass-Through Certificates, Series _________" (or, in
the case of the _______________ Loan Pair, in favor of
"__________________________, in its capacity as trustee for
the registered holders of LB-___ Commercial Mortgage Trust
_________, Commercial Mortgage Pass-Through Certificates,
Series _________, and in its capacity as lead lender on behalf
of the [NAME OF _______________ COMPANION LOAN NOTEHOLDER]")
(or, in each case, a copy thereof, certified to be the copy of
such assignment submitted for recording);
(v) an original or copy of the assignment of all
unrecorded documents relating to the Mortgage Loan, in favor
of "__________________________, as trustee for the registered
holders of LB-___ Commercial Mortgage Trust _________,
Commercial Mortgage Pass-Through Certificates, Series
_________" (or, in the case of the _______________ Loan Pair,
in favor of "__________________________, in its capacity as
trustee for the registered holders of LB-___ Commercial
Mortgage Trust _________, Commercial Mortgage Pass-Through
Certificates, Series _________, and in
-46-
its capacity as lead lender on behalf of [NAME OF ___________
_______________ LOAN NOTEHOLDER]");
(vi) originals or copies of final written
modification agreements in those instances where the terms or
provisions of the Mortgage Note for such Mortgage Loan (or, if
applicable, either Mortgage Note of the _______________ Loan
Pair) or the related Mortgage have been modified as to a
monetary term or other material term thereof, in each case
(unless the particular item has not been returned from the
applicable recording office) with evidence of recording
indicated thereon if the instrument being modified is a
recordable document;
(vii) the original or a copy of the policy or
certificate of lender's title insurance issued in connection
with such Mortgage Loan (or, if such policy has not been
issued, a "marked-up" pro forma title policy marked as binding
and countersigned by the title insurer or its authorized
agent, or an irrevocable, binding commitment to issue such
title insurance policy);
(viii) with respect to Mortgage Loans secured by
hospitality and healthcare properties only, filed copies (with
evidence of filing) of any prior effective UCC Financing
Statements in favor of the originator of such Mortgage Loan or
in favor of any assignee prior to the Trustee (but only to the
extent the related Mortgage Loan Seller had possession of such
UCC Financing Statements prior to the Closing Date) and an
original UCC-2 or UCC-3 assignment thereof, as appropriate, in
form suitable for filing, in favor of "______________________
________________, in its capacity as trustee for the
registered holders of LB-___ Commercial Mortgage Trust
_________, Commercial Mortgage Pass-Through Certificates,
Series _________" (or, in the case of the _______________ Loan
Pair, in favor of "__________________________, in its capacity
as trustee for the registered holders of LB-___ Commercial
Mortgage Trust _________, Commercial Mortgage Pass-Through
Certificates, Series _________, and in its capacity as lead
lender on behalf of the [NAME OF _______________ COMPANION
LOAN NOTEHOLDER]");
(ix) an original or copy of the related Ground Lease
relating to such Mortgage Loan, if any;
(x) an original or copy of the related loan
agreement, if any;
(xi) an original of the related guaranty of payment
under, or a copy of the original letter of credit in
connection with, such Mortgage Loan, if any;
(xii) an original or copy of the lock-box agreement
or cash management agreement relating to such Mortgage Loan,
if any;
(xiii) an original or copy of the environmental
indemnity from the related Mortgagor, if any;
(xiv) an original or copy of the related security
agreement (if such item is a document separate from the
Mortgage) and, if applicable, the originals or copies of any
intervening assignments thereof;
-47-
(xv) an original assignment of the related security
agreement (if such item is a document separate from the
Mortgage and if such item is not included in the assignment
described in clause (v)), in favor of "______________________
_____________, in its capacity as trustee for the registered
holders of LB-___ Commercial Mortgage Trust _________,
Commercial Mortgage Pass-Through Certificates, Series
_________" (or, in the case of the _______________ Loan Pair,
in favor of "__________________________, in its capacity as
trustee for the registered holders of LB-___ Commercial
Mortgage Trust _________, Commercial Mortgage Pass-Through
Certificates, Series _________, and in its capacity as lead
lender on behalf of [NAME OF _______________ COMPANION LOAN
NOTEHOLDER]");
(xvi) in the case of the _______________ Loan Pair, a
copy of the _______________ Co-Lender Agreement;
(xvii) in the case of any Loan as to which there
exists a related mezzanine loan, the related intercreditor
agreement; and
(xviii) an original or copy of any related
Environmental Insurance Policy; and
(b) with respect to the _______________ Mortgage Loan, the
following documents collectively:
(i) the original executed Mortgage Note for such
Mortgage Loan, endorsed (without recourse, representation or
warranty, express or implied) to the order of "_______________
______________, as trustee for the registered holders of
LB-___ Commercial Mortgage Trust _________, Commercial
Mortgage Pass-Through Certificates, Series _________" or in
blank, and further showing a complete, unbroken chain of
endorsement from the originator (if such originator is other
than the related Mortgage Loan Seller) (or, alternatively, if
the original executed Mortgage Note has been lost, a lost note
affidavit and indemnity with a copy of such Mortgage Note);
(ii) a copy of the executed _______________
Intercreditor Agreement; and
(iii) a copy of the _______________ Trust and
Servicing Agreement;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or a Custodian on its behalf for documents
described in clauses (a)(vi) and (a)(ix) through (a)(xviii) of this definition,
shall be deemed to include such documents only to the extent the Trustee or a
Custodian on its behalf has actual knowledge of their existence.
"Mortgage Loan" shall mean each of the mortgage loans listed
on the Mortgage Loan Schedule and from time to time held in the Trust Fund. As
used herein, the term "Mortgage Loan" includes the related Mortgage Note,
Mortgage and other security documents contained in the related Mortgage File or
otherwise held on behalf of the Trust, except that, with respect to the
_______________ Mortgage Loan, the term "Mortgage Loan" includes the related
Mortgage Note and any other documents contained in the related Mortgage File or
otherwise held on behalf of the Trust.
-48-
"Mortgage Loan Purchase Agreements" shall mean the Xxxxxx/
Depositor Mortgage Loan Purchase Agreement and the UBS/Depositor Mortgage Loan
Purchase Agreement.
"Mortgage Loan Schedule" shall mean the list of Mortgage Loans
transferred on the Closing Date to the Trustee as part of the Trust Fund,
attached hereto as Schedule I (and also delivered to the Trustee and the Master
Servicer in a computer readable format). Such list shall set forth the following
information with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code)
and name of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Monthly Payment due on the first Due
Date following the Closing Date;
(v) the original Mortgage Rate;
(vi) the (A) remaining term to stated maturity and (B)
Stated Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) the Interest Accrual Basis;
(ix) the (A) Administrative Cost Rate and (B) primary
servicing fee rate;
(x) whether the Mortgage Loan is secured by a Ground Lease;
(xi) the related Mortgage Loan Seller;
(xii) whether the related Mortgage Loan is a Defeasance Loan;
(xiii) whether such Mortgage Loan is an ARD Mortgage Loan and,
if so, the Anticipated Repayment Date and Additional Interest Rate; and
(xiv) whether the Mortgage Loan is a Cross-Collateralized
Mortgage Loan and the Cross-Collateralized Group to which it belongs.
"Mortgage Loan Sellers" shall mean the Xxxxxx Mortgage Loan
Seller and the ___ Mortgage Loan Seller, together.
"Mortgage Note" shall mean the original executed note
evidencing the indebtedness of a Mortgagor under a Loan, together with any
rider, addendum or amendment thereto, or any renewal, substitution or
replacement of such note.
-49-
"Mortgage Pool" shall mean all of the Mortgage Loans and any
successor REO Mortgage Loans, collectively. The Mortgage Pool does not include
the _______________ Companion Loan, the _______________ Non-Trust Loan or any
REO Loan related to any of those two Loans.
"Mortgage Pool Data Update Report" shall mean, with respect to
any Distribution Date, a report (which may be included as part of the
Distribution Date Statement), prepared by the Trustee, containing information
regarding the Loans as of the end of the related Collection Period, which report
shall contain substantially the categories of information regarding the Loans
set forth on Annexes A-1 and A-2 to the Prospectus Supplement (calculated, where
applicable, on the basis of the most recent relevant information provided by the
Mortgagors to the Master Servicer or the Special Servicer, as the case may be,
and by the Master Servicer or the Special Servicer, as the case may be, to the
Trustee), and which information shall be presented in tabular format
substantially similar to the format utilized on such annexes and shall also
include a loan-by-loan listing (in descending balance order) showing loan
number, property type, location, unpaid principal balance, Mortgage Rate,
paid-through date, maturity date, gross interest portion of the Monthly Payment,
principal portion of the Monthly Payment, and any Prepayment Premium or Yield
Maintenance Charge received.
"Mortgage Rate" shall mean, with respect to each Loan (and any
successor REO Loan with respect thereto), the related annualized rate at which
interest is scheduled (in the absence of a default) to accrue on such Loan from
time to time in accordance with the related Mortgage Note and applicable law, as
such rate may be modified in accordance with Section 3.20 (or, in the case of
the _______________ Mortgage Loan, in accordance with the _______________
Servicing Agreement) or in connection with a bankruptcy, insolvency or similar
proceeding involving the related Mortgagor. In the case of each Loan that is
part of a Loan Pair, the related annualized rate referred to in the preceding
sentence is the weighted average of the annualized rates at which interest is
scheduled (in the absence of default) to accrue on the respective components of
such Loan from time to time. In the case of each ARD Loan, the related Mortgage
Rate shall increase in accordance with the related Mortgage Note if the
particular loan is not paid in full by its Anticipated Repayment Date.
"Mortgaged Property" shall mean the real property subject to
the lien of a Mortgage.
"Mortgagor" shall mean, individually and collectively, as the
context may require, the obligor or obligors under a Loan, including any Person
that has not signed the related Mortgage Note but owns an interest in the
related Mortgaged Property, which interest has been encumbered to secure such
Loan.
"Net Adjusted REMIC II Remittance Rate" shall mean:
(a) with respect to each of REMIC II Regular Interest A-2-2
and REMIC II Regular Interest A-2-3, for any Interest Accrual Period,
____% per annum;
(b) with respect to each of REMIC II Regular Interest A-3-1,
REMIC II Regular Interest A-3-2 and REMIC II Regular Interest A-3-3,
for any Interest Accrual Period, ____% per annum;
(c) with respect to each of REMIC II Regular Interest A-4-1
and REMIC II Regular Interest A-4-2, for any Interest Accrual Period,
an annual rate equal to the lesser of (i) ____%
-50-
per annum and (ii) the Weighted Average REMIC I Remittance Rate for
such Interest Accrual Period;
(d) with respect to REMIC II Regular Interest B, for any
Interest Accrual Period, an annual rate equal to the lesser of (i)
____% per annum and (ii) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period;
(e) with respect to REMIC II Regular Interest C, for any
Interest Accrual Period, an annual rate equal to the lesser of (i)
____% per annum and (ii) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period;
(f) with respect to REMIC II Regular Interest D, for any
Interest Accrual Period, an annual rate equal to the lesser of (i)
____% per annum and (ii) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period;
(g) with respect to REMIC II Regular Interest E, for any
Interest Accrual Period, an annual rate equal to the lesser of (i)
____% per annum and (ii) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period;
(h) with respect to each of REMIC II Regular Interest F-1,
REMIC II Regular Interest F-2 and REMIC II Regular Interest F-3, for
any Interest Accrual Period, an annual rate equal to the lesser of (i)
____% per annum and (ii) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period;
(i) with respect to each of REMIC II Regular Interest G-1 and
REMIC II Regular Interest G-2, for any Interest Accrual Period, an
annual rate equal to the lesser of (i) ____% per annum and (ii) the
Weighted Average REMIC I Remittance Rate for such Interest Accrual
Period;
(j) with respect to each of REMIC II Regular Interest H-1 and
REMIC II Regular Interest H-2, for any Interest Accrual Period, an
annual rate equal to the lesser of (i) ____% per annum and (ii) the
Weighted Average REMIC I Remittance Rate for such Interest Accrual
Period; and
(k) with respect to REMIC II Regular Interest J-2, for any
Interest Accrual Period, an annual rate equal to the lesser of (i)
____% per annum and (ii) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period.
"Net Aggregate Prepayment Interest Shortfall" shall mean, with
respect to any Distribution Date, the amount, if any, by which (a) the aggregate
of all Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments and/or, insofar as they result from the application of
Insurance Proceeds and/or Condemnation Proceeds, other early recoveries of
principal Received by the Trust (or, in the case of the _______________ Mortgage
Loan, received by a _______________ Servicer) on the Mortgage Loans (including
Specially Serviced Mortgage Loans) during the related Collection Period, exceeds
(b) the aggregate amount deposited by the Master Servicer in the Collection
Account for such Distribution Date pursuant to Section 3.19(a) in connection
with such Prepayment Interest Shortfalls. For purposes of this definition, in
the case of the _______________
-51-
Mortgage Loan, "related Collection Period" refers to the most recently ended
"Collection Period" under the _______________ Servicing Agreement.
"Net Default Charges" shall have the meaning assigned thereto
in Section 3.26(a).
"Net Investment Earnings" shall mean, with respect to any
Investment Account for any Collection Period, the amount, if any, by which the
aggregate of all interest and other income realized during such Collection
Period on funds held in such Investment Account (exclusive, in the case of a
Servicing Account, a Reserve Account or the Defeasance Deposit Account, of any
portion of such interest or other income payable to a Mortgagor in accordance
with the related loan documents and applicable law), exceeds the aggregate of
all losses, if any, incurred during such Collection Period in connection with
the investment of such funds in accordance with Section 3.06 (exclusive, in the
case of a Servicing Account, a Reserve Account or the Defeasance Deposit
Account, of any portion of such losses that were incurred in connection with
investments made for the benefit of a Mortgagor).
"Net Investment Loss" shall mean, with respect to any
Investment Account for any Collection Period, the amount by which the aggregate
of all losses, if any, incurred during such Collection Period in connection with
the investment of funds held in such Investment Account in accordance with
Section 3.06 (exclusive, in the case of a Servicing Account, a Reserve Account
or the Defeasance Deposit Account, of any portion of such losses that were
incurred in connection with investments made for the benefit of a Mortgagor),
exceeds the aggregate of all interest and other income realized during such
Collection Period on such funds (exclusive, in the case of a Servicing Account,
a Reserve Account or the Defeasance Deposit Account, of any portion of such
interest or other income payable to a Mortgagor in accordance with the related
loan documents and applicable law).
"Net Prepayment Consideration" shall mean the Prepayment
Consideration Received by the Trust with respect to any Mortgage Loan or REO
Mortgage Loan, net of any Workout Fee or Liquidation Fee payable therefrom.
"New Lease" shall mean any lease of Administered REO Property
entered into at the direction of the Special Servicer, including any lease
renewed, modified or extended on behalf of the Trustee and, in the case of the
_______________ Loan Pair, the _______________ Companion Loan Noteholder.
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I
Advance or Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance" shall mean any P&I Advance
previously made or proposed to be made in respect of any Loan or REO Loan by the
Master Servicer, the Trustee or the Fiscal Agent, which P&I Advance such party
has determined in its reasonable, good faith judgment, will not be ultimately
recoverable from late payments, Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds, or any other recovery on or in respect of such Loan or REO
Loan, as the case may be.
"Nonrecoverable Servicing Advance" shall mean any Servicing
Advance previously made or proposed to be made in respect of a Loan or REO
Property by the Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent, which Servicing Advance such party has determined, in its reasonable,
good faith judgment, will not be ultimately recoverable from late payments,
Insurance
-52-
Proceeds, Condemnation Proceeds, Liquidation Proceeds, or any other recovery on
or in respect of such Loan or REO Property, as the case may be.
"Non-Registered Certificate" shall mean any Certificate that
has not been the subject of registration under the Securities Act. As of the
Closing Date, the Class X-CL, Class X-CP, Class X-______, Class H, Class J,
Class K, Class L, Class M, Class N, Class P, Class Q, Class S, Class T, Class U,
Class R-I, Class R-II, Class R-III, Class R-LR and Class V Certificates are
Non-Registered Certificates.
"Non-United States Tax Person" shall mean any Person other
than a United States Tax Person.
"Officer's Certificate" shall mean a certificate signed by a
Servicing Officer of the Master Servicer or the Special Servicer, as the case
may be or by a Responsible Officer of the Trustee or the Fiscal Agent, as the
case may be, and shall mean with respect to any other Person, a certificate
signed by any of the Chairman of the Board, the Vice Chairman of the Board, the
President, any Vice President or Managing Director, an Assistant Vice President
or any other authorized officer (however denominated) or another officer
customarily performing functions similar to those performed by any of the above
designated officers or, 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.
"Opinion of Counsel" shall mean a written opinion of counsel,
who may, without limitation, be salaried counsel for the Depositor, the Master
Servicer or the Special Servicer, acceptable in form and delivered to the
Trustee or any other specified Person, as the case may be, except that any
opinion of counsel relating to (a) the qualification of REMIC I, REMIC II or
REMIC III as a REMIC, (b) compliance with the REMIC Provisions, (c)
qualification of the Grantor Trust as a grantor trust, (d) whether any act or
event would cause an Adverse REMIC Event or Adverse Grantor Trust Event, as may
be applicable, or (e) the resignation of the Master Servicer, the Special
Servicer or the Depositor pursuant to this Agreement, must be a written opinion
of Independent counsel acceptable to and delivered to the Trustee or any other
specified Person, as the case may be.
"Original Class Notional Amount" shall mean, with respect to
any Class of Interest Only Certificates, the initial Class Notional Amount of
each such Class as of the Closing Date, which shall equal $______________, in
the case of the Class X-CL Certificates, $_________, in the case of the Class
X-CP Certificates, and $____________, in the case of the Class X-______
Certificates.
"Original Class Principal Balance" shall mean, with respect to
any Class of Principal Balance Certificates, the initial Class Principal Balance
thereof as of the Closing Date, in each case as specified in the Preliminary
Statement.
"OTS" shall mean the Office of Thrift Supervision or any
successor thereto.
"Ownership Interest" shall mean, as to any Certificate, any
ownership or security interest in such Certificate as the Holder thereof and any
other interest therein, whether direct or indirect, legal or beneficial, as
owner or as pledgee.
"P&I Advance" shall mean, as to any Loan or REO Loan, any
advance made by the Master Servicer, the Trustee or the Fiscal Agent pursuant to
Section 4.03 or Section 4.03A, as applicable
-53-
(as well as, in the case of the _______________ Mortgage Loan or any successor
REO Mortgage Loan with respect thereto, any comparable advance made by the
_______________ Master Servicer under the _______________ Servicing Agreement).
"Pass-Through Rate" shall mean:
(a) with respect to the Class A-1 Certificates for any
Interest Accrual Period, ____% per annum;
(b) with respect to the Class A-2 Certificates for any
Interest Accrual Period, ____% per annum;
(c) with respect to the Class A-3 Certificates for any
Interest Accrual Period, ____% per annum;
(d) with respect to the Class A-4 Certificates for any
Interest Accrual Period, an annual rate equal to the lesser of (i)
____% per annum and (ii) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period;
(e) with respect to the Class B Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) ____% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(f) with respect to the Class C Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) ____% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(g) with respect to the Class D Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) ____% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(h) with respect to the Class E Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) ____% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(i) with respect to the Class F Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) ____% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(j) with respect to the Class G Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) ____% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(k) with respect to the Class H Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) ____% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
-54-
(l) with respect to the Class J Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) ____% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(m) with respect to the Class K Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) ____% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(n) with respect to each other Class of Principal Balance
Certificates for any Interest Accrual Period, ____% per annum;
(o) with respect to the Class X-______ Certificates for any
Interest Accrual Period, ____% per annum;
(p) with respect to each REMIC III Component of the Class X-CL
Certificates for any Interest Accrual Period, an annual rate equal to
the excess, if any, of (i) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period, over (ii) the Adjusted REMIC II
Remittance Rate for such Interest Accrual Period applicable to the
Corresponding REMIC II Regular Interest for such REMIC III Component;
(q) with respect to the Class X-CL Certificates for any
Interest Accrual Period, an annual rate equal to the weighted average
(expressed as a percentage and rounded to six decimal places) of the
Pass-Through Rates applicable to the respective REMIC III Components of
such Class for such Interest Accrual Period, weighted on the basis of
the respective Component Notional Amounts of such REMIC III Components
outstanding immediately prior to the related Distribution Date;
(r) with respect to each REMIC III Component of the Class X-CP
Certificates for any Interest Accrual Period, an annual rate equal to
the excess, if any, of (i) the Adjusted REMIC II Remittance Rate for
such Interest Accrual Period applicable to the Corresponding REMIC II
Regular Interest for such REMIC III Component, over (ii) the Net
Adjusted REMIC II Remittance Rate for such Interest Accrual Period
applicable to the Corresponding REMIC II Regular Interest for such
REMIC III Component; and
(s) with respect to the Class X-CP Certificates for any
Interest Accrual Period, an annual rate equal to the weighted average
(expressed as a percentage and rounded to six decimal places) of the
Pass-Through Rates applicable to the respective REMIC III Components of
such Class for such Interest Accrual Period, weighted on the basis of
the respective Component Notional Amounts of such REMIC III Components
outstanding immediately prior to the related Distribution Date;
provided that, for reporting purposes, the Pass-Through Rate of the
Class X-CP Certificates: (i) for each Interest Accrual Period from and
including the Interest Accrual Period ending in __________ 2005 through
and including the Interest Accrual Period ending in __________ 2006,
shall be calculated taking into account only the respective
Pass-Through Rates of REMIC III Component X-XX-X-0-0, X-XX-X-0-0,
X-XX-X-0-0, X-XX-X-0-0, X-XX-X-0-0, X-CP-A-4-2, X-CP-B, X-CP-C, X-CP-D,
X-CP-E, X-CP-F-1, X-CP-F-2, X-CP-F-3, X-CP-G-1, X-CP-G-2 and X-CP-H-2;
(ii) for each Interest Accrual Period from and including the Interest
Accrual Period ending in __________ 2006 through and including the
Interest Accrual Period ending in __________ 2007, shall be calculated
taking into account only the respective
-55-
Pass-Through Rates of REMIC III Component X-XX-X-0-0, X-XX-X-0-0,
X-XX-X-0-0, X-XX-X-0-0, X-XX-X, X-XX-X, X-CP-D, X-CP-E, X-CP-F-1,
X-CP-F-2, X-CP-F-3 and X-CP-G-2; (iii) for each Interest Accrual Period
from and including the Interest Accrual Period ending in __________
2007 through and including the Interest Accrual Period ending in
__________ 2008, shall be calculated taking into account only the
respective Pass-Through Rates of REMIC III Component X-XX-X-0-0,
X-XX-X-0-0, X-XX-X-0-0, X-XX-X, X-XX-X, X-CP-D, X-CP-E, X-CP-F-2 and
X-CP-F-3; (iv) for each Interest Accrual Period from and including the
Interest Accrual Period ending in __________ 2008 through and including
the Interest Accrual Period ending in __________ 2009, shall be
calculated taking into account only the respective Pass-Through Rates
of REMIC III Component X-CP-A-4-2, X-CP-B, X-CP-C, X-CP-D, X-CP-E and
X-CP-F-3; and (v) for each Interest Accrual Period following the
Interest Accrual Period ending in __________ 2009, shall equal 0% per
annum.
The Weighted Average REMIC I Remittance Rate referenced above
in this definition is also the REMIC II Remittance Rate for each REMIC II
Regular Interest.
"Percentage Interest" shall mean: (a) with respect to any
Regular Interest Certificate, the portion of the relevant Class evidenced by
such Certificate, expressed as a percentage, the numerator of which is the
Certificate Principal Balance or Certificate Notional Amount, as the case may
be, of such Certificate as of the Closing Date, as specified on the face
thereof, and the denominator of which is the Original Class Principal Balance or
Original Class Notional Amount, as the case may be, of the relevant Class; and
(b) with respect to a Class V or Residual Interest Certificate, the percentage
interest in distributions to be made with respect to the relevant Class, as
stated on the face of such Certificate.
"Performing Serviced Loan" shall mean any Corrected Loan and
any Serviced Loan as to which a Servicing Transfer Event has never occurred.
Notwithstanding anything herein to the contrary, the _______________ Mortgage
Loan shall in no event constitute a Performing Serviced Loan hereunder.
"Performing Serviced Mortgage Loan" shall mean any Serviced
Mortgage Loan that is a Performing Serviced Loan. Notwithstanding anything
herein to the contrary, the _______________ Mortgage Loan shall in no event
constitute a Performing Serviced Mortgage Loan hereunder.
"Permitted Encumbrances" shall have the meaning assigned
thereto in Section 2.04(b)(viii).
"Permitted Investments" shall mean any one or more of the
following obligations or securities (including obligations or securities of the
Trustee if otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States or
any agency or instrumentality thereof (having original maturities of
not more than 365 days), provided that such obligations are backed by
the full faith and credit of the United States. Such obligations must
be limited to those instruments that have a predetermined fixed dollar
amount of principal due at maturity that cannot vary or change.
Interest may either be fixed or variable. If such interest is variable,
interest must be tied to a single interest rate index plus a single
fixed spread (if any), and move proportionately with that index;
-56-
(ii) repurchase obligations with respect to any security
described in clause (i) of this definition (having original maturities
of not more than 365 days), provided that the short-term deposit or
debt obligations of the party agreeing to repurchase such obligations
are rated in the highest rating category of each of _________ (if then
rated by _________, and if not then rated by _________, then an
equivalent rating by at least one additional nationally recognized
statistical rating agency besides _____) and _____ (or, in the case of
either Rating Agency, such lower rating as will not result in an
Adverse Rating Event with respect to any Class of Certificates and, in
the case of an investment being made with funds that relate solely to
the _______________ Loan Pair, with respect to any class of
_______________ Companion Loan Securities, as evidenced in writing by
such Rating Agency). In addition, any such item by its terms must have
a predetermined fixed dollar amount of principal due at maturity that
cannot vary or change. Interest may either be fixed or variable. If
such interest is variable, interest must be tied to a single interest
rate index plus a single fixed spread (if any), and move
proportionately with that index;
(iii) certificates of deposit, time deposits, demand deposits
and bankers' acceptances of any bank or trust company organized under
the laws of the United States or any state thereof (having original
maturities of not more than 365 days), the short term obligations of
which are rated in the highest rating category of each of _________ (if
then rated by _________, and if not then rated by _________, then an
equivalent rating by at least one additional nationally recognized
statistical rating agency besides _____) and _____ (or, in the case of
either Rating Agency, such lower rating as will not result in an
Adverse Rating Event with respect to any Class of Certificates and, in
the case of an investment being made with funds that relate solely to
the _______________ Loan Pair, with respect to any class of
_______________ Companion Loan Securities, as evidenced in writing by
such Rating Agency). In addition, any such item by its terms must have
a predetermined fixed dollar amount of principal due at maturity that
cannot vary or change. Interest may either be fixed or variable. If
such interest is variable, interest must be tied to a single interest
rate index plus a single fixed spread (if any), and move
proportionately with that index;
(iv) commercial paper (having original maturities of not more
than 90 days) of any corporation incorporated under the laws of the
United States or any state thereof (or if not so incorporated, the
commercial paper is United States Dollar denominated and amounts
payable thereunder are not subject to any withholding imposed by any
non-United States jurisdiction) which is rated in the highest rating
category of each of _________ (if then rated by _________, and if not
then rated by _________, then an equivalent rating by at least one
additional nationally recognized statistical rating agency besides
_____) and _____ (or, in the case of either Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect to
any Class of Certificates and, in the case of an investment being made
with funds that relate solely to the _______________ Loan Pair, with
respect to any class of _______________ Companion Loan Securities, as
evidenced in writing by such Rating Agency). In addition, such
commercial paper by its terms must have a predetermined fixed dollar
amount of principal due at maturity that cannot vary or change.
Interest may either be fixed or variable. If such interest is variable,
interest must be tied to a single interest rate index plus a single
fixed spread (if any), and move proportionately with that index;
-57-
(v) units of money market funds rated in the highest
applicable rating category of each of _________ (if then rated by
_________, and if not then rated by _________, then an equivalent
rating by at least one additional nationally recognized statistical
rating agency besides _____) and _____ (or, in the case of either
Rating Agency, such lower rating as will not result in an Adverse
Rating Event with respect to any Class of Certificates and, in the case
of an investment being made with funds that relate solely to the
_______________ Loan Pair, with respect to any class of _______________
Companion Loan Securities, as evidenced in writing by such Rating
Agency) and which seeks to maintain a constant net asset value; and
(vi) any other obligation or security that (A) is acceptable
to each Rating Agency, evidence of which acceptability shall be
provided in writing by each Rating Agency to the Master Servicer, the
Special Servicer and the Trustee, and (B) constitutes a "cash flow
investment" (within the meaning of the REMIC Provisions), as evidenced
by an Opinion of Counsel obtained at the expense of the Person that
wishes to include such obligation or security as a Permitted
Investment;
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; (2) no investment described hereunder may be purchased
at a price greater than par if such investment may be prepaid or called at a
price less than its purchase price prior to stated maturity; and (3) no
investment described hereunder may have a "r" highlighter or other comparable
qualifier attached to its rating.
"Permitted Transferee" shall mean any Transferee of a Residual
Interest Certificate other than (a) a Disqualified Organization, (b) any Person
as to whom, as determined by the Trustee (based upon an Opinion of Counsel,
obtained at the request of the Trustee at the expense of such Person or the
Person seeking to Transfer a Residual Interest Certificate, supporting such
determination), the Transfer of a Residual Interest Certificate may cause any
REMIC Pool to fail to qualify as a REMIC at any time that any Certificate is
outstanding, (c) a Disqualified Non-United States Tax Person, or (d) a
Disqualified Partnership.
"Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, limited liability company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Plan" shall have the meaning assigned thereto in Section
5.02(c).
"Plurality Residual Interest Certificateholder" shall mean, as
to any taxable year of any REMIC Pool, the Holder of Certificates entitled to
the largest percentage of the Voting Rights allocated to the related Class of
Residual Interest Certificates.
"Pool Custodial Account" shall mean the segregated account or
accounts created and maintained by the Master Servicer pursuant to Section
3.04(a) on behalf of the Trustee in trust for the Certificateholders, which
shall be entitled "__________________________ [OR THE NAME OF ANY SUCCESSOR
MASTER SERVICER], as Master Servicer, on behalf of __________________________
[OR THE NAME OF ANY SUCCESSOR TRUSTEE], as Trustee, in trust for the registered
holders of LB-___ Commercial Mortgage Trust _________, Commercial Mortgage
Pass-Through Certificates, Series _________, Pool Custodial Account".
-58-
"Pool REO Account" shall mean the segregated account or
accounts created and maintained by the Special Servicer pursuant to Section 3.16
on behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "__________________________ [OR THE NAME OF ANY SUCCESSOR SPECIAL
SERVICER], as Special Servicer, on behalf of __________________________ [OR THE
NAME OF ANY SUCCESSOR TRUSTEE], as Trustee, in trust for the registered holders
of LB-___ Commercial Mortgage Trust _________, Commercial Mortgage Pass-Through
Certificates, Series _________, Pool REO Account".
"Pool Reserve Account" shall have the meaning assigned thereto
in Section 3.03(d).
"Pool Servicing Account" shall have the meaning assigned
thereto in Section 3.03(a).
"Prepayment Assumption" shall mean, for purposes of
determining the accrual of original issue discount, market discount and premium,
if any, on the Certificates for federal income tax purposes, the assumption that
no Mortgage Loan is prepaid prior to stated maturity, except that it is assumed
that each ARD Mortgage Loan is repaid on its Anticipated Repayment Date.
"Prepayment Consideration" shall mean any Prepayment Premium
or Yield Maintenance Charge.
"Prepayment Consideration Entitlement" shall mean, with
respect to (i) any Distribution Date on which any Net Prepayment Consideration
Received by the Trust on any Mortgage Loan (or any successor REO Mortgage Loan
with respect thereto) is distributable and (ii) any Class of Principal Balance
Certificates (other than any Excluded Class) entitled to distributions of
principal on such Distribution Date, an amount equal to the product of (a) such
Net Prepayment Consideration, multiplied by (b) a fraction (not greater than 1.0
or less than 0.0), the numerator of which is equal to the excess, if any, of the
Pass-Through Rate for such Class of Principal Balance Certificates over the
relevant Discount Rate, and the denominator of which is equal to the excess, if
any, of the Mortgage Rate for such Mortgage Loan (or REO Mortgage Loan) over the
relevant Discount Rate, and further multiplied by (c) a fraction, the numerator
of which is equal to the amount of principal to be distributed on such Class of
Principal Balance Certificates on such Distribution Date pursuant to Section
4.01(a) or 9.01, as applicable, and the denominator of which is equal to the
Principal Distribution Amount for such Distribution Date.
"Prepayment Interest Excess" shall mean: (a) with respect to
any Serviced Loan that was subject to a Principal Prepayment in full or in part
made (or, if resulting from the application of Insurance Proceeds or
Condemnation Proceeds, any other early recovery of principal received) after its
Due Date in any Collection Period, any payment of interest (net of related
Master Servicing Fees) actually collected from the related Mortgagor or
otherwise and intended to cover interest accrued on such Principal Prepayment
during the period from and after such Due Date (exclusive, however, of any
related Prepayment Premium or Yield Maintenance Charge that may have been
collected and, in the case of an ARD Loan after its Anticipated Repayment Date,
further exclusive of any Additional Interest); and (b) with respect to the
_______________ Mortgage Loan, a "Prepayment Interest Excess" in respect thereof
under the _______________ Servicing Agreement.
"Prepayment Interest Shortfall" shall mean: (a) with respect
to any Serviced Loan that was subject to a Principal Prepayment in full or in
part made (or, if resulting from the application of Insurance Proceeds or
Condemnation Proceeds, any other early recovery of principal received) prior to
-59-
its Due Date in any Collection Period, the amount of interest, to the extent not
collected from the related Mortgagor or otherwise (without regard to any
Prepayment Premium or Yield Maintenance Charge that may have been collected),
that would have accrued at a rate per annum equal to the related Mortgage Rate
(net of the sum of the related Master Servicing Fee Rate and, in the case of an
ARD Loan after its Anticipated Repayment Date, the related Additional Interest
Rate) on the amount of such Principal Prepayment during the period from the date
to which interest was paid by the related Mortgagor to, but not including, such
Due Date; and (b) with respect to the _______________ Mortgage Loan, a
"Prepayment Interest Shortfall" in respect thereof under the _______________
Servicing Agreement.
"Prepayment Premium" shall mean any premium, penalty or fee
(other than a Yield Maintenance Charge) paid or payable, as the context
requires, as a result of a Principal Prepayment on, or other early collection of
principal of, a Loan (including any payoff of a Loan by a mezzanine lender on
behalf of the subject Mortgagor, as set forth in the related intercreditor
agreement).
"Primary Servicing Office" shall mean the offices of the
Master Servicer or the Special Servicer, as the context may require, that are
primarily responsible for such party's servicing obligations hereunder. As of
the Closing Date, the Primary Servicing Office of the Master Servicer is located
at ______________________________, and the Primary Servicing Office of the
Special Servicer is located at ______________________________.
"Prime Rate" shall mean the "prime rate" published in the
"Money Rates" section of The Wall Street Journal, as such "prime rate" may
change from time to time. If The Wall Street Journal ceases to publish the
"prime rate", then the Trustee shall select an equivalent publication that
publishes such "prime rate"; and if such "prime rate" is no longer generally
published or is limited, regulated or administered by a governmental or
quasi-governmental body, then the Trustee shall select a comparable interest
rate index. In either case, such selection shall be made by the Trustee in its
sole discretion and the Trustee shall notify the Fiscal Agent, the Master
Servicer, the Special Servicer and the _______________ Companion Loan Noteholder
in writing of its selection.
"Principal Balance Certificate" shall mean any Regular
Interest Certificate (other than an Interest Only Certificate).
"Principal Distribution Amount" shall mean, with respect to
any Distribution Date, an amount equal to the aggregate (without duplication) of
the following:
(a) the aggregate of all payments of principal (other than
Principal Prepayments) Received by the Trust with respect to the
Serviced Mortgage Loans during the related Collection Period, in each
case exclusive of any portion of the particular payment that represents
a Late Collection of principal for which a P&I Advance was previously
made under this Agreement for a prior Distribution Date or that
represents the principal portion of a Monthly Payment due on or before
the Cut-off Date or on a Due Date subsequent to the related Collection
Period;
(b) the aggregate of the principal portions of all Monthly
Payments due in respect of the Serviced Mortgage Loans for their
respective Due Dates occurring during the related Collection Period,
that were Received by the Trust prior to the related Collection Period;
(c) the aggregate of all Principal Prepayments Received by the
Trust on the Serviced Mortgage Loans during the related Collection
Period;
-60-
(d) the aggregate of all Liquidation Proceeds, Condemnation
Proceeds and Insurance Proceeds Received by the Trust with respect to
any Serviced Mortgage Loans during the related Collection Period that
were identified and applied by the Master Servicer as recoveries of
principal of such Mortgage Loans, in each case exclusive of any portion
of such proceeds that represents a Late Collection of principal due on
or before the Cut-off Date or for which a P&I Advance was previously
made under this Agreement for a prior Distribution Date;
(e) the aggregate of all Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds and REO Revenues Received by the Trust
with respect to any Administered REO Properties during the related
Collection Period that were identified and applied by the Master
Servicer as recoveries of principal of the related REO Mortgage Loans,
in each case exclusive of any portion of such proceeds and/or revenues
that represents a Late Collection of principal due on or before the
Cut-off Date or for which a P&I Advance was previously made under this
Agreement for a prior Distribution Date;
(f) the aggregate of the principal portions of all P&I
Advances made under this Agreement with respect to the Mortgage Loans
and any REO Mortgage Loans for such Distribution Date; and
(g) all amounts Received by the Trust on or with respect to
the _______________ Mortgage Loan or any successor REO Mortgage Loan
with respect thereto since the preceding Distribution Date (or, in the
case of the initial Distribution Date, since the Closing Date) that
represents a payment, advance or other recovery of principal with
respect to such Mortgage Loan or REO Mortgage Loan, as the case may be,
exclusive of any portion of such amounts that represent a late payment
or other recovery of principal due on or before the Cut-off Date or for
which a P&I Advance was previously made under this Agreement for a
prior Distribution Date;
provided that none of the amounts set forth in clauses (a) to (g) above shall
represent amounts received, due or advanced on or in respect of the
_______________ Companion Loan or any successor REO Loan.
"Principal Prepayment" shall mean any voluntary payment of
principal made by the Mortgagor on a Loan that is Received by the Trust (or, in
the case of the _______________ Mortgage Loan, by a _______________ Servicer) in
advance of its scheduled Due Date and that is not accompanied by an amount of
interest (without regard to any Prepayment Premium or Yield Maintenance Charge
that may have been collected) representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
"Prohibited Transaction Exemption" shall mean Prohibited
Transaction Exemption 91-14 granted to a predecessor of Xxxxxx Brothers by the
United States Department of Labor, as such Prohibited Transaction Exemption may
be amended from time to time.
"Proposed Plan" shall have the meaning assigned thereto in
Section 3.17(a)(iii).
"Prospectus" shall mean the prospectus dated _________ ___,
____, as supplemented by the Prospectus Supplement, relating to the Registered
Certificates.
-61-
"Prospectus Supplement" shall mean the prospectus supplement
dated _________ ___, ____, relating to the Registered Certificates.
"Purchase Option Holders" shall have the meaning assigned
thereto in Section 3.18(b).
"Purchase Price" shall mean, with respect to any Mortgage Loan
(or REO Property), a cash price equal to the aggregate of: (a) the outstanding
principal balance of such Mortgage Loan (or the related REO Loan) as of the date
of purchase, (b) all accrued and unpaid interest on such Mortgage Loan (or the
related REO Loan) to, but not including, the Due Date in the Collection Period
of purchase (exclusive, however, of any portion of such accrued but unpaid
interest that represents Default Interest or, in the case of an ARD Loan after
its Anticipated Repayment Date, Additional Interest), (c) all related
unreimbursed Servicing Advances, if any, (d) all accrued and unpaid interest, if
any, in respect of related Advances in accordance with, as applicable, Section
3.11(g), Section 4.03(d) and/or Section 4.03A(d), and (e) in the case of a
repurchase by the Depositor pursuant to Section 2.03(a) or by the ___ Mortgage
Loan Seller pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement, (i)
to the extent not otherwise included in the amount described in clause (d) of
this definition, any unpaid Special Servicing Fees and other Additional Trust
Fund Expenses with respect to such Mortgage Loan (or REO Property), including
any Liquidation Fee payable because the subject repurchase occurred more than
180 days beyond the earlier of notice to or discovery by the party effecting the
repurchase of the subject Material Document Defect or Material Breach that gave
rise to the repurchase, and (ii) to the extent not otherwise included in the
amount described in clause (c) of this definition, any costs and expenses
incurred by the Master Servicer, the Special Servicer or the Trustee (on behalf
of the Trust) in enforcing the obligation of such Person to purchase such
Mortgage Loan; provided that in the case of the _______________ Mortgage Loan,
the Purchase Price calculated above shall be reduced by any related unpaid
Master Servicing Fees, unreimbursed Advances and, to the extent included therein
pursuant to clause (d) above, unpaid interest on Advances which, following the
subject purchase, will continue to be payable or reimbursable to the Master
Servicer and/or the Special Servicer in respect of such Mortgage Loan pursuant
to the terms of any relevant servicing agreement that is to govern the servicing
and administration of the _______________ Loan Pair, (which amounts shall no
longer be payable hereunder); and provided, further, that, in the case of an REO
Property that relates to the _______________ Loan Pair, the Purchase Price for
such REO Property shall instead equal the greater of (x) the fair market value
of such REO Property, based on a recent appraisal meeting the criteria for a
Required Appraisal, and (y) the aggregate of the amounts described in clauses
(a), (b), (c), (d) and, if applicable, (e) above with respect to both REO Loans
comprising the _______________ Loan Pair. For purposes of this definition, in
the case of the _______________ Mortgage Loan or any related REO Property,
"Collection Period" shall mean the period ending at 12:00 noon (New York City
time) on each Distribution Date and beginning immediately following the end of
the prior Collection Period (or, in the case of the initial Collection Period,
beginning on the Closing Date).
"Qualified Bidder" shall have the meaning assigned thereto in
Section 7.01(c).
"Qualified Institutional Buyer" or "QIB" shall mean a
"qualified institutional buyer" as defined in Rule 144A under the Securities
Act.
"Qualified Insurer" shall mean an insurance company or
security or bonding company qualified to write the related Insurance Policy in
the relevant jurisdiction.
-62-
"Rated Final Distribution Date" shall mean: (a) with respect
to the Class A-1, Class A-2 and Class A-3 Certificates, the Distribution Date in
___________; (b) with respect to the Class A-4 Certificates, the Distribution
Date in ______________; and (c) with respect to the other Classes of
Certificates, other than the Class X-CL, Class X-CP, Class X-______, Class U,
Class R-I, Class R-II, Class R-III, Class R-LR and Class V Certificates, the
Distribution Date in _____________.
"Rating Agency" shall mean each of _________ and _____.
"Realized Loss" shall mean: (1) with respect to each Loan as
to which a Final Recovery Determination has been made, or with respect to any
successor REO Loan as to which a Final Recovery Determination has been made as
to the related REO Property, an amount (not less than zero) equal to the excess,
if any, of (a) the sum of (i) the unpaid principal balance of such Loan or REO
Loan, as the case may be, as of the commencement of the Collection Period in
which the Final Recovery Determination was made, plus (ii) without taking into
account the amount described in subclause (1)(b) of this definition, all accrued
but unpaid interest on such Loan or such REO Loan, as the case may be, to but
not including the Due Date in the Collection Period in which the Final Recovery
Determination was made (exclusive, however, of any portion of such accrued but
unpaid interest that represents Default Interest or, in the case of an ARD Loan
after its Anticipated Repayment Date, Additional Interest), over (b) all
payments and proceeds, if any, Received by the Trust in respect of such Loan or,
to the extent allocable to such REO Loan, the related REO Property, as the case
may be, during the Collection Period in which such Final Recovery Determination
was made, insofar as such payments and proceeds are allocable to interest (other
than Default Interest and Additional Interest) on or principal of such Loan or
REO Loan; (2) with respect to each Loan as to which any portion of the principal
or previously accrued interest payable thereunder was canceled in connection
with a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, extension, waiver or amendment of such Loan granted or agreed to
by the Special Servicer pursuant to Section 3.20 (or, in the case of the
_______________ Mortgage Loan, by the _______________ Special Servicer pursuant
to the _______________ Servicing Agreement), the amount of such principal and/or
interest (other than Default Interest and, in the case of an ARD Loan after its
Anticipated Repayment Date, Additional Interest) so canceled; and (3) with
respect to each Loan as to which the Mortgage Rate thereon has been permanently
reduced and not recaptured for any period in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, extension,
waiver or amendment of such Loan granted or agreed to by the Special Servicer
pursuant to Section 3.20 (or, in the case of the _______________ Mortgage Loan,
by the _______________ Special Servicer pursuant to the _______________
Servicing Agreement), the amount of the consequent reduction in the interest
portion of each successive Monthly Payment due thereon (each such Realized Loss
shall be deemed to have been incurred on the Due Date for each affected Monthly
Payment). For purposes of this definition, in the case of the _______________
Mortgage Loan or any related REO Property, "Collection Period" shall mean the
period ending at 12:00 noon (New York City time) on each Distribution Date and
beginning immediately following the end of the prior Collection Period (or, in
the case of the initial Collection Period, beginning on the Closing Date).
"Received by the Trust" shall mean: (a) in the case of the
_______________ Mortgage Loan or any related REO Property, received by the
Trustee, as holder of the Mortgage Note for the _______________ Mortgage Loan,
on behalf of the Trust; and (b) in the case of any other Loan or REO Property,
received by the Master Servicer or any of its Sub-Servicers, the Special
Servicer or any of its Sub-Servicers or the Trustee, as the case may be, in any
event on behalf of the Trust.
-63-
"Record Date" shall mean: with respect to the initial
Distribution Date, the Closing Date; and, with respect to any other Distribution
Date, the last Business Day of the month immediately preceding the month in
which such Distribution Date occurs.
"Recording/Filing Agent" shall have the meaning assigned
thereto in Section 2.01(c).
"Reference Rate" shall mean, with respect to any Interest
Accrual Period, the rate per annum set forth on the Reference Rate Schedule.
"Reference Rate Schedule" shall mean the list of Reference
Rates set forth on the schedule attached hereto as Schedule VI.
"Registered Certificate" shall mean any Certificate that has
been the subject of registration under the Securities Act. As of the Closing
Date, the Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class C, Class D,
Class E, Class F and Class G Certificates are Registered Certificates.
"Regular Interest Certificate" shall mean any REMIC III
Certificate other than a Class R-III Certificate.
"Regulation S" shall mean Regulation S under the Securities
Act.
"Regulation S Global Certificates" shall mean, with respect to
any Class of Book-Entry Non-Registered Certificates offered and sold outside of
the United States in reliance on Regulation S, one or more global Certificates,
collectively, in definitive, fully registered form without interest coupons,
each of which Certificates bears a Regulation S Legend.
"Regulation S Legend" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside the United
States in reliance on Regulation S, a legend generally to the effect that such
Certificates may not be offered, sold, pledged or otherwise transferred in the
United States or to a United States Securities Person prior to the Release Date
except pursuant to an exemption from the registration requirements of the
Securities Act.
"Reimbursement Rate" shall mean the rate per annum applicable
to the accrual of interest, compounded annually, on Servicing Advances in
accordance with Section 3.11(g) and on P&I Advances in accordance with, as
applicable, Section 4.03(d) or Section 4.03A(d), which rate per annum is equal
to the Prime Rate.
"Release Date" shall mean the date that is 40 days following
the Closing Date.
"REMIC" shall mean a "real estate mortgage investment conduit"
as defined in Section 860D of the Code.
"REMIC I" shall mean the segregated pool of assets
constituting the primary trust created hereby and to be administered hereunder
with respect to which a separate REMIC election is to be made, and consisting
of: (i) the Mortgage Loans (exclusive of the Loan REMIC Mortgage loans) as from
time to time are subject to this Agreement and all payments under and proceeds
of such Mortgage Loans Received by the Trust after the Closing Date (other than
scheduled payments of interest and principal due on or before the Cut-off Date,
other than Additional Interest Received by the Trust in respect of the
-64-
ARD Mortgage Loans after their respective Anticipated Repayment Dates), together
with all documents included in the related Mortgage Files; (ii) any REO
Properties as from time to time are subject to this Agreement and all income and
proceeds therefrom (other than a Loan REMIC Mortgage Loan) (or, in the case of
the _______________ Mortgage Loan, the rights of the holder thereof with respect
to any _______________ REO Property under the _______________ Servicing
Agreement); (iii) the Loan REMIC Regular Interests; (iv) such funds or assets
(including the Initial Deposit) as from time to time are deposited in the Pool
Custodial Account, the Collection Account, the Interest Reserve Account and, if
established, the Pool REO Account, exclusive of any amounts that represent
Additional Interest Received by the Trust in respect of the ARD Mortgage Loans
after their respective Anticipated Repayment Dates; and (v) the rights of the
Depositor under the UBS/Depositor Mortgage Loan Purchase Agreement; provided
that REMIC I shall not include the _______________ Companion Loan, the Loan
REMIC Mortgage Loans, any payments or other collections of principal, interest,
Prepayment Premiums, Yield Maintenance Charges or other amounts Received by the
Trust on such Loans or any REO Property acquired in respect of a Loan REMIC
Mortgage Loan or with respect to _______________ Companion Loan or any successor
REO Loans in respect thereof.
"REMIC I Regular Interest" shall mean any of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a "regular interest" in REMIC I, as described in the Preliminary
Statement hereto.
"REMIC I Remittance Rate" shall mean, (a) with respect to each
REMIC I Regular Interest that relates to a Loan REMIC Regular Interest, ____%
per annum; (b) with respect to any REMIC I Regular Interest that, as of the
Closing Date, corresponds to a Mortgage Loan that accrues interest on a 30/360
Basis, a rate per annum that is, for any Interest Accrual Period, equal to (i)
the Mortgage Rate in effect for such corresponding Mortgage Loan as of the
Closing Date (without regard to any modifications, extensions, waivers or
amendments of such corresponding Mortgage Loan subsequent to the Closing Date),
minus (ii) the Administrative Cost Rate for such corresponding Mortgage Loan (or
any successor REO Mortgage Loan with respect thereto); and (c) with respect to
any REMIC I Regular Interest that, as of the Closing Date, corresponds to a
Mortgage Loan that accrues interest on a 30/360 Basis, a rate per annum that is,
for any Interest Accrual Period, equal to (i) a fraction (expressed as a
percentage), the numerator of which is the product of 12 times the Adjusted
Actual/360 Accrued Interest Amount with respect to such REMIC I Regular Interest
for such Interest Accrual Period, and the denominator of which is the
Uncertificated Principal Balance of such REMIC I Regular Interest immediately
prior to the Distribution Date that corresponds to such Interest Accrual Period,
minus (ii) the Administrative Cost Rate for the corresponding Mortgage Loan (or
any successor REO Loan with respect thereto), in the case of each other REMIC I
Regular Interest.
"REMIC II" shall mean the segregated pool of assets consisting
of all of the REMIC I Regular Interests conveyed in trust to the Trustee for the
benefit of REMIC III, as holder of the REMIC II Regular Interests, and the
Holders of the Class R-II Certificates, pursuant to Section 2.07, with respect
to which a separate REMIC election is to be made.
"REMIC II Regular Interest" shall mean any of the ____
separate non-certificated beneficial ownership interests in REMIC II issued
hereunder and designated as a "regular interest" in REMIC II. Each REMIC II
Regular Interest shall accrue interest at the REMIC II Remittance Rate in effect
from time to time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth
-65-
in the Preliminary Statement hereto. The designations for the respective REMIC
II Regular Interests are set forth in the Preliminary Statement hereto.
"REMIC II Remittance Rate" shall mean: (a) with respect to
REMIC II Regular Interest X-______ for any Interest Accrual Period, ____% per
annum; and (b) with respect to each other REMIC II Regular Interest for any
Interest Accrual Period, the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period.
"REMIC III" shall mean the segregated pool of assets
consisting of all of the REMIC II Regular Interests conveyed in trust to the
Trustee for the benefit of the Holders of the REMIC III Certificates, pursuant
to Section 2.09, with respect to which a separate REMIC election is to be made.
"REMIC III Certificate" shall mean any Class A-1, Class A-2,
Class X-0, Xxxxx X-0, Class X-CL, Class X-CP, Class X-______, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class P, Class Q, Class S, Class T, Class U or Class R-III Certificate.
"REMIC III Component" shall mean:
(a) with respect to the Class X-CL Certificates, any of the
following ____ components of the Class X-CL Certificates: REMIC III
Component X-CL-A-1, REMIC III Component X-CL-A-2-1, REMIC III Component
X-CL-A-2-2, REMIC III Component X-CL-A-2-3, REMIC III Component
X-CL-A-3-1, REMIC III Component X-CL-A-3-2, REMIC III Component
X-CL-A-3-3, REMIC III Component X-CL-A-4-1, REMIC III Component
X-CL-A-4-2, REMIC III Component X-CL-B, REMIC III Component X-CL-C,
REMIC III Component X-CL-D, REMIC III Component X-CL-E, REMIC III
Component X-CL-F-1, REMIC III Component X-CL-F-2, REMIC III Component
X-CL-F-3, REMIC III Component X-CL-G-1, REMIC III Component X-CL-G-2,
REMIC III Component X-CL-H-1, REMIC III Component X-CL-H-2, REMIC III
Component X-CL-J-1, REMIC III Component X-CL-J-2, REMIC III Component
X-CL-K, REMIC III Component X-CL-L, REMIC III Component X-CL-M, REMIC
III Component X-CL-N, REMIC III Component X-CL-P, REMIC III Component
X-CL-Q, REMIC III Component X-CL-S, REMIC III Component X-CL-T and
REMIC III Component X-CL-U, each of which (i) constitutes a separate
"regular interest" in REMIC III for purposes of the REMIC Provisions,
(ii) relates to its Corresponding REMIC II Regular Interest, and (iii)
has a Component Notional Amount equal to the Uncertificated Principal
Balance of its Corresponding REMIC II Regular Interest outstanding from
time to time; and
(b) with respect to the Class X-CP Certificates, any of the
following ____ components of the Class X-CP Certificates: REMIC III
Component X-CP-A-2-2, REMIC III Component X-CP-A-2-3, REMIC III
Component X-CP-A-3-1, REMIC III Component X-CP-A-3-2, REMIC III
Component X-CP-A-3-3, REMIC III Component X-CP-A-4-1, REMIC III
Component X-CP-A-4-2, REMIC III Component X-CP-B, REMIC III Component
X-CP-C, REMIC III Component X-CP-D, REMIC III Component X-CP-E, REMIC
III Component X-CP-F-1, REMIC III Component X-CP-F-2, REMIC III
Component X-CP-F-3, REMIC III Component X-CP-G-1, REMIC III Component
X-CP-G-2, REMIC III Component X-CP-H-1, REMIC III Component X-CP-H-2
and REMIC III Component X-CP-J-2, each of which (i) constitutes a
separate "regular interest" in REMIC III for purposes of the REMIC
Provisions, (ii) relates to its Corresponding REMIC II Regular
Interest, and (iii) has a Component Notional
-66-
Amount equal to the Uncertificated Principal Balance of its
Corresponding REMIC II Regular Interest outstanding from time to time.
"REMIC Pool" shall mean any of REMIC I, REMIC II, REMIC III
and each Loan REMIC.
"REMIC Provisions" shall mean the provisions of the federal
income tax law relating to REMICs, 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 published rulings, notices and
announcements promulgated thereunder, as the foregoing may be in effect from
time to time.
"Rents from Real Property" shall mean, with respect to any REO
Property, gross income of the character described in Section 856(d) of the Code.
"REO Account" shall mean either of the Pool REO Account or the
_______________ REO Account.
"REO Acquisition" shall mean the acquisition of any REO
Property pursuant to Section 3.09 (or, in the case of the _______________
Mortgaged Property, pursuant to the _______________ Servicing Agreement).
"REO Disposition" shall mean the sale or other disposition of
any REO Property pursuant to Section 3.18 (or, in the case of the
_______________ Mortgaged Property, pursuant to the _______________ Servicing
Agreement).
"REO Extension" shall have the meaning assigned thereto in
Section 3.16(a).
"REO Loan" shall mean the mortgage loan (or, if the
_______________ Loan Pair is involved, either of the two mortgage loans
comprising such Loan Pair) deemed for purposes hereof to be outstanding with
respect to each REO Property. Each REO Loan shall be deemed to provide for
monthly payments of principal and/or interest equal to its Assumed Monthly
Payment and otherwise to have the same terms and conditions as its predecessor
Loan (such terms and conditions to be applied without regard to the default on
such predecessor Loan and the acquisition of the related REO Property as part of
the Trust Fund or, if applicable in the case of any _______________ REO
Property, on behalf of the Trust). Each REO Loan shall be deemed to have an
initial unpaid principal balance and Stated Principal Balance equal to the
unpaid principal balance and Stated Principal Balance, respectively, of its
predecessor Loan as of the date of the related REO Acquisition. All Monthly
Payments (other than a Balloon Payment), Assumed Monthly Payments (in the case
of a Balloon Loan delinquent in respect of its Balloon Payment) and other
amounts due and owing, or deemed to be due and owing, in respect of the
predecessor Loan as of the date of the related REO Acquisition, shall be deemed
to continue to be due and owing in respect of an REO Loan. Amounts Received by
the Trust with respect to each REO Loan (after provision for amounts to be
applied to the payment of, or to be reimbursed to the Master Servicer or the
Special Servicer for the payment of, the costs of operating, managing and
maintaining the related REO Property (other than in the case of a ______________
REO Property) or for the reimbursement of the Master Servicer or the Special
Servicer for other related Servicing Advances) shall be treated: first, as a
recovery of accrued and unpaid interest on such REO Loan at the related Mortgage
Rate [(reduced, in the case of an REO Loan that relates to the _______________
Mortgage Loan, by __
-67-
basis points)] to but not including the Due Date in the Collection Period of
receipt (exclusive, however, in the case of an REO Loan that relates to an ARD
Loan after its Anticipated Repayment Date, of any such accrued and unpaid
interest that constitutes Additional Interest); second, as a recovery of
principal of such REO Loan to the extent of its entire unpaid principal balance;
third, in accordance with the normal servicing practices of the Master Servicer,
as a recovery of any other amounts due and owing in respect of such REO Loan
(exclusive, however, in the case of an REO Loan that relates to an ARD Loan
after its Anticipated Repayment Date, of any such accrued and unpaid interest
that constitutes Additional Interest); and fourth, in the case of an REO Loan
that relates to an ARD Loan after its Anticipated Repayment Date, as a recovery
of accrued and unpaid Additional Interest on such REO Loan; provided that, if
the _______________ Mortgage Loan becomes an REO Loan, then amounts Received by
the Trust with respect thereto shall be applied pursuant to clause third of this
sentence as a recovery of any Yield Maintenance Charge due on such REO Loan; and
provided, further, that if the Loans comprising the _____________ Loan Pair
become REO Loans, amounts Received by the Trust with respect to such REO Loans
shall be applied to amounts due and owing in respect of such REO Loans as
provided in Section 4.01 of the _______________ Co-Lender Agreement.
Notwithstanding the foregoing, all amounts payable or reimbursable to the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent in respect of
the predecessor Loan as of the date of the related REO Acquisition, including
any unpaid Servicing Fees and any unreimbursed Servicing Advances and P&I
Advances, together with any interest accrued and payable to the Master Servicer,
the Special Servicer, the Trustee or the Fiscal Agent in respect of such
Servicing Advances and P&I Advances in accordance with Sections 3.11(g), 4.03(d)
and 4.03A(d), respectively, shall continue to be payable or reimbursable to the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as the
case may be, in respect of an REO Loan.
"REO Mortgage Loan" shall mean any REO Loan that relates to a
predecessor Mortgage Loan.
"REO Property" shall mean a Mortgaged Property acquired on
behalf and in the name of the Trustee for the benefit of the Certificateholders
(or, in the case of the _______________ Mortgaged Property, for the benefit of
the Certificateholders and the _______________ Companion Loan Noteholder, as
their interests may appear, through foreclosure, acceptance of a deed-in-lieu of
foreclosure or otherwise in accordance with applicable law in connection with
the default or imminent default of a Loan; provided that any _______________
Mortgaged Property shall constitute an REO Property if acquired under the
_______________ Servicing Agreement in the name of the _______________ Non-Trust
Loan Noteholder for the benefit of the _______________ Non-Trust Loan Noteholder
and the Trust, as their interests may appear, through foreclosure, acceptance of
a deed-in-lieu of foreclosure or otherwise in accordance with applicable law in
connection with a default or imminent default of the _______________ Loan Pair.
"REO Revenues" shall mean all income, rents, profits and
proceeds derived from the ownership, operation or leasing of any REO Property.
"REO Tax" shall have the meaning assigned thereto in Section
3.17(a).
"Request for Release" shall mean a request signed by a
Servicing Officer of, as applicable, the Master Servicer in the form of Exhibit
D-1 attached hereto or the Special Servicer in the form of Exhibit D-2 attached
hereto.
-68-
"Required Appraisal" shall mean, with respect to each Required
Appraisal Loan, an appraisal of the related Mortgaged Property from an
Independent Appraiser selected by the party required or authorized to obtain
such appraisal hereunder, which appraisal shall be prepared in accordance with
12 CFR ss. 225.62 and conducted in accordance with the standards of the
Appraisal Institute or, in the case of a Required Appraisal Loan having a Stated
Principal Balance of, or in the case of a Mortgaged Property that has an
allocated loan amount of, less than $2,000,000, if no satisfactory (as
determined by the Special Servicer pursuant to Section 3.09(a)) appraisal
meeting the foregoing criteria was obtained or conducted within the prior 12
months, a "desktop" value estimate performed by the Special Servicer.
"Required Appraisal Loan" shall mean any Mortgage Loan (other
than the _______________ Mortgage Loan) or the __________________ Loan Pair (i)
that becomes a Modified Loan, (ii) that is 60 days or more delinquent in respect
of any Monthly Payment, except for a Balloon Payment, (iii) that is delinquent
in respect of its Balloon Payment, if any, for (A) 20 days, or (B) if the
related Mortgagor shall have delivered a refinancing commitment acceptable to
the Special Servicer prior to the date the subject Balloon Payment was due, 30
days, (iv) with respect to which the related Mortgaged Property has become an
REO Property, (v) with respect to which a receiver or similar official is
appointed and continues for 60 days in such capacity in respect of the related
Mortgaged Property, (vi) with respect to which the related Mortgagor is subject
to a bankruptcy, insolvency or similar proceedings, which, in the case of an
involuntary bankruptcy, insolvency or similar proceeding, has not been dismissed
within 60 days of the commencement thereof, or (vii) that remains outstanding
five (5) years following any extension of its maturity date pursuant to Section
3.20. Any Required Appraisal Loan (other than a Mortgage Loan that became a
Required Appraisal Loan pursuant to clause (vii) above) shall cease to be such
at such time as it has become a Corrected Loan (except if such Required
Appraisal Loan had not become a Specially Serviced Loan at the time the
applicable event(s) described in any of clauses (i) through (vii) above ceased
to exist), it has remained current for at least three (3) consecutive Monthly
Payments, and no other event described in clauses (i) through (vii) above has
occurred with respect thereto during the preceding three-month period; provided
that the term "Required Appraisal Loan" shall include any successor REO Loan(s);
and provided, further, that the _______________ Mortgage Loan and the
_______________ Companion Loan shall, upon the occurrence of any of the events
described in clauses (i) through (vii) of this definition in respect of either
such Loan, be deemed to be a single "Required Appraisal Loan". In no event shall
the _______________ Mortgage Loan or any successor REO Mortgage Loan with
respect thereto or the _______________ Loan Pair constitute a Required Appraisal
Loan hereunder.
"Required Appraisal Value" shall mean, with respect to any
Mortgaged Property securing (or REO Property relating to) a Required Appraisal
Loan, an amount equal to the sum of: (a) the excess, if any, of (i) 90% of the
Appraised Value of such Mortgaged Property (or REO Property) as determined by
the most recent Required Appraisal or any letter update of such Required
Appraisal, over (ii) the amount of any obligations secured by liens on such
Mortgaged Property (or REO Property) that are prior to the lien of the related
Required Appraisal Loan; plus (b) the amount of Escrow Payments and Reserve
Funds held by the Master Servicer in respect of such Required Appraisal Loan
that (i) are not being held in respect of any real estate taxes and assessments,
insurance premiums or, if applicable, ground rents, (ii) are not otherwise
scheduled to be applied or utilized (except to pay debt service on such Required
Appraisal Loan) within the twelve-month period following the date of
determination and (iii) may be applied towards the reduction of the principal
balance of such Required Appraisal Loan; plus (c) the
-69-
amount of any letter of credit constituting additional security for such
Required Appraisal Loan and that may be applied towards the reduction of the
principal balance of such Required Appraisal Loan.
"Reserve Account" shall mean each of the Pool Reserve Account
and the _______________ Reserve Account.
"Reserve Funds" shall mean, with respect to any Loan, any
amounts delivered by the related Mortgagor to be held by or on behalf of the
mortgagee representing reserves for repairs, capital improvements and/or
environmental remediation in respect of the related Mortgaged Property or debt
service on such Loan.
"Residual Interest Certificate" shall mean a Class R-I, Class
R-II, Class R-III or Class R-LR Certificate.
"Responsible Officer" shall mean: (a) when used with respect
to the Trustee, any Vice President, any Assistant Vice President, any Trust
Officer, any Assistant Secretary or any other officer of the Trustee's
Asset-Backed Services Trust Group customarily performing functions similar to
those performed by any of the above designated officers and having direct
responsibility for the administration of this Agreement; and (b) when used with
respect to the Fiscal Agent, any officer thereof.
"Restricted Servicer Reports" shall mean each of the CMSA
Servicer Watch List, the CMSA Operating Statement Analysis Report, the CMSA NOI
Adjustment Worksheet, the CMSA Financial File and the CMSA Comparative Financial
Status Report.
"Review Package" shall mean a package of documents consisting
of a memorandum outlining the analysis and recommendation (in accordance with
the Servicing Standard) of the Master Servicer or the Special Servicer, as the
case may be, with respect to the matters that are the subject thereof, and
copies of all relevant documentation.
"Rule 144A Global Certificate" shall mean, with respect to any
Class of Book-Entry Non-Registered Certificates, one or collectively more global
certificates representing such Class registered in the name of the Depository or
its nominee, in definitive, fully registered form without interest coupons, none
of which certificates bears a Regulation S Legend, and each of which
certificates has a Rule 144A CUSIP number.
"_____" shall mean ________________, or its successor in
interest. If neither such rating agency nor any successor remains in existence,
"_____" shall be deemed to refer to such other nationally recognized statistical
rating agency or other comparable Person designated by the Depositor, notice of
which designation shall be given to the Trustee, the Fiscal Agent, the Master
Servicer and the Special Servicer, and specific ratings of Standard & Poor's
Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated.
"SASCO" shall mean Structured Asset Securities Corporation II
or any successor in interest.
"Scheduled Payment" shall mean, with respect to any Loan, for
any Due Date following the Cut-off Date as of which it is outstanding, the
Monthly Payment on such Loan that is or would be, as
-70-
the case may be, payable by the related Mortgagor on such Due Date under the
terms of the related Mortgage Note as in effect on the Closing Date, without
regard to any subsequent change in or modification of such terms in connection
with a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, extension, waiver or amendment of such Loan granted or agreed to
by the Special Servicer pursuant to Section 3.20 (or, in the case of the
_______________ Mortgage Loan, by the _______________ Special Servicer pursuant
to the _______________ Servicing Agreement), and assuming that the full amount
of each prior Scheduled Payment has been made in a timely manner.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Senior Certificate" shall mean any Class A-1, Class A-2,
Class A-3, Class A-4, Class X-CL, Class X-CP or Class X-______ Certificate.
"Serviced Loan" shall mean any Loan (including a Specially
Serviced Loan, but excluding an REO Loan) that is, as contemplated by Section
3.01, to be serviced and administered by the Master Servicer and/or the Special
Servicer hereunder. Notwithstanding anything herein to the contrary, the
_______________ Mortgage Loan shall in no event constitute a Serviced Loan
hereunder.
"Serviced Mortgage Loan" shall mean any Mortgage Loan that is
a Serviced Loan. Notwithstanding anything herein to the contrary, the
_______________ Mortgage Loan shall in no event constitute a Serviced Mortgage
Loan hereunder.
"Servicer Fee Amount" shall mean: (a) with respect to each
Sub-Servicer, as of any date of determination, the aggregate of the products
obtained by multiplying, for each Serviced Loan primary serviced by such
Sub-Servicer, (i) the principal balance of such Loan as of the end of the
immediately preceding Collection Period and (ii) the sub-servicing fee rate
specified in the related Sub-Servicing Agreement for such Loan; and (b) with
respect to the Master Servicer, as of any date of determination, the aggregate
of the products obtained by multiplying, for each Serviced Loan, (i) the
principal balance of such Loan as of the end of the immediately preceding
Collection Period and (ii) the excess, if any, of the Master Servicing Fee Rate
for such Loan, over the sub-servicing fee rate (if any) applicable to such Loan,
as specified in any Sub-Servicing Agreement related to such Loan.
"Servicing Account" shall mean each of the Pool Servicing
Account and the _______________ Servicing Account.
"Servicing Advances" shall mean all customary, reasonable and
necessary "out of pocket" costs and expenses (including attorneys' fees and fees
and expenses of real estate brokers) incurred by the Master Servicer, the
Special Servicer, the Fiscal Agent or the Trustee in connection with the
servicing and administration of a Loan, if a default is imminent thereunder or a
default, delinquency or other unanticipated event has occurred with respect
thereto, or in connection with the administration of any REO Property,
including, but not limited to, the cost of (a) compliance with the obligations
of the Master Servicer, the Special Servicer, the Fiscal Agent or the Trustee,
if any, set forth in Section 3.03(c), (b) the preservation, insurance,
restoration, protection and management of a Mortgaged Property, (c) obtaining
any Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds, (d) any
enforcement or judicial proceedings with respect to a Mortgaged Property,
including foreclosures, (e) any Required Appraisal or any other appraisal or
update thereof expressly permitted or required to be obtained hereunder, (f) the
operation, management, maintenance and liquidation of any REO Property, and (g)
obtaining any related ratings confirmation; provided that, notwithstanding
anything to the
-71-
contrary, "Servicing Advances" shall not include allocable overhead of the
Master Servicer, the Special Servicer or the Trustee, such as costs for office
space, office equipment, supplies and related expenses, employee salaries and
related expenses and similar internal costs and expenses, or costs and expenses
incurred by any such party in connection with its purchase of any Loan or REO
Property pursuant to any provision of this Agreement or the _______________
Co-Lender Agreement.
"Servicing Fees" shall mean, with respect to each Serviced
Loan (and any successor REO Loan with respect thereto), the Master Servicing Fee
and the Special Servicing Fee.
"Servicing File" shall mean, collectively, any and all
documents (other than documents required to be part of the related Mortgage
File) in the possession of the Master Servicer or the Special Servicer and
relating to the origination and servicing of any Serviced Loan, including any
original letter of credit, appraisals, surveys, engineering reports,
environmental reports, escrow agreements, property management agreements and
franchise agreements.
"Servicing Officer" shall mean any officer or employee of the
Master Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Serviced Loans, whose name and specimen
signature appear on a list of servicing officers furnished by such party to the
Trustee and the Depositor on the Closing Date, as such list may be amended from
time to time.
"Servicing-Released Bid" shall have the meaning assigned
thereto in Section 7.01(c).
"Servicing-Retained Bid" shall have the meaning assigned
thereto in Section 7.01(c).
"Servicing Standard" shall mean, with respect to the Master
Servicer or the Special Servicer, to service and administer the Serviced Loans
and any Administered REO Properties that such party is obligated to service and
administer pursuant to this Agreement: (i) in accordance with the higher of the
following standards of care: (A) the same manner in which, and with the same
care, skill, prudence and diligence with which, the Master Servicer or the
Special Servicer, as the case may be, services and administers comparable
mortgage loans with similar borrowers and comparable REO properties for other
third-party portfolios (giving due consideration to the customary and usual
standards of practice of prudent institutional commercial mortgage lenders
servicing their own mortgage loans and REO properties), and (B) the same manner
in which, and with the same care, skill, prudence and diligence with which, the
Master Servicer or Special Servicer, as the case may be, services and
administers comparable mortgage loans owned by the Master Servicer or Special
Servicer, as the case may be, in either case exercising reasonable business
judgment and acting in accordance with applicable law, the terms of this
Agreement and the terms of the respective Serviced Loans; (ii) with a view to:
(A) the timely recovery of all payments of principal and interest, including
Balloon Payments, under the Serviced Loans or, in the case of any such Serviced
Loan that is (A) a Specially Serviced Loan or (B) a Serviced Loan as to which
the related Mortgaged Property has become an REO Property, the maximization of
recovery on the Mortgage Loan to the Certificateholders (as a collective whole)
(or, if the _______________ Loan Pair is involved, with a view to the
maximization of recovery on such Loan Pair to the Certificateholders and the
_______________ Companion Loan Noteholder (as a collective whole)) of principal
and interest, including Balloon Payments, on a present value basis (the relevant
discounting of anticipated collections that will be distributable to the
Certificateholders (or, in the case of the _______________ Loan Pair, to the
Certificateholders and the _______________ Companion Noteholder) to be performed
at the related Mortgage Rate (or, in the case of the _______________ Loan Pair,
at the weighted average of the Mortgage Rates for such Loan Pair); and (iii)
without regard to (A)
-72-
any relationship, including as lender on any other debt, that the Master
Servicer or the Special Servicer, as the case may be, or any Affiliate thereof,
may have with any of the related Mortgagors, or any Affiliate thereof, or any
other party to this Agreement; (B) the ownership of any Certificate (or any
_______________ Companion Loan Security) by the Master Servicer or the Special
Servicer, as the case may be, or any Affiliate thereof; (C) the obligation of
the Master Servicer or the Special Servicer, as the case may be, to make
Advances; (D) the right of the Master Servicer or the Special Servicer, as the
case may be, or any Affiliate of either of them, to receive compensation or
reimbursement of costs hereunder generally or with respect to any particular
transaction; and (E) the ownership, servicing or management for others of any
other mortgage loan or real property not subject to this Agreement by the Master
Servicer or the Special Servicer, as the case may be, or any Affiliate thereof.
"Servicing Transfer Event" shall mean, with respect to any
Serviced Loan, the occurrence of any of the events described in clauses (a)
through (g) of the definition of "Specially Serviced Loan".
"Single Certificate" shall mean, for purposes of Section 4.02,
a hypothetical Regular Interest Certificate evidencing an initial $1,000
denomination.
"Single Purpose Entity" shall mean an entity, other than an
individual, whose organizational documents and/or the related loan documents
provide substantially to the effect that: (i) it was formed or organized solely
for the purpose of either owning and operating the Mortgaged Property or
Properties securing one or more Loans, or owning and pledging Defeasance
Collateral in connection with the defeasance of a Defeasance Loan, as the case
may be, (ii) it may not engage in any business unrelated to such Mortgaged
Property or Properties or such Defeasance Collateral, as the case may be, (iii)
it will not have any assets other than those related to its interest in and
operation of such Mortgaged Property or such Defeasance Collateral, as the case
may be, (iv) it may not incur indebtedness other than incidental to its
ownership and operation of the applicable Mortgaged Property or Properties or
Defeasance Collateral, as the case may be, (v) it will maintain its own books
and records and accounts separate and apart from any other Person, (vi) it will
hold itself out as a legal entity, separate and apart from any other Person, and
(vii) in the case of such an entity whose sole purpose is owning or operating a
Mortgaged Property, it will have an independent director or, if such entity is a
partnership or a limited liability company, at least one general partner or
limited liability company member thereof, as applicable, which shall itself be a
"single purpose entity" (having as its sole asset its interest in the Single
Purpose Entity) with an independent director.
"Special Servicer" shall mean __________________________, in
its capacity as special servicer hereunder, or any successor special servicer
appointed as herein provided.
"Special Servicing Fee" shall mean, with respect to each
Specially Serviced Loan and each REO Loan (other than an REO Loan that relates
to the _______________ Mortgage Loan), the fee designated as such in, and
payable to the Special Servicer pursuant to, Section 3.11(c).
"Special Servicing Fee Rate" shall mean, with respect to each
Specially Serviced Loan and each REO Loan (other than an REO Loan that relates
to the _______________ Mortgage Loan), [0.25]% per annum.
"Specially Serviced Loan" shall mean any Serviced Loan as to
which any of the following events has occurred:
-73-
(a) the related Mortgagor has failed to make when due any
Monthly Payment (including a Balloon Payment), which failure continues,
or the Master Servicer determines, in its reasonable, good faith
judgment, will continue, unremedied (without regard to any grace
period) (i) except in the case of a Balloon Loan delinquent in respect
of its Balloon Payment, for 60 days beyond the date on which the
subject payment was due, or (ii) solely in the case of a delinquent
Balloon Payment, (A) for one Business Day beyond the date on which the
subject Balloon Payment was due or (B) in the case of a Balloon Loan as
to which the related Mortgagor shall have delivered a refinancing
commitment acceptable to the Special Servicer prior to the date the
subject Balloon Payment was due, for 30 days beyond the date on which
the subject Balloon Payment was due (or for such shorter period beyond
the date on which the subject Balloon Payment was due during which the
refinancing is scheduled to occur);
(b) the Master Servicer shall have determined, in its good
faith, reasonable judgment, based on communications with the related
Mortgagor, that a default in the making of a Monthly Payment on such
Serviced Loan, including a Balloon Payment, is likely to occur and is
likely to remain unremedied (without regard to any grace period) for at
least the applicable period contemplated by clause (a) of this
definition; or
(c) there shall have occurred a default (other than as
described in clause (a) above and other than an Acceptable Insurance
Default) that (i) materially impairs the value of the related Mortgaged
Property as security for such Serviced Loan or otherwise materially
adversely affects the interests of Certificateholders (or, in the case
of the _______________ Companion Loan, the _______________ Companion
Loan Noteholder), and (ii) continues unremedied for the applicable
grace period under the terms of such Serviced Loan (or, if no grace
period is specified and the default is capable of being cured, for 30
days); provided that any default that results in acceleration of the
related Mortgage Loan without the application of any grace period under
the related Mortgage Loan documents shall be deemed not to have a grace
period; and provided, further, that any default requiring a Servicing
Advance shall be deemed to materially and adversely affect the
interests of Certificateholders or, in the case of the _______________
Companion Loan, the _______________ Companion Loan Noteholder; or
(d) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law or the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the related
Mortgagor and such decree or order shall have remained in force and not
dismissed for a period of 60 days; or
(e) the related Mortgagor shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshaling of assets and liabilities or similar proceedings of
or relating to such Mortgagor or of or relating to all or substantially
all of its property; or
(f) the related Mortgagor shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or
-74-
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the
related Mortgaged Property;
provided, however, that a Serviced Loan will cease to be a Specially Serviced
Loan, when a Liquidation Event has occurred with respect to such Serviced Loan,
when the related Mortgaged Property has become an REO Property or, so long as at
such time no circumstance identified in clauses (a) through (g) above exists
that would cause the Serviced Loan to continue to be characterized as a
Specially Serviced Loan, when:
(w) with respect to the circumstances described in clause (a)
of this definition, the related Mortgagor has made three consecutive
full and timely Monthly Payments under the terms of such Serviced Loan
(as such terms may be changed or modified in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or by
reason of a modification, extension, waiver or amendment granted or
agreed to by the Master Servicer or the Special Servicer pursuant to
Section 3.20);
(x) with respect to the circumstances described in clauses
(b), (d), (e) and (f) of this definition, such circumstances cease to
exist in the good faith, reasonable judgment of the Special Servicer,
but, with respect to any bankruptcy or insolvency proceedings described
in clauses (d), (e) and (f), no later than the entry of an order or
decree dismissing such proceeding;
(y) with respect to the circumstances described in clause (c)
of this definition, such default is cured as determined by the Special
Servicer in its reasonable, good faith judgment; and
(z) with respect to the circumstances described in clause (g)
of this definition, such proceedings are terminated.
The Special Servicer may conclusively rely on the Master
Servicer's determination as to whether a Servicing Transfer Event has occurred
giving rise to a Serviced Loan's becoming a Specially Serviced Loan. If a
Serviced Loan that is part of the _______________ Loan Pair becomes a Specially
Serviced Loan, then the other Serviced Loan in the _______________ Loan Pair
shall also become a Specially Serviced Loan.
Notwithstanding anything herein to the contrary, the
_______________ Mortgage Loan shall not constitute a Specially Serviced Loan
hereunder.
"Specially Serviced Mortgage Loan" shall mean a Serviced
Mortgage Loan that constitutes a Specially Serviced Loan. Notwithstanding
anything herein to the contrary, the _______________ Mortgage Loan shall not
constitute a Specially Serviced Mortgage Loan hereunder.
"Startup Day" shall mean, with respect to each REMIC Pool, the
day designated as such in Section 10.01(c).
"Stated Maturity Date" shall mean, with respect to any Loan,
the Due Date specified in the related Mortgage Note (as in effect on the Closing
Date) on which the last payment of principal is
-75-
due and payable under the terms of such Mortgage Note (as in effect on the
Closing Date), without regard to any change in or modification of such terms in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, extension, waiver or amendment of such Loan granted
or agreed to by the Special Servicer pursuant to Section 3.20 and, in the case
of an ARD Loan, without regard to its Anticipated Repayment Date.
"Stated Principal Balance" shall mean: (a) with respect to any
Mortgage Loan (and any successor REO Mortgage Loan with respect thereto), the
Cut-off Date Balance of such Mortgage Loan, as permanently reduced on each
Distribution Date (to not less than zero) by (i) that portion, if any, of the
Principal Distribution Amount for such Distribution Date allocable to such
Mortgage Loan (or any such successor REO Mortgage Loan with respect thereto) and
(ii) the principal portion of any Realized Loss incurred in respect of such
Mortgage Loan (or any such successor REO Mortgage Loan with respect thereto)
during the related Collection Period; and (b) with respect to the ______________
_______ Companion Loan (and any successor REO Loan with respect thereto), the
Cut-off Date Balance of such Loan, as permanently reduced on each Master
Servicer Remittance Date (to not less than zero) by (i) any principal amounts in
respect of such Loan (or any such successor REO Loan with respect thereto),
including the principal portion of any P&I Advance, distributed to the
_______________ Companion Loan Noteholder on such Master Servicer Remittance
Date, and (ii) the principal portion of any Realized Loss incurred in respect of
such Loan (or any such successor REO Loan with respect thereto) during the
related Collection Period. Notwithstanding the foregoing, if a Liquidation Event
occurs in respect of any Loan or REO Property, then the "Stated Principal
Balance" of such Loan or of the related REO Loan, as the case may be, shall be
zero commencing as of the Distribution Date in the Collection Period next
following the Collection Period in which such Liquidation Event occurred. For
purposes of this definition, in the case of the _______________ Mortgage Loan or
any related REO Property, "Collection Period" shall mean, when used in the first
sentence of this definition, the most recently ended "Collection Period" under
the _______________ Servicing Agreement and, when used in the second sentence of
this definition, the period ending at 12:00 noon (New York City time) on each
Distribution Date and beginning immediately following the end of the prior
Collection Period (or, in the case of the initial Collection Period, beginning
on the Closing Date).
"Subordinate Available Distribution Amount" shall mean, with
respect to any Distribution Date, the excess, if any, of the Available
Distribution Amount for such Distribution Date, over the aggregate
distributions, if any, to be made on the Senior Certificates on such
Distribution Date pursuant to Section 4.01(a).
"Subordinate Certificate" shall mean any Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class P, Class Q, Class S, Class T, Class U, Class R-I, Class R-II,
Class R-III or Class R-LR Certificate.
"Sub-Servicer" shall mean any Person with which the Master
Servicer or the Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement" shall mean the written contract
between the Master Servicer or the Special Servicer, on the one hand, and any
Sub-Servicer, on the other hand, relating to servicing and administration of
Serviced Loans as provided in Section 3.22.
"Successful Bidder" shall have the meaning assigned thereto in
Section 7.01(c).
-76-
"Tax Administrator" shall mean any tax administrator appointed
pursuant to Section 8.13 (or, in the absence of any such appointment, the
Trustee).
"Tax Matters Person" shall mean, with respect to any REMIC
Pool, the Person designated as the "tax matters person" of such REMIC Pool in
the manner provided under Treasury regulation section 1.860F-4(d) and Treasury
regulation section 301.6231(a)(7)-1, which Person shall be the Plurality
Residual Interest Certificateholder in respect of the related Class of Residual
Interest Certificates.
"Tax Returns" shall mean 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 each REMIC Pool due to its
classification as a REMIC under the REMIC Provisions, and the federal income tax
return to be filed on behalf of the Grantor Trust due to its classification as a
grantor trust under the Grantor Trust 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 IRS under any applicable provisions of
federal tax law or any other governmental taxing authority under applicable
state and local tax law.
"Transfer" shall mean any direct or indirect transfer, sale,
pledge, hypothecation, or other form of assignment of any Ownership Interest in
a Certificate.
"Transfer Affidavit and Agreement" shall have the meaning
assigned thereto in Section 5.02(d)(i)(B).
"Transferee" shall mean any Person who is acquiring, by
Transfer, any Ownership Interest in a Certificate.
"Transferor" shall mean any Person who is disposing of, by
Transfer, any Ownership Interest in a Certificate.
"Trust" shall mean the common law trust created hereunder.
"Trust Fund" shall mean, collectively, all of the assets of
REMIC I, REMIC II, REMIC III, the Loan REMICs and the Grantor Trust.
"Trustee" shall mean _________, in its capacity as trustee
hereunder, or any successor trustee appointed as herein provided.
"Trustee Fee" shall mean, with respect to each Distribution
Date, an amount equal to one-twelfth of the product of (i) the Trustee Fee Rate,
multiplied by (ii) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately prior to such Distribution Date.
"Trustee Fee Rate" shall mean [______]% per annum.
"Trustee Liability" shall have the meaning assigned thereto in
Section 8.05(b).
-77-
"____/Depositor Mortgage Loan Purchase Agreement" shall mean
that certain Mortgage Loan Purchase Agreement dated as of
___________________,_____, between the ____ Mortgage Loan Seller and the
Depositor.
"____ Mortgage Loan" shall mean any Mortgage Loan transferred
by the ____ Mortgage Loan Seller to the Depositor, pursuant to the
____/Depositor Mortgage Loan Purchase Agreement.
"____ Mortgage Loan Seller" shall mean ___________ or its
successor in interest.
"UCC" shall mean the Uniform Commercial Code in effect in the
applicable jurisdiction.
"UCC Financing Statement" shall mean a financing statement
executed (if required by the UCC) and filed pursuant to the UCC.
"Uncertificated Accrued Interest" shall mean the interest
accrued from time to time with respect to any Loan REMIC Regular Interest, any
REMIC I Regular Interest or REMIC II Regular Interest, the amount of which
interest shall equal: (a) in the case of any Loan REMIC Regular Interest for any
Interest Accrual Period, one-twelfth of the product of (i) the related Loan
REMIC Remittance Rate, multiplied by (ii) the Uncertificated Principal Balance
of such Loan REMIC Regular Interest outstanding immediately prior to the related
Distribution Date; (b) for any REMIC I Regular Interest for any Interest Accrual
Period, one-twelfth of the product of (i) the REMIC I Remittance Rate applicable
to such REMIC I Regular Interest for such Interest Accrual Period, multiplied by
(ii) the Uncertificated Principal Balance (or, in the case of REMIC II Regular
Interest X-______, the Uncertificated Notional Amount) of such REMIC I Regular
Interest outstanding immediately prior to the related Distribution Date; and (c)
in the case of any REMIC II Regular Interest for any Interest Accrual Period,
one-twelfth of the product of (i) the REMIC II Remittance Rate applicable to
such REMIC II Regular Interest for such Interest Accrual Period, multiplied by
(ii) the Uncertificated Principal Balance (or, in the case of REMIC II Regular
Interest X-______, the Uncertificated Notional Amount) of such REMIC II Regular
Interest outstanding immediately prior to the related Distribution Date.
"Uncertificated Distributable Interest" shall mean: (a) with
respect to any Loan REMIC Regular Interest for any Distribution Date, an amount
of interest equal to the amount of Uncertificated Accrued Interest in respect of
such Loan REMIC Regular Interest for the related Interest Accrual Period,
reduced (to not less than zero) by any portion of any Net Aggregate Prepayment
Interest Shortfall for such Distribution Date allocable to the related Loan
REMIC Mortgage Loan; (b) with respect to any REMIC I Regular Interest for any
Distribution Date, an amount of interest equal to the amount of Uncertificated
Accrued Interest in respect of such REMIC I Regular Interest for the related
Interest Accrual Period, reduced (to not less than zero) by the product of (i)
any Net Aggregate Prepayment Interest Shortfall for such Distribution Date,
multiplied by (ii) a fraction, the numerator of which is the amount of
Uncertificated Accrued Interest in respect of such REMIC I Regular Interest for
the related Interest Accrual Period, and the denominator of which is the
aggregate amount of Uncertificated Accrued Interest in respect of all the REMIC
I Regular Interests for the related Interest Accrual Period; and (c) with
respect to any REMIC II Regular Interest for any Distribution Date, the amount
of Uncertificated Accrued Interest in respect of such REMIC II Regular Interest
for the related Interest Accrual Period, reduced (to not less than zero) by that
portion, if any, of the Net Aggregate Prepayment Interest Shortfall for such
Distribution Date allocated to such REMIC II Regular Interest as provided below.
The portion, if any, of the Net Aggregate Prepayment Interest Shortfall for any
Distribution Date that is allocated to any Class of Principal Balance
Certificates, the Class X-______ Certificates or any
-78-
REMIC III Component of the Class X-CP or Class X-CL Certificates in accordance
with the definitions of "Distributable Certificate Interest" and "Distributable
Component Interest", respectively, shall be deemed to have first been allocated
to the Corresponding REMIC II Regular Interest for such Class or REMIC III
Component, as the case may be.
"Uncertificated Notional Amount" shall mean the notional
amount on which REMIC II Regular Interest X-______ accrues interest from time to
time, which shall equal the aggregate Uncertificated Principal Balance
outstanding from time to time of REMIC I Regular Interest ______-1 and REMIC I
Regular Interest ______-2.
"Uncertificated Principal Balance" shall mean the principal
balance of any Loan REMIC Regular Interest, REMIC I Regular Interest or REMIC II
Regular Interest outstanding as of any date of determination. As of the Closing
Date: the Uncertificated Principal Balance of each Loan REMIC Regular Interest
shall equal the Cut-off Date Balance of the related Loan REMIC Mortgage Loan;
the Uncertificated Principal Balance of REMIC I Regular Interest ______-1 shall
equal $________; the Uncertificated Principal Balance of REMIC I Regular
Interest ______-2 shall equal $________; the Uncertificated Principal Balance of
REMIC I Regular Interest ______-1 shall equal $________; the Uncertificated
Principal Balance of REMIC I Regular Interest ______-2 shall equal $________;
the Uncertificated Principal Balance of each other REMIC I Regular Interest
shall equal the Cut-off Date Balance of the related Mortgage Loan or the initial
Uncertificated Principal Balance of the related Loan REMIC Regular Interest, as
the case may be; and the Uncertificated Principal Balance of each REMIC II
Regular Interest (other than REMIC II Regular Interest X-______) shall equal the
amount set forth in the Preliminary Statement hereto as its initial
Uncertificated Principal Balance. On each Distribution Date, the Uncertificated
Principal Balance of each REMIC II Regular Interest shall be permanently reduced
by all distributions of principal deemed to have been made thereon on such
Distribution Date pursuant to Section 4.01(j), and shall be further permanently
reduced on such Distribution Date by all Realized Losses and Additional Trust
Fund Expenses deemed to have been allocated thereto on such Distribution Date
pursuant to Section 4.04(b). On each Distribution Date, the Uncertificated
Principal Balance of each REMIC I Regular Interest shall be permanently reduced
by all distributions of principal deemed to have been made in respect of such
REMIC I Regular Interest on such Distribution Date pursuant to Section 4.01(k),
and shall be further permanently reduced on such Distribution Date by all
Realized Losses and Additional Trust Fund Expenses deemed to have been allocated
thereto on such Distribution Date pursuant to Section 4.04(c). The
Uncertificated Principal Balance of each Loan REMIC Regular Interest shall at
all times equal the Stated Principal Balance of the related Loan REMIC Mortgage
Loan (or any successor REO Loan).
"Underwriters" shall mean Xxxxxx Brothers Inc., __________ and
__________ and their respective successors in interest.
"United States Tax Person" shall mean 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 state or the
District of Columbia, 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 if a court within the United States is able
to exercise primary supervision over the administration of the trust and one or
more United States persons have the authority to control all substantial
decisions of the trust (or to the extent
-79-
provided in the Treasury regulations, if the trust was in existence on August
20, 1996 and elected to be treated as a United States person), all within the
meaning of Section 7701(a) (30) of the Code.
"United States Securities Person" shall mean any "U.S. person"
as defined in Rule 902(k) of Regulation S.
"Unrestricted Servicer Reports" shall mean each of the files
and reports comprising the CMSA Investor Reporting Package (excluding the CMSA
Bond Level File, the CMSA Collateral Summary File and the Restricted Servicer
Reports).
"Voting Rights" shall mean 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, 99% of the Voting Rights shall be allocated
among the Holders of the various Classes of the Principal Balance Certificates
in proportion to the respective Class Principal Balances of their Certificates,
and 1% of the Voting Rights shall be allocated to the Holders of the Class X-CL,
Class X-CP and Class X-______ Certificates in proportion to the respective Class
Notional Amounts of their Certificates. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in standard
proportion to the Percentage Interests evidenced by their respective
Certificates. No Voting Rights shall be allocated to the Class R-I, Class R-II,
Class R-III and/or Class V Certificates.
"Weighted Average REMIC I Remittance Rate" shall mean, with
respect to any Interest Accrual Period, the rate per annum equal to the weighted
average, expressed as a percentage and rounded to six decimal places, of the
REMIC I Remittance Rates applicable to the respective REMIC I Regular Interests
for such Interest Accrual Period, weighted on the basis of the respective
Uncertificated Principal Balances of such REMIC I Regular Interests outstanding
immediately prior to the related Distribution Date; provided that, for purposes
of the foregoing, the respective REMIC I Remittance Rates for REMIC I Regular
Interest ______-1 and REMIC I Regular Interest ______-2 shall, in each case, be
reduced by the REMIC II Remittance Rate for REMIC II Regular Interest X-______.
"Workout Fee" shall mean the fee designated as such in, and
payable to the Special Servicer with respect to certain collections on each
Corrected Mortgage Loan pursuant to, Section 3.11(c).
"Workout Fee Rate" shall mean, with respect to each Corrected
Loan as to which a Workout Fee is payable,
____%.
"Yield Maintenance Charge" shall mean the payments paid or
payable, as the context requires, as the result of a Principal Prepayment on, or
other early collection of principal of, a Loan, which payments are not otherwise
due thereon in respect of principal or interest and have been calculated (based
on scheduled payments of interest and/or principal on such Loan) to compensate
the holder for reinvestment losses based on the value of an interest rate index
at or near the time of prepayment; provided that "Yield Maintenance Charge"
shall not include any yield maintenance payment paid by the ___ Mortgage Loan
Seller in connection with any repurchase of a Loan REMIC Mortgage Loan as
contemplated by Section 2.03(d). Any other prepayment premiums, penalties and
fees not so calculated will not be considered "Yield Maintenance Charges". In
the event that a Yield Maintenance Charge shall become due for any particular
Loan, the Master Servicer shall be required to follow the terms and provisions
contained in the applicable Mortgage Note, provided, however, in the event the
particular Mortgage Note shall not specify the U.S. Treasuries which shall be
used in
-80-
determining the discount rate or the reinvestment yield to be applied in such
calculation, the Master Servicer shall be required to use those U.S. Treasuries
which shall generate the lowest discount rate or reinvestment yield for the
purposes thereof. Accordingly, if either no U.S. Treasury issue, or more than
one U.S. Treasury issue, shall coincide with the term over which the Yield
Maintenance Charge shall be calculated (which depending on the applicable
Mortgage Note is based on the remaining average life of the Loan or the actual
term remaining through the related Stated Maturity Date or Anticipated Repayment
Date, as applicable), the Master Servicer shall use the applicable U.S. Treasury
whose reinvestment yield is the lowest, with such yield being based on the bid
price for such issue as published in The Wall Street Journal on the date that is
14 days prior to the date that the Yield Maintenance Charge shall become due and
payable (or, if such bid price is not published on that date, the next preceding
date on which such bid price is so published) and converted to a monthly
compounded nominal yield. The monthly compounded nominal yield ("MEY") is
derived from the reinvestment yield or discount rate and shall be defined as
MEY = (12 X [{(1+ "BEY"/2) ^ 1/6}-1]) X 100, where BEY is defined as the U.S.
Treasury Reinvestment Yield which is in decimal form and not in percentage, and
1/6 is the exponential power to which a portion of the equation is raised. For
example, using a BEY of 5.50%, the MEY = (12 X [{(1+ .055/2) ^ 0.16667}- 1]) X
100 where .055 is the decimal version of the percentage 5.5% and 0.16667 is the
decimal version of the exponential power. The MEY in the above calculation is
5.44%.
SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement include the
plural as well as the singular, and the use of any gender herein shall
be deemed to include the other gender;
(ii) accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with GAAP;
(iii) references herein to "Articles", "Sections",
"Subsections", "Paragraphs" and other subdivisions without reference to
a document are to designated Articles, Sections, Subsections,
Paragraphs and other subdivisions of this Agreement;
(iv) a reference to a Subsection without further
reference to a Section is a reference to such Subsection as contained
in the same Section in which the reference appears, and this rule shall
also apply to Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder",
"hereto", "hereby" and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(vi) the terms "include" or "including" shall mean
without limitation by reason of enumeration.
-81-
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Creation of Trust; Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common
law trust be established pursuant to this Agreement and that such trust be
designated as "LB-___ Commercial Mortgage Trust _________". _________ is hereby
appointed, and does hereby agree, to act as Trustee hereunder and, in such
capacity, to hold the Trust Fund in trust for the exclusive use and benefit of
all present and future Certificateholders. The Depositor, concurrently with the
execution and delivery hereof, does hereby assign, sell, transfer, set over and
otherwise convey to the Trustee in trust, without recourse, for the benefit of
the Certificateholders, all the right, title and interest of the Depositor in,
to and under (i) the Mortgage Loans, (ii) the ___/Depositor Mortgage Loan
Purchase Agreement, and (iii) all other assets included or to be included in the
Trust Fund. Such assignment includes all interest and principal received or
receivable on or with respect to the Mortgage Loans and due after the Cut-off
Date and, in the case of the _______________ Mortgage Loan and the
_______________ Mortgage Loan, is subject to the related Co-Lender Agreement.
The parties hereto acknowledge and agree that, notwithstanding
Section 11.07, the transfer of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and is intended by them to constitute a
sale.
(b) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall, in the case of each ___ Mortgage
Loan, direct the ___ Mortgage Loan Seller (pursuant to the ___/Depositor
Mortgage Loan Purchase Agreement) to deliver to and deposit with the Trustee or
a Custodian appointed thereby, and shall, in the case of each Xxxxxx Mortgage
Loan, itself deliver to and deposit with the Trustee or a Custodian appointed
thereby, on or before the Closing Date, the Mortgage File for such Mortgage
Loan, with copies of the related Mortgage Note, Mortgage(s) and reserve and cash
management agreements for such Mortgage Loan to be delivered (except in the case
of the _______________ Mortgage Loan) to the Master Servicer and the Special
Servicer. None of the Trustee, any Custodian, the Master Servicer or the Special
Servicer shall be liable for any failure by a Mortgage Loan Seller or the
Depositor to comply with the document delivery requirements of the respective
Mortgage Loan Purchase Agreements and this Section 2.01(b).
After the Depositor's transfer of the Mortgage Loans to the
Trustee pursuant to this Section 2.01(b), the Depositor shall not take any
action inconsistent with the Trust's ownership of the Mortgage Loans.
(c) The Depositor hereby represents and warrants that it has
retained or caused to be retained, with respect to each Xxxxxx Mortgage Loan
(other than the _______________ Mortgage Loan), and the ___ Mortgage Loan Seller
has covenanted in the ___/Depositor Mortgage Loan Purchase Agreement that it
shall retain with respect to each ___ Mortgage Loan, an Independent Person (each
such Person, a "Recording/Filing Agent") for purposes of promptly (and in any
event within 45 days following the later of the Closing Date and the date on
which all necessary recording or filing (as applicable) information is available
to such Recording/Filing Agent) recording or filing, as the case may
-82-
be, in the appropriate public office for real property records or UCC Financing
Statements, as appropriate, each related assignment of Mortgage and assignment
of Assignment of Leases, in favor of the Trustee referred to in clause (a)(iv)
of the definition of "Mortgage File" and each related UCC-2 and UCC-3 assignment
referred to in clause (a)(viii) of the definition of "Mortgage File".
Notwithstanding the foregoing, the Depositor may, in the case
of a Xxxxxx Mortgage Loan (other than the _______________ Mortgage Loan), and
the ___ Mortgage Loan Seller may, in the case of a ___ Mortgage Loan, request
the Trustee to record or file, as applicable, any of the assignments of
Mortgage, assignments of Assignment of Leases or UCC Financing Statements
referred to above, and in such event, the requesting party shall cause any such
unrecorded or unfiled document to be delivered to the Trustee. The Trustee shall
promptly undertake to record or file any such document upon its receipt thereof.
The Depositor shall bear the costs of the recording and filing
referred to in the prior two paragraphs with respect to the Xxxxxx Mortgage
Loans (other than the _______________ Mortgage Loan), and the Depositor
represents and warrants that the ___/Depositor Mortgage Loan Purchase Agreement
provides that the ___ Mortgage Loan Seller shall bear the costs of the recording
and filing referred to in the prior two paragraphs with respect to the ___
Mortgage Loans. The Depositor hereby covenants as to each Xxxxxx Mortgage Loan
(other than the _______________ Mortgage Loan), and the ___ Mortgage Loan Seller
has covenanted in the ___/Depositor Mortgage Loan Purchase Agreement as to each
___ Mortgage Loan, that it will cause the applicable Recording/Filing Agent to
forward to the Trustee each related assignment of Mortgage, assignment of
Assignment of Leases and each UCC-2 and UCC-3 assignment following its return by
the applicable public recording or filing office, as the case may be, and shall
forward copies of such instruments to the Master Servicer on a monthly basis;
provided that, in those instances where the public recording office retains the
original assignment of Mortgage or assignment of Assignment of Leases, a
certified copy of the recorded original shall be forwarded to the Trustee. Each
assignment referred to in the prior two paragraphs that is recorded by the
Trustee shall reflect that it should be returned by the public recording office
to the Trustee or its agent following recording, and each UCC-2 and UCC-3
assignment referred to in the prior two paragraphs that is filed by the Trustee
shall reflect that the file copy thereof should be returned to the Trustee or
its agent following filing; provided that, in those instances where the public
recording office retains the original assignment of Mortgage or assignment of
Assignment of Leases, the Trustee shall obtain therefrom a certified copy of the
recorded original. On a monthly basis, at the expense of the Depositor (in the
case of a Xxxxxx Mortgage Loan) or the ___ Mortgage Loan Seller (in the case of
a ___ Mortgage Loan), the Trustee shall forward to the Master Servicer a copy of
each of the aforementioned assignments following the Trustee's receipt thereof.
If any of the aforementioned assignments relating to a ___
Mortgage Loan is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, then the Trustee shall direct the ___ Mortgage Loan
Seller (pursuant to the ___/Depositor Mortgage Loan Purchase Agreement) promptly
to prepare or cause the preparation of a substitute therefor or to cure such
defect, as the case may be, and to deliver to the Trustee the substitute or
corrected document. If any of the aforementioned assignments relating to a
Xxxxxx Mortgage Loan (other than the _______________ Mortgage Loan) is lost or
returned unrecorded or unfiled, as the case may be, because of a defect therein,
then the Depositor shall promptly prepare or cause the preparation of a
substitute therefor or cure such defect, as the case may be, and shall deliver
to the Trustee the substitute or corrected
-83-
document. The Trustee shall upon receipt, whether from the ___ Mortgage Loan
Seller or the Depositor, cause the same to be duly recorded or filed, as
appropriate.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall, in the case of each ___ Mortgage
Loan, direct the ___ Mortgage Loan Seller (pursuant to the ___/Depositor
Mortgage Loan Purchase Agreement) to deliver to and deposit with the Master
Servicer, and shall, in the case of each Xxxxxx Mortgage Loan (other than the
_______________ Mortgage Loan), itself deliver to and deposit with the Master
Servicer, on or before the Closing Date, such specified documents and records in
the possession of the ___ Mortgage Loan Seller or the Depositor, as the case may
be, that (A) relate to such Mortgage Loan, (B) are not required to be a part of
the related Mortgage File in accordance with the definition thereof, (C) are
reasonably requested by the Master Servicer in connection with its duties under
this Agreement and (D) are reasonably necessary for the servicing of such
Mortgage Loan, together with (i) all unapplied Escrow Payments and Reserve Funds
in the possession of the ___ Mortgage Loan Seller or the Depositor, as the case
may be, that relate to such Mortgage Loan and (ii) a statement indicating which
Escrow Payments and Reserve Funds are allocable to such Mortgage Loan, provided,
that neither the Depositor nor the ___ Mortgage Loan Seller shall be required to
deliver any draft documents, privileged or other communications or credit
underwriting or due diligence analyses or data. In addition, on the Closing
Date, the Depositor shall deliver the Initial Deposit to the Master Servicer for
deposit in the Pool Custodial Account. The Master Servicer shall hold all such
documents, records and funds on behalf of the Trustee in trust for the benefit
of the Certificateholders (and, insofar as they also relate to the _____________
Companion Loan, on behalf of and for the benefit of the _______________
Companion Loan Noteholder).
(e) It is not intended that this Agreement create a
partnership or a joint-stock association.
SECTION 2.02. Acceptance of Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this
Agreement, hereby accepts receipt, directly or through a Custodian on its
behalf, of (i) the Mortgage Loans and all documents delivered to it that
constitute portions of the related Mortgage Files and (ii) all other assets
delivered to it and included in the Trust Fund, in good faith and without notice
of any adverse claim, and declares that it or a Custodian on its behalf holds
and will hold such documents and any other documents subsequently received by it
that constitute portions of the Mortgage Files, and that it holds and will hold
the Mortgage Loans and such other assets, together with any other assets
subsequently delivered to it that are to be included in the Trust Fund, in trust
for the exclusive use and benefit of all present and future Certificateholders.
To the extent that the Mortgage File for the _______________ Mortgage Loan
relates to the _______________ Companion Loan, the Trustee shall also hold such
Mortgage File in trust for the use and benefit of the _______________ Companion
Loan Noteholder. In connection with the foregoing, the Trustee hereby certifies
to each of the other parties hereto, each Mortgage Loan Seller and each
Underwriter that, as to each Loan, except as specifically identified in the
Schedule of Exceptions to Mortgage File Delivery attached hereto as Schedule II,
(i) all documents specified in clause (a)(i) or clause (b)(i), as applicable, of
the definition of "Mortgage File" are in its possession or the possession of a
Custodian on its behalf, and (ii) the original Mortgage Note (or, if accompanied
by a lost note affidavit, the copy of such Mortgage Note) received by it or any
Custodian with respect to such Loan has been reviewed by it or by such Custodian
on its behalf and (A) appears regular on its face
-84-
(handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Mortgagor), (B) appears to have been executed
(where appropriate) and (C) purports to relate to such Loan.
(b) On or about the 45th day following the Closing Date (and,
if any exceptions are noted, again on or about the 90th day following the
Closing Date and monthly thereafter until the earliest of (i) the second
anniversary of the Closing Date, (ii) the day on which all material exceptions
have been removed and (iii) the day on which the Depositor has repurchased the
last affected Mortgage Loan), the Trustee or a Custodian on its behalf shall
review the documents delivered to it or such Custodian with respect to each
Loan, and the Trustee shall, subject to Sections 2.01, 2.02(c) and 2.02(d),
certify in writing (substantially in the form of Exhibit C hereto) to each of
the other parties hereto, each Mortgage Loan Seller and each Underwriter (and,
in the case of the _______________ Mortgage Loan, to the _______________
Companion Loan Noteholder) that, as to each Mortgage Loan then subject to this
Agreement (except as specifically identified in any exception report annexed to
such certification): (i) all documents specified in clauses (a)(i) through
(a)(v), (a)(vii) and (a)(viii) (without regard to the second parenthetical in
such clause (a)(viii)) of the definition of "Mortgage File") or, in the case of
the _______________ Mortgage Loan, in clauses (b)(i) through (b)(iii) of the
definition of "Mortgage File", are in its possession or the possession of a
Custodian on its behalf; (ii) the recordation/filing contemplated by Section
2.01(c) has been completed (based solely on receipt by the Trustee of the
particular recorded/filed documents); (iii) all documents received by it or any
Custodian with respect to such Loan have been reviewed by it or by such
Custodian on its behalf and (A) appear regular on their face (handwritten
additions, changes or corrections shall not constitute irregularities if
initialed by the Mortgagor), (B) appear to have been executed (where
appropriate) and (C) purport to relate to such Mortgage Loan; and (iv) based on
the examinations referred to in Section 2.02(a) above and this Section 2.02(b)
and only as to the foregoing documents, the information set forth in the
Mortgage Loan Schedule with respect to the items specified in clauses (v) and
(vi)(B) of the definition of "Mortgage Loan Schedule" accurately reflects the
information set forth in the Mortgage File. If the Trustee's obligation to
deliver the certifications contemplated in this subsection terminates because
two years have elapsed since the Closing Date, the Trustee shall deliver a
comparable certification to any party hereto, the _______________ Companion Loan
Noteholder and any Underwriter on request.
(c) None of the Trustee, the Master Servicer, the Special
Servicer or any Custodian is under any duty or obligation to inspect, review or
examine any of the documents, instruments, certificates or other papers relating
to the Loans delivered to it to determine that the same are valid, legal,
effective, genuine, binding, enforceable, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face. Furthermore, none of the Trustee, the Master Servicer, the Special
Servicer or any Custodian shall have any responsibility for determining whether
the text of any assignment or endorsement is in proper or recordable form,
whether the requisite recording of any document is in accordance with the
requirements of any applicable jurisdiction, or whether a blanket assignment is
permitted in any applicable jurisdiction.
(d) It is understood that the scope of the Trustee's review of
the Mortgage Files is limited solely to confirming that the documents specified
in clauses (a)(i) through (a)(v), (a)(vii), (a)(viii) and (b)(i) through
(b)(iii) of the definition of "Mortgage File" have been received and such
additional information as will be necessary for delivering the certifications
required by Sections 2.02(a) and (b) above.
-85-
(e) If, after the Closing Date, the Depositor comes into
possession of any documents or records that constitute part of the Mortgage File
or Servicing File for any Mortgage Loan, the Depositor shall promptly deliver
such document to the Trustee (if it constitutes part of the Mortgage File) or
the Master Servicer (if it constitutes part of the Servicing File), as
applicable.
SECTION 2.03. Repurchase of Mortgage Loans for Document
Defects and Breaches of Representations and
Warranties.
(a) If any party hereto discovers that any document
constituting a part of a Mortgage File has not been properly executed, is
missing, contains information that does not conform in any material respect with
the corresponding information set forth in the Mortgage Loan Schedule, or does
not appear to be regular on its face (each, a "Document Defect"), or discovers
or receives notice of a breach of any representation or warranty of the ___
Mortgage Loan Seller made pursuant to Section 3(b) of the ___/Depositor Mortgage
Loan Purchase Agreement with respect to any ___ Mortgage Loan (a "Breach"), or
discovers or receives notice of a breach of any representation or warranty of
the Depositor set forth in Section 2.04(b) with respect to any Xxxxxx Mortgage
Loan (also, a "Breach"), such party shall give prompt written notice thereof to
each of the Rating Agencies, the related Mortgage Loan Seller and the other
parties hereto. If any such Document Defect or Breach with respect to any
Mortgage Loan materially and adversely affects the interests of the
Certificateholders therein, then such Document Defect shall constitute a
"Material Document Defect" or such Breach shall constitute a "Material Breach",
as the case may be. Promptly upon becoming aware of any such Material Document
Defect or Material Breach with respect to a ___ Mortgage Loan (including through
a written notice given by any party hereto, as provided above), the Trustee
shall require the ___ Mortgage Loan Seller, within the time period and subject
to the conditions provided for in the ___/Depositor Mortgage Loan Purchase
Agreement, to cure such Material Document Defect or Material Breach, as the case
may be, or repurchase the affected Mortgage Loan or any related REO Property at
the applicable Purchase Price by wire transfer of immediately available funds to
the Pool Custodial Account. Promptly upon becoming aware of any such Material
Document Defect or Material Breach with respect to a Xxxxxx Mortgage Loan
(including through a written notice given by any party hereto, as provided
above), the Depositor shall, not later than 90 days from the earlier of the
Depositor's discovery or receipt of notice of such Material Document Defect or
Material Breach, as the case may be (or, in the case of a Material Document
Defect or Material Breach relating to a Xxxxxx Mortgage Loan not being a
"qualified mortgage" within the meaning of the REMIC Provisions, not later than
90 days of any party discovering such Material Document Defect or Material
Breach), cure the same in all material respects (which cure shall include
payment of losses and any Additional Trust Fund Expenses associated therewith)
or, if such Material Document Defect or Material Breach, as the case may be,
cannot be cured within such 90-day period, repurchase the affected Xxxxxx
Mortgage Loan or any related REO Property at the applicable Purchase Price by
wire transfer of immediately available funds to the Pool Custodial Account (or,
in the case of an REO Property that relates to the _______________ Mortgage
Loan, to the _______________ REO Account); provided, however, that if (i) such
Material Document Defect or Material Breach is capable of being cured but not
within such 90-day period, (ii) such Material Document Defect or Material Breach
is not related to any Xxxxxx Mortgage Loan's not being a "qualified mortgage"
within the meaning of the REMIC Provisions and (iii) the Depositor has commenced
and is diligently proceeding with the cure of such Material Document Defect or
Material Breach within such 90-day period, then the Depositor shall have an
additional 90 days to complete such cure or, in the event of a failure to so
cure, to complete such repurchase (it being understood and agreed that, in
connection with the Depositor's receiving such additional 90-day period, the
Depositor shall
-86-
deliver an Officer's Certificate to the Trustee setting forth the reasons such
Material Document Defect or Material Breach is not capable of being cured within
the initial 90-day period and what actions the Depositor is pursuing in
connection with the cure thereof and stating that the Depositor anticipates that
such Material Document Defect or Material Breach will be cured within such
additional 90 days); and provided, further, that, if any such Material Document
Defect is still not cured after the initial 90-day period and any such
additional 90-day period solely due to the failure of the Depositor to have
received the recorded document, then the Depositor shall be entitled to continue
to defer its cure and repurchase obligations in respect of such Document Defect
so long as the Depositor certifies to the Trustee every 30 days thereafter that
the Document Defect is still in effect solely because of its failure to have
received the recorded document and that the Depositor is diligently pursuing the
cure of such defect (specifying the actions being taken), except that no such
deferral of cure or repurchase may continue beyond the second anniversary of the
Closing Date.
If one or more (but not all) of the Mortgage Loans
constituting a Cross-Collateralized Group are to be repurchased by the Depositor
or the ___ Mortgage Loan Seller as contemplated by this Section 2.03(a), then,
prior to the subject repurchase, the Depositor or the ___ Mortgage Loan Seller,
as the case may be, or its designee shall use its reasonable efforts, subject to
the terms of the related Mortgage Loan(s), to prepare and, to the extent
necessary and appropriate, have executed by the related Mortgagor and record,
such documentation as may be necessary to terminate the cross-collateralization
between the Mortgage Loan(s) in such Cross-Collateralized Group that are to be
repurchased, on the one hand, and the remaining Mortgage Loan(s) therein, on the
other hand, such that those two groups of Mortgage Loans are each secured only
by the Mortgaged Properties identified in the Mortgage Loan Schedule as directly
corresponding thereto; provided that no such termination shall be effected
unless and until the Controlling Class Representative, if one is then acting,
has consented (which consent shall not be unreasonably withheld and shall be
deemed to have been given if no written objection is received by the Depositor
or the ___ Mortgage Loan Seller, as the case may be, within 10 days of the
Controlling Class Representative's receipt of a written request for such
consent) and the Trustee has received from the Depositor or the ___ Mortgage
Loan Seller, as the case may be, (i) an Opinion of Counsel to the effect that
such termination would not cause an Adverse REMIC Event to occur with respect to
any REMIC Pool or an Adverse Grantor Trust Event to occur with respect to the
Grantor Trust and (ii) written confirmation from each Rating Agency that such
termination would not cause an Adverse Rating Event to occur with respect to any
Class of Certificates; and provided, further, that the Depositor, in the case of
Xxxxxx Mortgage Loans, or the ___ Mortgage Loan Seller, in the case of ___
Mortgage Loans, may, at its option, purchase the entire subject
Cross-Collateralized Group in lieu of effecting a termination of the
cross-collateralization. All costs and expenses incurred by the Trustee or any
Person on its behalf pursuant to this paragraph shall be included in the
calculation of the Purchase Price for the Mortgage Loan(s) to be repurchased. If
the cross-collateralization of any Cross-Collateralized Group is not or cannot
be terminated as contemplated by this paragraph, then, for purposes of (i)
determining the materiality of any Breach or Defect, as the case may be, and
(ii) the application of remedies, such Cross-Collateralized Group shall be
treated as a single Mortgage Loan.
(b) In connection with any repurchase of a Mortgage Loan
pursuant to this Section 2.03, and subject to Section 3.25, the Trustee, the
Custodian, the Master Servicer and the Special Servicer shall each tender to the
repurchasing entity, upon delivery to each of them of a receipt executed by the
repurchasing entity, all portions of the Mortgage File and other documents
pertaining to such Mortgage Loan possessed by it, and each document that
constitutes a part of the Mortgage File shall be endorsed or assigned to the
extent necessary or appropriate to the repurchasing entity or its designee in
-87-
the same manner, but only if the respective documents have been previously
assigned or endorsed to the Trustee, and pursuant to appropriate forms of
assignment, substantially similar to the manner and forms pursuant to which such
documents were previously assigned to the Trustee; provided that such tender by
the Trustee shall be conditioned upon its receipt from the Master Servicer of a
Request for Release and an Officer's Certificate to the effect that the
requirements for repurchase have been satisfied. The Master Servicer shall, and
is hereby authorized and empowered by the Trustee to, prepare, execute and
deliver in its own name, on behalf of the Certificateholders and the Trustee or
any of them, the endorsements and assignments contemplated by this Section
2.03(b), and such other instruments as may be necessary or appropriate to
transfer title to an REO Property in connection with the repurchase of an REO
Loan and the Trustee shall execute and deliver any powers of attorney necessary
to permit the Master Servicer to do so; provided, however, that the Trustee
shall not be held liable for any misuse of any such power of attorney by the
Master Servicer.
(c) The ___/Depositor Mortgage Loan Purchase Agreement
provides the sole remedies available to the Certificateholders, or the Trustee
on behalf of the Certificateholders, respecting any Document Defect or Breach
with respect to any ___ Mortgage Loan. Section 2.03(a) provides the sole
remedies available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect or Breach with respect to any
Xxxxxx Mortgage Loan.
(d) In the event that the Master Servicer receives notice from
the Mortgagor under any Loan REMIC Mortgage Loan that such Mortgagor intends to
defease such Loan REMIC Mortgage Loan on or before the second anniversary of the
Startup Day, the Master Servicer shall promptly notify the Trustee and the ___
Mortgage Loan Seller of such Mortgagor's intention, and the Trustee shall direct
the ___ Mortgage Loan Seller to repurchase the Mortgage Loans at the related
Purchase Price plus the yield maintenance payment provided for in the
___/Depositor Mortgage Loan Purchase Agreement prior to the occurrence of such
defeasance.
(e) In connection with any repurchase of a Loan REMIC Mortgage
Loan, pursuant to or as contemplated by this Section 2.03, the Tax Administrator
shall effect a "qualified liquidation" of the related Loan REMIC in accordance
with the REMIC Provisions. The ___ Mortgage Loan Seller is obligated pursuant to
the ___ Mortgage Loan Purchase Agreement to pay all reasonable costs and
expenses, including the costs of any Opinions of Counsel, in connection with any
such "qualified liquidation" of the Loan REMIC in accordance with the REMIC
Provisions.
SECTION 2.04. Representations, Warranties and Covenants of the
Depositor.
(a) The Depositor hereby represents, warrants and covenants to
the Trustee, for its own benefit and the benefit of the Certificateholders, and
to the Fiscal Agent, the Master Servicer and the Special Servicer, as of the
Closing 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
certificate of incorporation or by-laws or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of,
-88-
any material agreement or other instrument to which it is a party or
which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the 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, 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) The Depositor is not transferring the Mortgage Loans
to the Trustee with any intent to hinder, delay or defraud its present
or future creditors.
(viii) The Depositor has been solvent at all relevant
times prior to, and will not be rendered insolvent by, its transfer of
the Mortgage Loans to the Trustee pursuant to Section 2.01(b).
(ix) After giving effect to its transfer of the Mortgage
Loans to the Trustee pursuant to Section 2.01(b), the value of the
Depositor's assets, either taken at their present fair saleable value
or at fair valuation, will exceed the amount of the Depositor's debts
and obligations, including contingent and unliquidated debts and
obligations of the Depositor, and the Depositor will not be left with
unreasonably small assets or capital with which to engage in and
conduct its business.
(x) The Depositor does not intend to, and does not believe
that it will, incur debts or obligations beyond its ability to pay such
debts and obligations as they mature.
(xi) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Depositor are pending or contemplated.
-89-
(xii) No litigation is pending or, to the best of the
Depositor's knowledge, threatened against the Depositor that, if
determined adversely to the Depositor, would prohibit the Depositor
from entering into this Agreement or that, in the Depositor's good
faith and 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.
(xiii) Except for any actions that are the express
responsibility of another party hereunder or under the Mortgage Loan
Purchase Agreements, and further except for actions that the Depositor
is expressly permitted to complete subsequent to the Closing Date, the
Depositor has taken all actions required under applicable law to
effectuate the transfer of the Mortgage Loans by the Depositor to the
Trustee.
(xiv) Immediately prior to the transfer of the ___
Mortgage Loans to the Trust pursuant to this Agreement (and assuming
that the ___ Mortgage Loan Seller transferred to the Depositor good and
marketable title to each ___ Mortgage Loan, free and clear of all
liens, claims, encumbrances and other interests), (A) the Depositor had
good and marketable title to, and was the sole owner and holder of,
each ___ Mortgage Loan; and (B) the Depositor has full right and
authority to sell, assign and transfer the ___ Mortgage Loans,
exclusive of the servicing rights pertaining thereto.
(b) The Depositor hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders, with
respect to each Xxxxxx Mortgage Loan, as of the Closing Date or such other date
specified in the particular representation and warranty, that (the headings set
forth in this Section 2.04(b) with respect to each representation and warranty
being for convenience of reference only and in no way limiting, expanding or
otherwise affecting the scope or subject matter thereof):
[TO COME.]
Except as expressly provided in Section 2.04(a), the Depositor
does not make any representations or warranties regarding the ___ Mortgage
Loans.
(c) The representations, warranties and covenants of the
Depositor set forth in Section 2.04(a) and Section 2.04(b) shall survive the
execution and delivery of this Agreement 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 any party hereto of any breach of any of such
representations, warranties and covenants, the party discovering such breach
shall give prompt written notice thereof to the other parties.
SECTION 2.05. Acceptance of Grantor Trust Assets by Trustee;
Issuance of the Class V Certificates.
It is the intention of the parties hereto that the segregated
pool of assets consisting of any collections of Additional Interest Received by
the Trust on the ARD Mortgage Loans and any successor REO Mortgage Loans
constitute a grantor trust for federal income tax purposes. The Trustee, by its
execution and delivery hereof, acknowledges the assignment to it of the Grantor
Trust Assets and declares that it holds and will hold such assets in trust for
the exclusive use and benefit of all present and
-90-
future Holders of the Class V Certificates. Concurrently with the assignment to
it of the Grantor Trust Assets, the Trustee shall execute, and the Certificate
Registrar shall authenticate and deliver, to or upon the order of the Depositor,
the Class V Certificates in authorized denominations evidencing, in the
aggregate, the entire beneficial ownership of the Grantor Trust. The rights of
Holders of the Class V Certificates, to receive distributions from the proceeds
of the Grantor Trust Assets, and all ownership interests of such Holders in and
to such distributions, shall be as set forth in this Agreement. The Class V
Certificates shall evidence the entire beneficial ownership of the Grantor
Trust.
SECTION 2.06. Execution, Authentication and Delivery of Class
R-LR Certificates; Creation of Loan REMIC
Regular Interests.
The Trustee hereby acknowledges the assignment to it of the
assets included in the Loan REMICs. Concurrently with such assignment and in
exchange therefor, (a) the Loan REMIC Regular Interests have been issued, and
(b) pursuant to the written request of the Depositor executed by an authorized
officer thereof, the Trustee, as Certificate Registrar, has executed, and the
Trustee, as Authenticating Agent, has authenticated and delivered to or upon the
order of the Depositor, the Class R-LR Certificates in authorized denominations.
The interests evidenced by the Class R-LR Certificates, together with the
related Loan REMIC Regular Interests, constitute the entire beneficial ownership
of the Loan REMICs. The rights of the Class R-LR Certificateholders and REMIC I
(as holder of the Loan REMIC Regular Interests) to receive distributions from
the proceeds of the Loan REMIC Mortgage Loans (or any successor REO Loans) in
respect of the Class R-LR Certificates and the Loan REMIC Regular Interests,
respectively, and all ownership interests evidenced or constituted by the Class
R-LR Certificates and the Loan REMIC Regular Interests, shall be as set forth in
this Agreement.
SECTION 2.07. Conveyance of Loan REMIC Regular Interests;
Acceptance of the Loan REMICs by Trustee.
The Depositor, as of the Closing Date, and concurrently with
the execution and delivery of this Agreement, does hereby assign without
recourse all the right, title and interest of the Depositor in and to the Loan
REMIC Regular Interests to the Trustee for the benefit of the Holders of the
Class R-LR Certificates and REMIC II as the holder of the REMIC I Regular
Interests. The Trustee acknowledges the assignment to it of the Loan REMIC
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of the REMIC III
Certificates.
SECTION 2.08. Execution, Authentication and Delivery of Class
R-I Certificates; Creation of REMIC I Regular
Interests.
The Trustee hereby acknowledges the assignment to it of the
assets included in REMIC I. Concurrently with such assignment and in exchange
therefor, (a) the REMIC I Regular Interests have been issued, and (b) pursuant
to the written request of the Depositor executed by an authorized officer
thereof, the Trustee, as Certificate Registrar, has executed, and the Trustee,
as Authenticating Agent, has authenticated and delivered to or upon the order of
the Depositor, the Class R-I Certificates in authorized denominations. The
interests evidenced by the Class R-I Certificates, together with the REMIC I
Regular Interests, constitute the entire beneficial ownership of REMIC I. The
rights of the Class R-I Certificateholders and REMIC II (as holder of the REMIC
I Regular Interests) to receive distributions from the proceeds of REMIC I in
respect of the Class R-I Certificates and the REMIC I
-91-
Regular Interests, respectively, and all ownership interests evidenced or
constituted by the Class R-I Certificates and the REMIC I Regular Interests,
shall be as set forth in this Agreement.
SECTION 2.09. Conveyance of REMIC I Regular Interests;
Acceptance of REMIC II by Trustee.
The Depositor, as of the Closing Date, and concurrently with
the execution and delivery of this Agreement, does hereby assign without
recourse all the right, title and interest of the Depositor in and to the REMIC
I Regular Interests to the Trustee for the benefit of the Holders of the Class
R-II Certificates and REMIC III as the holder of the REMIC II Regular Interests.
The Trustee acknowledges the assignment to it of the REMIC I Regular Interests
and declares that it holds and will hold the same in trust for the exclusive use
and benefit of all present and future Holders of the Class R-II Certificates and
the REMIC III Certificates.
SECTION 2.10. Execution, Authentication and Delivery of Class
R-II Certificates; Creation of REMIC II Regular
Interests.
Concurrently with the assignment to the Trustee of the REMIC I
Regular Interests and in exchange therefor, (a) the REMIC II Regular Interests
have been issued and (b) pursuant to the written request of the Depositor
executed by an authorized officer thereof, the Trustee, as Certificate
Registrar, has executed, and the Trustee, as Authenticating Agent, has
authenticated and delivered to or upon the order of the Depositor, the Class
R-II Certificates in authorized denominations. The rights of the Class R-II
Certificateholders and REMIC III (as holder of the REMIC II Regular Interests)
to receive distributions from the proceeds of REMIC II in respect of the Class
R-II Certificates and the REMIC II Regular Interests, respectively, and all
ownership interests evidenced or constituted by the Class R-II Certificates and
the REMIC II Regular Interests, shall be as set forth in this Agreement.
SECTION 2.11. Conveyance of REMIC II Regular Interests;
Acceptance of REMIC III by Trustee.
The Depositor, as of the Closing Date, and concurrently with
the execution and delivery of this Agreement, does hereby assign without
recourse all the right, title and interest of the Depositor in and to the REMIC
II Regular Interests to the Trustee for the benefit of the Holders of the REMIC
III Certificates. The Trustee acknowledges the assignment to it of the REMIC II
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of the REMIC III
Certificates.
SECTION 2.12. Execution, Authentication and Delivery of REMIC
III Certificates.
Concurrently with the assignment to the Trustee of the REMIC
II Regular Interests and in exchange therefor, pursuant to the written request
of the Depositor executed by an officer thereof, the Trustee, as Certificate
Registrar, has executed, and the Trustee, as Authenticating Agent, has
authenticated and delivered to or upon the order of the Depositor, the REMIC III
Certificates in authorized denominations evidencing the entire beneficial
ownership of REMIC III. The rights of the Holders of the respective Classes of
REMIC III Certificates to receive distributions from the proceeds of REMIC III
in respect of their REMIC III Certificates, and all ownership interests
evidenced or constituted by the respective Classes of REMIC III Certificates in
such distributions, shall be as set forth in this Agreement. The Class X-CL
Certificates (with respect to the portion of the Grantor Trust Assets
-92-
consisting of any yield maintenance payment made by the ___ Mortgage Loan Seller
in connection with a repurchase of a Loan REMIC Mortgage Loan) and the Class V
Certificates (with respect to the portion of the Grantor Trust Assets consisting
of any Additional Interest collected with respect to an ARD Mortgage Loan) shall
evidence the entire beneficial ownership of the Grantor Trust.
-93-
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Loans.
(a) All of the Loans and REO Properties (other than the
_______________ Mortgage Loan and any _______________ REO Property) are to be
serviced and administered by the Master Servicer and/or the Special Servicer
hereunder. Each of the Master Servicer and the Special Servicer shall service
and administer the Serviced Loans and REO Properties that it is obligated to
service and administer pursuant to this Agreement on behalf of the Trustee, for
the benefit of the Certificateholders (or, in the case of the _______________
Companion Loan, on behalf of the _______________ Companion Loan Noteholder), as
determined in the good faith and reasonable judgment of the Master Servicer or
the Special Servicer, as the case may be, in accordance with: (i) any and all
applicable laws; (ii) the express terms of this Agreement, the respective
Serviced Loans and, in the case of the _______________ Loan Pair, the
_______________ Co-Lender Agreement; and (iii) to the extent consistent with the
foregoing, the Servicing Standard. The Master Servicer or the Special Servicer,
as applicable in accordance with this Agreement, shall service and administer
each Cross-Collateralized Group as a single Mortgage Loan as and when necessary
and appropriate consistent with the Servicing Standard. Without limiting the
foregoing, and subject to Section 3.21, (i) the Master Servicer shall service
and administer all of the Performing Serviced Loans and shall render such
services with respect to the Specially Serviced Loans as are specifically
provided for herein, and (ii) the Special Servicer shall service and administer
each Specially Serviced Loan and Administered REO Property and shall render such
services with respect to the Performing Serviced Loans as are specifically
provided for herein. All references herein to the respective duties of the
Master Servicer and the Special Servicer, and to the areas in which they may
exercise discretion, shall be subject to Section 3.21.
(b) Subject to Section 3.01(a), Section 6.11 (taking account
of Section 6.11(b)), Section 6.11A (taking account of Section 6.11A(b)), the
Master Servicer and the Special Servicer shall each have full power and
authority, acting alone, to do or cause to be done any and all things in
connection with the servicing and administration contemplated by Section 3.01(a)
that it may deem necessary or desirable. Without limiting the generality of the
foregoing, each of the Master Servicer and the Special Servicer, in its own
name, with respect to each of the Serviced Loans it is obligated to service
hereunder, is hereby authorized and empowered by the Trustee to execute and
deliver, on behalf of the Certificateholders, the Trustee and the
_______________ Companion Loan Noteholder or any of them, (i) any and all
financing statements, continuation statements and other documents or instruments
necessary to maintain the lien created by any Mortgage or other security
document in the related Mortgage File on the related Mortgaged Property and
related collateral; (ii) in accordance with the Servicing Standard and subject
to Section 3.20, Section 6.11 (taking account of Section 6.11(b)) and Section
6.11A (taking account of Section 6.11A(b)), any and all modifications,
extensions, waivers, amendments or consents to or with respect to any documents
contained in the related Mortgage File; (iii) any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge or of
assignment, and all other comparable instruments; and (iv) any and all
instruments that such party may be required to execute on behalf of the Trustee
in connection with the defeasance of a Serviced Loan as contemplated in this
Agreement. Subject to Section 3.10, the Trustee shall, at the written request of
the Master Servicer or the Special Servicer, promptly execute any limited powers
of attorney and other documents furnished by the Master Servicer or the Special
Servicer that are necessary or appropriate to
-94-
enable them to carry out their servicing and administrative duties hereunder;
provided, however, that the Trustee shall not be held liable for any misuse of
any such power of attorney by the Master Servicer or the Special Servicer.
Notwithstanding anything contained herein to the contrary, neither the Master
Servicer nor the Special Servicer shall, without the Trustee's written consent:
(i) 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 cause, and
that actually causes, the Trustee to be registered to do business in any state.
(c) The parties hereto acknowledge that the _______________
Loan Pair is subject to the terms and conditions of the _______________
Co-Lender Agreement. The parties hereto further recognize the respective rights
and obligations of the "Lenders" under the _______________ Co-Lender Agreement,
including with respect to (i) the allocation of collections on or in respect of
the _______________ Loan Pair in accordance with Section 4.01 of the ___________
_______________ Co-Lender Agreement, (ii) the making of payments to the
"Lenders" in accordance with Section 4.01 of the _______________ Co-Lender
Agreement, and (iii) the purchase of the _______________ Mortgage Loan by the
_______________ Companion Loan Noteholder or its designee in accordance with
Section 4.02 of the _______________ Co-Lender Agreement.
In the event that the _______________ Mortgage Loan is no
longer part of the Trust Fund and the servicing and administration of the
_______________ Loan Pair is to be governed by a separate servicing agreement
and not by this Agreement, as contemplated by Section 3.01 of the
_______________ Co-Lender Agreement, the Master Servicer and, if the
_______________ Loan Pair is then being specially serviced hereunder, the
Special Servicer, shall continue to act in such capacities under such separate
servicing agreement, which agreement shall be reasonably acceptable to the
Master Servicer and/or the Special Servicer, as the case may be, and shall
contain servicing and administration, limitation of liability, indemnification
and servicing compensation provisions substantially similar to the corresponding
provisions of this Agreement, except for the fact that the _______________ Loan
Pair and the _______________ Mortgaged Property shall be the sole assets
serviced and administered thereunder and the sole source of funds thereunder.
Prior to the _______________ Loan Pair being serviced under any separate
servicing agreement, _____ shall have provided written confirmation that the
servicing of the _______________ Loan Pair under such agreement would not result
in an Adverse Rating Event with respect to any class of _______________
Companion Loan Securities which are rated by _____.
Notwithstanding the foregoing, if, at such time as the
_______________ Mortgage Loan shall no longer be part of the Trust Fund, a
separate servicing agreement with respect to the _______________ Loan Pair has
not been entered into or the rating confirmation from _____ referred to above
has not been obtained, then, until such time as a separate servicing agreement
is entered into and such rating confirmation is obtained, and notwithstanding
that the _______________ Mortgage Loan is no longer part of the Trust Fund, the
Master Servicer and, if applicable, the Special Servicer shall continue to
service the _______________ Loan Pair or any _______________ REO Property, as
the case may be, under this Agreement as if it were a separate servicing
agreement, for the benefit of the "Lenders" under the _______________ Co-Lender
Agreement, with: (i) the _______________ Loan Pair and the _______________
Mortgaged Property constituting the sole assets thereunder; and (ii) references
to the "Trustee", "Trust", "Certificateholders" (or any sub-group thereof) and
the "Controlling Class Representative" being construed to refer to the new "Note
A Lender" under the _______________ Co-Lender Agreement.
-95-
(d) The parties hereto acknowledge that the _______________
Loan Pair is subject to the terms and conditions of the _______________
Intercreditor Agreement. The parties hereto recognize the respective rights and
obligations of the "Lenders" under the _______________ Intercreditor Agreement,
including with respect to the allocation of collections and losses on or in
respect of the _______________ Loan Pair and the making of payments to the
"Lenders" in accordance with Section 3.2 of the _______________ Intercreditor
Agreement.
The parties hereto further acknowledge that, pursuant to the
_______________ Intercreditor Agreement, (i) the _______________ Loan Pair is to
be serviced and administered by the _______________ Servicers in accordance with
the _______________ Servicing Agreement, and (ii) in the event that (A) the
_______________ Non-Trust Loan is no longer part of the trust fund for the
_______________ Other Securitization and (B) the _______________ Mortgage Loan
is included in the Trust Fund, then, as set forth in Section 3.1.5 of the
_______________ Intercreditor Agreement, the _______________ Loan Pair is to
continue to be serviced in accordance with the applicable provisions of the
_______________ Servicing Agreement, with each of the _______________ Master
Servicer and the _______________ Special Servicer continuing to act in their
respective capacities thereunder (or by such successor master servicer or
special servicer as meets the requirements of the _______________ Servicing
Agreement).
For so long as (i) the _______________ Mortgage Loan or any
_______________ REO Loan are part of the Mortgage Pool and (ii) the _________
_______________ Loan Pair and/or any _______________ REO Property are being
serviced and administered under the _______________ Servicing Agreement, the
Master Servicer shall use reasonable efforts to monitor the performance and
enforce the obligations of the _______________ Master Servicer and the ________
_______________ Special Servicer, respectively, under such _______________
Servicing Agreement. Such enforcement, including the legal prosecution of claims
and the pursuit of other appropriate remedies, shall be in such form and carried
out to such an extent and at such time as the Master Servicer, in its reasonable
judgment, would require were it the owner of the _______________ Mortgage Loan.
The reasonable costs and expenses incurred by the Master Servicer in connection
with such enforcement shall be paid by, and reimbursable as, Servicing Advances.
(e) The relationship of each of the Master Servicer and the
Special Servicer to the Trustee and the _______________ Companion Loan
Noteholders under this Agreement is intended by the parties to be that of an
independent contractor and not that of a joint venturer, partner or agent.
SECTION 3.02. Collection of Loan Payments.
(a) Each of the Master Servicer and the Special Servicer shall
undertake reasonable efforts to collect all payments required under the terms
and provisions of the Serviced Loans it is obligated to service hereunder and
shall follow such collection procedures as are consistent with the Servicing
Standard; provided, however, that neither the Master Servicer nor the Special
Servicer shall, with respect to any ARD Loan after its Anticipated Repayment
Date, take any enforcement action with respect to the payment of Additional
Interest (other than the making of requests for its collection), unless (i) the
taking of an enforcement action with respect to the payment of other amounts due
under such ARD Loan (other than the _______________ Mortgage Loan) is, in the
good faith and reasonable judgment of the Special Servicer, necessary,
appropriate and consistent with the Servicing Standard or (ii) all other amounts
due under such ARD Loan (other than the _______________ Mortgage Loan)
-96-
have been paid, the payment of such Additional Interest has not been forgiven in
accordance with Section 3.20 and, in the good faith and reasonable judgment of
the Special Servicer, the Liquidation Proceeds expected to be recovered in
connection with such enforcement action will cover the anticipated costs of such
enforcement action and, if applicable, any associated interest accrued on
Advances. The Special Servicer shall ensure that, with respect to Specially
Serviced Loans, the Mortgagors make payments directly to the Master Servicer;
provided that, in the event the Special Servicer receives a payment that should
have been made directly to the Master Servicer, the Special Servicer shall
promptly forward such payment to the Master Servicer. Upon receipt of any such
payment with respect to a Specially Serviced Loan, the Master Servicer shall
promptly notify the Special Servicer, and the Special Servicer shall direct the
Master Servicer as to the proper posting of such payment. Consistent with the
foregoing, the Special Servicer, with regard to a Specially Serviced Loan, or
the Master Servicer, with regard to a Performing Serviced Loan, may waive or
defer any Default Charges in connection with collecting any late payment on a
Serviced Loan; provided that without the consent of the Special Servicer in the
case of a proposed waiver by the Master Servicer, no such waiver or deferral may
be made by the Master Servicer pursuant to this Section 3.02 if any Advance has
been made as to such delinquent payment.
(b) All amounts Received by the Trust with respect to any
Cross-Collateralized Group in the form of payments from Mortgagors, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds, shall be applied by
the Master Servicer among the Mortgage Loans constituting such
Cross-Collateralized Group in accordance with the express provisions of the
related loan documents and, in the absence of such express provisions or to the
extent that such payments and other collections may be applied at the discretion
of the lender, on a pro rata basis in accordance with the respective amounts
then "due and owing" as to each such Mortgage Loan. Except in the case of the
_______________ Mortgage Loan and the _______________ Loan Pair, amounts
Received by the Trust in respect of or allocable to any particular Mortgage Loan
(whether or not such Mortgage Loan constitutes part of a Cross-Collateralized
Group) in the form of payments from Mortgagors, Liquidation Proceeds,
Condemnation Proceeds or Insurance Proceeds shall be applied to amounts due and
owing under the related Mortgage Note and Mortgage (including for principal and
accrued and unpaid interest) in accordance with the express provisions of the
related Mortgage Note and Mortgage and, in the absence of such express
provisions or to the extent that such payments and other collections may be
applied at the discretion of the lender, as follows: first, as a recovery of any
related and unreimbursed Servicing Advances; second, as a recovery of accrued
and unpaid interest on such Mortgage Loan at the related Mortgage Rate to, but
not including, the date of receipt (or, in the case of a full Monthly Payment
from any Mortgagor, through the related Due Date), exclusive, however, in the
case of an ARD Mortgage Loan after its Anticipated Repayment Date, of any such
accrued and unpaid interest that constitutes Additional Interest; third, as a
recovery of principal of such Mortgage Loan then due and owing, including by
reason of acceleration of the Mortgage Loan following a default thereunder (or,
if a Liquidation Event has occurred in respect of such Mortgage Loan, as a
recovery of principal to the extent of its entire remaining unpaid principal
balance); fourth, unless a Liquidation Event has occurred with respect to such
Mortgage Loan, as a recovery of amounts to be currently applied to the payment
of, or escrowed for the future payment of, real estate taxes, assessments,
insurance premiums (including premiums on any Environmental Insurance Policy),
ground rents (if applicable) and similar items; fifth, unless a Liquidation
Event has occurred with respect to such Mortgage Loan, as a recovery of Reserve
Funds to the extent then required to be held in escrow; sixth, as a recovery of
any Prepayment Premium or Yield Maintenance Charge then due and owing under such
Mortgage Loan (or, in the case of a repurchase of a Loan REMIC Mortgage Loan by
the ___ Mortgage Loan Seller as contemplated by
-97-
Section 2.03(d), as a recovery of any yield maintenance payment paid in
connection therewith); seventh, as a recovery of any Default Charges then due
and owing under such Mortgage Loan; eighth, as a recovery of any assumption
fees, modification fees and extension fees then due and owing under such
Mortgage Loan; ninth, as a recovery of any other amounts then due and owing
under such Mortgage Loan (other than remaining unpaid principal and, in the case
of an ARD Mortgage Loan after its Anticipated Repayment Date, other than
Additional Interest); tenth, as a recovery of any remaining principal of such
Mortgage Loan to the extent of its entire remaining unpaid principal balance;
and, eleventh, in the case of an ARD Mortgage Loan after its Anticipated
Repayment Date, as a recovery of accrued and unpaid Additional Interest on such
ARD Mortgage Loan to but not including the date of receipt. All amounts Received
by the Trust with respect to the _______________ Loan Pair shall be applied to
amounts due and owing under such Loan Pair (including for principal and accrued
and unpaid interest) in accordance with the express provisions of the related
Mortgage Notes, the related Mortgage, the related loan agreement, if any, and
the _______________ Co-Lender Agreement. Amounts Received by the Trust with
respect to the _______________ Mortgage Loan or any related REO Mortgage Loan
shall be allocated among interest (other than Additional Interest), principal,
Yield Maintenance Charges and Additional Interest due thereon consistent with
the remittances under Section 4.01 of the _______________ Intercreditor
Agreement and the related loan documents and consistent with the allocation of
any such amounts set forth in any distribution date statement or servicer report
with respect to the _______________ Mortgage Loan.
(c) Promptly following the Closing Date, the Trustee shall
send written notice to the _______________ Master Servicer stating that, as of
the Closing Date, the Trustee is the holder of the _______________ Mortgage Loan
and directing the _______________ Master Servicer to remit to the Master
Servicer all amounts payable to, and to forward, deliver or otherwise make
available, as the case may be, to the Master Servicer all reports, statements,
documents, communications and other information that are to be forwarded,
delivered or otherwise made available to, the holder of the _______________
Mortgage Loan under the _______________ Intercreditor Agreement and the
_______________ Servicing Agreement. The Master Servicer shall, on the day of
receipt thereof, deposit into the Collection Account all amounts received by it
from the _______________ Master Servicer or any other party under the
_______________ Servicing Agreement with respect to the _______________ Mortgage
Loan, the _______________ Mortgaged Property or any _______________ REO
Property. In the event the Master Servicer fails to so receive any amounts due
to the holder of the _______________ Mortgage Loan during any calendar month
under the _______________ Intercreditor Agreement and the _______________
Servicing Agreement by [12:00 noon] (New York City time) on the Master Servicer
Remittance Date in such calendar month, the Master Servicer shall (i) notify the
_______________ Master Servicer or other applicable party responsible for making
such remittances, as well as the holder of the _______________ Non-Trust Loan,
that such amounts due with respect to the _______________ Mortgage Loan have not
been received (specifying the amount of such deficiency) and (ii) make a P&I
Advance with respect to such amounts as required by the terms of this Agreement
in accordance with Section 4.03. Further, in accordance with Section 4.03, in
the event the Master Servicer fails to make such P&I Advance with respect to the
_______________ Mortgage Loan or any _______________ REO Loan, then the Trustee
shall make such P&I Advance.
-98-
SECTION 3.03. Collection of Taxes, Assessments and Similar
Items; Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Mortgage Loans
(except the _______________ Mortgage Loan and the _______________ Mortgage
Loan), establish and maintain one or more accounts (the "Pool Servicing
Accounts"), in which all related Escrow Payments shall be deposited and
retained. The Master Servicer shall, as to the _______________ Loan Pair,
establish and maintain one or more accounts (the "_______________ Servicing
Accounts"), in which all related Escrow Payments shall be deposited and
retained. Subject to the terms of the related loan documents, each Servicing
Account shall be an Eligible Account. Withdrawals of amounts so collected from a
Servicing Account may be made (to the extent of amounts on deposit therein in
respect of the related Loan or, in the case of clauses (iv) and (v) below, to
the extent of interest or other income earned on such amounts) only for the
following purposes: (i) consistent with the related loan documents, to effect
the payment of real estate taxes, assessments, insurance premiums (including
premiums on any Environmental Insurance Policy), ground rents (if applicable)
and comparable items in respect of the respective Mortgaged Properties; (ii)
insofar as the particular Escrow Payment represents a late payment that was
intended to cover an item described in the immediately preceding clause (i) for
which a Servicing Advance was made, to reimburse the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent, as applicable, for such
Servicing Advance; (iii) to refund to Mortgagors any sums as may be determined
to be overages; (iv) to pay interest, if required and as described below, to
Mortgagors on balances in such Servicing Account; (v) to pay the Master Servicer
interest and investment income on balances in such Servicing Account as
described in Section 3.06(b), if and to the extent not required by law or the
terms of the related loan documents to be paid to the Mortgagor; or (vi) to
clear and terminate such Servicing Account at the termination of this Agreement
in accordance with Section 9.01. To the extent permitted by law or the
applicable loan documents, funds in the Servicing Accounts may be invested only
in Permitted Investments in accordance with the provisions of Section 3.06. The
Master Servicer shall pay or cause to be paid to the Mortgagors interest, if
any, earned on the investment of funds in the related Servicing Accounts, if
required by law or the terms of the related Loan. If the Master Servicer shall
deposit in a Servicing Account any amount not required to be deposited therein,
it may at any time withdraw such amount from such Servicing Account, any
provision herein to the contrary notwithstanding.
(b) The Master Servicer shall, as to each and every Serviced
Loan, (i) maintain accurate records with respect to the related Mortgaged
Property reflecting the status of real estate taxes, assessments and other
similar items that are or may become a lien thereon and the status of insurance
premiums and any ground rents payable in respect thereof and (ii) use reasonable
efforts to obtain, from time to time, all bills for (or otherwise confirm) the
payment of such items (including renewal premiums) and, if the subject Serviced
Loan requires the related Mortgagor to escrow for such items, shall effect
payment thereof prior to the applicable penalty or termination date. For
purposes of effecting any such payment for which it is responsible, the Master
Servicer shall apply Escrow Payments as allowed under the terms of the related
Serviced Loan or Serviced Loan Pair, as applicable (or, if such Serviced Loan or
Serviced Loan Pair, as applicable, does not require the related Mortgagor to
escrow for the payment of real estate taxes, assessments, insurance premiums,
ground rents (if applicable) and similar items, the Master Servicer shall use
reasonable efforts consistent with the Servicing Standard to cause the related
Mortgagor to comply with the requirement of the related Mortgage that the
Mortgagor make payments in respect of such items at the time they first become
due and, in any event, prior to the institution of foreclosure or similar
proceedings with respect to the related Mortgaged Property for
-99-
nonpayment of such items). Subject to Section 3.11(h), the Master Servicer shall
timely make a Servicing Advance to cover any such item which is not so paid,
including any penalties or other charges arising from the Mortgagor's failure to
timely pay such items.
(c) The Master Servicer shall, as to each and every Serviced
Loan, make a Servicing Advance with respect to the related Mortgaged Property in
an amount equal to all such funds as are necessary for the purpose of effecting
the payment of (i) real estate taxes, assessments and other similar items, (ii)
ground rents (if applicable), and (iii) premiums on Insurance Policies
(including Environmental Insurance Policies), in each instance if and to the
extent Escrow Payments (if any) collected from the related Mortgagor are
insufficient to pay such item when due and the related Mortgagor has failed to
pay such item on a timely basis. All such Servicing Advances shall be
reimbursable in the first instance from related collections from the Mortgagors,
and further as provided in Section 3.05(a) or 3.05A. No costs incurred by the
Master Servicer in effecting the payment of real estate taxes, assessments and,
if applicable, ground rents on or in respect of the Mortgaged Properties shall,
for purposes of this Agreement, including the Trustee's calculation of monthly
distributions to Certificateholders, be added to the unpaid Stated Principal
Balances of the related Serviced Loans, notwithstanding that the terms of such
Loans so permit. The foregoing shall in no way limit the Master Servicer's
ability to charge and collect from the Mortgagor such costs together with
interest thereon.
(d) The Master Servicer shall, as to all Mortgage Loans (other
than the _______________ Mortgage Loan and the _______________ Mortgage Loan),
establish and maintain, as applicable, one or more accounts (the "Pool Reserve
Accounts"), into which all Reserve Funds, if any, shall be deposited and
retained. The Master Servicer shall, as to the _______________ Loan Pair,
establish and maintain one or more accounts (the "_______________ Reserve
Accounts") in which all related Reserve Funds, if any, shall be deposited and
retained. Withdrawals of amounts so deposited may be made (i) for the specific
purposes for which the particular Reserve Funds were delivered, in accordance
with the Servicing Standard and the terms of the related Mortgage Note, Mortgage
and any other agreement with the related Mortgagor governing such Reserve Funds,
and (ii) to pay the Master Servicer interest and investment income earned on
amounts in the Reserve Accounts as described below. To the extent permitted in
the applicable loan documents, funds in the Reserve Accounts may be invested in
Permitted Investments in accordance with the provisions of Section 3.06. Subject
to the related loan documents, all Reserve Accounts shall be Eligible Accounts.
Consistent with the Servicing Standard, the Master Servicer may waive or extend
the date set forth in any agreement governing Reserve Funds by which any
required repairs, capital improvements and/or environmental remediation at the
related Mortgaged Property must be completed; provided that any waiver, any
extension for more than 120 days and any subsequent extension may only be
granted with the consent of the Special Servicer.
SECTION 3.04. Pool Custodial Account, Defeasance Deposit
Account, Collection Account, Interest Reserve
Account and Excess Liquidation Proceeds Account.
(a) The Master Servicer shall establish and maintain one or
more separate accounts (collectively, the "Pool Custodial Account"), in which
the amounts described in clauses (i) through (viii) below (which shall not
include any amounts allocable to the _______________ Companion Loan) shall be
deposited and held on behalf of the Trustee in trust for the benefit of the
Certificateholders. The Pool Custodial Account shall be an Eligible Account. The
Master Servicer shall deposit or cause to be
-100-
deposited in the Pool Custodial Account, within one Business Day of receipt (in
the case of payments by Mortgagors or other collections on the Serviced Mortgage
Loans) or as otherwise required hereunder, the following payments and
collections received or made by the Master Servicer or on its behalf subsequent
to the Cut-off Date (other than in respect of principal and interest on the
Serviced Mortgage Loans due and payable on or before the Cut-off Date, which
amounts shall be delivered promptly to the Depositor or its designee, with
negotiable instruments endorsed as necessary and appropriate without recourse,
and other than amounts required to be deposited in the Defeasance Deposit
Account), or payments (other than Principal Prepayments) received by it on or
prior to the Cut-off Date but allocable to a period subsequent thereto:
(i) all payments on account of principal of the Serviced
Mortgage Loans, including Principal Prepayments, and regardless of
whether those payments are made by the related Mortgagor or any related
guarantor, out of any related Reserve Funds maintained for such
purpose, out of collections on any related Defeasance Collateral or
from any other source;
(ii) all payments on account of interest on the Serviced
Mortgage Loans, including Default Interest and Additional Interest, and
regardless of whether those payments are made by the related Mortgagor
or any related guarantor, out of any related Reserve Funds maintained
for such purpose, out of collections on any related Defeasance
Collateral or from any other source;
(iii) all Prepayment Premiums, Yield Maintenance Charges and
late payment charges received in respect of any Serviced Mortgage Loan;
(iv) all Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of any Serviced Mortgage Loan;
(v) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.06 in connection with losses incurred
with respect to Permitted Investments of funds held in the Pool
Custodial Account;
(vi) any amounts required to be deposited by the Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in
connection with losses resulting from a deductible clause in a blanket
hazard policy;
(vii) any amounts required to be transferred from an REO
Account pursuant to Section 3.16(c);
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by a Mortgagor specifically to cover items for which a
Servicing Advance has been made; and
(ix) the Initial Deposit;
provided that any amounts described in clauses (i) through (iv) and (vi) through
(viii) above that relate to the _______________ Mortgage Loan or any related REO
Property (other than Liquidation Proceeds derived from the sale of the
_______________ Mortgage Loan to or through the _______________ Companion Loan
Noteholder pursuant to the _______________ Co-Lender Agreement or as a Specially
Serviced Mortgage Loan pursuant to Section 3.18) shall be deposited in the
_______________ Custodial
-101-
Account, and, in any such case, shall thereafter be transferred to the Pool
Custodial Account as provided in Section 3.05A.
The foregoing requirements for deposit in the Pool Custodial
Account shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, Reserve Funds, assumption fees,
assumption application fees, funds representing a Mortgagor's payment of costs
and expenses associated with assumptions and defeasance, modification fees,
extension fees, charges for beneficiary statements or demands, amounts collected
for checks returned for insufficient funds and any similar fees not expressly
referred to in the prior paragraph need not be deposited by the Master Servicer
in the Pool Custodial Account. If the Master Servicer shall deposit in the Pool
Custodial Account any amount not required to be deposited therein, it may at any
time withdraw such amount from the Pool Custodial Account, any provision herein
to the contrary notwithstanding. The Master Servicer shall promptly deliver to
the Special Servicer, as additional special servicing compensation in accordance
with Section 3.11(d), all assumption fees and assumption application fees (or
the applicable portions thereof), and other transaction fees received by the
Master Servicer to which the Special Servicer is entitled pursuant to such
section upon receipt of a written statement (on which the Master Servicer is
entitled to rely) of a Servicing Officer of the Special Servicer describing the
item and amount (unless pursuant to this Agreement it is otherwise clear that
the Special Servicer is entitled to such amounts, in which case a written
statement is not required). The Pool Custodial Account shall be maintained as a
segregated account, separate and apart from trust funds created for
mortgage-backed securities of other series and the other accounts of the Master
Servicer.
Upon receipt of any of the amounts described in clauses (i)
through (iv) and (viii) above with respect to any Mortgage Loan (other than the
_______________ Mortgage Loan and the _______________ Mortgage Loan), the
Special Servicer shall promptly, but in no event later than two Business Days
after receipt, remit such amounts to the Master Servicer for deposit into the
Pool Custodial Account in accordance with the second preceding paragraph, unless
the Special Servicer determines, consistent with the Servicing Standard, that a
particular item should not be deposited because of a restrictive endorsement or
other appropriate reason. With respect to any such amounts paid by check to the
order of the Special Servicer, the Special Servicer shall endorse such check to
the order of the Master Servicer, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item cannot be so
endorsed and delivered because of a restrictive endorsement or other appropriate
reason. Any such amounts received by the Special Servicer with respect to an REO
Property (other than an REO Property that relates to a Loan Pair) shall be
deposited by the Special Servicer into the Pool REO Account and thereafter
remitted to the Master Servicer for deposit into the Pool Custodial Account as
and to the extent provided in Section 3.16(c).
If and when any Mortgagor under a Defeasance Loan elects to
defease all or any part of its Loan (other than the _______________ Mortgage
Loan) and, pursuant to the provisions of the related loan documents, delivers
cash to the Master Servicer to purchase the required Defeasance Collateral, the
Master Servicer shall establish and maintain one or more separate segregated
accounts (collectively, the "Defeasance Deposit Account"), in which the Master
Servicer shall deposit such cash within one Business Day of receipt by the
Master Servicer. The Master Servicer shall retain such cash in the Defeasance
Deposit Account pending its prompt application to purchase Defeasance
Collateral. The Master Servicer shall hold such cash and maintain the Defeasance
Deposit Account on behalf of the Trustee and, in the case of the _______________
Loan Pair, the _______________ Companion Loan Noteholder, to secure payment on
the related Defeasance Loan. The Defeasance Deposit Account shall
-102-
be an Eligible Account. To the extent permitted by law or the applicable
Defeasance Loan, prior to the purchase of Defeasance Collateral, funds in the
Defeasance Deposit Account may be invested only in Permitted Investments in
accordance with the provisions of Section 3.06. The Master Servicer shall pay or
cause to be paid to the related Mortgagor(s) interest, if any, earned on the
investment of funds in the Defeasance Deposit Account, if required by law or the
terms of the related Loan(s).
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Collection Account") to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the Collection
Account shall be an Eligible Account. The Trustee shall establish and maintain,
on a book-entry basis, the Class V Sub-Account, which sub-account shall be
deemed to be held in trust for the benefit of the Holders of the Class V
Certificates. The Master Servicer shall deliver to the Trustee each month on or
before the Master Servicer Remittance Date therein, for deposit in the
Collection Account, an aggregate amount of immediately available funds equal to
the Master Servicer Remittance Amount for such Master Servicer Remittance Date,
together with, in the case of the final Distribution Date, any additional
amounts contemplated by the second paragraph of Section 9.01. Immediately upon
deposit of the Master Servicer Remittance Amount for any Master Servicer
Remittance Date into the Collection Account, any portion thereof that represents
Additional Interest shall be deemed to have been deposited into the Class V
Sub-Account.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee (without duplication) for deposit in the
Collection Account:
(i) any P&I Advances required to be made by the Master
Servicer in accordance with Section 4.03(a); and
(ii) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.19(a) in connection with Prepayment
Interest Shortfalls.
The Trustee shall, upon receipt, deposit in the Collection
Account any and all amounts received by it that are required by the terms of
this Agreement to be deposited therein.
In the event that the Master Servicer fails, on any Master
Servicer Remittance Date, to remit to the Trustee any amount(s) required to be
so remitted to the Trustee hereunder by such date, the Master Servicer shall pay
the Trustee, for the account of the Trustee, interest, calculated at the Prime
Rate, on such amount(s) not timely remitted, from and including that Master
Servicer Remittance Date,, to but not including the related Distribution Date.
On the Master Servicer Remittance Date in March of each year
(commencing in March ___), the Trustee shall transfer from the Interest Reserve
Account to the Collection Account all Interest Reserve Amounts then on deposit
in the Interest Reserve Account with respect to the Interest Reserve Mortgage
Loans and any Interest Reserve REO Mortgage Loans.
As and when required pursuant to Section 3.05(d), the Trustee
shall transfer monies from the Excess Liquidation Proceeds Account to the
Collection Account.
(c) The Trustee shall establish and maintain one or more
accounts (collectively, the "Interest Reserve Account"), which may be a
sub-account of the Collection Account, to be held in trust for the benefit of
the Certificateholders. Each account that constitutes the Interest Reserve
Account shall
-103-
be an Eligible Account. On each Distribution Date in February and, during a year
that is not a leap year, in January, prior to any distributions being made in
respect of the Certificates on such Distribution Date, the Trustee shall
withdraw from the Collection Account and deposit in the Interest Reserve Account
with respect to each Interest Reserve Mortgage Loan and Interest Reserve REO
Mortgage Loan, an amount equal to the Interest Reserve Amount, if any, in
respect of such Mortgage Loan or REO Mortgage Loan, as the case may be, for such
Distribution Date.
Notwithstanding that the Interest Reserve Account may be a
sub-account of the Collection Account for reasons of administrative convenience,
the Interest Reserve Account and the Collection Account shall, for all purposes
of this Agreement (including the obligations and responsibilities of the Trustee
hereunder), be considered to be and shall be required to be treated as, separate
and distinct accounts. The Trustee shall indemnify and hold harmless the Trust
Fund against any losses arising out of the failure by the Trustee to perform its
duties and obligations hereunder as if such accounts were separate. The
provisions of this paragraph shall survive any resignation or removal of the
Trustee and appointment of a successor trustee.
(d) If any Excess Liquidation Proceeds are received on the
Mortgage Pool, the Trustee shall establish and maintain one or more accounts
(collectively, the "Excess Liquidation Proceeds Account") to be held in trust
for the benefit of the Certificateholders. Each account that constitutes the
Excess Liquidation Proceeds Account shall be an Eligible Account. On each Master
Servicer Remittance Date, the Master Servicer shall withdraw from the Pool
Custodial Account and remit to the Trustee for deposit in the Excess Liquidation
Proceeds Account all Excess Liquidation Proceeds received during the Collection
Period ending on the Determination Date immediately prior to such Master
Servicer Remittance Date.
(e) Funds in the Pool Custodial Account (exclusive of the
Initial Deposit) may be invested only in Permitted Investments in accordance
with the provisions of Section 3.06. The Initial Deposit and funds in the
Collection Account, the Interest Reserve Account and the Excess Liquidation
Proceeds Account shall remain uninvested. The Master Servicer shall give notice
to the Trustee, the Special Servicer and the Rating Agencies of the location of
the Pool Custodial Account as of the Closing Date and of the new location of the
Pool Custodial Account prior to any change thereof. As of the Closing Date, the
Collection Account, the Interest Reserve Account and the Excess Liquidation
Proceeds Account shall be located at the Trustee's offices in
______________________________. The Trustee shall give notice to the Master
Servicer, the Special Servicer and the Rating Agencies of any change in the
location of the Collection Account, the Interest Reserve Account or the Excess
Liquidation Proceeds Account prior to any change thereof.
SECTION 3.04A. _______________ Custodial Account.
(a) The Master Servicer shall establish and maintain, with
respect to the _______________ Loan Pair, one or more separate accounts (the
"_______________ Custodial Account") in which the amounts described in clauses
(i) through (ix) below shall be deposited and held in trust for the benefit of
the _______________ Noteholders, as their interests may appear. the ____________
_______________ Custodial Account shall be an Eligible Account. The Master
Servicer shall deposit or cause to be deposited in the _______________ Custodial
Account, within one Business Day of receipt (in the case of payments or other
collections on such Loan Pair) or as otherwise required hereunder, the following
payments and collections received or made by the Master Servicer or on its
-104-
behalf with respect to the _______________ Loan Pair subsequent to the Cut-off
Date (other than in respect of principal and interest on the _______________
Loan Pair due and payable on or before the Cut-off Date, which payments shall be
held pursuant to the terms of the _______________ Co-Lender Agreement, and other
than amounts required to be deposited in the Defeasance Deposit Account):
(i) all payments on account of principal of the
_______________ Loan Pair, including Principal Prepayments, and
regardless of whether those payments are made by the related Mortgagor
or any related guarantor, out of any related Reserve Funds maintained
for such purpose, out of collections on any related Defeasance
Collateral or from any other source;
(ii) all payments on account of interest on the
_______________ Loan Pair, including Default Interest and Additional
Interest, and regardless of whether those payments are made by the
related Mortgagor or any related guarantor, out of any related Reserve
Funds maintained for such purpose, out of collections on any related
Defeasance Collateral or from any other source;
(iii) all Prepayment Premiums, Yield Maintenance
Charges and/or late payment charges received in respect of the
_______________ Loan Pair;
(iv) all Insurance Proceeds, Condemnation Proceeds
and Liquidation Proceeds received in respect of the _______________
Loan Pair (other than Liquidation Proceeds derived from the sale of the
_______________ Mortgage Loan to or through the _______________
Companion Loan Noteholder pursuant to the _______________ Co-Lender
Agreement or as a Specially Serviced Mortgage Loan pursuant to Section
3.18);
(v) any amounts required to be deposited by the
Master Servicer pursuant to Section 3.06 in connection with losses
incurred with respect to Permitted Investments of funds held in the
_______________ Custodial Account;
(vi) any amounts required to be deposited by the
Master Servicer or the Special Servicer pursuant to Section 3.07(b) in
connection with losses with respect to the _______________ Loan Pair
resulting from a deductible clause in a blanket hazard policy;
(vii) any amounts required to be transferred from the
related REO Account pursuant to Section 3.16(c);
(viii) insofar as they do not constitute Escrow
Payments, any amounts paid by the related Mortgagor with respect to the
_______________ Loan Pair specifically to cover items for which a
Servicing Advance has been made; and
(ix) any P&I Advances required to be made by the
Master Servicer with respect to the _______________ Loan Pair in
accordance with Section 4.03A.
The foregoing requirements for deposit in the _______________
Custodial Account shall be exclusive. Notwithstanding the foregoing, actual
payments from the related Mortgagor in respect of the _______________ Loan Pair
in the nature of Escrow Payments, Reserve Funds, assumption fees, assumption
application fees, funds representing such Mortgagor's payment of costs and
expenses associated with assumptions and defeasance, modification fees,
extension fees, charges for beneficiary
-105-
statements or demands, amounts collected for checks returned for insufficient
funds and any similar fees not expressly referred to in the prior paragraph need
not be deposited by the Master Servicer in the _______________ Custodial
Account. If the Master Servicer shall deposit into the _______________ Custodial
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from the _______________ Custodial Account, any provision
herein to the contrary notwithstanding. The Master Servicer shall promptly
deliver to the Special Servicer, as additional special servicing compensation in
accordance with Section 3.11(d), all assumption fees and assumption application
fees (or the applicable portions thereof) and other transaction fees received by
the Master Servicer with respect to the _______________ Loan Pair, to which the
Special Servicer is entitled pursuant to such section, upon receipt of a written
statement of a Servicing Officer of the Special Servicer describing the item and
amount (unless pursuant to this Agreement it is otherwise clear that the Special
Servicer is entitled to such amounts, in which case a written statement is not
required). The _______________ Loan Pair Custodial Account shall be maintained
as a segregated account, separate and apart from trust funds created for
mortgage-backed securities of other series and the other accounts of the Master
Servicer.
Upon receipt of any of the amounts described in clauses (i)
through (iv) and (viii) above with respect to the _______________ Loan Pair, the
Special Servicer shall promptly, but in no event later than two Business Days
after receipt, remit such amounts to the Master Servicer for deposit into the
_______________ Custodial Account in accordance with the second preceding
paragraph, unless the Special Servicer determines, consistent with the Servicing
Standard, that a particular item should not be deposited because of a
restrictive endorsement or other appropriate reason. With respect to any such
amounts paid by check to the order of the Special Servicer, the Special Servicer
shall endorse such check to the order of the Master Servicer, unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item cannot be so endorsed and delivered because of a restrictive endorsement or
other appropriate reason. Any such amounts received by the Special Servicer with
respect to an REO Property that relates to the _______________ Loan Pair shall
initially be deposited by the Special Servicer into the related REO Account and
thereafter remitted to the Master Servicer for deposit into the _______________
Custodial Account, all in accordance with Section 3.16(c).
(b) If and when the related Mortgagor elects to defease the
_______________ Loan Pair, the provisions of the last paragraph of Section
3.04(a) relating to the Defeasance Deposit Account shall apply.
(c) The Master Servicer shall give notice to the Trustee, the
_______________ Companion Loan Noteholder and the Special Servicer of the
location of the _______________ Custodial Account when first established and of
the new location of such Custodial Account prior to any change thereof.
SECTION 3.05. Permitted Withdrawals From the Pool Custodial
Account, the Collection Account, the Interest
Reserve Account and the Excess Liquidation
Proceeds Account.
(a) The Master Servicer may, from time to time, make
withdrawals from the Pool Custodial Account for any of the following purposes
(the order set forth below not constituting an order of priority for such
withdrawals):
-106-
(i) to remit to the Trustee for deposit in the Collection
Account the amounts required to be so deposited pursuant to the first paragraph
of Section 3.04(b), and any amounts that may be applied to make P&I Advances
pursuant to Section 4.03(a);
(ii) to reimburse the Fiscal Agent, the Trustee and
itself, in that order, for xxxxxxxxxxxx X&X Advances made thereby with respect
to the Mortgage Pool (exclusive of the _______________ Mortgage Loan and any
related REO Mortgage Loan), the Fiscal Agent's, the Trustee's and Master
Servicer's, as the case may be, respective rights to reimbursement pursuant to
this clause (ii) with respect to any such P&I Advance being limited to amounts
on deposit in the Pool Custodial Account that represent Late Collections of
interest and principal (net of the related Master Servicing Fees and any related
Workout Fees or Liquidation Fees) received in respect of the particular Mortgage
Loan or REO Mortgage Loan as to which such P&I Advance was made;
(iii) to pay to itself earned and unpaid Master Servicing
Fees with respect to the Mortgage Pool (exclusive of the _______________
Mortgage Loan and any related REO Mortgage Loan), the Master Servicer's right to
payment pursuant to this clause (iii) with respect to any such Master Servicing
Fees being limited to amounts on deposit in the Pool Custodial Account that are
allocable as a recovery of interest on or in respect of the Mortgage Loan or REO
Mortgage Loan as to which such Master Servicing Fees were earned;
(iv) to pay (A) to the Special Servicer, out of general
collections on the Mortgage Pool on deposit in the Pool Custodial Account,
earned and unpaid Special Servicing Fees in respect of each Specially Serviced
Mortgage Loan and REO Mortgage Loan (other than, if applicable, the
_______________ Mortgage Loan, the _______________ Mortgage Loan and/or any
related REO Mortgage Loans) and (B) to itself, out of general collections on the
Mortgage Pool on deposit in the Pool Custodial Account, any Master Servicing Fee
earned in respect of any Mortgage Loan or REO Mortgage Loan (other than the
_______________ Mortgage Loan and/or any related REO Mortgage Loan) that remains
unpaid in accordance with clause (iii) above following a Final Recovery
Determination made with respect to such Mortgage Loan or the related REO
Property and the deposit into the Pool Custodial Account of all amounts received
in connection with such Final Recovery Determination;
(v) to pay the Special Servicer (or, if applicable, a
predecessor Special Servicer) any earned and unpaid Workout Fees and Liquidation
Fees in respect of each Specially Serviced Mortgage Loan, Corrected Mortgage
Loan and/or REO Mortgage Loan (other than, if applicable, the _______________
Mortgage Loan, the _______________ Mortgage Loan and/or any related REO Mortgage
Loans), as applicable, in the amounts and from the sources specified in Section
3.11(c);
(vi) to reimburse the Fiscal Agent, the Trustee, itself
and the Special Servicer, in that order, for any unreimbursed Servicing Advances
made thereby with respect to any Mortgage Loan or REO Property (other than the
_______________ Mortgage Loan, the _______________ Mortgage Loan and/or any
related REO Properties), the Fiscal Agent's, the Trustee's, the Master
Servicer's and the Special Servicer's respective rights to reimbursement
pursuant to this clause (vi) with respect to any Servicing Advance being limited
to amounts on deposit in the Pool Custodial Account that represent payments made
by the related Mortgagor to
-107-
cover the item for which such Servicing Advance was made, and to amounts on
deposit in the Pool Custodial Account that represent Liquidation Proceeds (net
of Liquidation Fees payable therefrom), Condemnation Proceeds, Insurance
Proceeds and, if applicable, REO Revenues received in respect of the particular
Mortgage Loan or REO Property as to which such Servicing Advance was made;
(vii) to reimburse the Fiscal Agent, the Trustee, itself
and the Special Servicer, in that order, out of general collections on the
Mortgage Pool on deposit in the Pool Custodial Account, for any unreimbursed
Advances (other than xxxxxxxxxxxx X&X Advances with respect the _______________
Companion Loan or any successor REO Loan) that have been or are determined to be
Nonrecoverable Advances;
(viii) to pay the Fiscal Agent, the Trustee, itself and
the Special Servicer, in that order, any interest accrued and payable in
accordance with Section 3.11(g), 4.03(d) or 4.03A(d), as applicable, on any
Advance made thereby with respect to the Mortgage Pool (exclusive of the
_______________ Mortgage Loan and any related REO Mortgage Loans), the Fiscal
Agent's, the Trustee's, the Master Servicer's and the Special Servicer's
respective rights to payment pursuant to this clause (viii) with respect to
interest on any such Advance being limited to amounts on deposit in the Pool
Custodial Account that represent Default Charges collected on or in respect of
the Mortgage Pool during the Collection Period in which such Advance is
reimbursed, as and to the extent contemplated by Sections 3.26(a) and (b);
(ix) to pay, out of general collections on the Mortgage
Pool on deposit in the Pool Custodial Account, the Fiscal Agent, the Trustee,
itself and the Special Servicer, in that order, any interest accrued and payable
in accordance with Section 3.11(g), 4.03(d) or 4.03A(d), as applicable, on any
Advance made thereby with respect to the Mortgage Pool, but only to the extent
that such Advance has been reimbursed and the interest thereon is not otherwise
payable as contemplated by the immediately preceding clause (viii) or Section
3.05A, as applicable;
(x) to pay, out of Default Charges collected on or in
respect of the Mortgage Pool and not otherwise applied as contemplated by clause
(viii) above, any unpaid expense (other than interest accrued on Advances, which
is payable pursuant to clause (viii) above, and other than Special Servicing
Fees, Liquidation Fees and Workout Fees) incurred with respect to any Mortgage
Loan or REO Mortgage Loan that, if paid from a source other than Default
Charges, would constitute an Additional Trust Fund Expense, as and to the extent
contemplated by Sections 3.26(a) and (b);
(xi) to pay, out of general collections on the Mortgage
Pool on deposit in the Pool Custodial Account, for (A) costs and expenses
incurred by the Trust Fund pursuant to Section 3.09(c) (other than the costs of
environmental testing, which are to be covered by, and reimbursable as, a
Servicing Advance), (B) the cost of an independent appraiser or other expert in
real estate matters retained pursuant to Sections 3.11(h), 3.18(g), or 4.03(c),
and (C) the fees of any Independent Contractor retained with respect to any
related REO Property pursuant to Section 3.17(d) (to the extent that it has not
paid itself such fees prior to remitting collections on such REO Property to the
Special Servicer); provided that, in the case of the _______________ Mortgaged
Property, such payment pursuant to this clause (xi) is to be made only to the
extent
-108-
that it would not ultimately be payable out of collections on or in respect of
the _______________ Loan Pair;
(xii) to pay itself, as additional servicing compensation
in accordance with Section 3.11(b), (A) interest and investment income earned in
respect of amounts held in the Pool Custodial Account as provided in Section
3.06(b), but only to the extent of the Net Investment Earnings with respect to
the Pool Custodial Account for any Collection Period, (B) Prepayment Interest
Excesses collected on the Mortgage Pool (exclusive of the _______________
Mortgage Loan) and (C) Net Default Charges (after application pursuant to
Sections 3.26(a) and (b)) actually collected that accrued in respect of Mortgage
Loans (other than the _______________ Mortgage Loan and the _______________
Mortgage Loan) that are not Specially Serviced Mortgage Loans, and to pay the
Special Servicer, as additional special servicing compensation in accordance
with Section 3.11(d), Net Default Charges (after application pursuant to
Sections 3.26(a) and (b)) actually collected that accrued in respect of
Specially Serviced Mortgage Loans and REO Mortgage Loans (other than the
_______________ Mortgage Loan, the _______________ Mortgage Loan and/or any
related REO Mortgage Loans);
(xiii) to pay itself, the Special Servicer, the Depositor,
or any of their respective members, managers, directors, officers, employees and
agents, as the case may be, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, any amounts payable to any such Person
pursuant to Section 6.03; provided that such payment does not relate solely to
the _______________ Companion Loan;
(xiv) to pay, out of general collections on the Mortgage
Pool on deposit in the Pool Custodial Account, for (A) the cost of the Opinion
of Counsel contemplated by Section 11.02(a), (B) the cost of an Opinion of
Counsel contemplated by Section 11.01(a) or 11.01(c) in connection with any
amendment to this Agreement requested by the Master Servicer or the Special
Servicer that protects or is in furtherance of the rights and interests of
Certificateholders, and (C) the cost of recording this Agreement in accordance
with Section 11.02(a);
(xv) to pay itself, the Special Servicer, the Depositor,
any Controlling Class Certificateholder or any other Person, as the case may be,
with respect to each Mortgage Loan, if any, previously purchased by such Person
pursuant to this Agreement, all amounts received thereon subsequent to the date
of purchase that have been deposited in the Pool Custodial Account;
(xvi) to pay, in accordance with Section 3.11(i), out of
general collections on the Mortgage Pool on deposit in the Pool Custodial
Account, any servicing expenses, that would, if advanced, constitute
Nonrecoverable Servicing Advances (other than servicing expenses that relate
solely to the _______________ Companion Loan or any related REO Loan);
(xvii) on each Master Servicer Remittance Date, to
transfer Excess Liquidation Proceeds in respect of the Mortgage Pool to the
Trustee, for deposit in the Excess Liquidation Proceeds Account, in accordance
with Section 3.04(d); and
(xviii) to clear and terminate the Pool Custodial Account
at the termination of this Agreement pursuant to Section 9.01.
-109-
The Master Servicer shall keep and maintain separate
accounting records, on a loan-by-loan basis when appropriate, in connection with
any withdrawal from the Pool Custodial Account pursuant to clauses (ii) through
(xvii) above.
The Master Servicer shall pay to the Special Servicer (or to
third party contractors at the direction of the Special Servicer), the Trustee
or the Fiscal Agent from the Pool Custodial Account, amounts permitted to be
paid to the Special Servicer (or to any such third party contractor), the
Trustee or the Fiscal Agent therefrom promptly upon receipt of a written
statement of a Servicing Officer of the Special Servicer or of a Responsible
Officer of the Trustee or the Fiscal Agent describing the item and amount to
which the Special Servicer (or such third party contractor), the Trustee or the
Fiscal Agent, as applicable, is entitled (unless such payment to the Special
Servicer, the Trustee (for example, the Trustee Fee) or the Fiscal Agent, as the
case may be, is clearly required pursuant to this Agreement, in which case a
written statement is not required). The Master Servicer may rely conclusively on
any such written statement and shall have no duty to re-calculate the amounts
stated therein.
The Special Servicer shall keep and maintain separate
accounting for each Specially Serviced Mortgage Loan and REO Property, on a
loan-by-loan basis, for the purpose of justifying any request for withdrawal
from the Pool Custodial Account. With respect to each Mortgage Loan for which it
makes an Advance, each of the Trustee and Fiscal Agent shall keep and maintain
separate accounting, on a loan-by-loan basis, for the purpose of justifying any
request for withdrawal from the Pool Custodial Account for reimbursements of
Advances or interest thereon.
(b) The Trustee may, from time to time, make withdrawals from
the Collection Account for any of the following purposes (in no particular order
of priority):
(i) to make distributions to Certificateholders on each
Distribution Date pursuant to Section 4.01 or 9.01, as applicable;
(ii) to pay (A) the Trustee, the Fiscal Agent or any of
their respective directors, officers, employees and agents, as the case
may be, out of general collections on the Mortgage Pool on deposit in
the Collection Account, any amounts payable or reimbursable to any such
Person pursuant to Section 7.01(b) and/or Section 8.05, as applicable,
and (B) as and when contemplated by Section 8.08, the cost of the
Trustee's transferring Mortgage Files and other documents to a
successor after being terminated by Certificateholders pursuant to
Section 8.07(c) without cause;
(iii) to pay, out of general collections on the Mortgage
Pool on deposit in the Collection Account, for the cost of the Opinions
of Counsel sought by the Trustee or the Tax Administrator (A) as
provided in clause (v) of the definition of "Disqualified
Organization", (B) as contemplated by Sections 10.01(i) and 10.02(e),
or (C) as contemplated by Section 11.01(a) or 11.01(c) in connection
with any amendment to this Agreement requested by the Trustee which
amendment is in furtherance of the rights and interests of
Certificateholders;
(iv) to pay, out of general collections on the Mortgage
Pool on deposit in the Collection Account, any and all federal, state
and local taxes imposed on any of the REMICs created hereunder or on
the assets or transactions of any such REMIC, together with all
incidental costs and expenses, to the extent none of the Depositor, the
Trustee, the Tax
-110-
Administrator, the Master Servicer or the Special Servicer is liable
therefor pursuant to Section 10.01(j) or Section 10.02(f);
(v) to pay the Tax Administrator, out of general
collections on the Mortgage Pool on deposit in the Collection Account,
any amounts reimbursable to it pursuant to Section 10.01(f) or Section
10.02(b);
(vi) to pay the Master Servicer any amounts deposited by
the Master Servicer in the Collection Account in error;
(vii) to transfer Interest Reserve Amounts in respect of
the Interest Reserve Loans and any Interest Reserve REO Mortgage Loans
to the Interest Reserve Account as and when required by Section
3.04(c); and
(viii) to clear and terminate the Collection Account at
the termination of this Agreement pursuant to Section 9.01.
On or prior to a Distribution Date, the Trustee shall be
entitled to withdraw amounts that are payable or reimbursable as set forth in
clauses (ii) through (vi) above from the Collection Account prior to making
distributions to Certificateholders on such Distribution Date.
(c) On each Master Servicer Remittance Date in March
(commencing in March ___), the Trustee shall withdraw from the Interest Reserve
Account and deposit in the Collection Account all Interest Reserve Amounts that
have been deposited in the Interest Reserve Account in respect of the Interest
Reserve Loans any Interest Reserve REO Mortgage Loans during January and/or
February of the same year in accordance with Section 3.04(c).
(d) On each Master Servicer Remittance Date, the Trustee shall
withdraw from the Excess Liquidation Proceeds Account and deposit in the
Collection Account, for distribution on the next following Distribution Date, an
amount equal to the lesser of (i) the entire amount, if any, then on deposit in
the Excess Liquidation Proceeds Account and (ii) the excess, if any, of the
aggregate amount distributable on such Distribution Date pursuant to Sections
4.01(a) and 4.01(b), over the Available Distribution Amount for such
Distribution Date (calculated without regard to such transfer from the Excess
Liquidation Proceeds Account to the Collection Account); provided that on the
Master Servicer Remittance Date immediately prior to the Final Distribution
Date, the Trustee shall withdraw from the Excess Liquidation Proceeds Account
and deposit in the Collection Account, for distribution on such Distribution
Date, any and all amounts then on deposit in the Excess Liquidation Proceeds
Account.
SECTION 3.05A. Permitted Withdrawals From the _______________
Custodial Account.
The Master Servicer may, from time to time, make withdrawals
from the _______________ Custodial Account, for any of the following purposes
(the order set forth below not constituting an order of priority for such
withdrawals):
(i) to make remittances each month on or before the Master
Servicer Remittance Date therein, in an aggregate amount of immediately
available funds equal to the applicable _______________ Loan Pair
Remittance Amount, to the _______________
-111-
Companion Loan Noteholder and to the Trustee (for the benefit of the
Certificateholders), in accordance with Section 4.01 of the
_______________ Co-Lender Agreement, such remittances to the Trustee to
be made into the Pool Custodial Account;
(ii) to reimburse, first, the Fiscal Agent, second, the
Trustee, third, the _______________ Fiscal Agent, fourth, the
_______________ Trustee, and last, itself, in that order, for
xxxxxxxxxxxx X&X Advances made by such party (with its own funds) with
respect to the _______________ Loan Pair, any such party's rights to
reimbursement pursuant to this clause (ii) with respect to any such P&I
Advance being limited to amounts on deposit in the _______________
Custodial Account that represent late collections of interest and
principal (net of the related Master Servicing Fees and any related
Workout Fees or Liquidation Fees) received in respect of the particular
Loan (as allocable thereto pursuant to the related loan documents and
the _______________ Co-Lender Agreement) in the _______________ Loan
Pair as to which such P&I Advance was made;
(iii) to pay to itself earned and unpaid Master Servicing
Fees with respect to the _______________ Loan Pair (or any successor
REO Loans), the Master Servicer's respective rights to payment pursuant
to this clause (iii) with respect to either Loan (or any successor REO
Loan) in the _______________ Loan Pair being limited to amounts on
deposit in the _______________ Custodial Account that were received on
or in respect of such Loan (or successor REO Loan) and are allocable as
a recovery of interest thereon;
(iv) to reimburse, first, the Fiscal Agent, second, the
Trustee, third, the _______________ Fiscal Agent, fourth, the
_______________ Trustee, and last, itself, in that order, for any
xxxxxxxxxxxx X&X Advances made by such party (with its own funds) with
respect to the _______________ Loan Pair that such party has determined
are Nonrecoverable Advances, such party's rights to reimbursement
pursuant to this clause (iv) with respect to any such P&I Advance being
limited to amounts on deposit in the _______________ Custodial Account
that were received in respect of the particular Loan (as allocable
thereto pursuant to the related loan documents and the _______________
Co-Lender Agreement) in the _______________ Loan Pair as to which such
P&I Advance was made;
(v) to pay to the Special Servicer earned and unpaid
Special Servicing Fees in respect of the _______________ Loan Pair
while either Loan in the _______________ Loan Pair constitutes a
Specially Serviced Loan and after the _______________ Mortgaged
Property becomes an REO Property;
(vi) to pay the Special Servicer (or, if applicable, a
predecessor Special Servicer) earned and unpaid Workout Fees and
Liquidation Fees in respect of the _______________ Loan Pair, in the
amounts and from the sources specified in Section 3.11(c);
(vii) to reimburse first, the Fiscal Agent, second, the
Trustee, third, the _______________ Fiscal Agent, fourth, the
_______________ Trustee, fifth, itself and, last, the Special Servicer,
in that order, for any unreimbursed Servicing Advances made thereby
with respect to the _______________ Loan Pair or any related REO
Property, any such party's respective rights to reimbursement pursuant
to this clause (vii) with respect to any Servicing Advance being
limited to amounts on deposit in the _______________ Custodial Account
that represent payments made by the related Mortgagor to cover the item
for which such Servicing
-112-
Advance was made, and to amounts on deposit in the _______________
Custodial Account that represent Liquidation Proceeds (net of
Liquidation Fees payable therefrom), Condemnation Proceeds, Insurance
Proceeds and, if applicable, REO Revenues received in respect of the
_______________ Mortgage Loan Pair or _______________ REO Property as
to which such Servicing Advance was made;
(viii) to pay first, the Fiscal Agent, second, the
Trustee, third, the _______________ Fiscal Agent, fourth, the
_______________ Trustee, fifth, itself and, last, the Special Servicer,
in that order, any interest accrued on any Advance made thereby with
respect to either Loan in the _______________ Loan Pair or with respect
to the _______________ Mortgaged Property, any such party's respective
right to payment pursuant to this clause (viii) with respect to
interest on any Advance being permitted to be satisfied (A) first, out
of any amounts on deposit in the _______________ Custodial Account that
represent Default Charges collected on or in respect of the
_______________ Companion Loan during the same Collection Period in
which such Advance is reimbursed, as and to the extent contemplated by
Section 3.26(c), (B) second, out of any amounts on deposit in the
_______________ Custodial Account that represent Default Charges
collected on or in respect of the _______________ Mortgage Loan during
the same Collection Period in which such Advance is reimbursed, as and
to the extent contemplated by Sections 3.26(a) and (b) and (C) third,
to the extent that the Default Charges described in the immediately
preceding clauses (A) and (B) are insufficient, but only if such
Advance is being reimbursed at the same time or if such Advance has
been previously reimbursed, out of any amounts on deposit in the
_______________ Custodial Account that represent any other collections
on or in respect of the _______________ Loan Pair; provided that
interest on P&I Advances made with respect to the _______________
Companion Loan may be paid solely pursuant to clauses (A) and (C)
above, from Default Charges or other collections received on or in
respect of the _______________ Companion Loan;
(ix) to pay for (A) costs and expenses incurred with
respect to the _______________ Mortgaged Property pursuant to Section
3.09(c) (other than the costs of environmental testing, which are to be
covered by, and reimbursable as, a Servicing Advance), (B) the costs
and expenses of obtaining appraisals of the _______________ Mortgaged
Property pursuant to Section 3.11(h) or 4.03A(c), as applicable, and
(C) the fees of any Independent Contractor retained with respect to any
related REO Property pursuant to Section 3.17A(d) (to the extent that
it has not paid itself such fees prior to remitting collections on such
REO Property to the Special Servicer);
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(b), (A) interest and investment income
earned in respect of amounts held in the _______________ Custodial
Account as provided in Section 3.06(b), but only to the extent of the
Net Investment Earnings with respect to the _______________ Custodial
Account for any Collection Period and (B) Net Default Charges (after
application pursuant to Section 3.26(c)) actually collected that
accrued in respect of the _______________ Companion Loan during a
period that it was not a Specially Serviced Loan and the
_______________ Mortgaged Property was not an REO Property, and to pay
the Special Servicer, as additional special servicing compensation in
accordance with Section 3.11(d), Net Default Charges (after application
pursuant to Section 3.26(c)) actually collected that accrued in respect
of the _______________
-113-
Companion Loan during a period that it was a Specially Serviced Loan or
the _______________ Mortgaged Property was an REO Property;
(xi) to pay itself, the Special Servicer, or any of their
respective members, managers, directors, officers, employees and
agents, as the case may be, any amounts payable to any such Person
pursuant to Section 6.03, to the extent such amounts relate to the
_______________ Loan Pair;
(xii) to pay for the cost of recording the _______________
Co-Lender Agreement and any required opinion of counsel related thereto
and, to the extent applicable pursuant to Section 11.02(a), the
allocable portion of the cost of the Opinion of Counsel contemplated by
Section 11.02(a);
(xiii) to transfer to the Pool Custodial Account all
amounts representing Default Charges actually collected that accrued in
respect of the _______________ Mortgage Loan or any successor REO
Mortgage Loan in respect of the _______________ Mortgage Loan, to the
extent such Default Charges were not applied to offset interest on
Advances pursuant to clause (viii)(B) above (to be applied in
accordance with Sections 3.26(a) and (b)); and
(xiv) to clear and terminate the _______________ Custodial
Account at the termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate
accounting records in connection with any withdrawal from the _______________
Custodial Account, pursuant to clauses (ii) through (xiii) above.
The Master Servicer shall pay to each of the Special Servicer
(or to third party contractors at the direction of the Special Servicer), the
_______________ Fiscal Agent, the _______________ Trustee, the Trustee and the
Fiscal Agent, as applicable, from the _______________ Custodial Account, amounts
permitted to be paid thereto from such account promptly upon receipt of a
written statement of a Servicing Officer of the Special Servicer or a
Responsible Officer of the _______________ Fiscal Agent, the _______________
Trustee, the Trustee or the Fiscal Agent, as the case may be, describing the
item and amount to which the Special Servicer (or such third party contractor),
the _______________ Fiscal Agent, the _______________ Trustee, the Trustee or
the Fiscal Agent, as the case may be, is entitled (unless such payment to the
Special Servicer, the Trustee or the Fiscal Agent, as the case may be, is
clearly required pursuant to this Agreement, in which case a written statement
is not required). The Master Servicer may rely conclusively on any such written
statement and shall have no duty to re-calculate the amounts stated therein. The
parties seeking payment pursuant to this section shall each keep and maintain
separate accounting for the purpose of justifying any request for withdrawal
from the _______________ Custodial Account, on a loan-by-loan basis.
In the event that the Master Servicer fails, on any Master
Servicer Remittance Date, to remit to the _______________ Companion Loan
Noteholder any amount(s) required to be so remitted to the _______________
Companion Loan Noteholder hereunder by such date, the Master Servicer shall pay
the _______________ Companion Loan Noteholder, for the account of the
_______________ Companion Loan Noteholder, interest, calculated at the Prime
Rate, on such amount(s) not timely remitted, from and including that Master
Servicer Remittance Date, to but not including the related distribution date for
the _______________ Companion Loan Securities.
-114-
SECTION 3.06. Investment of Funds in the Servicing Accounts,
the Reserve Accounts, the Defeasance Deposit
Account, the Custodial Accounts and the REO
Accounts.
(a) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, the Defeasance
Deposit Account or a Custodial Account (each, for purposes of this Section 3.06,
an "Investment Account"), and the Special Servicer may direct in writing any
depository institution maintaining an REO Account (also, for purposes of this
Section 3.06, an "Investment Account"), to invest, or if it is such depository
institution, may itself invest, the funds held therein (other than, in the case
of the Pool Custodial Account, the Initial Deposit) in one or more Permitted
Investments bearing interest or sold at a discount, and maturing, unless payable
on demand, no later than the Business Day immediately preceding the next
succeeding date on which such funds are required to be withdrawn from such
account pursuant to this Agreement; provided that in the case of any Servicing
Account, any Reserve Account or the Defeasance Deposit Account, such investment
direction shall be subject to the related loan documents and applicable law.
Funds in the Collection Account, the Interest Reserve Account and the Excess
Liquidation Proceeds Account will remain uninvested. All such Permitted
Investments shall be held to maturity, unless payable on demand. Any investment
of funds in an Investment Account shall be made in the name of the Trustee (in
its capacity as such) and, in the case of a Permitted Investment in any
Investment Account solely related to the _______________ Loan Pair, the
_______________ Companion Loan Noteholder. The Master Servicer (with respect to
Permitted Investments of amounts in the Servicing Accounts, the Reserve
Accounts, the Defeasance Deposit Account and the Custodial Accounts) and the
Special Servicer (with respect to Permitted Investments of amounts in the REO
Accounts), on behalf of the Trustee and, in the case of any Investment Account
solely related to the _______________ Loan Pair, the _______________ Companion
Loan Noteholder, shall (and the Trustee hereby designates the Master Servicer
and the Special Servicer, as applicable, as the Person that shall) (i) be the
"entitlement holder" of any Permitted Investment that is a "security
entitlement" and (ii) maintain "control" of any Permitted Investment that is a
"certificated security", "uncertificated security" or "deposit account". For
purposes of this Section 3.06(a), (i) the terms "entitlement holder", "security
entitlement", "control" (except with respect to deposit accounts), "certificated
security" and "uncertificated security" shall have the meanings given such terms
in Revised Article 8 (1994 Revision) of the UCC, and the terms "control" (with
respect to deposit accounts) and "deposit account" shall have the meanings given
such terms in Revised Article 9 (1998 Revision) of the UCC, and (ii) "control"
of any Permitted Investment in any Investment Account by the Master Servicer or
the Special Servicer shall constitute "control" by a Person designated by, and
acting on behalf of, the Trustee and, in the case of any Investment Account
solely related to the _______________ Loan Pair, the _______________ Companion
Loan Noteholder, for purposes of Revised Article 8 (1994 Revision) of the UCC or
Revised Article 9 (1998 Revision) of the UCC, as applicable. If amounts on
deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the Master Servicer (in the case of the Custodial
Accounts, the Servicing Accounts, the Reserve Accounts and the Defeasance
Deposit Account) or the Special Servicer (in the case of the REO Accounts)
shall:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount equal
to at least the lesser of (1) all amounts then payable thereunder and
(2) the amount required to be withdrawn on such date; and
-115-
(y) demand payment of all amounts due thereunder promptly
upon determination by the Master Servicer or the Special Servicer, as
the case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Whether or not the Master Servicer directs the investment
of funds in any of the Servicing Accounts, the Reserve Accounts, the Defeasance
Deposit Account or the Custodial Accounts, interest and investment income
realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for each such Investment Account for each Collection Period
(and, in the case of Servicing Accounts, Reserve Accounts and the Defeasance
Deposit Account, to the extent not otherwise payable to Mortgagors under
applicable law or the related loan documents), shall be for the sole and
exclusive benefit of the Master Servicer and shall be subject to its withdrawal
in accordance with Section 3.03(a), 3.03(d), 3.04(a), 3.05(a) or 3.05A, as
applicable. Whether or not the Special Servicer directs the investment of funds
in either of the REO Accounts, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
such Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Special Servicer and shall be subject to its withdrawal
in accordance with Section 3.16(b). If any loss shall be incurred in respect of
any Permitted Investment on deposit in any Investment Account, the Master
Servicer (in the case of (i) the Servicing Accounts, the Reserve Accounts and
the Defeasance Deposit Account (except to the extent that any investment of
funds with respect thereto is at the direction of a Mortgagor in accordance with
the related loan documents or applicable law) and (ii) the Custodial Accounts)
and the Special Servicer (in the case of the REO Accounts) shall promptly
deposit therein from its own funds, without right of reimbursement, no later
than the end of the Collection Period during which such loss was incurred, the
amount of the Net Investment Loss, if any, for such Investment Account for such
Collection Period. Notwithstanding any of the foregoing provisions of this
Section 3.06, no party shall be required under this Agreement to deposit any
loss on a deposit of funds in an Investment Account if such loss is incurred
solely as a result of the insolvency of the federal or state chartered
depository institution or trust company with which such deposit was maintained
so long as such depository institution or trust company satisfied the conditions
set forth in the definition of "Eligible Account" at the time such deposit was
made and also as of a date no earlier than 30 days prior to the insolvency.
(c) Except as expressly provided otherwise in this Agreement,
if any default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other performance required under any
Permitted Investment, the Trustee may, and subject to Section 8.02, upon the
request of Certificateholders entitled to a majority of the Voting Rights
allocated to a Class, shall take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate proceedings.
(d) Amounts on deposit in the Excess Liquidation Proceeds
Account shall remain uninvested.
(e) Notwithstanding the investment of funds held in any
Investment Account, for purposes of the calculations hereunder, including the
calculation of the Available Distribution Amount, the Master Servicer Remittance
Amount and the _______________ Loan Pair Remittance Amount, the amounts so
invested shall be deemed to remain on deposit in such Investment Account.
(f) Notwithstanding the foregoing, the Initial Deposit shall
remain uninvested.
-116-
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage; Environmental
Insurance.
(a) The Master Servicer shall, consistent with the Servicing
Standard, cause to be maintained for each Mortgaged Property (other than the
_______________ Mortgaged Property) that is not an REO Property, all insurance
coverage as is required under the related Mortgage (except to the extent that
the failure to maintain such insurance coverage is an Acceptable Insurance
Default); provided that, if and to the extent that any such Mortgage permits the
holder thereof any discretion (by way of consent, approval or otherwise) as to
the insurance coverage that the related Mortgagor is required to maintain, the
Master Servicer or Special Servicer, as the case may be, shall exercise such
discretion in a manner consistent with the Servicing Standard; and provided,
further, that, if and to the extent that a Mortgage so permits, the Master
Servicer or Special Servicer, as the case may be, shall use reasonable best
efforts to require the related Mortgagor to obtain the required insurance
coverage from Qualified Insurers that have a "claims paying ability" or
"financial strength" rating, as applicable, of at least "A" from _____ and ["A"]
from _________ (or, in the case of either Rating Agency, such lower rating as
will not result in an Adverse Rating Event, as evidenced in writing by such
Rating Agency); and provided, further, that the Master Servicer shall cause to
be maintained for any such Mortgaged Property any such insurance that the
related Mortgagor is required but fails to maintain, only to the extent that the
Trustee (as mortgagee of record on behalf of the Certificateholders and, in the
case of the _______________ Mortgaged Property, the _______________ Companion
Loan Noteholder) has an insurable interest, and such insurance is available at a
commercially reasonable rate (or, in the case of all-risk insurance or other
insurance that covers acts of terrorism, the Trustee (as mortgagee of record on
behalf of the Certificateholders and, in the case of the _______________
Mortgaged Property, the _______________ Companion Loan Noteholder) has an
insurable interest and the Special Servicer has determined (in its reasonable
judgment and in accordance with the Servicing Standard that either such
insurance is available at a commercially reasonable rate or the subject hazards
are at the time commonly insured against by prudent owners of properties similar
to the Mortgaged Property located in or around the region in which such
Mortgaged Property is located). Any Controlling Class Certificateholder may
request that earthquake insurance be secured for one or more Mortgaged
Properties by the related Mortgagor, to the extent such insurance may reasonably
be obtained and provided the related loan documents and applicable law give the
mortgagee the right to request such insurance coverage and such loan documents
require the Mortgagor to obtain earthquake insurance at the request of the
mortgagee. The _______________ Companion Loan Noteholder may request that
earthquake insurance, to the extent such insurance may reasonably be obtained,
be secured for the _______________ Mortgaged Property at the expense of the
_______________ Companion Loan Noteholder. Subject to Section 3.17(a), the
Special Servicer, in accordance with the Servicing Standard, shall also cause to
be maintained for each REO Property (other than, if applicable, any
_______________ Mortgaged Property) no less insurance coverage than was
previously required of the Mortgagor under the related Mortgage; provided that
such insurance is available at commercially reasonable rates and the subject
hazards are at the time commonly insured against by prudent owners of properties
similar to the REO Property located in or around the region in which such REO
Property is located (or, in the case of all-risk insurance or other insurance
that covers acts of terrorism, such insurance is available at a commercially
reasonable rate or the subject hazards are at the time commonly insured against
by prudent owners of properties similar to the REO Property located in or around
the region in which such REO Property is located); and provided, further, that
all such insurance shall be obtained from Qualified Insurers that, if they are
providing casualty insurance, shall have a "claims paying ability" or "financial
strength" rating, as applicable, of at least "A" from _____ and ["A"] from
_________ (or, in the case of
-117-
either Rating Agency, such lower rating as will not result in an Adverse Rating
Event, as evidenced in writing by such Rating Agency). All such insurance
policies shall contain (if they insure against loss to property and do not
relate to an REO Property) a "standard" mortgagee clause, with loss payable to
the Master Servicer (in the case of insurance maintained in respect of Loans,
including Specially Serviced Loans), and shall be in the name of the Special
Servicer (in the case of insurance maintained in respect of REO Properties), on
behalf of the Trustee; and, in each case, such insurance shall be issued by a
Qualified Insurer. Any amounts collected by the Master Servicer or the Special
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the related Mortgaged Property or REO Property or
amounts to be released to the related Mortgagor, in each case subject to the
rights of any tenants and ground lessors, as the case may be, and in each case
in accordance with the terms of the related Mortgage and the Servicing Standard)
shall be deposited in the applicable Custodial Account in accordance with
Section 3.04(a) or 3.04A(a), as the case may be, in the case of amounts received
in respect of a Loan, or in the applicable REO Account in accordance with
Section 3.16(b), in the case of amounts received in respect of an REO Property.
Any cost incurred by the Master Servicer or the Special Servicer in maintaining
any such insurance (including any earthquake insurance maintained at the request
of a Controlling Class Certificateholder or the _______________ Companion Loan
Noteholder) shall not, for purposes hereof, including calculating monthly
distributions to Certificateholders, be added to the unpaid principal balance or
Stated Principal Balance of the related Loan or REO Loan, notwithstanding that
the terms of such loan so permit, but shall be recoverable by the Master
Servicer and the Special Servicer as a Servicing Advance.
(b) If either the Master Servicer or the Special Servicer
shall obtain and maintain, or cause to be obtained and maintained, a blanket
policy insuring against hazard losses on all of the Loans and/or REO Properties
that it is required to service and administer, then, to the extent such policy
(i) is obtained from a Qualified Insurer having (or whose obligations are
guaranteed or backed, in writing, by an entity having) a "claims paying ability"
or "financial strength" rating, as applicable, of at least "A" from _____ and
["A"] from _________ (if then rated by _________, and if not then rated by
_________, then a rating of "A:IX" or better by A.M. Best's Key Rating Guide or
an equivalent rating to a rating of ["A-"] by _________ by at least one
nationally recognized statistical rating agency besides _____) (or, in the case
of either Rating Agency, such lower rating as will not result in an Adverse
Rating Event, as evidenced in writing by such Rating Agency), and (ii) provides
protection equivalent to the individual policies otherwise required, the Master
Servicer or the Special Servicer, as the case may be, shall conclusively be
deemed to have satisfied its obligation to cause hazard insurance to be
maintained on the related Mortgaged Properties and/or REO Properties. Such
blanket policy may contain a deductible clause (not in excess of a customary
amount), in which case the Master Servicer or the Special Servicer, as
appropriate, shall, if there shall not have been maintained on the related
Mortgaged Property or REO Property an individual hazard insurance policy
complying with the requirements of Section 3.07(a), and there shall have been
one or more losses that would have been covered by such individual policy,
promptly deposit into the applicable Custodial Account from its own funds the
amount not otherwise payable under the blanket policy because of the deductible
clause therein, to the extent that any such deductible exceeds the deductible
limitation that pertained to the related Loan (or in the absence of any such
deductible limitation, the deductible limitation for an individual policy which
is consistent with the Servicing Standard). The Master Servicer or the Special
Servicer, as appropriate, shall prepare and present, on behalf of itself, the
Trustee and the Certificateholders and, in the case of the _______________
Mortgaged Property, the _______________ Companion Loan Noteholder, claims under
any such blanket policy in a timely fashion in accordance with the terms of such
policy.
-118-
(c) Subject to the third paragraph of this Section 3.07(c),
each of the Master Servicer and the Special Servicer shall at all times during
the term of this Agreement (or, in the case of the Special Servicer, at all
times during the term of this Agreement in which Specially Serviced Loans and/or
REO Properties are part of the Trust Fund) keep in force with Qualified Insurers
having (or whose obligations are guaranteed or backed, in writing, by entities
having) a "claims paying ability" or "financial strength" rating, as applicable,
of at least "A" from _____ and ["A"] from _________ (or, if not then rated by
_________, then at least ["A2"] by _____ or "A:IX" by A.M. Best's Key Rating
Guide) (or, in the case of either Rating Agency, such lower rating as will not
result in an Adverse Rating Event, as evidenced in writing by such Rating
Agency), a fidelity bond, which fidelity bond shall be in such form and amount
as would permit it to be a qualified Xxxxxx Xxx seller-servicer of multifamily
mortgage loans, or in such other form and amount as would not cause an Adverse
Rating Event (as evidenced in writing from each Rating Agency). Each of the
Master Servicer and the Special Servicer shall be deemed to have complied with
the foregoing provision if an Affiliate thereof has such fidelity bond coverage
and, by the terms of such fidelity bond, the coverage afforded thereunder
extends to the Master Servicer or the Special Servicer, as the case may be.
Subject to the third paragraph of this Section 3.07(c), each
of the Master Servicer and the Special Servicer shall at all times during the
term of this Agreement (or, in the case of the Special Servicer, at all times
during the term of this Agreement in which Specially Serviced Loans and/or REO
Properties are part of the Trust Fund) also keep in force with Qualified
Insurers having (or whose obligations are guaranteed or backed, in writing, by
entities having) a "claims paying ability" or "financial strength" rating, as
applicable, of at least "A" from _____ and ["A"] from _________ (or, if not
rated by _________, then at least ["A2"] by _____ or "A:IX" by A.M. Best's Key
Rating Guide) (or, in the case of either Rating Agency, such lower rating as
will not result in an Adverse Rating Event, as evidenced in writing by such
Rating Agency), a policy or policies of insurance covering loss occasioned by
the errors and omissions of its officers, employees and agents in connection
with its servicing obligations hereunder, which policy or policies shall be in
such form and amount as would permit it to be a qualified Xxxxxx Mae
seller-servicer of multifamily mortgage loans, or in such other form and amount
as would not cause an Adverse Rating Event (as evidenced in writing from each
Rating Agency). Each of the Master Servicer and the Special Servicer shall be
deemed to have complied with the foregoing provisions if an Affiliate thereof
has such insurance and, by the terms of such policy or policies, the coverage
afforded thereunder extends to the Master Servicer or the Special Servicer, as
the case may be.
Notwithstanding the foregoing, for so long as the long-term
debt obligations of the Master Servicer or Special Servicer, as the case may be,
are rated at least ["AA-"] from _________ (if then rated by _________, and if
not then rated by _________, then an equivalent rating by at least one
additional nationally recognized statistical rating agency besides _____) and
"A" from _____ (or, in the case of either Rating Agency, such lower rating as
will not result in an Adverse Rating Event, as evidenced in writing by such
Rating Agency), such Person may self-insure with respect to the risks described
in this Section 3.07(c).
(d) In the event that either of the Master Servicer or the
Special Servicer has actual knowledge of any event (an "Insured Environmental
Event") giving rise to a claim under any Environmental Insurance Policy in
respect of any Environmentally Insured Mortgage Loan (other than the
_______________ Mortgage Loan) for which the Mortgagor has not filed a claim or
in respect of an REO Property (other than, if applicable, a _______________
Mortgaged Property), the Master Servicer
-119-
shall notify the Special Servicer if such Loan is a Specially Serviced Loan, and
the Special Servicer shall notify the Master Servicer in all cases. Upon
becoming aware of such Insured Environmental Event, the Master Servicer, in the
case of a non-Specially Serviced Loan (other than the _______________ Mortgage
Loan), and the Special Servicer, in the case of a Specially Serviced Loan (other
than the _______________ Mortgage Loan) or an REO Property (other than, if
applicable, a _______________ REO Property), in accordance with the terms of
such Environmental Insurance Policy and the Servicing Standard, shall timely
make a claim thereunder with the appropriate insurer and shall take such other
actions necessary under such Environmental Insurance Policy in order to realize
the full value thereof for the benefit of the Certificateholders. With respect
to each Environmental Insurance Policy in respect of an Environmentally Insured
Mortgage Loan (other than the _______________ Mortgage Loan), the Master
Servicer (in the case of any such Loan that is a non-Specially Serviced Loan)
and the Special Servicer (in the case of any such Loan that is a Specially
Serviced Loan or in the case of an REO Property) shall each review and
familiarize itself with the terms and conditions relating to enforcement of
claims and shall, in the event the Master Servicer or the Special Servicer has
actual knowledge of an Insured Environmental Event giving rise to a claim under
such policy, monitor the dates by which any claim must be made or any action
must be taken under such policy to realize the full value thereof for the
benefit of the Certificateholders.
The Master Servicer (in the case of non-Specially Serviced
Loans) and the Special Servicer (in the case of Specially Serviced Loans and REO
Properties) shall each abide by the terms and conditions precedent to payment of
claims under the Environmental Insurance Policies with respect to the
Environmentally Insured Mortgage Loans (other than the _______________ Mortgage
Loan) and take all such actions as may be required to comply with the terms and
provisions of such policies in order to maintain such policies in full force and
effect and to make claims thereunder.
In the event that either the Master Servicer or the Special
Servicer receives notice of a termination of any Environmental Insurance Policy
with respect to an Environmentally Insured Mortgage Loan (other than the
_______________ Mortgage Loan), then the party receiving such notice shall,
within five Business Days after receipt thereof, provide written notice of such
termination to the other such party and the Trustee. Upon receipt of such
notice, the Master Servicer, with respect to a Performing Serviced Loan, or the
Special Servicer, with respect to a Specially Serviced Loan or an REO Property,
shall address such termination in accordance with Section 3.07(a). Any legal
fees, premiums or other out-of-pocket costs incurred in accordance with the
Servicing Standard in connection with enforcing the obligations of the Mortgagor
under any Environmental Insurance Policy or a resolution of such termination of
an Environmental Insurance Policy shall be paid by the Master Servicer and shall
be reimbursable to it as a Servicing Advance.
The Master Servicer (with respect to Performing Serviced
Loans) and the Special Servicer (with respect to Specially Serviced Loans) shall
monitor the actions, and enforce the obligations, of the related Mortgagor under
each Environmentally Insured Mortgage Loan (other than the _______________
Mortgage Loan) insofar as such actions/obligations relate to (i) to the extent
consistent with Section 3.07(a), the maintenance (including, without limitation,
any required renewal) of an Environmental Insurance Policy with respect to the
related Mortgaged Property or (ii) environmental testing or remediation at the
related Mortgaged Property.
-120-
SECTION 3.08. Enforcement of Alienation Clauses.
(a) In the event that the Master Servicer receives a request
from a Mortgagor pursuant to the provisions of any Performing Serviced Loan that
expressly permit, with the lender's consent, subject to the conditions described
in the loan documents, the transfer of the related Mortgaged Property to, and
assumption of such Loan by, another Person or transfers of certain interests in
such Mortgagor, the Master Servicer shall promptly obtain relevant information
for purposes of evaluating such request. If the Master Servicer recommends to
approve such transfer and/or assumption, the Master Servicer shall promptly
provide to the Special Servicer a copy of such recommendation (which shall
include the reason therefor) and the materials upon which such recommendation is
based. The Special Servicer shall have the right hereunder, within 15 days of
receipt of such recommendation and supporting materials and any other materials
reasonably requested by the Special Servicer, to reasonably withhold or, subject
to Section 3.08(d), Section 6.11 and Section 6.11A, grant consent to any such
request for such transfer and/or assumption in accordance with the terms of the
Loan and this Agreement, including, without limitation, the Servicing Standard.
If the Special Servicer does not respond within such 15-day period, the Special
Servicer's consent shall be deemed granted. If the Special Servicer consents or
is deemed to have consented to such proposed transfer and/or assumption, the
Master Servicer shall process such request of the related Mortgagor; and, in the
case of a transfer of the related Mortgaged Property to, and assumption of such
Loan by, another Person, the Master Servicer shall be authorized to enter into
an assumption or substitution agreement with the Person, which shall be a Single
Purpose Entity, to whom the related Mortgaged Property has been or is proposed
to be conveyed and/or release the original Mortgagor from liability under the
related Loan and substitute as obligor thereunder the Person to whom the related
Mortgaged Property has been or is proposed to be conveyed; provided, however,
that the Master Servicer shall not enter into any such agreement to the extent
that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor
Trust Event or create any lien on a Mortgaged Property that is senior to, or on
parity with, the lien of the related Mortgage. The Master Servicer shall notify
the Trustee, the Special Servicer, each Rating Agency and, in the case of the
_______________ Loan Pair, the _______________ Companion Loan Noteholder, of any
assumption or substitution agreement executed pursuant to this Section 3.08(a)
and shall forward thereto a copy of such agreement together with a Review
Package. Subject to the terms of the related loan documents, no assumption of a
Cross-Collateralized Mortgage Loan shall be made without the assumption of all
other Mortgage Loans making up the related Cross-Collateralized Group. Further,
subject to the terms of the related loan documents and applicable law, no
assumption of a Loan shall be made or transfer of interest in a Mortgagor
approved, unless all costs in connection therewith, including any arising from
seeking Rating Agency confirmation, are paid by the related Mortgagor.
(b) Other than with respect to a transfer and assumption
referred to in subsection (a) above, if any Mortgage (other than the Mortgage
under the _______________ Mortgage Loan) contains restrictions on transfers of
the related Mortgaged Property (other than the _______________ Mortgaged
Property) and/or transfers of interests in the related Mortgagor, then the
Special Servicer, on behalf of the Trustee (as mortgagee of record on behalf of
the Certificateholders and, in the case of the _______________ Mortgaged
Property, the _______________ Companion Loan Noteholder), and not the Master
Servicer, shall, to the extent permitted by applicable law, enforce such
restrictions, unless the Special Servicer has determined, in its reasonable,
good faith judgment, that waiver of such restrictions would be in accordance
with the Servicing Standard (as evidenced by an Officer's Certificate setting
forth the basis for such determination delivered, together with a Review Package
in respect thereof, to the Trustee, the Master Servicer, each Rating Agency and,
with respect to the _______________ Loan
-121-
Pair, the _______________ Companion Loan Noteholder); provided that any such
waiver of such restrictions shall be subject to Section 3.08(d), Section 6.11
and Section 6.11A. If the Master Servicer receives a request for consent to a
transfer and assumption of a Specially Serviced Loan, the Master Servicer shall
immediately notify the Special Servicer of such request and deliver to the
Special Servicer the Mortgage File (or a copy thereof) and such other documents
that the Master Servicer shall have received regarding the proposed transfer and
assumption. Upon consent by the Special Servicer to any proposed transfer of a
Mortgaged Property and assumption by the proposed transferee of the related Loan
pursuant to this Section 3.08(b), the Special Servicer shall process the request
of the related Mortgagor for such transfer and assumption and shall be
authorized to enter into an assumption or substitution agreement with the
Person, which shall be a Single Purpose Entity, to whom the related Mortgaged
Property has been or is proposed to be conveyed and/or release the original
Mortgagor from liability under the related Loan and substitute as obligor
thereunder the Person to whom the related Mortgaged Property has been or is
proposed to be conveyed; provided, however, that the Special Servicer shall not
enter into any such agreement to the extent that any terms thereof would result
in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a
Mortgaged Property that is senior to, or on parity with, the lien of the related
Mortgage. The Special Servicer shall notify the Trustee, the Master Servicer,
each Rating Agency and, with respect to the _______________ Loan Pair, the
_______________ Companion Loan Noteholder, of any assumption or substitution
agreement executed pursuant to this Section 3.08(b) and shall forward thereto a
copy of such agreement. Subject to the terms of the related loan documents, no
assumption of a Cross-Collateralized Mortgage Loan shall be made without the
assumption of all other Mortgage Loans making up the related
Cross-Collateralized Group. Further, subject to the terms of the related loan
documents and applicable law, no assumption of a Loan shall be made unless all
costs in connection therewith, including any arising from seeking Rating Agency
confirmation, are paid by the related Mortgagor.
(c) With respect to all of the Serviced Loans, the Special
Servicer on behalf of the Trustee (as mortgagee of record on behalf of the
Certificateholders and, in the case of the _______________ Mortgaged Property,
the _______________ Companion Loan Noteholder), shall, to the extent permitted
by applicable law, enforce the restrictions contained in the related loan
documents on further encumbrances of the related Mortgaged Property, unless the
Special Servicer has determined, in its reasonable, good faith judgment, that
waiver of such restrictions would be in accordance with the Servicing Standard
(as evidenced by an Officer's Certificate setting forth the basis for such
determination delivered to the Trustee, the Master Servicer, each Rating Agency
and, with respect to the _______________ Loan Pair, the _______________
Companion Loan Noteholder); provided that any such waiver of such restrictions
shall be subject to Section 3.08(d), Section 6.11 and Section 6.11A. Whenever
the Master Servicer becomes aware of a further encumbrance on a Mortgaged
Property (other than a _______________ Mortgaged Property), or becomes aware
that there is going to be a further encumbrance on a Mortgaged Property (other
than a _______________ Mortgaged Property), the Master Servicer shall
immediately notify the Special Servicer of such further encumbrance and deliver
to the Special Servicer all documents and records (or copies thereof) in the
Master Servicer's possession regarding the further encumbrance and such other
documents (or copies thereof) regarding the related Loan as the Special Servicer
shall reasonably require in order to consider the request. To the extent
permitted by the applicable loan documents and applicable law, the Special
Servicer may charge the related Mortgagor a fee in connection with any
enforcement or waiver contemplated in this subsection (c).
-122-
(d) Notwithstanding anything to the contrary contained in this
Section 3.08, if the then unpaid principal balance of the subject Loan is at
least equal to $20,000,000, neither the Master Servicer nor the Special Servicer
shall waive any restrictions contained in the related Mortgage on transfers of
the related Mortgaged Property or on transfers of interests in the related
Mortgagor, unless the Master Servicer or the Special Servicer, as the case may
be, shall have received prior written confirmation from each Rating Agency that
such action would not result in an Adverse Rating Event. In addition,
notwithstanding anything to the contrary contained in this Section 3.08, neither
the Master Servicer nor the Special Servicer shall in any event waive any
restrictions contained in any Mortgage on further encumbrances of the related
Mortgaged Property, unless the Special Servicer shall have received prior
written confirmation from each Rating Agency that such action would not result
in an Adverse Rating Event. Neither the Master Servicer nor the Special Servicer
has the authority to perform any of the actions set forth above in this
paragraph with respect to the _______________ Mortgage Loan. In connection with
any request for rating confirmation from a Rating Agency pursuant to this
Section 3.08(d), the Master Servicer or the Special Servicer, as the case may
be, shall deliver a Review Package to such Rating Agency. Further, subject to
the terms of the related loan documents and applicable law, no waiver of a
restriction contained in the related Mortgage on transfers of the related
Mortgaged Property or interests in the related Mortgagor or on further
encumbrances thereof may be waived by the Master Servicer or the Special
Servicer unless all costs in connection therewith, including any arising from
seeking Rating Agency confirmation, are paid by the related Mortgagor. To the
extent not collected from the related Mortgagor, any rating agency charges in
connection with the foregoing shall be paid by the Master Servicer as a
Servicing Advance.
SECTION 3.09. Realization Upon Defaulted Loans; Required
Appraisals; Appraisal Reduction Calculation.
(a) The Special Servicer shall, subject to Sections 3.09(b),
3.09(c), 3.09(d), 6.11 and 6.11A, exercise reasonable efforts, consistent with
the Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Specially Serviced Loans as come
into and continue in default and as to which no satisfactory arrangements can be
made for collection of delinquent payments, including pursuant to Section 3.20;
provided that neither the Master Servicer nor the Special Servicer shall, with
respect to any ARD Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Additional Interest (other
than the making of requests for its collection) unless (i) the taking of an
enforcement action with respect to the payment of other amounts due under such
ARD Loan (other than the _______________ Mortgage Loan) is, in the good faith
and reasonable judgment of the Special Servicer, necessary, appropriate and
consistent with the Servicing Standard or (ii) all other amounts due under such
ARD Loan (other than the _______________ Mortgage Loan) have been paid, the
payment of such Additional Interest has not been forgiven in accordance with
Section 3.20 and, in the good faith and reasonable judgment of the Special
Servicer, the Liquidation Proceeds expected to be recovered in connection with
such enforcement action will cover the anticipated costs of such enforcement
action and, if applicable, any associated interest accrued on Advances. Subject
to Section 3.11(h), the Special Servicer shall advance all costs and expenses
incurred by it in any such proceedings, and shall be entitled to reimbursement
therefor as provided in Section 3.05(a) or Section 3.05A, as applicable. The
Special Servicer shall be responsible, consistent with the Servicing Standard,
for determining whether to exercise any rights it may have under the
cross-collateralization and/or cross-default provisions of a
Cross-Collateralized Mortgage Loan. Nothing contained in this Section 3.09 shall
be construed so as to require the Special Servicer, on behalf of the
Certificateholders and, in the case of the _______________ Mortgaged
-123-
Property, on behalf of the _______________ Companion Loan Noteholder, to make a
bid on any Mortgaged Property at a foreclosure sale or similar proceeding that
is in excess of the fair market value of such property, as determined by the
Special Servicer in its reasonable and good faith judgment taking into account
the factors described in Section 3.18 and the results of any appraisal obtained
as provided below in this Section 3.09, all such bids to be made in a manner
consistent with the Servicing Standard.
If and when the Master Servicer or the Special Servicer deems
it necessary and prudent for purposes of establishing the fair market value of
any Mortgaged Property securing a Specially Serviced Loan, whether for purposes
of bidding at foreclosure or otherwise, it may have an appraisal performed with
respect to such property by an Independent Appraiser or other expert in real
estate matters, which appraisal shall take into account the factors specified in
Section 3.18, and the cost of which appraisal shall be covered by, and be
reimbursable as, a Servicing Advance; provided that if the Master Servicer
intends to obtain an appraisal in connection with the foregoing, the Master
Servicer shall so notify the Special Servicer and consult with the Special
Servicer regarding such appraisal. If any Loan becomes a Required Appraisal
Loan, then the Special Servicer shall (i) obtain or conduct, as applicable, a
Required Appraisal within 60 days of such Loan's becoming a Required Appraisal
Loan (unless a Required Appraisal was obtained or conducted, as applicable, with
respect to such Required Appraisal Loan within the prior 12 months and the
Special Servicer reasonably believes, in accordance with the Servicing Standard,
that no material change has subsequently occurred with respect to the related
Mortgaged Property that would draw into question the applicability of such
Required Appraisal) and (ii) obtain or conduct, as applicable, an update of the
most recent Required Appraisal approximately 12 months following the most recent
Required Appraisal or subsequent update thereof for so long as such Loan or any
successor REO Loan, as the case may be, remains a Required Appraisal Loan. The
Special Servicer shall deliver copies of all such Required Appraisals and
updated Required Appraisals to the Trustee, the Master Servicer and, in the case
of the _______________ Mortgaged Property, the _______________ Companion Loan
Noteholder, in each such case, promptly following the Special Servicer's receipt
of the subject appraisal, and to the Controlling Class Representative upon
request, and based thereon, the Special Servicer shall calculate and notify the
Trustee, the Master Servicer, the Controlling Class Representative and, in the
case of the _______________ Loan Pair, the _______________ Companion Loan
Noteholder, of any resulting Appraisal Reduction Amount. Such calculations by
the Special Servicer shall be subject to review and confirmation by the Master
Servicer, provided that the Master Servicer may rely on any information provided
by the Special Servicer. The Special Servicer shall advance the cost of each
such Required Appraisal and updated Required Appraisal; provided, however, that
such expense will be subject to reimbursement to the Special Servicer as a
Servicing Advance out of the related Custodial Account pursuant to Section
3.05(a) or Section 3.05A. At any time that an Appraisal Reduction Amount exists
with respect to any Required Appraisal Loan, the Controlling Class
Representative may, at its own expense, obtain and deliver to the Master
Servicer, the Special Servicer and the Trustee an appraisal that satisfies the
requirements of a "Required Appraisal", and upon the written request of the
Controlling Class Representative, the Special Servicer shall recalculate the
Appraisal Reduction Amount in respect of such Required Appraisal Loan based on
the appraisal delivered by the Controlling Class Representative and shall notify
the Trustee, the Master Servicer and the Controlling Class Representative of
such recalculated Appraisal Reduction Amount. At any time that an Appraisal
Reduction Amount exists with respect to the _______________ Loan Pair during a
period that the _______________ Loan Pair constitutes a Required Appraisal Loan,
the _______________ Companion Loan Noteholder may, at its own expense, obtain
and deliver to the Master Servicer, the Special Servicer and the Trustee, an
appraisal that satisfies the requirements of a "Required Appraisal", and upon
the written request of the _______________ Companion Loan
-124-
Noteholder, the Special Servicer shall recalculate the Appraisal Reduction
Amount in respect of such Required Appraisal Loan Pair based on the appraisal
delivered by the _______________ Companion Loan Noteholder, and shall notify the
Trustee, the Master Servicer and the _______________ Companion Loan Noteholder
of such recalculated Appraisal Reduction Amount.
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Certificateholders (and, in the case of the _______________ Mortgaged Property,
the _______________ Companion Loan Noteholder) under such circumstances, in such
manner or pursuant to such terms as would, in the reasonable, good faith
judgment of the Special Servicer (exercised in accordance with the Servicing
Standard), (i) cause such Mortgaged Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code (unless the
portion of such Mortgaged Property that is not treated as "foreclosure property"
and that is held by REMIC I or the related Loan REMIC at any given time
constitutes not more than a de minimis amount of the assets of REMIC I or the
related Loan REMIC, as the case may be, within the meaning of Treasury
regulation section 1.860D-1(b)(3)(i) and (ii)), or (ii) except as permitted by
Section 3.17(a), subject the Trust Fund to the imposition of any federal income
taxes under the Code.
In addition, the Special Servicer shall not acquire any
personal property pursuant to this Section 3.09 unless either:
(i) such personal property is, in the reasonable, good
faith judgment of the Special Servicer (exercised in accordance with
the Servicing Standard), 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 (the cost of which shall be covered by, and be reimbursable
as, a Servicing Advance) to the effect that the holding of such
personal property as part of the Trust Fund will not cause the
imposition of a tax on any REMIC Pool under the REMIC Provisions or
cause any REMIC Pool to fail to qualify as a REMIC at any time that any
Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section
3.09, neither the Master Servicer nor the Special Servicer shall, on behalf of
the Trustee (and, in the case of the _______________ Mortgaged Property, on
behalf of the _______________ Companion Loan Noteholder), obtain title to a
Mortgaged Property by foreclosure, deed in lieu of foreclosure or otherwise, or
take any other action with respect to any Mortgaged Property, if, as a result of
any such action, the Trustee, on behalf of the Certificateholders (and, in the
case of the _______________ Mortgaged Property, the _______________ Companion
Loan Noteholder), could, in the reasonable, good faith judgment of the Special
Servicer, exercised in accordance with the Servicing Standard, be considered to
hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law (a "potentially responsible party"), unless such action is
consistent with Section 6.11 or Section 6.11A, as applicable, and the Special
Servicer has previously determined (as evidenced by an Officer's Certificate to
such effect delivered to the Trustee (and, in the case of the _______________
Mortgaged Property, the _______________ Companion Loan Noteholder) that shall
specify all of the bases for such determination), in accordance with the
Servicing Standard and based on an Environmental Assessment of such Mortgaged
Property performed by an Independent Person, who regularly conducts
-125-
Environmental Assessments, within six months prior to any such acquisition of
title or other action (a copy of which Environmental Assessment shall be
delivered to the Trustee, the Master Servicer and, in the case of the
_______________ Mortgaged Property, the _______________ Companion Loan
Noteholder), that:
(i) the Mortgaged Property is in compliance with
applicable environmental laws and regulations or, if not, that it would
(taking into account the coverage provided under any related
Environmental Insurance Policy) maximize the recovery on the related
Serviced Loan to the Certificateholders (as a collective whole) (or, if
the _______________ Loan Pair is involved, would maximize the recovery
on such Loan Pair to the Certificateholders and the _______________
Companion Loan Noteholder (as a collective whole)), on a present value
basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders (or, in the case of the
_______________ Loan Pair, to Certificateholders and the _____________
Companion Loan Noteholder) to be performed at the related Mortgage Rate
(or, in the case of the _______________ Loan Pair, at the weighted
average of the Mortgage Rates for such Loan Pair)) to acquire title to
or possession of the Mortgaged Property and to take such actions as are
necessary to bring the Mortgaged Property into compliance therewith in
all material respects; and
(ii) there are no circumstances or conditions present at
the Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances
or conditions are present for which any such action could reasonably be
expected to be required, that it would (taking into account the
coverage provided under any related Environmental Insurance Policy)
maximize the recovery on the related Serviced Loan to the
Certificateholders (as a collective whole) (or, if the _______________
Loan Pair is involved, would maximize the recovery of such Loan Pair to
the Certificateholders and the _______________ Companion Loan
Noteholder (as a collective whole)), on a present value basis (the
relevant discounting of anticipated collections that will be
distributable to Certificateholders (or, in the case of the __________
_______________ Loan Pair, to Certificateholders and the ___________
_______________ Companion Loan Noteholder) to be performed at the
related Mortgage Rate (or, in the case of the _______________ Loan
Pair, at the weighted average of the Mortgage Rates for such Loan
Pair)) to acquire title to or possession of the Mortgaged Property and
to take such actions with respect to the affected Mortgaged Property.
The Special Servicer shall, in good faith, undertake
reasonable efforts to make the determination referred to in the preceding
paragraph and may conclusively rely on the Environmental Assessment referred to
above in making such determination. The cost of any such Environmental
Assessment shall be covered by, and reimbursable as, a Servicing Advance; and if
any such Environmental Assessment so warrants, the Special Servicer shall
perform or cause to be performed such additional environmental testing as it
deems necessary and prudent to determine whether the conditions described in
clauses (i) and (ii) of the preceding paragraph have been satisfied (the cost of
any such additional testing also to be covered by, and reimbursable as, a
Servicing Advance). The cost of any remedial, corrective or other further action
contemplated by clause (i) and/or clause (ii) of the preceding paragraph, shall
be payable out of the related Custodial Account pursuant to Section 3.05 or
-126-
Section 3.05A, as applicable (or, in the case of the _______________ Loan Pair,
to the extent the funds in the _______________ Custodial Account are
insufficient, shall be advanced by the Master Servicer).
(d) If the environmental testing contemplated by Section
3.09(c) above establishes that any of the conditions set forth in clauses (i)
and (ii) of the first sentence thereof has not been satisfied with respect to
any Mortgaged Property securing a defaulted Serviced Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property). At such time as it deems
appropriate, the Special Servicer may, on behalf of the Trust (and, if the
_______________ Companion Loan is affected, the _______________ Companion Loan
Noteholder), subject to Section 6.11 or Section 6.11A, as applicable, release
all or a portion of such Mortgaged Property from the lien of the related
Mortgage; provided that, if such Loan has a then outstanding principal balance
greater than $1 million, then prior to the release of all or a portion of the
related Mortgaged Property from the lien of the related Mortgage, (i) the
Special Servicer shall have notified the Rating Agencies, the Trustee and the
Master Servicer in writing of its intention to so release all or a portion of
such Mortgaged Property and the bases for such intention, (ii) the Trustee shall
have notified the Certificateholders (and, if the _______________ Loan Pair is
affected, the _______________ Companion Loan Noteholder) in writing of the
Special Servicer's intention to so release all or a portion of such Mortgaged
Property, and (iii) the Holders of Certificates entitled to a majority of the
Voting Rights shall not have objected to such release within 30 days of the
Trustee's distributing such notice.
(e) The Special Servicer shall report to the Master Servicer,
the Underwriters, the Trustee and, if the _______________ Loan Pair is affected,
the _______________ Companion Loan Noteholder, monthly in writing as to any
actions taken by the Special Servicer with respect to any Mortgaged Property
that represents security for a defaulted Serviced Loan as to which the
environmental testing contemplated in Section 3.09(c) above has revealed that
any of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof has not been satisfied, in each case until the earlier to occur of
satisfaction of all such conditions and release of the lien of the related
Mortgage on such Mortgaged Property.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the affected Serviced Loan permit such an action, and shall, in
accordance with the Servicing Standard, seek such deficiency judgment if it
deems advisable (the cost of which undertaking shall be covered by, and be
reimbursable as, a Servicing Advance).
(g) The Master Servicer shall, with the reasonable cooperation
of the Special Servicer, prepare and file information returns with respect to
the receipt of mortgage interest received with respect to any Mortgaged Property
(other than any _______________ Mortgaged Property) required by Section 6050H of
the Code and the reports of foreclosures and abandonments of any Mortgaged
Property (other than any _______________ Mortgaged Property) and the information
returns relating to cancellation of indebtedness income with respect to any
Mortgaged Property (other than any _______________ Mortgaged Property) required
by Sections 6050J and 6050P of the Code. Such reports shall be in form and
substance sufficient to meet the reporting requirements imposed by Sections
6050H, 6050J and 6050P of the Code.
-127-
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Serviced Loan or REO Property, it shall
promptly notify the Trustee, the Master Servicer and, if the _______________
Loan Pair is affected, the _______________ Companion Loan Noteholder. The
Special Servicer shall maintain accurate records, prepared by a Servicing
Officer, of each such Final Recovery Determination (if any) and the basis
thereof. Each such Final Recovery Determination (if any) shall be evidenced by
an Officer's Certificate delivered to the Trustee, the Master Servicer and, if
the _______________ Loan Pair is affected, the _______________ Companion Loan
Noteholder, no later than the seventh Business Day following such Final Recovery
Determination.
SECTION 3.10. Trustee and Custodian to Cooperate; Release of
Mortgage Files.
(a) Upon the payment in full of any Serviced Loan, or the
receipt by the Master Servicer or the Special Servicer of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Master Servicer or the Special Servicer shall promptly notify the Trustee (and,
in the case of the _______________ Companion Loan, the _______________ Companion
Loan Noteholder) by a certification (which certification shall be in the form of
a Request for Release in the form of Exhibit D-1 attached hereto and shall be
accompanied by the form of a release or discharge and shall include a statement
to the effect that all amounts received or to be received in connection with
such payment which are required to be deposited in the appropriate Custodial
Account pursuant to Section 3.04(a) or 3.04A(a), as applicable, have been or
will be so deposited) of a Servicing Officer (a copy of which certification
shall be delivered to the Special Servicer) and shall request delivery to it of
the related Mortgage File and, in the case of the _______________ Companion
Loan, the original of the Mortgage Note for such Companion Loan. Upon receipt of
such certification and request, the Trustee shall release, or cause any related
Custodian to release, the related Mortgage File (and, in the case of the
_______________ Companion Loan, the Trustee shall cause the _______________
Companion Loan Noteholder to release the Mortgage Note for such Companion Loan)
to the Master Servicer or Special Servicer and shall deliver to the Master
Servicer or Special Servicer, as applicable, such release or discharge, duly
executed. No expenses incurred in connection with any instrument of satisfaction
or deed of reconveyance shall be chargeable to the Collection Account or any
Custodial Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Serviced Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof) (or the
original of the Mortgage Note for the _______________ Companion Loan), the
Trustee, upon request of the Master Servicer and receipt from the Master
Servicer of a Request for Release in the form of Exhibit D-1 attached hereto
signed by a Servicing Officer thereof, or upon request of the Special Servicer
and receipt from the Special Servicer of a Request for Release in the form of
Exhibit D-2 attached hereto, shall release, or cause any related Custodian to
release, such Mortgage File (or such portion thereof) (and, in the case of the
_______________ Companion Loan, the Trustee shall cause the _______________
Companion Loan Noteholder to release the original of the Mortgage Note for such
Companion Loan) to the Master Servicer or the Special Servicer, as the case may
be. Upon return of such Mortgage File (or such portion thereof) (or such
original Mortgage Note for the _______________ Companion Loan) to the Trustee or
related Custodian (or to the _______________ Companion Loan Noteholder), or the
delivery to the Trustee (or to the _______________ Companion Loan Noteholder) of
a certificate of a Servicing Officer of the Special Servicer stating that such
Serviced Loan was liquidated and that all amounts received or to be received in
connection with such liquidation that are required to be deposited into the
related Custodial Account pursuant to Section 3.04(a) or 3.04A(a), as
applicable, have been or will be so deposited, or that the
-128-
related Mortgaged Property has become an REO Property, the Request for Release
shall be released by the Trustee or related Custodian to the Master Servicer or
the Special Servicer, as applicable.
(c) Within seven Business Days (or within such shorter period
(but no less than three Business Days) as execution and delivery can reasonably
be accomplished if the Special Servicer notifies the Trustee (and, in the case
of the _______________ Mortgaged Property, the _______________ Companion Loan
Noteholder) of an exigency) of the Special Servicer's request therefor, the
Trustee shall execute and deliver to the Special Servicer (or the Special
Servicer may execute and deliver in the name of the Trustee (on behalf of the
Certificateholders and, in the case of the _______________ Mortgaged Property,
also on behalf of the _______________ Companion Loan Noteholder) based on a
limited power of attorney issued in favor of the Special Servicer pursuant to
Section 3.01(b)), in the form supplied to the Trustee, any court pleadings,
requests for trustee's sale or other documents stated by the Special Servicer to
be reasonably necessary to the foreclosure or trustee's sale in respect of a
Mortgaged Property (other than a _______________ Mortgaged Property) or to any
legal action brought to obtain judgment against any Mortgagor on the Mortgage
Note or Mortgage or to obtain a deficiency judgment, or to enforce any other
remedies or rights provided by the Mortgage Note or Mortgage or otherwise
available at law or in equity or to defend any legal action or counterclaim
filed against the Trust Fund, the Master Servicer, the Special Servicer or the
_______________ Companion Loan Noteholder. Together with such documents or
pleadings, the Special Servicer shall deliver to the Trustee (and, in the case
of the _______________ Mortgaged Property, the _______________ Companion Loan
Noteholder) a certificate of a Servicing Officer requesting that such pleadings
or documents be executed by the Trustee and certifying as to the reason such
documents or pleadings are required and that the execution and delivery thereof
by the Trustee (on behalf of the Certificateholders and, in the case of the
_______________ Mortgaged Property, also on behalf of the _______________
Companion Loan Noteholder) will not invalidate or otherwise affect the lien of
the Mortgage, except for the termination of such a lien upon completion of the
foreclosure or trustee's sale. Notwithstanding anything contained herein to the
contrary, neither the Master Servicer nor the Special Servicer shall, without
the Trustee's written consent: (i) 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 cause, and that actually causes, the Trustee to be
registered to do business in any state.
SECTION 3.11. Servicing Compensation; Payment of Expenses;
Certain Matters Regarding Servicing Advances.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Serviced Loan, including each Specially Serviced Mortgage Loan, and each
REO Loan that was previously a Serviced Loan. As to each such Loan and REO Loan,
the Master Servicing Fee shall: (i) accrue from time to time at the related
Master Servicing Fee Rate on the same principal amount as interest accrues from
time to time on such Loan or is deemed to accrue from time to time on such REO
Loan; and (ii) be calculated on a 30/360 Basis (or, in the case of the
_______________ Companion Loan or any related REO Loan, on an Actual/360 Basis)
(or, in the event that a Principal Prepayment in full or other Liquidation Event
shall occur with respect to any such Loan or REO Loan on a date that is not a
Due Date, on the basis of the actual number of days to elapse from and including
the most recently preceding related Due Date to but excluding the date of such
Principal Prepayment or Liquidation Event in a month consisting of 30 days). The
Master Servicing Fee with respect to any such Loan or REO Loan shall cease to
accrue if a
-129-
Liquidation Event occurs in respect thereof. Earned but unpaid Master Servicing
Fees shall be payable monthly, on a loan-by-loan basis, from payments of
interest on each such Loan and REO Revenues allocable as interest on each such
REO Loan. The Master Servicer shall be entitled to recover unpaid Master
Servicing Fees in respect of any such Loan or REO Loan out of that portion of
related Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds
allocable as recoveries of interest, to the extent permitted by Section 3.05(a)
or Section 3.05A(a), as applicable. The right to receive the Master Servicing
Fee may not be transferred in whole or in part except in connection with the
transfer of all of the Master Servicer's responsibilities and obligations under
this Agreement. The _______________ Master Servicer shall be entitled to the
master servicing fee for the _______________ Mortgage Loan or any successor REO
Mortgage Loan as provided in the _______________ Servicing Agreement.
(b) Except as provided in the next paragraph, additional
servicing compensation in the form of (i) Net Default Charges, charges for
beneficiary statements or demands, amounts collected for checks returned for
insufficient funds, and any similar fees (excluding Prepayment Premiums and
Yield Maintenance Charges), in each case to the extent actually paid by a
Mortgagor with respect to any Serviced Loan and accrued during the time that
such Serviced Loan was not a Specially Serviced Loan, (ii) 100% of each
modification fee or extension fee actually paid by a Mortgagor with respect to a
modification, consent, extension, waiver or amendment agreed to by the Master
Servicer pursuant to Section 3.20(c) and 100% of any fee actually paid by a
Mortgagor in connection with a defeasance of a Serviced Loan as contemplated
under Section 3.20(k), and (iii) 50% of any and all assumption fees and 100% of
any and all assumption application fees and other applicable fees, actually paid
by a Mortgagor in accordance with the related loan documents, with respect to
any assumption or substitution agreement entered into by the Master Servicer on
behalf of the Trust (or, in the case of the _______________ Loan Pair, on behalf
of the Trust and the _______________ Companion Loan Noteholder) pursuant to
Section 3.08(a) or paid by a Mortgagor with respect to any transfer of an
interest in a Mortgagor pursuant to Section 3.08(a), shall be retained by the
Master Servicer or promptly paid to the Master Servicer by the Special Servicer
and such additional servicing compensation is not required to be deposited in
any Custodial Account. The Master Servicer shall also be entitled to additional
servicing compensation in the form of (i) Prepayment Interest Excesses (except
in the case of the _______________ Companion Loan); (ii) interest or other
income earned on deposits in the Custodial Accounts in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any, with
respect to each such account for each Collection Period); and (iii) to the
extent not required to be paid to any Mortgagor under applicable law, any
interest or other income earned on deposits in the Servicing Accounts, the
Reserve Accounts and the Defeasance Deposit Account maintained thereby (but only
to the extent of the Net Investment Earnings, if any, with respect to each such
account for each Collection Period).
With respect to the _______________ Mortgage Loan, amounts in
the nature of the foregoing, except for Prepayment Interest Excesses, are
payable to a _______________ Servicer as and to the extent provided in the
_______________ Servicing Agreement.
(c) Except as provided in the last sentence of this paragraph,
compensation for its activities hereunder, the Special Servicer shall be
entitled to receive the Special Servicing Fee with respect to each Specially
Serviced Loan and each REO Loan that was previously a Serviced Loan. With
respect to each such Specially Serviced Loan and REO Loan, for any calendar
month (or portion thereof), the Special Servicing Fee shall: (i) accrue from
time to time at the Special Servicing Fee Rate on the same principal amount as
interest accrues from time to time on such Loan or is deemed to accrue from time
to time on such REO Loan; and (ii) be calculated on a 30/360 Basis (or, in the
case of the
-130-
_______________ Companion Loan or any related REO Loan, on an Actual/360 Basis)
(or, in the event that a Principal Prepayment in full or other Liquidation Event
shall occur with respect to any such Specially Serviced Loan or REO Loan on a
date that is not a Due Date, on the basis of the actual number of days to elapse
from and including the most recently preceding related Due Date to but excluding
the date of such Principal Prepayment or Liquidation Event, in a month
consisting of 30 days and, in the case of any other partial period that does not
run from one Due Date through and including the day immediately preceding the
next Due Date, on the basis of the actual number of days in such period in a
month consisting of 30 days). The Special Servicing Fee with respect to any such
Specially Serviced Loan or REO Loan shall cease to accrue as of the date a
Liquidation Event occurs in respect thereof or it becomes a Corrected Loan.
Earned but unpaid Special Servicing Fees shall be payable monthly out of general
collections on the Mortgage Loans and any REO Properties (or, in the case of
Special Servicing Fees in respect of the _______________ Loan Pair, solely out
of collections relating to such Loan Pair or any related REO Property) on
deposit in the appropriate Custodial Account pursuant to Section 3.05(a) or
Section 3.05A(a), as applicable. The _______________ Special Servicer shall be
entitled to the special servicing fee for the _______________ Mortgage Loan or
any successor REO Mortgage Loan as provided in the _______________ Servicing
Agreement.
As further compensation for its services hereunder, the
Special Servicer shall be entitled to receive the Workout Fee with respect to
each Corrected Loan. As to each such Corrected Loan, the Workout Fee shall be
payable from, and shall be calculated by application of the Workout Fee Rate to,
all collections of principal, interest (other than Default Interest and
Additional Interest), Prepayment Premiums and/or Yield Maintenance Charges
received on such Loan for so long as it remains a Corrected Loan; provided that
no Workout Fee shall be payable from, or based upon the receipt of, Liquidation
Proceeds collected in connection with the purchase of any such Specially
Serviced Loan or REO Property by a Purchase Option Holder pursuant to Section
3.18, by the Depositor, Xxxxxx Brothers, the Special Servicer, a Controlling
Class Certificateholder or the Master Servicer pursuant to Section 9.01, by the
_______________ Companion Loan Noteholder or its designee pursuant to the
_______________ Co-Lender Agreement, by the Depositor pursuant to Section
2.03(a) or the ___ Mortgage Loan Seller pursuant to the ___/Depositor Mortgage
Loan Purchase Agreement, or by the holder of a related mezzanine loan pursuant
to a purchase right in connection with a Loan default as set forth in the
related intercreditor agreement, or out of any Condemnation Proceeds. The
Workout Fee with respect to any Corrected Loan will cease to be payable if such
Corrected Loan again becomes a Specially Serviced Loan or if the related
Mortgaged Property becomes an REO Property; provided that a new Workout Fee will
become payable if and when the particular Loan again becomes a Corrected Loan.
If the Special Servicer is terminated or removed other than for cause (and other
than as a result of an Event of Default under Sections 7.01(a)(x), 7.01(a)(xi)
or 7.01(a)(xii)) or resigns in accordance with the first sentence of the first
paragraph of Section 6.04, it shall retain the right to receive any and all
Workout Fees payable in respect of Serviced Loans that became Corrected 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.
As further compensation for its activities hereunder, the
Special Servicer shall also be entitled to receive the Liquidation Fee with
respect to each Specially Serviced Loan as to which it receives a full, partial
or discounted payoff and, subject to the provisos to the next sentence, each
Specially Serviced Loan and REO Property (other than
-131-
a _______________ REO Property) as to which it receives Liquidation Proceeds. As
to each such Specially Serviced Loan or REO Property (other than a
_______________ 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 Liquidation Proceeds (exclusive of any
portion of such payoff or proceeds that represents Default Interest and/or
Additional Interest); provided that no Liquidation Fee shall be payable (i) with
respect to any such Specially Serviced Loan that becomes a Corrected Loan or
(ii) from, or based upon the receipt of, Liquidation Proceeds collected in
connection with the purchase of any such Specially Serviced Loan or REO Property
by a Purchase Option Holder pursuant to Section 3.18, by the Depositor, Xxxxxx
Brothers, the Special Servicer, a Controlling Class Certificateholder or the
Master Servicer pursuant to Section 9.01, by the _______________ Companion Loan
Noteholder or its designee pursuant to the _______________ Co-Lender Agreement,
by the Depositor pursuant to Section 2.03(a) or the ___ Mortgage Loan Seller
pursuant to the ___/Depositor Mortgage Loan Purchase Agreement (in either such
case, within 180 days of the discovery or receipt of notice by the Depositor or
the ___ Mortgage Loan Seller, as the case may be, of the subject Material
Document Defect or Material Breach, as applicable, that gave rise to the
particular repurchase obligation), or by the holder of a related mezzanine loan
pursuant to a purchase right in connection with a Loan default as set forth in
the related intercreditor agreement; and provided, further, that, in connection
with any purchase by the Depositor pursuant to Section 2.03(a) or the ___
Mortgage Loan Seller pursuant to the ___/Depositor Mortgage Loan Purchase
Agreement (including a repurchase of a Loan REMIC Mortgage Loan in connection
with the related Mortgagor's early exercise of its right to defease such
Mortgage Loan), in either such case more than 180 days following the discovery
or receipt of notice by the Depositor or the ___ Mortgage Loan Seller, as the
case may be, of the subject Material Document Defect or Material Breach, as
applicable, that gave rise to the particular repurchase obligation, the
Liquidation Fee shall equal 1% of the Stated Principal Balance of the
repurchased Mortgage Loan (or, if an REO Property is being repurchased, 1% of
the Stated Principal Balance of the related REO Mortgage Loan).
Notwithstanding anything to the contrary herein, a Liquidation
Fee and a Workout Fee relating to the same Loan shall not be paid from the same
proceeds with respect to such Loan.
With respect to the _______________ Mortgage Loan or any
related REO Property, the _______________ Special Servicer shall be entitled to
fees in the nature of Workout Fees and/or Liquidation Fees as and to the extent
provided in the _______________ Servicing Agreement.
The Special Servicer's right to receive the Special Servicing
Fee, the Workout Fee and 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.
(d) Additional special servicing compensation in the form of
(i) Net Default Charges actually collected on the Mortgage Pool (exclusive of
the _______________ Mortgage Loan or any successor REO Mortgage Loan with
respect thereto) that accrued with respect to a Specially Serviced Loan or an
REO Loan, (ii) with respect to any Specially Serviced Loan, 100% of any and all
assumption application fees and other applicable fees, actually paid by a
Mortgagor in accordance with the related loan documents, with respect to any
assumption or substitution agreement entered into by the Special Servicer on
behalf of the Trust (or, in the case of the _______________ Loan Pair, on behalf
of the Trust and the _______________ Companion Loan Noteholder) pursuant to
Section 3.08(b) or paid by a Mortgagor with respect to any transfer of an
interest in a Mortgagor pursuant to Section 3.08(b), and (iii) any and all
assumption fees, modification fees, consent fees, extension fees and similar
fees actually collected on the Serviced Loans that are not otherwise payable to
the Master Servicer as additional
-132-
servicing compensation pursuant to Section 3.11(b), shall be retained by the
Special Servicer or promptly paid to the Special Servicer by the Master
Servicer, as the case may be, and shall not be required to be deposited in any
Custodial Account pursuant to Section 3.04(a) or Section 3.04A(a). The Special
Servicer shall also be entitled to additional special servicing compensation in
the form of interest or other income earned on deposits in any of the REO
Accounts, if established, in accordance with Section 3.06(b) (but only to the
extent of the Net Investment Earnings, if any, with respect to such account for
each Collection Period).
(e) The Master Servicer and the Special Servicer shall each be
required to pay out of its own funds all expenses incurred by it in connection
with its servicing activities hereunder (including payment of any amounts due
and owing to any of its Sub-Servicers and the premiums for any blanket policy
obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if
and to the extent such expenses are not payable directly out of any of the
Custodial Accounts or, in the case of the Special Servicer, any of the REO
Accounts, and neither the Master Servicer nor the Special Servicer shall be
entitled to reimbursement for such expenses except as expressly provided in this
Agreement.
(f) If the Master Servicer or Special Servicer is required
under any provision of this Agreement to make a Servicing Advance, but neither
does so within 15 days after such Advance is required to be made, the Trustee
shall, if it has actual knowledge of such failure on the part of the Master
Servicer or Special Servicer, as the case may be, give written notice of such
failure, as applicable, to the Master Servicer or the Special Servicer. If such
Servicing Advance is not made by the Master Servicer or the Special Servicer
within three Business Days after such notice is given to the Master Servicer or
the Special Servicer, as applicable, then (subject to Section 3.11(h)) the
Trustee shall make such Servicing Advance. If the Trustee fails to make any
Servicing Advance required to be made under this Agreement, then (subject to
Section 3.11(h)) the Fiscal Agent shall make such Servicing Advance within one
Business Day of such failure by the Trustee and, if so made, the Trustee shall
be deemed not to be in default under this Agreement.
(g) The Master Servicer, the Special Servicer, the Trustee and
the Fiscal Agent shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, compounded annually, accrued on the amount of
each Servicing Advance made thereby (with its own funds) for so long as such
Servicing Advance is outstanding, such interest to be payable: (i) out of any
Default Charges on deposit in the Pool Custodial Account that were collected on
or in respect of the Mortgage Pool during the same Collection Period in which
such Servicing Advance is reimbursed; and (ii) to the extent that such Default
Charges are insufficient, but not before the related Advance has been reimbursed
pursuant to this Agreement, out of general collections on the Mortgage Loans and
REO Properties on deposit in the Pool Custodial Account; provided that, if such
Servicing Advance was made with respect to the _______________ Loan Pair or the
_______________ Mortgaged Property, then such interest shall first be payable
out of amounts on deposit in the _______________ Custodial Account in accordance
with clause (viii) of Section 3.05A. The Master Servicer shall reimburse itself,
the Special Servicer, the Trustee or the Fiscal Agent, as appropriate and in
accordance with Section 3.03, Section 3.05(a) or Section 3.05A(a), as
applicable, for any Servicing Advance as soon as practicable after funds
available for such purpose are deposited in the related Custodial Account.
(h) Notwithstanding anything herein to the contrary, none of
the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent shall
be required to make out of its own funds any Servicing Advance that would, if
made, constitute a Nonrecoverable Servicing Advance. The
-133-
determination by either the Master Servicer or the Special Servicer that it has
made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance,
if made, would constitute a Nonrecoverable Servicing Advance, shall be made in
accordance with the Servicing Standard and shall be evidenced by an Officer's
Certificate delivered promptly to the Trustee and the Depositor (and, if
affected thereby, the Companion Loan Noteholder), setting forth the basis for
such determination, together with a copy of any appraisal of the related
Mortgaged Property or REO Property, as the case may be (which appraisal shall be
an expense of the Trust, shall take into account the factors specified in
Section 3.18 and shall have been conducted by an Independent Appraiser in
accordance with the standards of the Appraisal Institute within the twelve
months preceding such determination of nonrecoverability), and further
accompanied by related Mortgagor operating statements and financial statements,
budgets and rent rolls of the related Mortgaged Property (to the extent
available and/or in the Master Servicer's or the Special Servicer's possession)
and any engineers' reports, environmental surveys or similar reports that the
Master Servicer or the Special Servicer may have obtained and that support such
determination. If the Master Servicer intends to obtain an appraisal in
connection with the foregoing, the Master Servicer shall so notify the Special
Servicer and consult with the Special Servicer regarding such appraisal. The
Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any
determination by the Master Servicer or the Special Servicer that a Servicing
Advance, if made, would be a Nonrecoverable Advance; provided, however, that if
the Master Servicer or the Special Servicer has failed to make a Servicing
Advance for reasons other than a determination by the Master Servicer or the
Special Servicer, as applicable, that such Servicing Advance would be a
Nonrecoverable Advance, the Trustee or the Fiscal Agent, as applicable, shall
make such Servicing Advance within the time periods required by Section 3.11(f)
unless the Trustee or the Fiscal Agent, in good faith, makes a determination
that such Servicing Advance would be a Nonrecoverable Advance.
(i) Notwithstanding anything set forth herein to the contrary,
the Master Servicer shall (at the direction of the Special Servicer if a
Specially Serviced Loan or an Administered REO Property is involved) pay
directly out of the Pool Custodial Account or the _______________ Custodial
Account, as applicable, any servicing expense that, if advanced by the Master
Servicer or the Special Servicer, would constitute a Nonrecoverable Servicing
Advance; provided that the Master Servicer (or the Special Servicer, if a
Specially Serviced Loan or an Administered REO Property is involved) has
determined in accordance with the Servicing Standard that making such payment,
in the case of withdrawals from the Pool Custodial Account, is in the best
interests of the Certificateholders (as a collective whole) or, in the case of a
Custodial Account, is in the best interests of the Certificateholders and the
_______________ Companion Loan Noteholder (as a collective whole), as evidenced
in each case by an Officer's Certificate delivered promptly to the Trustee, the
Depositor, the Controlling Class Representative and, if affected thereby, the
Companion Loan Noteholder, setting forth the basis for such determination and
accompanied by any information that such Person may have obtained that supports
such determination. A copy of any such Officer's Certificate (and accompanying
information) of the Master Servicer shall also be promptly delivered to the
Special Servicer, and a copy of any such Officer's Certificate (and accompanying
information) of the Special Servicer shall also be promptly delivered to the
Master Servicer. The Master Servicer may conclusively rely on any information in
this regard provided by the Special Servicer (if other than the Master Servicer
or an Affiliate thereof).
-134-
SECTION 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be
performed a physical inspection of a Mortgaged Property (other than the
_______________ Mortgaged Property) as soon as practicable after the related
Serviced Loan becomes a Specially Serviced Loan and annually thereafter for so
long as the related Loan remains a Specially Serviced Loan, the cost of which
shall be paid by the Special Servicer and shall be reimbursable as a Servicing
Advance. In addition, the Special Servicer shall perform or cause to be
performed a physical inspection of each of the REO Properties (other than any
_______________ REO Property) at least once per calendar year, the cost of which
shall be paid by the Special Servicer and shall be reimbursable as a Servicing
Advance. Beginning in ___, the Master Servicer shall at its expense perform or
cause to be performed a physical inspection of each Mortgaged Property securing
a Performing Serviced Loan: (i) at least once every two calendar years in the
case of Mortgaged Properties securing Loans that have outstanding principal
balances of (or Mortgaged Properties having allocated loan amounts of)
$2,000,000 or less; and (ii) at least once every calendar year in the case of
all other such Mortgaged Properties; provided, that the Master Servicer will not
be required to perform or cause to be performed an inspection on a Mortgaged
Property if such Mortgaged Property has been inspected by the Master Servicer or
the Special Servicer in the preceding six months. The Master Servicer and the
Special Servicer shall each promptly prepare or cause to be prepared and deliver
to the Trustee and each other a written report of each such inspection performed
by it that sets forth in detail the condition of the Mortgaged Property and that
specifies the existence of: (i) any sale, transfer or abandonment of the
Mortgaged Property of which the Master Servicer or the Special Servicer, as
applicable, is aware, (ii) any change in the condition or value of the Mortgaged
Property that the Master Servicer or the Special Servicer, as applicable, in its
reasonable, good faith judgment, considers material, or (iii) any waste
committed on the Mortgaged Property. The Master Servicer and Special Servicer
shall each forward copies of any such inspection reports prepared by it to the
Underwriters and the Controlling Class Representative upon request, subject to
payment of a reasonable fee.
The Special Servicer, in the case of each Specially Serviced
Loan and each REO Loan that was previously a Serviced Loan, and the Master
Servicer, in the case of each Performing Serviced Loan, shall each, consistent
with the Servicing Standard, use reasonable efforts to obtain quarterly, annual
and other periodic operating statements and rent rolls with respect to each of
the related Mortgaged Properties and REO Properties. The Special Servicer shall,
promptly following receipt, deliver copies of the operating statements and rent
rolls received or obtained by it to the Master Servicer, and the Master Servicer
shall promptly deliver copies of the operating statements and rent rolls
received or obtained by it to the Trustee, the Special Servicer or any
Controlling Class Certificateholder, in each case upon request. In addition to
the foregoing and solely with respect to the _______________ Loan Pair, the
Special Servicer and the Master Servicer, as applicable, shall each, consistent
with the Servicing Standard, use reasonable efforts to obtain occupancy reports,
sales reports for retail tenants, 24-month rolling lease expiration schedules,
reserve balances and capital expenditure statements, as well as information as
to bankrupt tenants and tenants whose leases have expired and have not been
renewed. The Special Servicer shall, promptly following receipt, deliver copies
of the materials received or obtained by it pursuant to the foregoing sentence
to the Master Servicer, and the Master Servicer shall promptly deliver copies of
all such materials received or obtained by it pursuant to the foregoing sentence
and this sentence to the Trustee, the Special Servicer, any Controlling Class
Certificateholders
-135-
and, in the case of the _______________ Loan Pair, to the _______________
Companion Loan Noteholder, in each case upon request.
Within 30 days after receipt by the Master Servicer of any
annual operating statements with respect to any Mortgaged Property (other than
the _______________ Mortgaged Property) or Administered REO Property, the Master
Servicer with respect to a Performing Loan and the Special Servicer with respect
to a Specially Serviced Loan shall prepare or update and forward to the Trustee,
upon request, a CMSA NOI Adjustment Worksheet for such Mortgaged Property or REO
Property (with the annual operating statements attached thereto as an exhibit).
The Master Servicer with respect to a Performing Loan and the
Special Servicer with respect to a Specially Serviced Loan shall prepare and
maintain one CMSA Operating Statement Analysis Report for each Mortgaged
Property (other than the _______________ Mortgaged Property) and Administered
REO Property. The CMSA Operating Statement Analysis Report for each such
Mortgaged Property and REO Property is to be updated by the Master Servicer or
Special Servicer, as applicable, within 30 days after its receipt of updated
operating statements for a Mortgaged Property or REO Property, as the case may
be. The Master Servicer shall use the "Normalized" column from the CMSA NOI
Adjustment Worksheet for any such Mortgaged Property or REO Property, as the
case may be, to update and normalize the corresponding annual year-end
information in the CMSA Operating Statement Analysis Report and shall use any
annual operating statements and related data fields received with respect to any
such Mortgaged Property or REO Property, as the case may be, to prepare the CMSA
NOI Adjustment Worksheet for such property. Copies of CMSA Operating Statement
Analysis Reports and CMSA NOI Adjustment Worksheets are to be made available by
the Master Servicer to the Trustee, the Special Servicer or any Controlling
Class Certificateholder, in each case upon request.
(b) Not later than 2:00 p.m. (New York City time) on the
second Business Day prior to each Determination Date, the Special Servicer shall
deliver or cause to be delivered to the Master Servicer the following reports
with respect to the Specially Serviced Loans and any REO Properties (other than
any _______________ REO Property), providing the required information as of the
end of the preceding calendar month: (i) a CMSA Property File; and (ii) a CMSA
Comparative Financial Status Report. Not later than 2:00 p.m. (New York City
time) on the third Business Day prior to each Distribution Date, the Special
Servicer shall deliver or cause to be delivered to the Master Servicer the
following reports with respect to the Specially Serviced Loans, any REO
Properties (other than any _______________ REO Property) and, to the extent that
the subject information relates to when they were Specially Serviced Loans, any
Corrected Loans: (i) a CMSA Delinquent Loan Status Report; (ii) a Loan Payoff
Notification Report; (iii) a CMSA Historical Liquidation Report; (iv) a CMSA
Historical Loan Modification Report; and (v) a CMSA REO Status Report.
(c) Not later than 1:00 p.m. (New York City time) on the first
Business Day prior to each Distribution Date, the Master Servicer shall deliver
or cause to be delivered to the Trustee, the Rating Agencies, the Special
Servicer and, upon request, any Controlling Class Certificateholder: (i) the
most recent CMSA Historical Loan Modification Report, CMSA Historical
Liquidation Report and CMSA REO Status Report received from the Special Servicer
pursuant to Section 3.12(b); (ii) the most recent CMSA Property File, CMSA
Financial File, CMSA Loan Set-up File (if modified), CMSA Delinquent Loan Status
Report, CMSA Comparative Financial Status Report and Loan Payoff Notification
Report (in each case combining the reports prepared by the Special Servicer and
the Master Servicer); and (iii) a CMSA Servicer Watch List with information that
is current as of the related
-136-
Determination Date with respect to a Serviced Loan. The Master Servicer shall
include on one of such reports updated information as of the applicable
Determination Date regarding the amount of accrued and unpaid interest on
Advances in accordance with Section 3.11(g), 4.03(d) and/or 4.03A(d) such
information to be presented on a loan-by-loan basis.
(d) The Special Servicer shall deliver to the Master Servicer
the reports set forth in Section 3.12(b) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer, and the Master
Servicer shall deliver to the Trustee, the Special Servicer and, upon request,
any Controlling Class Certificateholder the reports set forth in Section 3.12(c)
in an electronic format reasonably acceptable to the Master Servicer and the
Trustee. The Master Servicer may, absent manifest error, conclusively rely on
the reports to be provided by the Special Servicer pursuant to Section 3.12(b).
The Trustee may, absent manifest error, conclusively rely on the reports to be
provided by the Master Servicer pursuant to Section 3.12(c) to the extent that
the underlying information is solely within the control of the Master Servicer
or the Special Servicer. In the case of information or reports to be furnished
by the Master Servicer to the Trustee pursuant to Section 3.12(c), to the extent
that such information is based on reports to be provided by the Special Servicer
pursuant to Section 3.12(b) and/or that such reports are to be prepared and
delivered by the Special Servicer pursuant to Section 3.12(b), so long as the
Master Servicer and the Special Servicer are not the same Person or Affiliates,
the Master Servicer shall have no obligation to provide such information or
reports until it has received such information or reports from the Special
Servicer, and the Master Servicer shall not be in default hereunder due to a
delay in providing the reports required by Section 3.12(c) caused by the Special
Servicer's failure to timely provide any report required under Section 3.12(b)
of this Agreement.
(e) The preparation and maintenance by the Master Servicer and
the Special Servicer of all the reports specified in this Section 3.12,
including the calculations made therein, shall be done in accordance with CMSA
standards to the extent applicable thereto.
SECTION 3.12A. Delivery of Certain Reports to the
_______________ Companion Loan Noteholder.
(a) The Master Servicer and the Special Servicer shall each
promptly prepare or cause to be prepared and deliver to the _______________
Companion Loan Noteholder a written report, prepared in the manner set forth in
Section 3.12, of each inspection performed by it with respect to the
_______________ Mortgaged Property.
The Master Servicer shall promptly deliver to the
_______________ Companion Loan Noteholder: (i) copies of operating statements
and rent rolls; (ii) upon request, annual CMSA NOI Adjustment Worksheets (with
annual operating statements as exhibits); and (iii) annual CMSA Operating
Statement Analysis Reports, in each case prepared, received or obtained by it
pursuant to Section 3.12 with respect to the _______________ Mortgaged Property.
(b) If the Loans forming the _______________ Loan Pair
constitute Specially Serviced Loans, or if the _______________ Mortgaged
Property has become an REO Property, then each calendar month, not later than
2:00 p.m. (New York City time) on the second Business Day prior to each
Determination Date, the Special Servicer shall deliver or cause to be delivered
to the Master Servicer the following reports with respect to the _______________
Loan Pair and/or the _______________ Mortgaged Property, providing the required
information as of the end of the preceding calendar month: (i) a CMSA Property
File (or similar report satisfactory to the Master
-137-
Servicer); and (ii) a CMSA Comparative Financial Status Report (or similar
report satisfactory to the Master Servicer). If the Loans forming the
_______________ Loan Pair constitute Specially Serviced Loans, or if the
_______________ Mortgaged Property has become an REO Property, then each
calendar month, not later than 2:00 p.m. (New York City time) on the second
Business Day prior to the Master Servicer Remittance Date in such month, the
Special Servicer shall deliver or cause to be delivered to the Master Servicer
such of the following reports as may be relevant with respect to the
_______________ Loan Pair and/or the _______________ Mortgaged Property: (i) a
CMSA Delinquent Loan Status Report; (ii) a Loan Payoff Notification Report,
(iii) a CMSA Historical Liquidation Report; (iv) a CMSA Historical Loan
Modification Report; and (v) a CMSA REO Status Report.
(c) Not later than 1:00 p.m. (New York City time) on the
Business Day prior to each Master Servicer Remittance Date, the Master Servicer
shall, with respect to the _______________ Loan Pair, prepare all Loan Pair
Servicing Reports as may be relevant and that are not otherwise required to be
prepared by the Special Servicer pursuant to Section 3.12A(b). The Master
Servicer shall include on one of such reports updated information as of the
applicable Determination Date regarding the amount of accrued and unpaid
interest on Advances in accordance with Section 3.11(g), 4.03(d) and/or
4.03A(d), such information to be presented on a loan-by-loan basis.
(d) The Special Servicer shall deliver to the Master Servicer
the reports set forth in Section 3.12A(b) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer. The Master Servicer
may, absent manifest error, conclusively rely on the reports to be provided by
the Special Servicer pursuant to Section 3.12A(b). In the case of information or
reports to be furnished by the Master Servicer to the _______________ Companion
Loan Noteholder pursuant to Section 3.12B(a), to the extent that such
information is based on reports to be provided by the Special Servicer pursuant
to Section 3.12A(b) and/or that such reports are to be prepared and delivered by
the Special Servicer pursuant to Section 3.12A(b), so long as the Master
Servicer and the Special Servicer are not the same Person or Affiliates, the
Master Servicer shall have no obligation to provide such information or reports
until it has received such information or reports from the Special Servicer, and
the Master Servicer shall not be in default hereunder due to a delay in
providing the reports required by Section 3.12B(a) caused by the Special
Servicer's failure to timely provide any report required under Section 3.12A(b)
of this Agreement.
(e) The preparation and maintenance by the Master Servicer and
the Special Servicer of all the reports specified in this Section 3.12A,
including the calculations made therein, shall be done in accordance with CMSA
standards, to the extent applicable thereto.
SECTION 3.12B. Statements to the _______________ Companion
Loan Noteholder.
(a) On the Business Day prior to each Master Servicer
Remittance Date, the Master Servicer shall forward to the _______________
Companion Loan Noteholder all Loan Pair Servicing Reports prepared with respect
to the _______________ Loan Pair, pursuant to Section 3.12A, during the calendar
month in which such applicable Master Servicer Remittance Date occurs.
(b) The Master Servicer shall only be obligated to deliver the
statements, reports and information contemplated by Section 3.12B(a) to the
extent it receives the necessary underlying information from the Special
Servicer and shall not be liable for its failure to deliver such statements,
reports and information on the prescribed due dates, to the extent caused by the
failure of the Special
-138-
Servicer to deliver timely such underlying information. Nothing herein shall
obligate the Master Servicer or the Special Servicer to violate any applicable
law prohibiting disclosure of information with respect to the related Mortgagor,
and the failure of the Master Servicer or the Special Servicer to disseminate
information for such reason shall not be a breach hereunder.
Absent manifest error of which it has actual knowledge,
neither the Master Servicer nor the Special Servicer shall be responsible for
the accuracy or completeness of any information supplied to it by a Mortgagor, a
Mortgage Loan Seller or third party that is included in any reports, statements,
materials or information prepared or provided by the Master Servicer or the
Special Servicer, as applicable, pursuant to this Agreement. Neither the Master
Servicer nor the Special Servicer shall have any obligation to verify the
accuracy or completeness of any information provided by a Mortgagor, a Mortgage
Loan Seller, a third party or each other.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall
deliver to the Trustee, the Rating Agencies, the Depositor, the Underwriters,
the _______________ Companion Loan Noteholder and each other, on or before April
30 of each year, beginning in ___ (or, as to any such year, such earlier date as
is contemplated by the last sentence of this Section 3.13), an Officer's
Certificate (the "Annual Performance Certification") stating, as to the signer
thereof, that (i) a review of the activities of the Master Servicer or the
Special Servicer, as the case may be, during the preceding calendar year (or, in
the case of the first such certification, during the period from the Closing
Date to December 31, 2002, inclusive) and, in particular, of its performance
under this Agreement, has been made under such officer's supervision, (ii) to
the best of such officer's knowledge, based on such review, the Master Servicer
or the Special Servicer, as the case may be, has fulfilled all of its material
obligations under this Agreement in all material respects throughout such
preceding calendar year or portion thereof (or, if there has been a default in
the fulfillment of any such obligation, specifying each such default known to
such officer and the nature and status thereof), and (iii) the Master Servicer
or the Special Servicer, as- the case may be, has received no notice regarding
the qualification, or challenging the status, of any REMIC Pool as a REMIC or
the Grantor Trust as a grantor trust, from the IRS or any other governmental
agency or body (or, if it has received any such notice, specifying the details
thereof). Notwithstanding the timing provided for in the first sentence of this
paragraph, if (as confirmed in writing by the Depositor) the Depositor is
required to file a Form 10-K with the Commission in respect of the Trust
covering any particular calendar year, then the Annual Performance Certification
to be delivered by each of the Master Servicer and the Special Servicer during
the following year, shall be delivered on or before March 15 of such following
year; and the Master Servicer and the Special Servicer are hereby notified that
the Depositor is required to file a Form 10-K with the Commission in respect of
the Trust covering calendar year _____.
SECTION 3.14. Reports by Independent Public Accountants.
On or before April 30 of each year, beginning in ___ (or, as
to any such year, such earlier date as is contemplated by the last sentence of
this paragraph), each of the Master Servicer and the Special Servicer at its
expense shall cause a firm of independent public accountants (which may also
render other services to the Master Servicer or the Special Servicer) that is a
member of the American Institute of Certified Public Accountants to furnish a
statement (the "Annual Accountants' Report") to the Trustee, the Rating
Agencies, the Depositor, the Underwriters, the _______________ Companion
-139-
Loan Noteholder and each other, to the effect that (i) such firm has obtained a
letter of representation regarding certain matters from the management of the
Master Servicer or the Special Servicer, as applicable, which includes an
assertion that the Master Servicer or the Special Servicer, as applicable, has
complied with certain minimum mortgage loan servicing standards (to the extent
applicable to commercial and multifamily mortgage loans), identified in the
Uniform Single Attestation Program for Mortgage Bankers established by the
Mortgage Bankers Association of America, with respect to the servicing of
commercial and multifamily mortgage loans during the most recently completed
calendar year and (ii) on the basis of an examination conducted by such firm in
accordance with standards established by the American Institute of Certified
Public Accountants, such representation is fairly stated in all material
respects, subject to such exceptions and other qualifications that may be
appropriate. In rendering its report such firm may rely, as to matters relating
to the direct servicing of commercial and multifamily mortgage loans by
sub-servicers, upon comparable reports of firms of independent certified public
accountants rendered (within one year of such report) on the basis of
examinations conducted in accordance with the same standards with respect to
those sub-servicers. Notwithstanding the timing provided for in the first
sentence of this paragraph, if (as confirmed in writing by the Depositor) the
Depositor is required to file a Form 10-K with the Commission in respect of the
Trust covering any particular calendar year, then the Annual Accountants' Report
to be delivered on behalf of each of the Master Servicer and the Special
Servicer during the following year, shall be delivered on or before March 15 of
such following year; and the Master Servicer and the Special Servicer are hereby
notified that the Depositor is required to file a Form 10-K with the Commission
in respect of the Trust covering calendar year _____.
The Master Servicer and the Special Servicer, to the extent
applicable, will reasonably cooperate with the Depositor in conforming any
reports delivered pursuant to this Section 3.14 to requirements imposed by the
Commission on the Depositor in connection with the Depositor's reporting
requirements in respect of the Trust Fund pursuant to the Exchange Act, provided
that the Master Servicer and Special Servicer shall each be entitled to charge
the Depositor for any reasonable additional costs and expenses incurred in
affording the Depositor such cooperation.
SECTION 3.15. Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall
afford to the Trustee, the Underwriters, the Rating Agencies, the Depositor, any
Certificateholder, the _______________ Companion Loan Noteholder and any
Certificate Owner (identified as such to the reasonable satisfaction of the
Master Servicer or the Special Servicer, as the case may be), and to the OTS,
the FDIC and any other banking or insurance regulatory authority that may
exercise authority over any Certificateholder, Certificate Owner (identified as
such to the reasonable satisfaction of the Master Servicer or the Special
Servicer, as the case may be) or Companion Loan Noteholder, access to any
records regarding the Serviced Loans and the servicing thereof within its
control (which access shall be limited, in the case of the _______________
Companion Loan Noteholder or any regulatory authority seeking such access in
respect of the _______________ Companion Loan Noteholder, to records relating to
the _______________ Companion Loan), 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 or the _______________ Companion Loan Noteholder. 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.
-140-
In connection with providing or granting any information or
access pursuant to the prior paragraph to a Certificateholder, a Certificate
Owner, the _______________ Companion Loan Noteholder or any regulatory authority
that may exercise authority over a Certificateholder, a Certificate Owner or
Companion Loan Noteholder, the Master Servicer and the Special Servicer may each
require payment from such Certificateholder, a Certificate Owner or Companion
Loan Noteholder of a sum sufficient to cover the reasonable costs and expenses
of providing such information or access, including copy charges and reasonable
fees for employee time and for space; provided that no charge may be made if
such information or access was required to be given or made available under
applicable law. In connection with providing Certificateholders and Certificate
Owners access to the information described in the preceding paragraph, the
Master Servicer and the Special Servicer shall require (prior to affording such
access) a written confirmation executed by the requesting Person substantially
in such form as may be reasonably acceptable to the Master Servicer or the
Special Servicer, as the case may be, generally to the effect that such Person
is a Holder of Certificates or a beneficial holder of Book-Entry Certificates
and will keep such information confidential.
SECTION 3.16. Title to REO Property; REO Accounts.
(a) If title to any Mortgaged Property (other than a
_______________ Mortgaged Property) is acquired, the deed or certificate of sale
shall be issued to the Trustee or its nominee on behalf of the
Certificateholders and, in the case of the _______________ Mortgaged Property,
on behalf of the _______________ Companion Loan Noteholder. The Special
Servicer, on behalf of the Trust Fund and, any affected, Companion Loan
Noteholder, shall sell any Administered REO Property by the end of the third
calendar year (or, in the case of "qualified healthcare properties" within the
meaning of Section 856(e)(6) of the Code, the second calendar year) following
the calendar year in which REMIC I (or, if applicable, the related Loan REMIC)
acquires ownership of such REO Property for purposes of Section 860G(a)(8) of
the Code, unless the Special Servicer either (i) applies, more than 60 days
prior to the end of such third succeeding year, for and is granted an extension
of time (an "REO Extension") by the IRS to sell such REO Property or (ii)
obtains for the Trustee an Opinion of Counsel, addressed to the Trustee, the
Special Servicer and the Master Servicer, to the effect that the holding by
REMIC I (or, if applicable the related Loan REMIC) of such REO Property
subsequent to the end of such third succeeding year (or, in the case of
"qualified healthcare properties" within the meaning of Section 856(e)(6) of the
Code, such second succeeding year) will not result in the imposition of taxes on
"prohibited transactions" (as defined in Section 860F of the Code) of any REMIC
Pool or cause any REMIC Pool to fail to qualify as a REMIC at any time that any
Certificates are outstanding. If the Special Servicer is granted the REO
Extension contemplated by clause (i) of the immediately preceding sentence or
obtains the Opinion of Counsel contemplated by clause (ii) of the immediately
preceding sentence, the Special Servicer shall sell the subject Administered REO
Property within such extended period as is permitted by such REO Extension or
such Opinion of Counsel, as the case may be. Any expense incurred by the Special
Servicer in connection with its obtaining the REO Extension contemplated by
clause (i) of the second preceding sentence or its obtaining the Opinion of
Counsel contemplated by clause (ii) of the second preceding sentence, shall be
covered by, and reimbursable as, a Servicing Advance.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any Administered REO Property separate
and apart from its own funds and general assets. If an REO Acquisition shall
occur in respect of any Mortgaged Property (other than the _______________
Mortgaged Property and the _______________ Mortgaged Property), the Special
-141-
Servicer shall establish and maintain one or more accounts (collectively, the
"Pool REO Account"), held on behalf of the Trustee in trust for the benefit of
the Certificateholders, for the retention of revenues and other proceeds derived
from each REO Property (other than any _______________ REO Property or
_______________ REO Property). If such REO Acquisition occurs with respect to
the _______________ Mortgaged Property, the Special Servicer shall establish an
REO Account solely with respect to such property (the "_______________ REO
Account" in the case of any _______________ REO Property), to be held for the
benefit of the Certificateholders and the applicable Companion Loan Noteholder.
The Pool REO Account and the _______________ REO Account shall each be an
Eligible Account. The Special Servicer shall deposit, or cause to be deposited,
in the related REO Account, upon receipt, all REO Revenues, Insurance Proceeds,
Condemnation Proceeds and Liquidation Proceeds received in respect of any
Administered REO Property. Funds in an REO Account (other than any such funds
representing Additional Interest) may be invested in Permitted Investments in
accordance with Section 3.06. The Special Servicer shall be entitled to make
withdrawals from an REO Account to pay itself, as additional special servicing
compensation in accordance with Section 3.11(d), interest and investment income
earned in respect of amounts held in such REO Account as provided in Section
3.06(b) (but only to the extent of the Net Investment Earnings with respect to
such REO Account for any Collection Period). The Special Servicer shall give
notice to the Trustee and the Master Servicer of the location of each REO
Account, and shall give notice to the _______________ Companion Loan Noteholder
of the location of any related REO Account, in each case when first established
and of the new location of any such REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the related REO
Account funds necessary for the proper operation, management, leasing,
maintenance and disposition of any Administered REO Property, but only to the
extent of amounts on deposit in the REO Account relating to such REO Property.
On the Business Day following each Determination Date, the Special Servicer
shall withdraw from each REO Account and deposit into the corresponding
Custodial Account (or deliver to the Master Servicer or such other Person as may
be designated by the Master Servicer for deposit into the corresponding
Custodial Account) the aggregate of all amounts received in respect of each REO
Property during the Collection Period ending on such Determination Date, net of
any withdrawals made out of such amounts pursuant to the preceding sentence;
provided that the Special Servicer may retain in an REO Account such portion of
proceeds and collections in respect of any related REO Property as may be
necessary to maintain a reserve of sufficient funds for the proper operation,
management, leasing, maintenance and disposition of such REO Property (including
the creation of a reasonable reserve for repairs, replacements, necessary
capital replacements and other related expenses), such reserve not to exceed an
amount sufficient to cover such items to be incurred during the following
twelve-month period. For purposes of the foregoing, the Pool REO Account and the
_______________ REO Account correspond to the Pool Custodial Account and the
_______________ Custodial Account, respectively.
(d) The Special Servicer shall keep and maintain separate
records, on a property-by-property basis, for the purpose of accounting for all
deposits to, and withdrawals from, each REO Account pursuant to Section 3.16(b)
or (c). The Special Servicer shall provide the Master Servicer any information
with respect to each REO Account as is reasonably requested by the Master
Servicer.
(e) Notwithstanding anything to the contrary, this Section
3.16 shall not apply to any _______________ REO Property.
-142-
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition by it of title to a Mortgaged
Property, other than the _______________ Mortgaged Property, which is addressed
in Section 3.17A, the Special Servicer shall review the operation of such
Mortgaged Property and determine the nature of the income that would be derived
from such property if it were acquired by the Trust Fund. If the Special
Servicer determines from such review that:
(i) None of the income from Directly Operating such
Mortgaged Property would be subject to tax as "net income from
foreclosure property" within the meaning of the REMIC Provisions or
would be subject to the tax imposed on "prohibited transactions" under
Section 860F of the Code (either such tax referred to herein as an "REO
Tax"), then such Mortgaged Property may be Directly Operated by the
Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO
Property could result in income from such property that would be
subject to an REO Tax, but that a lease of such property to another
party to operate such property, or the performance of some services by
an Independent Contractor with respect to such property, or another
method of operating such property would not result in income subject to
an REO Tax, then the Special Servicer may (provided, that in the good
faith and reasonable judgment of the Special Servicer, it is
commercially reasonable) acquire such Mortgaged Property as REO
Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating
such property as REO Property could result in income subject to an REO
Tax and that no commercially reasonable means exists to operate such
property as REO Property without the Trust Fund incurring or possibly
incurring an REO Tax on income from such property, the Special Servicer
shall deliver to the Tax Administrator, in writing, a proposed plan
(the "Proposed Plan") to manage such property as REO Property. Such
plan shall include potential sources of income, and, to the extent
reasonably possible, estimates of the amount of income from each such
source. Upon request of the Special Servicer, the Tax Administrator
shall advise the Special Servicer of the Tax Administrator's federal
income tax reporting position with respect to the various sources of
income that the Trust Fund would derive under the Proposed Plan. After
receiving the information described in the preceding sentence from the
Tax Administrator, the Special Servicer shall implement the Proposed
Plan (after acquiring the respective Mortgaged Property as REO
Property), with any amendments required to be made thereto as a result
of the Tax Administrator's tax reporting position.
The Special Servicer's decision as to how each Administered
REO Property, other than any _______________ REO Property, which is addressed in
Section 3.17A, shall be managed and operated shall be based on the Servicing
Standard and, further, based on the good faith and reasonable judgment of the
Special Servicer as to which means would be in the best interest of the
Certificateholders by maximizing (to the extent commercially reasonable and
consistent with Section 3.17(b)) the net after-tax REO Revenues received by the
Trust Fund with respect to such property without materially impairing the
Special Servicer's ability to promptly sell such property for a fair price. In
connection with performing their respective duties under this Section 3.17(a),
both the Special Servicer and the Tax Administrator may consult with counsel and
tax accountants, the reasonable cost of
-143-
which consultation shall be covered by, and be reimbursable as, a Servicing
Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property, other than any
_______________ REO Property, which is addressed in Section 3.17A, is acquired,
the Special Servicer shall manage, conserve, protect and operate such REO
Property for the benefit of the Certificateholders solely for the purpose of its
prompt disposition and sale in a manner that does not and will not: (i) cause
such REO Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the
Code; or (ii) except as contemplated by Section 3.17(a), either result in the
receipt by any REMIC Pool of any "income from non-permitted assets" within the
meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event
or an Adverse Grantor Trust Event. Subject to the foregoing, however, the
Special Servicer shall have full power and authority to do any and all things in
connection therewith as are consistent with the Servicing Standard and,
consistent therewith, shall withdraw from the Pool REO Account, to the extent of
amounts on deposit therein with respect to any Administered REO Property, funds
necessary for the proper operation, management, maintenance and disposition of
such REO Property, including:
(i) all insurance premiums due and payable in respect of
such REO Property;
(ii) all real estate taxes and assessments in respect of
such REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property;
and
(iv) all costs and expenses necessary to maintain, lease,
sell, protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the Pool REO Account
in respect of any Administered REO Property are insufficient for the purposes
set forth in the preceding sentence with respect to such REO Property, the
Special Servicer shall make Servicing Advances in such amounts as are necessary
for such purposes unless the Special Servicer determines, in accordance with the
Servicing Standard, that such payment would be a Nonrecoverable Advance;
provided, however, that the Special Servicer may make any such Servicing Advance
without regard to recoverability if it is a necessary fee or expense incurred in
connection with the defense or prosecution of legal proceedings. The Special
Servicer shall notify the Master Servicer if it shall have made any such
Servicing Advance within the previous 30-day period.
(c) Without limiting the generality of the foregoing, the
Special Servicer shall not, with respect to any REO Property (other than the
_______________ REO Property, which is addressed in Section 3.17A):
(i) enter into, renew or extend any New Lease with respect
to any Administered REO Property, if the New Lease, by its terms would
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;
-144-
(iii) authorize or permit any construction on any
Administered REO Property, other than the completion of a building or
other improvement thereon, and then only if more than 10% of the
construction of such building or other improvement was completed before
default on the related Mortgage Loan became imminent, all within the
meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other
than an Independent Contractor, to Directly Operate any Mortgaged
Property as REO Property on any date more than 90 days after the
related REO Acquisition;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Special Servicer as a Servicing
Advance) to the effect that such action would not cause such REO Property to
fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time
that it is held by REMIC I (or, if applicable, the related Loan REMIC), in which
case the Special Servicer may take such actions as are specified in such Opinion
of Counsel.
(d) The Special Servicer may contract with any Independent
Contractor for the operation and management of any Administered REO Property
(other than any _______________ REO Property, which is covered by Section
3.17A), provided that:
(i) the terms and conditions of any such contract shall
not be inconsistent herewith and shall reflect an agreement reached at
arm's length;
(ii) the fees of such Independent Contractor (which shall
be expenses of the Trust Fund) shall be reasonable and customary in
consideration of the nature and locality of such REO Property;
(iii) except as permitted under Section 3.17(a), any such
contract shall require, or shall be administered to require, that the
Independent Contractor, in a timely manner, (A) pay all costs and
expenses incurred in connection with the operation and management of
such REO Property, including those listed in Section 3.17(b) above, and
(B) except to the extent that such revenues are derived from any
services rendered by the Independent Contractor to tenants of such REO
Property that are not customarily furnished or rendered in connection
with the rental of real property (within the meaning of Section
1.856-4(b)(5) of the Treasury regulations or any successor provision),
remit all related revenues collected (net of its fees and such costs
and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d)
relating to any such contract or to actions taken through any such
Independent Contractor shall be deemed to relieve the Special Servicer
of any of its duties and obligations hereunder with respect to the
operation and management of such REO Property; and
(v) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties
and obligations in connection with the operation and management of such
REO Property.
-145-
The Special Servicer shall be entitled to enter into any
agreement with any Independent Contractor performing services for it related to
its duties and obligations under Section 3.16 and this Section 3.17 for
indemnification of the Special Servicer by any such Independent Contractor, and
nothing in this Agreement shall be deemed to limit or modify such
indemnification. No agreement entered into pursuant to this Section 3.17(d)
shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
(e) Notwithstanding anything to the contrary, this Section
3.17 shall not apply to any _______________ REO Property.
SECTION 3.17A. Management and Disposition of the
_______________ Mortgaged Property After
Becoming REO Property.
(a) Prior to the acquisition of title to the _______________
Mortgaged Property, the Special Servicer shall review the operation of such
Mortgaged Property and determine the nature of the income that would be derived
from such property if it were acquired by the Trust Fund. If the Special
Servicer determines from such review that:
(i) None of the income from Directly Operating the
_______________ Mortgaged Property would be subject to an REO Tax, then
such Mortgaged Property may be Directly Operated by the Special
Servicer as REO Property;
(ii) Directly Operating the _______________ Mortgaged
Property as REO Property could result in income from such property that
would be subject to an REO Tax, but that a lease of such property to
another party to operate such property, or the performance of some
services by an Independent Contractor with respect to such property, or
another method of operating such property would not result in income
subject to an REO Tax, then the Special Servicer may (provided, that in
the good faith and reasonable judgment of the Special Servicer, it is
commercially reasonable) acquire such Mortgaged Property as REO
Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating
the _______________ Mortgaged Property as REO Property could result in
income subject to an REO Tax and that no commercially reasonable means
exists to operate such property as REO Property without the Trust Fund
incurring or possibly incurring an REO Tax on income from such
property, the Special Servicer shall deliver to the Tax Administrator,
in writing, a Proposed Plan to manage such property as REO Property.
Such plan shall include potential sources of income, and, to the extent
reasonably possible, estimates of the amount of income from each such
source. Upon request of the Special Servicer, the Tax Administrator
shall advise the Special Servicer of the Tax Administrator's federal
income tax reporting position with respect to the various sources of
income that the Trust Fund would derive under the Proposed Plan. After
receiving the information described in the preceding sentence from the
Tax Administrator, the Special Servicer shall implement the Proposed
Plan (after acquiring the _______________ Mortgaged Property as REO
Property), with any amendments required to be made thereto as a result
of the Tax Administrator's tax reporting position.
The Special Servicer's decision as to how the _______________
REO Property shall be managed and operated shall be based on the Servicing
Standard and, further, based on the good faith and
-146-
reasonable judgment of the Special Servicer as to which means would be in the
best interest of the Certificateholders and the _______________ Companion Loan
Noteholder (as a collective whole) by maximizing (to the extent commercially
reasonable and consistent with Section 3.17A(b)) the net after-tax REO Revenues
received by the Trust Fund with respect to such property without materially
impairing the Special Servicer's ability to promptly sell such property for a
fair price. In connection with performing their respective duties under this
Section 3.17A(a), both the Special Servicer and the Tax Administrator may
consult with counsel and tax accountants, the reasonable cost of which
consultation shall be covered by, and be reimbursable as, a Servicing Advance to
be made by the Special Servicer.
(b) If title to the _______________ Mortgaged Property is
acquired, the Special Servicer shall manage, conserve, protect and operate the
_______________ REO Property for the benefit of the Certificateholders and the
_______________ Companion Loan Noteholder solely for the purpose of its prompt
disposition and sale in a manner that does not and will not: (i) cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or
(ii) except as contemplated by Section 3.17A(a), either result in the receipt by
any REMIC Pool of any "income from non-permitted assets" within the meaning of
Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an
Adverse Grantor Trust Event. Subject to the foregoing, however, the Special
Servicer shall have full power and authority to do any and all things in
connection with the operation, management, maintenance and disposition of such
REO Property as is consistent with the Servicing Standard and shall withdraw
from the related REO Account, to the extent of amounts on deposit therein with
respect to such REO Property, funds necessary for the proper operation,
management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of
the _______________ REO Property;
(ii) all real estate taxes and assessments in respect of
the _______________ REO Property that may result in the imposition of a
lien thereon;
(iii) any ground rents in respect of the _______________
REO Property; and
(iv) all costs and expenses necessary to maintain, lease,
sell, protect, manage, operate and restore the _______________ REO
Property.
To the extent that amounts on deposit in the _______________
REO Account in respect of the _______________ REO Property are insufficient for
the purposes set forth in the preceding sentence with respect to the
_______________ REO Property, the Special Servicer shall make Servicing Advances
in such amounts as are necessary for such purposes unless the Special Servicer
determines, in accordance with the Servicing Standard, that such payment would
be a Nonrecoverable Advance; provided, however, that the Special Servicer may
make any such Servicing Advance without regard to recoverability if it is a
necessary fee or expense incurred in connection with the defense or prosecution
of legal proceedings. The Special Servicer shall notify the Master Servicer if
it shall have made any such Servicing Advance within the previous 30-day period.
(c) Without limiting the generality of the foregoing, the
Special Servicer shall not, with respect to any REO Property that was formerly
the _______________ Mortgaged Property:
-147-
(i) enter into, renew or extend any New Lease, if the New
Lease, by its terms would 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 such
REO Property, other than the completion of a building or other
improvement thereon, and then only if more than 10% of the construction
of such building or other improvement was completed before default on
the related Mortgage Loan became imminent, all within the meaning of
Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other
than an Independent Contractor, to Directly Operate such REO Property
on any date more than 90 days after the related REO Acquisition;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Special Servicer as a Servicing
Advance) to the effect that such action would not cause such REO Property to
fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time
that it is held by a REMIC Pool, in which case the Special Servicer may take
such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent
Contractor for the operation and management of the _______________ REO Property,
provided that:
(i) the terms and conditions of any such contract may not
be inconsistent herewith and shall reflect an agreement reached at
arm's length;
(ii) the fees of such Independent Contractor (which shall
be netted out of collections on the REO Property prior to their being
remitted to the Special Servicer) shall be reasonable and customary in
consideration of the nature and locality of the REO Property;
(iii) any such contract shall require, or shall be
administered to require, that the Independent Contractor, in a timely
manner, (A) pay all costs and expenses incurred in connection with the
operation and management of the REO Property, including those listed in
Section 3.17A(b) above, and (B) except to the extent that such revenues
are derived from any services rendered by the Independent Contractor to
tenants of the REO Property that are not customarily furnished or
rendered in connection with the rental of real property (within the
meaning of Section 1.856-4(b)(5) of the Treasury regulations or any
successor provision), remit all related revenues collected (net of its
fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17A(d)
relating to any such contract or to actions taken through any such
Independent Contractor shall be deemed to relieve the Special Servicer
of any of its duties and obligations hereunder with respect to the
operation and management of the REO Property; and
-148-
(v) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties
and obligations in connection with the operation and management of the
REO Property.
The Special Servicer shall be entitled to enter into any
agreement with any such Independent Contractor performing services for it
related to its duties and obligations hereunder with respect to the
_______________ Mortgaged Property (if it becomes an REO Property) for
indemnification of the Special Servicer by such Independent Contractor, and
nothing in this Agreement shall be deemed to limit or modify such
indemnification. No agreement entered into pursuant to this Section 3.17A(d)
shall be deemed a Sub-Servicing Agreement for purposes of Section 3.22.
SECTION 3.18. Sale of Mortgage Loans and REO Properties.
(a) The Master Servicer, the Special Servicer or the Trustee
may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO
Property only (i) on the terms and subject to the conditions set forth in this
Section 3.18, (ii) as otherwise expressly provided in or contemplated by
Sections 2.03(a) and 9.01 of this Agreement, (iii) in the case of the
_______________ Mortgage Loan, as set forth in Section 4.02 of the
_______________ Co-Lender Agreement, and (iv) in the case of a Mortgage Loan
with a related mezzanine loan, in connection with a Loan default as set forth in
the related intercreditor agreement.
(b) Within five Business Days after any Serviced Mortgage Loan
has become a Specially Serviced Mortgage Loan, the Special Servicer shall give
notice of such event to each holder of a Certificate of the Controlling Class,
the holder of the _______________ Companion Loan (if such Mortgage Loan is part
of the _______________ Loan Pair) and the Trustee. The Special Servicer, any
single Holder or any group of Certificateholders evidencing a majority of the
Voting Rights allocated to the Controlling Class and any assignees of the
foregoing parties (collectively, the "Purchase Option Holders") shall each have
the option to purchase such Specially Serviced Mortgage Loan at a cash price
that is at least equal to the Purchase Price. The Special Servicer shall accept
the first offer by a Purchase Option Holder that is at least equal to the
Purchase Price.
(c) If none of the Purchase Option Holders exercises its
option to purchase any Specially Serviced Mortgage Loan as described in
subsection (b) above, then each Purchase Option Holder will also have the option
to purchase that Specially Serviced Mortgage Loan at a price equal to the fair
value of such Specially Serviced Mortgage Loan (the "FV Price"). Upon receipt of
a request from any Purchase Option Holder to determine the FV Price in
contemplation of its intention to exercise its option to purchase a Specially
Serviced Mortgage Loan at a price that is below the Purchase Price, the Special
Servicer shall promptly obtain an MAI appraisal of the related Mortgaged
Property by an Independent Appraiser (unless such an appraisal was obtained
within one year of such date and the Special Servicer has no knowledge of any
circumstances that would materially affect the validity of such appraisal).
Promptly after obtaining such appraisal, the Special Servicer shall determine
the FV Price in accordance with the Servicing Standard and the provisions of
subsection (i) below. Promptly after determining the FV Price, the Special
Servicer shall report such FV Price to the Trustee and each Purchase Option
Holder.
(d) In the event that the Special Servicer determines that it
is willing, or another Purchase Option Holder notifies the Special Servicer that
it is willing, to purchase any Specially Serviced Mortgage Loan (the party
submitting such bid, the "Initial Bidder") at a price equal to or above
-149-
the FV Price (a "FV Bid"), the Special Servicer shall notify all other Purchase
Option Holders that it has made or received, as the case may be, such FV Bid
(without disclosing the amount of such FV Bid). All other Purchase Option
Holders may submit competing bids within the ten Business Day period following
such notice. At the conclusion of the above-described ten Business Day period,
the Special Servicer shall accept the highest bid received from any Purchase
Option Holder that is at least equal to the FV Price.
(e) If the Special Servicer accepts the bid of any Purchase
Option Holder, such Purchase Option Holder shall be required to purchase the
subject Specially Serviced Mortgage Loan within ten Business Days of receipt of
notice of such acceptance.
(f) If the Special Servicer has not accepted a FV Bid prior to
the expiration of 120 days from its determination of the FV Price and thereafter
receives a FV Bid or a request from a Purchase Option Holder for an updated FV
Price, the Special Servicer shall within 45 days recalculate the FV Price (with
no presumption that such FV Price should be reduced on account of the lack of an
FV Bid) and repeat the notice and bidding procedure provided in subsection (d)
above until the purchase option terminates under subsection (j) below.
(g) If the party exercising the purchase option at the FV
Price for any Specially Serviced Mortgage Loan is the Special Servicer or an
Affiliate thereof, the Trustee shall verify that the FV Price is at least equal
to the fair value of such Mortgage Loan. In determining whether the FV Price is
at least equal to the fair value of such Mortgage Loan the Trustee will be
permitted to conclusively rely on an appraisal obtained by the Trustee from an
Independent Appraiser at the time it is required to verify the FV Price and/or
the opinion of an Independent expert in real estate matters (including the
Master Servicer) with at least 5 years' experience in valuing or investing in
loans, similar to such Mortgage Loan, that has been selected by the Trustee with
reasonable care at the expense of the Trust Fund.
(h) Any Purchase Option Holder may, once such option is
exercisable, assign its purchase option with respect to any Specially Serviced
Mortgage Loan to a third party other than another Purchase Option Holder and
upon such assignment such third party shall have all of the rights that had been
granted to the Purchase Option Holder hereunder in respect of the purchase
option. Such assignment shall only be effective upon written notice (together
with a copy of the executed assignment and assumption agreement) being delivered
to the Trustee, the Master Servicer and the Special Servicer.
(i) In determining the FV Price for any Specially Serviced
Mortgage Loan, the Special Servicer may take into account, among other factors,
the results of any appraisal or updated appraisal that it or the Master Servicer
may have obtained in accordance with this Agreement within the prior twelve
months; the opinions on fair value expressed by Independent investors in
mortgage loans comparable to the subject Specially Serviced Mortgage Loan; the
period and amount of any delinquency on the subject Specially Serviced Mortgage
Loan; the physical condition of the related Mortgaged Property; the state of the
local economy; and the expected recoveries from the subject Specially Serviced
Mortgage Loan if the Special Servicer were to pursue a workout or foreclosure
strategy instead of selling such Mortgage Loan to a Purchase Option Holder.
(j) The purchase option for any Specially Serviced Mortgage
Loan pursuant to this Section 3.18 shall terminate, and shall not be exercisable
as set forth in subsections (b) and (c) above (or if exercised, but the purchase
of the subject Mortgage Loan has not yet occurred, shall terminate and be
-150-
of no further force or effect) if (i) the Special Servicer has accepted a FV
Bid, (ii) if such Specially Serviced Mortgage Loan has become a Corrected
Mortgage Loan, (iii) the related Mortgaged Property has become an REO Property
or (iv) a Final Recovery Determination has been made with respect to such
Specially Serviced Mortgage Loan.
(k) Until such time as a FV Bid is accepted, the Special
Servicer shall continue to pursue all of the other resolution options available
to it with respect to the Specially Serviced Mortgage Loan in accordance with
the Servicing Standard.
(l) Notwithstanding anything to the contrary herein, the
holders of the _______________ Companion Loan shall be entitled to purchase the
respective Mortgage Loan that is part of the same Loan Pair in accordance with
the terms and conditions set forth in Section 4.02 of the _______________
Co-Lender Agreement. The Master Servicer or the Special Servicer, as applicable,
shall determine the price to be paid in accordance with the terms of the
respective Co-Lender Agreement in connection with any such purchase and shall
provide such notices to the respective Companion Loan Noteholders as are
required by the respective Co-Lender Agreements in connection with such holders'
purchase rights.
(m) Any purchase of a Specially Serviced Mortgage Loan that is
purchased pursuant to this Section 3.18 will remain subject to the cure and
purchase rights of, in each case if applicable, the _______________ Companion
Loan Noteholder as set forth in the _______________ Co-Lender Agreement and any
holder of a related mezzanine loan in connection with a Loan default as set
forth in the related intercreditor agreement.
(n) The Special Servicer shall use its best efforts to solicit
bids for each Administered REO Property in such manner as will be reasonably
likely to realize a fair price within the time period provided for by Section
3.16(a). Subject to Sections 6.11 and 6.11A, the Special Servicer shall accept
the first (and, if multiple bids are received contemporaneously or subsequently,
the highest) cash bid received from any Person that constitutes a fair price for
such REO Property. If the Special Servicer reasonably believes that it will be
unable to realize a fair price for any Administered REO Property within the time
constraints imposed by Section 3.16(a), then (subject to Section 6.11 or 6.11A,
as applicable) the Special Servicer shall dispose of such REO Property upon such
terms and conditions as the Special Servicer shall deem necessary and desirable
to maximize the recovery thereon under the circumstances and, in connection
therewith, shall accept the highest outstanding cash bid, regardless of from
whom received.
(o) The Special Servicer shall give the Trustee and the
Depositor prior written notice of its intention to sell any Administered REO
Property pursuant to this Section 3.18.
(p) No Interested Person shall be obligated to submit a bid to
purchase any Administered REO Property, and notwithstanding anything to the
contrary herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may bid for or purchase any Administered REO Property pursuant
hereto.
(q) Whether any cash bid constitutes a fair price for any
Administered REO Property for purposes of this Section 3.18, shall be determined
by the Special Servicer or, if such cash bid is from an Interested Person, by
the Trustee. In determining whether any bid received from an Interested Person
represents a fair price for any Administered REO Property, the Trustee shall be
supplied with and shall
-151-
be entitled to rely on the most recent appraisal in the related Servicing File
conducted in accordance with this Agreement within the preceding 12-month period
(or, in the absence of any such appraisal or if there has been a material change
at the subject property since any such appraisal, on a new appraisal to be
obtained by the Special Servicer (the cost of which shall be covered by, and be
reimbursable as, a Servicing Advance)). The appraiser conducting any such new
appraisal shall be an Independent Appraiser selected by the Special Servicer if
neither the Special Servicer nor any Affiliate thereof is bidding with respect
to an Administered REO Property and selected by the Trustee if either the
Special Servicer or any Affiliate thereof is so bidding. Where any Interested
Person is among those bidding with respect to an Administered REO Property, the
Special Servicer shall require that all bids be submitted to it (and, if the
Special Servicer or any Affiliate thereof is bidding, to the Trustee) in writing
and be accompanied by a refundable deposit of cash in an amount equal to 5% of
the bid amount. In determining whether any bid from a Person other than an
Interested Person constitutes a fair price for any Administered REO Property,
the Special Servicer shall take into account the results of any appraisal or
updated appraisal that it or the Master Servicer may have obtained in accordance
with this Agreement within the prior twelve months, and any Independent
Appraiser shall be instructed to take into account, as applicable, among other
factors, the occupancy level and physical condition of the subject REO Property,
the state of the local economy and the obligation to dispose of the subject REO
Property within the time period specified in Section 3.16(a). The Purchase Price
for any Administered REO Property shall in all cases be deemed a fair price.
Notwithstanding the other provisions of this Section 3.18, no cash bid from the
Special Servicer or any Affiliate thereof shall constitute a fair price for any
Administered REO Property unless such bid is the highest cash bid received and
at least two independent bids (not including the bid of the Special Servicer or
any Affiliate) have been received. In the event the bid of the Special Servicer
or any Affiliate thereof is the only bid received or is the higher of only two
bids received, then additional bids shall be solicited. If an additional bid or
bids, as the case may be, are received and the original bid of the Special
Servicer or any Affiliate thereof is the highest of all cash bids received, then
the bid of the Special Servicer or such Affiliate shall be accepted, provided
that the Trustee has otherwise determined, as provided above in this Section
3.18(q), that such bid constitutes a fair price for any Administered REO
Property. Any bid by the Special Servicer shall be unconditional; and, if
accepted, the subject Administered REO Property shall be transferred to the
Special Servicer without recourse, representation or warranty other than
customary representations as to title given in connection with the sale of a
real property.
(r) Subject to Sections 3.18(a) through 3.18(q) above, and
further subject to Section 6.11 and Section 6.11A, the Special Servicer shall
act on behalf of the Trustee in negotiating with independent third parties
seeking to purchase an Administered REO Property and taking any other action
necessary or appropriate in connection with the sale of any Specially Serviced
Mortgage Loan or Administered REO Property pursuant to this Section 3.18, and
the collection of all amounts payable in connection therewith. In connection
therewith, the Special Servicer may charge prospective bidders for any
Administered REO Property, and may retain, fees that approximate the Special
Servicer's actual costs in the preparation and delivery of information
pertaining to, or evaluating bids for, such Administered REO Property without
obligation to deposit such amounts into the Pool Custodial Account. Any sale of
a Specially Serviced Mortgage Loan or an Administered REO Property pursuant to
this Section 3.18 shall be final and without recourse to the Trustee or the
Trust, and if such sale is consummated in accordance with the terms of this
Agreement, neither the Special Servicer nor the Trustee shall have any liability
to any Certificateholder with respect to the purchase price therefor accepted by
the Special Servicer or the Trustee.
-152-
(s) Any sale of a Specially Serviced Mortgage Loan or an
Administered REO Property pursuant to this Section 3.18 shall be for cash only
and shall be on a servicing released basis.
SECTION 3.19. Additional Obligations of the Master Servicer;
Obligations to Notify Ground Lessors; the
Special Servicer's Right to Request the Master
Servicer to Make Servicing Advances.
(a) The Master Servicer shall deliver to the Trustee for
deposit in the Collection Account on each Master Servicer Remittance Date,
without any right of reimbursement therefor, an amount equal to the lesser of
(i) the aggregate amount of all Prepayment Interest Shortfalls, if any, incurred
in connection with Principal Prepayments received during the most recently ended
Collection Period with respect to Performing Serviced Mortgage Loans and/or the
_______________ Mortgage Loan (so long as it was not being specially serviced
under the _______________ Servicing Agreement at the time the subject Principal
Prepayment was allowed) and (ii) the sum of (1) the aggregate of all Master
Servicing Fees received by the Master Servicer during such Collection Period
with respect to the entire Mortgage Pool (but only to the extent of that portion
thereof calculated at a rate of [0.025]% per annum with respect to each and
every Serviced Mortgage Loan and each and every REO Mortgage Loan that was
previously a Serviced Mortgage Loan) and (2) the aggregate amount of Prepayment
Interest Excesses received in respect of the entire Mortgage Pool during such
Collection Period; provided, however, that if any Prepayment Interest Shortfall
occurs as a result of the Master Servicer's allowing the Mortgagor to deviate
from the terms of the related loan documents regarding principal prepayments,
the Master Servicer shall be obligated to pay an amount equal to the entire
Prepayment Interest Shortfall with respect to the subject Serviced Mortgage Loan
without any limitation of the kind set forth in clauses (1) and (2) above. For
purposes of this Section 3.19(a), the term "Collection Period" shall, with
respect to the _______________ Mortgage Loan, have the meaning assigned thereto
in the _______________ Servicing Agreement.
(b) The Master Servicer shall, as to each Serviced Loan which
is secured by the interest of the related Mortgagor under a Ground Lease,
promptly (and in any event within 60 days) following the Closing Date, notify
the related ground lessor of the transfer of such Serviced Loan to the Trust
Fund pursuant to this Agreement and inform such ground lessor that any notices
of default under the related Ground Lease should thereafter be forwarded to the
Master Servicer.
(c) Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer is required under this Agreement to make any
Servicing Advance but does not desire to do so, the Special Servicer may, in its
sole discretion, request that the Master Servicer make such Servicing Advance,
such request to be made, in writing, at least five (5) Business Days (or, in an
emergency situation or on an urgent basis, two (2) Business Days, provided that
the written request set forth the nature of the emergency or the basis of the
urgency) in advance of the date on which such Servicing Advance is required to
be made hereunder and to be accompanied by such information and documentation
regarding the subject Servicing Advance as the Master Servicer may reasonably
request. The Master Servicer shall have the obligation to make any such
Servicing Advance that it is so requested by the Special Servicer to make,
within five (5) Business Days (or, in an emergency situation or on an urgent
basis, two (2) Business Days) of the Master Servicer's receipt of such request.
If the request is timely and properly made, the Special Servicer shall be
relieved of any obligations with respect to a Servicing Advance that it so
requests the Master Servicer to make (regardless of whether or not the Master
Servicer shall make such Servicing Advance). The Master Servicer shall be
entitled to
-153-
reimbursement for any Servicing Advance made by it at the direction
of the Special Servicer, together with interest thereon in accordance with
Sections 3.05(a), 3.05A and 3.11(g), as applicable, at the same time, in the
same manner and to the same extent as the Master Servicer is entitled with
respect to any other Servicing Advances made thereby.
Notwithstanding the foregoing provisions of this Section
3.19(c), the Master Servicer shall not be required to make at the direction of
the Special Servicer, any Servicing Advance if the Master Servicer determines in
its reasonable, good faith judgment that such Servicing Advance, although not
characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is
in fact a Nonrecoverable Servicing Advance. The Master Servicer shall notify the
Special Servicer in writing of such determination, which shall be made pursuant
to Section 3.11(h). Any request by the Special Servicer that the Master Servicer
make a Servicing Advance shall be deemed to be a determination by the Special
Servicer that such requested Servicing Advance is not a Nonrecoverable Servicing
Advance, and the Master Servicer, the Trustee and the Fiscal Agent shall be
entitled to conclusively rely on such determination. Upon determining that any
Servicing Advance previously made with respect to a Specially Serviced Loan or
REO Loan is a Nonrecoverable Servicing Advance, the Special Servicer shall
report to the Master Servicer the Special Servicer's determination. The Master
Servicer shall be entitled to conclusively rely on such a determination.
SECTION 3.20. Modifications, Waivers, Amendments and Consents;
Defeasance.
(a) Subject to Sections 3.20(b) through 3.20(f) and 3.20(l)
below, and further subject to Section 6.11 or 6.11A as applicable, the Special
Servicer (or, under the limited circumstances set forth in Section 3.20(c), the
Master Servicer) may, on behalf of the Trustee and, in the case of the
_______________ Companion Loan, the _______________ Companion Loan Noteholder,
agree to any modification, extension, waiver or amendment of any term of any
Serviced Loan and respond to various Mortgagor requests for consent on the part
of the mortgagee (including the lease reviews and lease consents related
thereto), without the consent of the Trustee, any Certificateholder, the
_______________ Companion Loan Noteholder, the Master Servicer (in the case of
any such action taken by the Special Servicer) or, except as expressly set forth
below, the Special Servicer (in the case of any such action taken by the Master
Servicer).
(b) All modifications, extensions, waivers or amendments of
any Serviced Loan, including the lease reviews and lease consents related
thereto, shall be in writing and shall be considered and effected in a manner
consistent with the Servicing Standard.
(c) In the case of any Performing Serviced Loan, and subject
to the rights of the Special Servicer set forth below, the Master Servicer shall
be responsible for responding to any request by a Mortgagor for the consent or
approval of the mortgagee with respect to a modification, extension, waiver or
amendment of any term thereof, provided that such consent or approval or such
modification, extension, waiver or amendment would not (except as permitted by
Sections 3.02(a), 3.03(d), 3.08(a) and 3.20(l) hereof) affect the amount or
timing of any of the payment terms of such Loan (including payment terms related
to late payment charges), result in the release of the related Mortgagor from
any material term thereunder, waive any rights thereunder with respect to any
guarantor thereof, relate to the release, addition or substitution of any
material collateral for such Loan or relate to any waiver of or granting of
consent under a "due-on-sale" or "due-on-encumbrance" clause. With respect to
any action proposed to be taken by the Master Servicer under this Section
3.20(c) where the thresholds in clauses
-154-
(i) through (v) of the next sentence are exceeded, or which involves the
situations set forth in the proviso to the previous sentence, the Special
Servicer only may take such action. To the extent consistent with the foregoing,
but subject to Section 3.20(f), the Master Servicer shall also be responsible
for the following with respect to the Performing Serviced Loans:
(i) Approving any waiver affecting the timing of receipt
of financial statements from any Mortgagor, provided that such
financial statements are delivered no less than quarterly and within 60
days of the end of the calendar quarter to which such financial
statements relate;
(ii) Approving routine leasing activity with respect to
leases for less than the lesser of (A) 50,000 square feet and (B) 20%
of the related Mortgaged Property;
(iii) Approving a transfer of equity in a Mortgagor from
one current equity holder to another, provided that such transfer of
equity does not (A) affect (if applicable) the status of such Mortgagor
or such equity holder as a special purpose, bankruptcy-remote entity,
(B) result in a change of control of such Mortgagor, (C) cause the
transferee to hold more than 49% of the equity in such Mortgagor, (D)
relate to a Serviced Mortgage Loan that represents 2% or more of the
then aggregate principal balance of the Mortgage Pool or (E) relate to
the _______________ Loan Pair;
(iv) Approving annual budgets for the related Mortgaged
Property, provided that no such budget (A) relates to a fiscal year in
which an Anticipated Repayment Date occurs, (B) provides for the
payment of operating expenses in an amount equal to more than 110% of
the amounts budgeted therefor for the prior year or (C) provides for
the payment of any material expenses to any affiliate of the Mortgagor
(other than with respect to the payment of the management fee to any
property manager if such management fee is no more than the management
fee in effect on the Cut-off Date (or, with respect to the
_______________ Mortgage Loan, the origination date)); and
(v) Approving a change of the property manager at the
request of the related Mortgagor, provided that (A) the successor
property manager is not affiliated with the Mortgagor and is a
nationally or regionally recognized manager of similar properties, (B)
the related Serviced Mortgage Loan does not represent 2% or more of the
then aggregate principal balance of the Mortgage Pool and (C) the
_______________ Mortgaged Property is not involved.
Except as permitted by Section 3.02(a), Section 3.03(d),
Section 3.08(a), this Section 3.20(c) and Section 3.20(l) the Master Servicer
may not agree to waive, modify or amend any term of any Serviced Loan or respond
to any Mortgagor requests for mortgagee consent. Furthermore, the Master
Servicer may not agree to any modification, extension, waiver or amendment of
any term of any Mortgage Loan that would cause an Adverse REMIC Event with
respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the
Grantor Trust.
(d) Except as provided in Section 3.02(a), Section 3.08 or
Section 3.20(e), the Special Servicer, on behalf of the Trustee and, in the case
of the _______________ Companion Loan, the _______________ Companion Loan
Noteholder, shall not agree or consent to any modification, extension, waiver or
amendment of any term of any Serviced Loan that would:
-155-
(i) affect the amount or timing of any scheduled payment
of principal, interest or other amount (including Prepayment Premiums
or Yield Maintenance Charges, but excluding Default Interest and other
amounts payable as additional servicing compensation) payable
thereunder;
(ii) affect the obligation of the related Mortgagor to pay
a Prepayment Premium or Yield Maintenance Charge or effect the waiver
of any prepayment restriction thereunder or permit a Principal
Prepayment during any period in which the related Mortgage Note
prohibits Principal Prepayments;
(iii) except as expressly contemplated by the related
Mortgage or pursuant to Section 3.09(d), result in a release of the
lien of the Mortgage on any material portion of the related Mortgaged
Property without a corresponding Principal Prepayment in an amount not
less than the fair market value (as determined by an appraisal by an
Independent Appraiser delivered to the Special Servicer at the expense
of the related Mortgagor and upon which the Special Servicer may
conclusively rely) of the property to be released; or
(iv) in the reasonable, good faith judgment of the Special
Servicer, otherwise materially impair the security for such Loan or
reduce the likelihood of timely payment of amounts due thereon.
(e) Notwithstanding Section 3.20(d), but subject to Section
6.11, Section 6.11A and the second paragraph of this Section 3.20(e), the
Special Servicer may (i) reduce the amounts owing under any Specially Serviced
Loan by forgiving principal, accrued interest, Additional Interest or any
Prepayment Premium or Yield Maintenance Charge, (ii) reduce the amount of the
Monthly Payment on any Specially Serviced Loan, including by way of a reduction
in the related Mortgage Rate, (iii) forbear in the enforcement of any right
granted under any Mortgage Note, Mortgage or other loan document relating to a
Specially Serviced Loan, (iv) accept a Principal Prepayment on any Specially
Serviced Loan during any Lockout Period or (v) extend the maturity of any
Specially Serviced Loan; provided that (A) the related Mortgagor is in monetary
default or material non-monetary default with respect to such Specially Serviced
Loan or, in the reasonable, good faith judgment of the Special Servicer, such
default is reasonably foreseeable, (B) in the reasonable, good faith judgment of
the Special Servicer, such modification, extension, waiver or amendment would
increase the recovery on such Specially Serviced Loan to Certificateholders (as
a collective whole) or, if the _______________ Loan Pair is involved, would
increase the recovery on the _______________ Loan Pair to Certificateholders and
the _______________ Companion Loan Noteholder (as a collective whole), on a
present value basis (the relevant discounting of anticipated collections that
will be distributable to the Certificateholders (or, in the case of the
_______________ Loan Pair, to Certificateholders and the _______________
Companion Loan Noteholder), to be performed at the related Mortgage Rate (or, in
the case of the _______________ Loan Pair, at the weighted average of the
Mortgage Rates for the Loan Pair)), and (C) such modification, extension, waiver
or amendment would not cause an Adverse REMIC Event in respect of any REMIC Pool
or an Adverse Grantor Trust Event with respect to the Grantor Trust; and
provided, further, that (i) any modification, extension, waiver or amendment of
the payment terms of the _______________ Loan Pair shall be structured so as to
be consistent with the allocation and payment priorities set forth in the
related loan documents and the Co-Lender Agreement, such that neither the Trust
as holder of the related Mortgage Loan nor the _______________ Companion Loan
Noteholder shall gain a priority over the other such holder with respect to any
payment, which priority is not, as of
-156-
the date of the _______________ Co-Lender Agreement, reflected in the related
loan documents and such Co-Lender Agreement, and (ii) to the extent consistent
with the Servicing Standard (taking into account the extent to which the
_______________ Companion Loan is junior to the related Mortgage Loan), (A) no
waiver, reduction or deferral of any particular amounts due on the related
Mortgage Loan shall be effected prior to the waiver, reduction or deferral of
the entire corresponding item in respect of the _______________ Companion Loan,
and (B) no reduction of the Mortgage Rate of the Mortgage Loan (excluding, if
applicable, the portion thereof comprised of the Additional Interest Rate
following the related Anticipated Repayment Date) shall be effected prior to the
reduction of the Mortgage Rate of the _______________ Companion Loan (excluding,
if applicable, the portion thereof comprised of the Additional Interest Rate
following the related Anticipated Repayment Date) to the maximum extent
possible.
In no event shall the Special Servicer: (i) extend the
maturity date of a Serviced Loan beyond the date that is two years prior to the
last Rated Final Distribution Date; (ii) extend the maturity date of any
Serviced Loan for more than five years beyond its Stated Maturity Date; or (iii)
if the Serviced Loan is secured solely or primarily by a Mortgage on the
leasehold interest under a Ground Lease (but not the related fee interest),
extend the maturity date of such Serviced Loan beyond the date which is 20 years
(or, to the extent consistent with the Servicing Standard, giving due
consideration to the remaining term of the Ground Lease, 10 years) prior to the
expiration of the term of such Ground Lease.
The determination of the Special Servicer contemplated by
clause (B) of the proviso to the first paragraph of this Section 3.20(e) shall
be evidenced by an Officer's Certificate to such effect delivered to the Trustee
and the Master Servicer (and, in the case of the _______________ Loan Pair, the
_______________ Companion Loan Noteholder) and describing in reasonable detail
the basis for the Special Servicer's determination. The Special Servicer shall
attach to such Officer's Certificate any information including but not limited
to income and expense statements, rent rolls, property inspection reports and
appraisals that support such determination.
(f) Notwithstanding anything to the contrary in this
Agreement, none of the Trustee, the Master Servicer or the Special Servicer, as
applicable, shall give any consent, approval or direction regarding the
termination of the related property manager or the designation of any
replacement property manager or, if such Mortgaged Property is hospitality
property, give any consent, approval or direction regarding the termination of
the franchise or the designation of a new franchise, with respect to any
Mortgaged Property that secures either (A) the _______________ Companion Loan or
(B) a Serviced Mortgage Loan that has an unpaid principal balance that is at
least equal to the lesser of $20,000,000 and 2% of the then aggregate principal
balance of the Mortgage Pool, unless: (1) the mortgagee is not given discretion
under the terms of the related Loan; or (2) it has received prior written
confirmation from each Rating Agency that such action will not result in an
Adverse Rating Event.
Any party hereto seeking Rating Agency confirmation with
respect to the matters described above shall deliver a Review Package to such
Rating Agency.
(g) Any payment of interest that is deferred pursuant to any
modification, extension, waiver or amendment permitted hereunder, shall not, for
purposes hereof, including calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Loan, notwithstanding that the terms of such
modification, extension, waiver or
-157-
amendment so permit. The foregoing shall in no way limit the Special Servicer's
ability to charge and collect from the Mortgagor costs otherwise collectible
under the terms of the related Mortgage Note.
(h) The Special Servicer or Master Servicer may, as a
condition to granting any request by a Mortgagor for consent, modification,
extension, waiver or indulgence or any other matter or thing, the granting of
which is within its discretion pursuant to the terms of the instruments
evidencing or securing the related Loan and, further, by the terms of this
Agreement and applicable law, require that such Mortgagor pay to it (i) as
additional servicing compensation, a reasonable or customary fee for the
additional services performed in connection with such request, and (ii) any
related costs and expenses incurred by it. Any such fee that is to be shared by
the Master Servicer and the Special Servicer may not be waived or reduced by
either such party without the consent of the other party. In no event shall the
Special Servicer or Master Servicer be entitled to payment for such fees or
expenses unless such payment is collected from the related Mortgagor.
(i) The Special Servicer and Master Servicer shall each notify
the other, any related Sub-Servicers, the Trustee and, where the _______________
Companion Loan is affected, the _______________ Companion Loan Noteholder, in
writing, of any modification, extension, waiver or amendment of any term of any
Loan (including fees charged the Mortgagor) agreed to by it and the date
thereof, and shall deliver to the Trustee or any related Custodian for deposit
in the related Mortgage File (with a copy to be delivered to or retained by, as
applicable, the Master Servicer), an executed counterpart of the agreement
relating to such modification, extension, waiver or amendment promptly following
execution and delivery thereof, to be followed by an original recorded
counterpart promptly following the recordation (and receipt) thereof.
(j) To the extent that either the Master Servicer or Special
Servicer waives any Default Charge in respect of any Serviced Loan, whether
pursuant to Section 3.02(a) or this Section 3.20, the respective amounts of
additional servicing compensation payable to the Master Servicer and the Special
Servicer as Net Default Charges out of such Default Charges shall be reduced
proportionately based upon the respective amounts that would have been payable
thereto as Net Default Charges out of such Default Charges if such waiver had
not been granted.
(k) If, with respect to any Loan under which the lender can
require defeasance in lieu of prepayment, the Master Servicer shall receive a
notice from the related Mortgagor that it intends to prepay such Loan in
accordance with the terms thereof, then, except as set forth below, the Master
Servicer shall, subject to the next paragraph and the related loan documents,
(i) promptly respond to such notice in a manner which would require that the
Mortgagor pledge Defeasance Collateral in lieu of such prepayment pursuant to
the terms of the related Mortgage Note, (ii) notify each Rating Agency, the
Trustee, the Underwriters and the Special Servicer of its request to the
Mortgagor to defease such Loan and (iii) upon the written confirmation from each
Rating Agency (which confirmation shall not be required from (A) _____ in the
case of a Mortgage Loan with an unpaid principal balance less than or equal to
$20,000,000 or that constitutes less than 5% of the aggregate unpaid principal
balance of the Mortgage Pool (whichever is less), or in the case of a Mortgage
Loan that is not then one of the ten largest (measured by unpaid principal
balance) Mortgage Loans in the Mortgage Pool, provided the Master Servicer
delivers to _____ a certification in the form attached hereto as Exhibit M (a
"Defeasance Certificate"), or (B) [_________ in the case of any Mortgage Loan
that is not then one of the ten largest (measured by unpaid principal balance)
Mortgage Loans in the Mortgage Pool or that is not then one of the ten largest
groups (measured by aggregate unpaid principal balance) of Mortgage
-158-
Loans with related Mortgagors]; provided that, in the case of (A) or (B) above,
such written confirmation shall not be required from _____ (provided the Master
Servicer delivers a Defeasance Certificate to _____) and/or _________, as
applicable, in the event the subject Mortgage Loan complies with the then
current applicable guidelines set forth by such Rating Agency, or the unpaid
principal balance of such Mortgage Loan, the percentage such Mortgage Loan
constitutes of the Mortgage Pool or the relative size of such Mortgage Loan with
respect to the Mortgage Pool, as applicable, does not exceed the current
applicable threshold for review as set forth by such Rating Agency) that the
acceptance of a pledge of the Defeasance Collateral in lieu of a full prepayment
will not result in an Adverse Rating Event, take such further action as provided
in such Mortgage Note to effectuate such defeasance, including the purchase and
perfection of the Defeasance Collateral on behalf of the Trustee (as mortgagee
of record on behalf of the Certificateholders and, in the case of the
_______________ Companion Loan, the _______________ Companion Loan Noteholder).
Notwithstanding the foregoing, but subject to the related loan
documents, the Master Servicer shall not permit a pledge of Defeasance
Collateral under a Defeasance Loan if (i) such defeasance would occur within two
years of the Startup Day, (ii) if the defeasance collateral shall not be
Government Securities; (iii) such Defeasance Loan (or any applicable agreement
executed in connection with the related defeasance) provides that the Mortgagor
shall be liable for any shortfalls from such Defeasance Collateral or otherwise
be subject to recourse liability with respect to the Defeasance Loan (except for
any liability that, pursuant to the terms of the related loan documents,
survives such defeasance), (iv) all costs to be incurred in connection with such
defeasance (including Rating Agency fees, accountants' fees and costs incurred
in connection with any required opinions of counsel) would not be paid by the
related Mortgagor, or (v) unless such confirmation is not required pursuant to
the first paragraph of this Section 3.20(k), either Rating Agency does not
confirm in writing to the Master Servicer that the acceptance of a pledge of the
Defeasance Collateral in lieu of a full prepayment will not result in an Adverse
Rating Event.
All expenses related to the defeasance of a Defeasance Loan
shall be charged to the related Mortgagor or other responsible party.
(l) With respect to any ARD Loan (other than the
_______________ Mortgage Loan) after its Anticipated Repayment Date, the Master
Servicer shall be permitted, in its discretion, to waive (such waiver to be in
writing addressed to the related Mortgagor, with a copy to the Trustee) all or
any portion of the accrued Additional Interest on such ARD Loan if (i) such ARD
Loan is not a Specially Serviced Loan (on which the Special Servicer may waive
accrued Additional Interest pursuant to Section 3.20(e)), (ii) prior to the
related maturity date, the related Mortgagor has requested the right to prepay
such ARD Loan in full together with all payments required under such ARD Loan in
connection with such prepayment (except for all or a portion of such accrued
Additional Interest), and (iii) the Master Servicer has determined, in its
reasonable, good faith judgment, that the waiver of the Trust's right to receive
such accrued Additional Interest is reasonably likely to produce a greater
payment to Certificateholders (as a collective whole) (or, if the
_______________ Loan Pair is involved, to produce a greater payment to the
Certificateholders and the _______________ Companion Loan Noteholder (as a
collective whole)) on a present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders (or, in
the case of the _______________ Loan Pair, to Certificateholders and the
_______________ Companion Loan Noteholder) to be performed at the related
Mortgage Rate (or, in the case of the _______________ Loan Pair, at the weighted
average of the Mortgage Rates of such Loan Pair) than a refusal to waive the
right to such Additional Interest;
-159-
provided that any such waiver of Additional Interest accrued on the ___________
_______________ Loan Pair shall be structured so as to be consistent with the
allocation and payment priorities set forth in the related loan documents and
the _______________ Co-Lender Agreement, such that the _______________ Companion
Loan Noteholder shall not gain any priority over the Trust as holder of the
_______________ Mortgage Loan with respect to the payment of such Additional
Interest. The Master Servicer shall have no liability to the Trust, the
Certificateholders or any other Person so long as such determination is
exercised in accordance with the Servicing Standard.
SECTION 3.21. Transfer of Servicing Between Master Servicer
and Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has
occurred with respect to any Performing Serviced Loan, and if the Master
Servicer is not also the Special Servicer, the Master Servicer shall immediately
give notice thereof, and shall deliver a copy of the related Servicing File, to
the Special Servicer and shall use reasonable efforts to provide the Special
Servicer with all information, documents (or copies thereof) and records
(including records stored electronically on computer tapes, magnetic discs and
the like) relating to such Loan, either in the Master Servicer's or any of its
directors', officers', employees', affiliates' or agents' possession or control
or otherwise available to the Master Servicer without undue burden or expense,
and reasonably requested by the Special Servicer to enable it to assume its
functions hereunder with respect thereto without acting through a Sub-Servicer.
The Master Servicer shall use reasonable efforts to comply with the preceding
sentence within five Business Days of the occurrence of each related Servicing
Transfer Event; provided, however, that if the information, documents and
records requested by the Special Servicer are not contained in the Servicing
File, the Master Servicer shall have such period of time as reasonably necessary
to make such delivery. The Special Servicer may conclusively rely on the Master
Servicer's determination that a Servicing Transfer Event has occurred giving
rise to a Serviced Loan's becoming a Specially Serviced Loan. The Special
Servicer shall not be liable or in default hereunder for any reasonable act or
failure to act because of or arising out of the Master Servicer's failure to
deliver information, documents or records with respect to any Specially Serviced
Loan in accordance with the requirements hereof.
Upon determining that a Specially Serviced Loan has become a
Corrected Loan, and if the Master Servicer is not also the Special Servicer, the
Special Servicer shall immediately give notice thereof, and shall within five
Business Days of such occurrence return the related Servicing File, together
with any and all new information, documents and records relating to the subject
Loan that were not part of the Servicing File when it was delivered to the
Special Servicer, to the Master Servicer (or such other Person as may be
directed by the Master Servicer) and upon giving such notice, and returning such
Servicing File, to the Master Servicer (or such other Person as may be directed
by the Master Servicer), the Special Servicer's obligation to service such Loan,
and the Special Servicer's right to receive the Special Servicing Fee with
respect to such Loan shall terminate, and the obligations of the Master Servicer
to service and administer such Loan shall resume.
Notwithstanding anything herein to the contrary, in connection
with the transfer to the Special Servicer of the servicing of a
Cross-Collateralized Mortgage Loan as a result of a Servicing Transfer Event or
the re-assumption of servicing responsibilities by the Master Servicer with
respect to any such Mortgage Loan upon its becoming a Corrected Loan, the Master
Servicer and the Special Servicer shall each transfer to the other, as and when
applicable, the servicing of all other Cross-Collateralized Mortgage Loans
constituting part of the same Cross-Collateralized Group; provided that
-160-
no Cross-Collateralized Mortgage Loan may become a Corrected Loan at anytime
that a continuing Servicing Transfer Event exists with respect to another
Cross-Collateralized Mortgage Loan in the same Cross-Collateralized Group.
(b) In servicing any Specially Serviced Loans, the Special
Servicer shall provide to the Custodian originals of newly executed documents
included within the definition of "Mortgage File" for inclusion in the related
Mortgage File (with a copy of each such original to the Master Servicer), and
shall provide to the Master Servicer copies of any additional related Loan
information, including correspondence with the related Mortgagor.
(c) Upon request (and to the extent not otherwise already
provided by the Special Servicer pursuant to its reporting obligations
hereunder), the Special Servicer shall deliver to the Master Servicer, the
Trustee and each Rating Agency (or such other Person as may be directed by the
Master Servicer) a statement in writing and in computer readable format (the
form of such statement to be agreed upon by the Master Servicer and the Special
Servicer) describing, on a loan-by-loan and property-by-property basis, (1)
insofar as it relates to Specially Serviced Loans and REO Properties, the
information described in clauses (vi) through (xv) of Section 4.02(a) (with
respect to information set forth in such clauses related to prior Distribution
Dates and/or periods, the Special Servicer may conclusively rely on information
furnished to it by the Master Servicer or the Trustee) and, insofar as it
relates to the Special Servicer, the information described in clauses (xxiv) and
(xxx) of Section 4.02(a), (2) the amount of all payments, Insurance Proceeds,
Condemnation Proceeds and Liquidation Proceeds received, and the amount of any
Realized Loss incurred, with respect to each Specially Serviced Loan during the
related Collection Period, and the amount of Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds received, and the amount of any Realized Loss
incurred, with respect to each Administered REO Property during the related
Collection Period, (3) the amount, purpose and date of all Servicing Advances
made by the Special Servicer with respect to each Specially Serviced Loan and
REO Property during the related Collection Period, (4) in writing, a brief
narrative summary of the status of each Specially Serviced Loan and (5) such
additional information relating to the Specially Serviced Loans and Administered
REO Properties as the Master Servicer reasonably requests to enable it to
perform its responsibilities under this Agreement. Notwithstanding the foregoing
provisions of this subsection (c), the Master Servicer shall maintain ongoing
payment records with respect to each of the Specially Serviced Loans and REO
Properties and shall provide the Special Servicer with any information
reasonably available to the Master Servicer required by the Special Servicer to
perform its duties under this Agreement.
SECTION 3.22. Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer may enter
into Sub-Servicing Agreements to provide for the performance by third parties of
any or all of their respective obligations hereunder, provided that in each
case, the Sub-Servicing Agreement: (i) is consistent with this Agreement in all
material respects, requires the Sub-Servicer to comply with all of the
applicable conditions of this Agreement and, with the exception of Sections
7.01(a)(x), (xi) and (xii), provides for events of default with respect to the
Sub-Servicer substantially the same as those set forth in Section 7.01 (modified
as necessary to apply to the Sub-Servicer's obligations under the Sub-Servicing
Agreement); (ii) provides that if the Master Servicer or the Special Servicer,
as the case may be, shall for any reason no longer act in such capacity
hereunder (including by reason of an Event of Default), the Trustee or its
designee may thereupon assume all of the rights and, except to the extent they
arose prior
-161-
to the date of assumption, obligations of the Master Servicer or the Special
Servicer, as the case may be, under such agreement or may terminate such
sub-servicing agreement without cause and without payment of any penalty or
termination fee (provided, however, that those Sub-Servicing Agreements in
effect as of the Closing Date (or, if being negotiated as of the Closing Date,
in effect within 90 days thereafter) may only be terminated by the Trustee or
its designee as contemplated by Section 3.22(d) hereof and in such additional
manner as is provided in such Sub-Servicing Agreement); (iii) provides that the
Trustee, for the benefit of the Certificateholders and, in the case of a
Sub-Servicing Agreement relating to the _______________ Loan Pair, the
_______________ Companion Loan Noteholder, shall each be a third party
beneficiary under such agreement, but that (except to the extent the Trustee or
its designee assumes the obligations of the Master Servicer or the Special
Servicer, as the case may be, thereunder as contemplated by the immediately
preceding clause (ii)) none of the Trustee, the Trust, any successor Master
Servicer, the Special Servicer or the _______________ Companion Loan Noteholder,
as the case may be, or any Certificateholder shall have any duties under such
agreement or any liabilities arising therefrom; (iv) permits any purchaser of a
Serviced Mortgage Loan pursuant to this Agreement to terminate such agreement
with respect to such purchased Mortgage Loan at its option and without penalty;
(v) does not permit the Sub-Servicer to enter into or consent to any
modification, extension, waiver or amendment or otherwise take any action on
behalf of the Master Servicer or the Special Servicer contemplated by Section
3.08, Section 3.09 and Section 3.20 hereof without the consent of the Master
Servicer or Special Servicer, as the case may be; and (vi) does not permit the
Sub-Servicer any direct rights of indemnification that may be satisfied out of
assets of the Trust Fund. In addition, each Sub-Servicing Agreement entered into
by the Master Servicer (including any with an effective date on or before the
Closing Date) shall provide that such agreement shall, with respect to any
Serviced Loan serviced thereunder, terminate at the time such Loan becomes a
Specially Serviced Loan (or, alternatively, be subject to the Special Servicer's
rights to service such Loan for so long as such Loan continues to be a Specially
Serviced Loan), and each Sub-Servicing Agreement entered into by the Special
Servicer shall relate only to Specially Serviced Loans and shall terminate with
respect to any such Loan which ceases to be a Specially Serviced Loan. The
Master Servicer and the Special Servicer each shall deliver to the Trustee and
each other copies of all Sub-Servicing Agreements (and, to the _______________
Companion Loan Noteholder, copies of any Sub-Servicing Agreement in respect of
the _______________ Companion Loan), as well as any amendments thereto and
modifications thereof, entered into by it promptly upon its execution and
delivery of such documents. References in this Agreement to actions taken or to
be taken by the Master Servicer or the Special Servicer include actions taken or
to be taken by a Sub-Servicer on behalf of the Master Servicer or the Special
Servicer, as the case may be; and, in connection therewith, all amounts advanced
by any Sub-Servicer to satisfy the obligations of the Master Servicer or the
Special Servicer hereunder to make P&I Advances or Servicing Advances shall be
deemed to have been advanced by the Master Servicer or the Special Servicer, as
the case may be, out of its own funds and, accordingly, such P&I Advances or
Servicing Advances shall be recoverable by such Sub-Servicer in the same manner
and out of the same funds as if such Sub-Servicer were the Master Servicer or
the Special Servicer, as the case may be. For so long as they are outstanding,
Advances shall accrue interest in accordance with Sections 3.11(g), 4.03(d) and
4.03A(d), such interest to be allocable between the Master Servicer or the
Special Servicer, as the case may be, and such Sub-Servicer as they may agree.
For purposes of this Agreement, the Master Servicer and the Special Servicer
each shall be deemed to have received any payment when a Sub-Servicer retained
by it receives such payment. The Master Servicer and the Special Servicer each
shall notify the other, the Trustee, the Depositor, the Controlling Class
Certificateholders and, if the _______________ Loan Pair is affected, the
_______________ Companion Loan Noteholder in writing promptly of the appointment
by it of any Sub-Servicer.
-162-
(b) Each Sub-Servicer (i) shall be authorized to transact
business in the state or states in which the related Mortgaged Properties it is
to service are situated, if and to the extent required by applicable law, and
(ii) except for any Sub-Servicer that is servicing any of the Mortgage Loans on
the Closing Date, shall be an approved conventional seller/servicer of mortgage
loans for FHLMC or Xxxxxx Xxx or a HUD-Approved Servicer.
(c) The Master Servicer and the Special Servicer, for the
benefit of the Trustee and the Certificateholders and, in the case of the
_______________ Companion Loan, also for the benefit of the _______________
Companion Loan Noteholder, shall (at no expense to the Trustee, the
Certificateholders, the _______________ Companion Loan Noteholder or the Trust
Fund) monitor the performance and enforce the obligations of their respective
Sub-Servicers under the related Sub-Servicing Agreements. Such enforcement,
including the legal prosecution of claims, termination of Sub-Servicing
Agreements in accordance with their respective terms and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as the Master Servicer or the Special Servicer, as applicable,
in its good faith business judgment, would require were it the owner of the
subject Serviced Loans.
(d) In the event of the resignation, removal or other
termination of the Master Servicer or any successor Master Servicer hereunder
for any reason, the Trustee or other Person succeeding such resigning, removed
or terminated party as Master Servicer, shall elect, with respect to any
Sub-Servicing Agreement in effect as of the Closing Date (or, if being
negotiated as of the Closing Date, in effect within 90 days thereafter) that
still exists at the time of such termination: (i) to assume the rights and
obligations of the Master Servicer under such Sub-Servicing Agreement and
continue the sub-servicing arrangements thereunder on the same terms (including
the obligation to pay the same sub-servicing fee); (ii) to enter into a new
Sub-Servicing Agreement with such Sub-Servicer on such terms as the Trustee or
other successor Master Servicer and such Sub-Servicer shall mutually agree (it
being understood that such Sub-Servicer is under no obligation to accept any
such new Sub-Servicing Agreement or to enter into or continue negotiations with
the Trustee or other successor Master Servicer), provided that neither the
Trustee nor any successor Master Servicer shall enter into a new Sub-Servicing
Agreement with a Sub-Servicer that was a party to a Sub-Servicing Agreement as
of the Closing Date, if such new Sub-Servicing Agreement amends, alters or fails
to restate any rights of any Underwriter or Mortgage Loan Seller under the
existing Sub-Servicing Agreement with respect to the termination of the
Sub-Servicer and the appointment of a successor thereto or any rights of any
Underwriter or Mortgage Loan Seller as a third party beneficiary under such
Sub-Servicing Agreement, unless the successor Master Servicer has obtained the
prior written consent to the terms of such new Sub-Servicing Agreement from such
Underwriter or Mortgage Loan Seller, as the case may be; or (iii) to terminate
the Sub-Servicing Agreement if (but only if) an Event of Default (as defined in
such Sub-Servicing Agreement) has occurred and is continuing, without paying any
sub-servicer termination fee, and in any additional manner provided for in such
Sub-Servicing Agreement.
The Sub-Servicers as to which Sub-Servicing Agreements are in
effect or being negotiated as of the Closing Date are listed on Exhibit K
hereto.
(e) Notwithstanding any Sub-Servicing Agreement, the Master
Servicer and the Special Servicer shall remain obligated and liable to the
Trustee, the Certificateholders and the _______________ Companion Loan
Noteholder for the performance of their respective obligations and duties under
this Agreement in accordance with the provisions hereof to the same extent and
under the
-163-
same terms and conditions as if each alone were servicing and administering the
Serviced Loans and/or Administered REO Properties for which it is responsible.
SECTION 3.23. Representations and Warranties of the Master
Servicer.
(a) The Master Servicer, in such capacity, hereby represents,
warrants and covenants to the other parties hereto and for the benefit of the
Certificateholders and the _______________ Companion Loan Noteholder, as of the
Closing Date, that:
(i) The Master Servicer is a national banking association,
duly organized under the laws of the United States, and the Master
Servicer is in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the
Master Servicer, and the performance and compliance with the terms of
this Agreement by the Master Servicer, will not violate the Master
Servicer'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 material instrument to which it is a party or which is applicable
to it or any of its assets.
(iii) The Master Servicer has the full power and authority
to enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Master Servicer, enforceable
against the Master Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, receivership, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' (including bank 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 Master Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, 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 Master
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Master Servicer to
perform its obligations under this Agreement or the financial condition
of the Master Servicer.
(vi) No litigation is pending or, to the best of the
Master Servicer's knowledge, threatened, against the Master Servicer,
the outcome of which, in the Master Servicer's good faith and
reasonable judgment, could reasonably be expected to prohibit the
Master Servicer from entering into this Agreement or materially and
adversely affect the ability of the Master Servicer to perform its
obligations under this Agreement.
-164-
(vii) Any consent, approval, authorization or order of any
court or governmental agency or body required under federal or state
law for the execution, delivery and performance by the Master Servicer
of or compliance by the Master Servicer with this Agreement or the
consummation of the transactions contemplated by this Agreement has
been obtained and is effective except where the lack of consent,
approval, authorization or order would not have a material adverse
effect on the performance by the Master Servicer under this Agreement.
(viii) The Master Servicer possesses all insurance
required pursuant to Section 3.07(c) of this Agreement.
(ix) The Master Servicer has reviewed all Sub-Servicing
Agreements in effect as of the Closing Date and will review all
Sub-Servicing Agreements entered into by it after the Closing Date.
(b) The representations and warranties of the Master Servicer
set forth in Section 3.23(a) shall survive the execution and delivery of this
Agreement 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
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Master Servicer shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 3.23(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 3.23(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 3.24. Representations and Warranties of the Special
Servicer.
(a) The Special Servicer, in such capacity, hereby represents,
warrants and covenants to the other parties hereto and for the benefit of the
Certificateholders and the _______________ Companion Loan Noteholder, as of the
Closing Date, that:
(i) The Special Servicer is a corporation validly existing
and in good standing under the laws of the State of Florida, and the
Special Servicer is in compliance with the laws of each state in which
any Mortgaged Property is located to the extent necessary to perform
its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the
Special Servicer, and the performance and compliance with the terms of
this Agreement by the Special Servicer, will not violate the Special
Servicer'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 material instrument to which it is a party or which is applicable
to it or any of its assets.
(iii) The Special Servicer has the full power and
authority to enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution,
-165-
delivery and performance of this Agreement, and has duly executed and
delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Special Servicer, enforceable
against the Special Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally, and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law.
(v) The Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, 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 Special
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Special Servicer to
perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(vi) No litigation is pending or, to the best of the
Special Servicer's knowledge, threatened, against the Special Servicer,
the outcome of which, in the Special Servicer's good faith and
reasonable judgment, could reasonably be expected to prohibit the
Special Servicer from entering into this Agreement or materially and
adversely affect the ability of the Special Servicer to perform its
obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any
court or governmental agency or body required under federal or state
law for the execution, delivery and performance by the Special Servicer
of or compliance by the Special Servicer with this Agreement or the
consummation of the transactions contemplated by this Agreement has
been obtained and is effective except where the lack of consent,
approval, authorization or order would not have a material adverse
effect on the performance by the Special Servicer under this Agreement.
(viii) The Special Servicer possesses all insurance
required pursuant to Section 3.07(c) of this Agreement.
(b) The representations and warranties of the Special Servicer
set forth in Section 3.24(a) shall survive the execution and delivery of this
Agreement 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
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Special Servicer shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 3.24(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 3.24(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
-166-
SECTION 3.25. Certain Matters Regarding the Purchase of the
_______________ Mortgage Loan.
If, pursuant to Section 2.03, Section 3.18 and Section 9.01,
the _______________ Mortgage Loan is purchased or repurchased from the Trust
Fund, the purchaser thereof shall be bound by the terms of the _______________
Co-Lender Agreement and shall assume the rights and obligations of the "Note A
Lender" under the _______________ Co-Lender Agreement. All portions of the
related Mortgage File and other documents pertaining to such Mortgage Loan shall
be endorsed or assigned to the extent necessary or appropriate to the purchaser
of such Mortgage Loan in its capacity as "Note A Lender" (as a result of such
purchase or repurchase) under the _______________ Co-Lender Agreement in the
manner contemplated under such agreement, which such purchaser shall be deemed
to acknowledge. Thereafter such Mortgage File shall be held by the Note A Lender
or a custodian appointed thereby for the benefit of the "Note A Lender" and the
"Note B Lender" as their interests appear under the _______________ Co-Lender
Agreement. If the related Servicing File is not already in the possession of
such party, it shall be delivered to the master servicer or special servicer, as
the case may be, under the separate servicing agreement for the _______________
Loan Pair.
SECTION 3.26. Application of Default Charges.
(a) Any and all Default Charges that are actually collected
with respect to any Mortgage Loan or REO Mortgage Loan in the Mortgage Pool
during any Collection Period, shall be applied for the following purposes and in
the following order, in each case to the extent of the remaining portion of such
Default Charges:
first, to pay to the Fiscal Agent, the Trustee, the Master
Servicer or the Special Servicer, in that order, any interest due and
owing to such party on any outstanding Advances made thereby with
respect to any Mortgage Loan or REO Mortgage Loan in the Mortgage Pool
and reimbursed in the related Collection Period;
second, to pay any other outstanding expenses (exclusive of
Special Servicing Fees, Liquidation Fees and Workout Fees) incurred
with respect to any Mortgage Loan or REO Mortgage Loan in the Mortgage
Pool and that, if paid from a source other than such Default Charges,
would constitute Additional Trust Fund Expenses;
third, to reimburse the Trust for any interest on Advances
paid to the Fiscal Agent, the Trustee, the Master Servicer or the
Special Servicer in the preceding twelve months with respect to any
Mortgage Loan or REO Mortgage Loan in the Mortgage Pool, which payment
was made from a source other than Default Charges and not previously
reimbursed under this clause third;
fourth, to reimburse the Trust for any other Additional Trust
Fund Expenses (exclusive of Special Servicing Fees, Liquidation Fees
and Workout Fees) paid in the preceding twelve months with respect to
any Mortgage Loan or REO Mortgage Loan in the Mortgage Pool, which
payment was made from a source other than Default Charges and not
previously reimbursed under this clause fourth; and
fifth, to pay any remaining portion of such Default Charges
(such remaining portion, "Net Default Charges") as additional master
servicing compensation to the Master Servicer, to the extent received,
if they were accrued in respect of a Performing Serviced Mortgage Loan,
or as
-167-
additional special servicing compensation to the Special Servicer, to
the extent received, if they were accrued in respect of a Specially
Serviced Mortgage Loan or an REO Mortgage Loan, in each case pursuant
to Section 3.11;
provided that the foregoing shall not apply to that portion of any Default
Charges collected on the _______________ Mortgage Loan that are retained by the
_______________ Non-Trust Loan Noteholder or its servicing agent; and provided,
further, that, any and all Default Charges that are actually collected with
respect to a Mortgage Loan in the _______________ Loan Pair during any
Collection Period (as allocable thereto pursuant to the related loan agreement)
shall be applied for the following purpose, prior to being applied in accordance
with clauses first through fifth above, in each case to the extent of the
remaining portion of such Default Charges: to pay the Fiscal Agent, the Trustee,
the _______________ Fiscal Agent, the _______________ Trustee, the Master
Servicer or the Special Servicer, in that order, any interest due and owing to
such party on any outstanding Servicing Advance made thereby with respect to the
_______________ Loan Pair or the _______________ Mortgaged Property and/or any
outstanding P&I Advance made thereby with respect to such Mortgage Loan or any
successor REO Loan with respect thereto, which Advance was reimbursed in such
Collection Period, but in each case only to the extent that Default Charges
collected with respect to the _______________ Companion Loan and applied
pursuant to clause first of subsection (c) below are insufficient for such
purpose; and provided further, that no Default Charges collected with respect to
the _______________ Mortgage Loan may be applied to pay interest on outstanding
P&I Advances made with respect to the _______________ Companion Loan (such
reimbursement to be made solely from Default Charges collected with respect to
such Companion Loan).
(b) Default Charges applied to reimburse the Trust pursuant to
clauses third and fourth of subsection (a), are intended to be part of the
amounts to be delivered by the Master Servicer to the Trustee pursuant to the
first paragraph of Section 3.04(b) on or before the Master Servicer Remittance
Date next following the Collection Period during which they were received, for
deposit in the Collection Account, subject to application pursuant to Section
3.05(a) for any items payable out of general collections on the Mortgage Loans
and any REO Properties. Default Charges applied to pay outstanding interest on
Advances to any particular party pursuant to clause first of subsection (a)
shall be applied to pay such party such interest on Advances in such manner that
the interest that accrued first and has been outstanding the longest shall be
paid first. Default Charges applied to pay outstanding expenses pursuant to
clause second of subsection (a) shall be applied to pay such expenses in the
chronological order in which they were incurred. Default Charges applied to
reimburse the Trust pursuant to clauses third and fourth of subsection (a) shall
be deemed to offset either interest paid on Advances or other Additional Trust
Fund Expenses, depending on which clause is applicable, in the chronological
order in which they were made or incurred, as applicable (whereupon such
interest paid on Advances or such other Additional Trust Fund Expenses,
depending on which clause is applicable, shall thereafter be deemed to have been
paid out of Default Charges).
(c) Any and all Default Charges that are actually collected
with respect to the _______________ Companion Loan or any successor REO Loan
with respect to such Loan during any Collection Period (as allocable thereto
pursuant to the related loan agreement), shall be applied for the following
purposes and in the following order, in each case to the extent of the remaining
portion of such Default Charges:
-168-
first, to pay to the Fiscal Agent, the Trustee, the
_______________ Fiscal Agent, the _______________ Trustee, the Master
Servicer or the Special Servicer, in that order, any interest due and
owing to such party on any outstanding Advances made thereby with
respect to any Loan or REO Loan in the _______________ Loan Pair or the
_______________ Mortgaged Property and reimbursed in the related
Collection Period (to be applied with respect to any particular party
in such manner that the interest that accrued first and has been
outstanding the longest shall be paid first); and
second, to pay any remaining portion of such Default Charges
(such remaining portion, "Net Default Charges") as additional master
servicing compensation to the Master Servicer, to the extent received,
if they were accrued with respect to the _______________ Companion Loan
during a period that it was a Performing Serviced Loan or REO Loan, or
as additional special servicing compensation to the Special Servicer,
to the extent received, if they were accrued with respect to the
_______________ Companion Loan during a period that it was a Specially
Serviced Loan or an REO Loan, in each case pursuant to Section 3.11;
-169-
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date prior to the Final Distribution
Date, the Trustee shall, based upon information provided by the Master Servicer,
the Special Servicer, withdraw from the Collection Account and apply the
Available Distribution Amount for such Distribution Date to make the following
distributions in respect of the Senior Certificates, in the following order of
priority, in each case to the extent of remaining available funds:
first, distributions of interest to the Holders of the
respective Classes of the Senior Certificates, up to an amount equal
to, and pro rata as among such Classes in accordance with, all
Distributable Certificate Interest in respect of each such Class of
Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates, if any;
second, distributions of principal to the Holders of the
respective Classes of the Class A Certificates, allocable as among such
Classes of Certificateholders as provided below, up to an amount (not
to exceed the aggregate Class Principal Balance of such Classes of
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Principal Distribution Amount for such Distribution
Date; and
third, distributions to the Holders of the respective Classes
of the Class A Certificates, up to an amount equal to, pro rata as
among such Classes of Certificateholders in accordance with, and in
reimbursement of, all Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to each such Class of
Certificates pursuant to Section 4.04(a) and not previously reimbursed.
On each Distribution Date prior to the earlier of (i) the
Class A Principal Distribution Cross-Over Date and (ii) the Final Distribution
Date, the Trustee shall pay the distributions of principal made on the Class A
Certificates on such Distribution Date, pursuant to the preceding paragraph,
first, to the Holders of the Class A-1 Certificates, until the Class Principal
Balance of such Class has been reduced to zero, second, to the Holders of the
Class A-2 Certificates, until the Class Principal Balance of such Class has been
reduced to zero, third, to the Holders of the Class A-3 Certificates, until the
Class Principal Balance of such Class has been reduced to zero, and last, to the
Holders of the Class A-4 Certificates, until the Class Principal Balance of such
Class has been reduced to zero. On any Distribution Date coinciding with or
following the Class A Principal Distribution Cross-Over Date, but prior to the
Final Distribution Date, the Trustee shall pay the distributions of principal
made on the Class A Certificates on such Distribution Date pursuant to the
preceding paragraph to the Holders of all the Classes of the Class A
Certificates, on a pro rata basis, in accordance with the respective Class
Principal Balances of such Classes outstanding immediately prior to such
Distribution Date, until the Class Principal Balance of each such Class has been
reduced to zero.
All distributions of interest made in respect of any Class of
Interest Only Certificates (other than the Class X-______ Certificates) on any
Distribution Date as provided above shall be made, and deemed to have been made,
in respect of the various REMIC III Components of such Class of
-170-
Interest Only Certificates, pro rata in accordance with the respective amounts
of Distributable Component Interest in respect of such REMIC III Components for
such Distribution Date and, to the extent not previously deemed paid pursuant to
this paragraph, for all prior Distribution Dates, if any.
(b) On each Distribution Date prior to the Final Distribution
Date, the Trustee shall, based on information provided by the Master Servicer,
the Special Servicer, withdraw from the Collection Account and apply the
Subordinate Available Distribution Amount for such Distribution Date, for the
following purposes and in the following order of priority, in each case to the
extent of remaining available funds:
(i) to make distributions of interest to the Holders of
the Class B Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(ii) after the Class Principal Balances of the Class A
Certificates have been reduced to zero, to make distributions of
principal to the Holders of the Class B Certificates, up to an amount
(not to exceed the Class Principal Balance of such Class of
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date
to the Holders of the Class A Certificates pursuant to Section 4.01(a)
above);
(iii) to make distributions to the Holders of the Class B
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(iv) to make distributions of interest to the Holders of
the Class C Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(v) after the Class Principal Balance of the Class B
Certificates has been reduced to zero, to make distributions of
principal to the Holders of the Class C Certificates, up to an amount
(not to exceed the Class Principal Balance of such Class of
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date
to the Holders of any other Class of Principal Balance Certificates
pursuant to Section 4.01(a) above or pursuant to any prior clause of
this Section 4.01(b));
(vi) to make distributions to the Holders of the Class C
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(vii) to make distributions of interest to the Holders of
the Class D Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such
-171-
Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates, if any;
(viii) after the Class Principal Balance of the Class C
Certificates has been reduced to zero, to make distributions of
principal to the Holders of the Class D Certificates, up to an amount
(not to exceed the Class Principal Balance of such Class of
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date
to the Holders of any other Class of Principal Balance Certificates
pursuant to Section 4.01(a) above or pursuant to any prior clause of
this Section 4.01(b));
(ix) to make distributions to the Holders of the Class D
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(x) to make distributions of interest to the Holders of
the Class E Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xi) after the Class Principal Balance of the Class D
Certificates has been reduced to zero, to make distributions of
principal to the Holders of the Class E Certificates, up to an amount
(not to exceed the Class Principal Balance of such Class of
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date
to the Holders of any other Class of Principal Balance Certificates
pursuant to Section 4.01(a) above or pursuant to any prior clause of
this Section 4.01(b));
(xii) to make distributions to the Holders of the Class E
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xiii) to make distributions of interest to the Holders of
the Class F Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xiv) after the Class Principal Balance of the Class E
Certificates has been reduced to zero, to make distributions of
principal to the Holders of the Class F Certificates, up to an amount
(not to exceed the Class Principal Balance of such Class of
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date
to the Holders of any other Class of Principal Balance Certificates
pursuant to Section 4.01(a) above or pursuant to any prior clause of
this Section 4.01(b));
-172-
(xv) to make distributions to the Holders of the Class F
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xvi) to make distributions of interest to the Holders of
the Class G Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xvii) after the Class Principal Balance of the Class F
Certificates has been reduced to zero, to make distributions of
principal to the Holders of the Class G Certificates, up to an amount
(not to exceed the Class Principal Balance of such Class of
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date
to the Holders of any other Class of Principal Balance Certificates
pursuant to Section 4.01(a) above or pursuant to any prior clause of
this Section 4.01(b));
(xviii) to make distributions to the Holders of the Class
G Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xix) to make distributions of interest to the Holders of
the Class H Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xx) after the Class Principal Balance of the Class G
Certificates has been reduced to zero, to make distributions of
principal to the Holders of the Class H Certificates, up to an amount
(not to exceed the Class Principal Balance of such Class of
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date
to the Holders of any other Class of Principal Balance Certificates
pursuant to Section 4.01(a) above or pursuant to any prior clause of
this Section 4.01(b));
(xxi) to make distributions to the Holders of the Class H
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxii) to make distributions of interest to the Holders of
the Class J Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxiii) after the Class Principal Balance of the Class H
Certificates has been reduced to zero, to make distributions of
principal to the Holders of the Class J Certificates, up to
-173-
an amount (not to exceed the Class Principal Balance of such Class of
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date
to the Holders of any other Class of Principal Balance Certificates
pursuant to Section 4.01(a) above or pursuant to any prior clause of
this Section 4.01(b));
(xxiv) to make distributions to the Holders of the Class J
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxv) to make distributions of interest to the Holders of
the Class K Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxvi) after the Class Principal Balance of the Class J
Certificates has been reduced to zero, to make distributions of
principal to the Holders of the Class K Certificates, up to an amount
(not to exceed the Class Principal Balance of such Class of
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date
to the Holders of any other Class of Principal Balance Certificates
pursuant to Section 4.01(a) above or pursuant to any prior clause of
this Section 4.01(b));
(xxvii) to make distributions to the Holders of the Class
K Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxviii) to make distributions of interest to the Holders
of the Class L Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxix) after the Class Principal Balance of the Class K
Certificates has been reduced to zero, to make distributions of
principal to the Holders of the Class L Certificates, up to an amount
(not to exceed the Class Principal Balance of such Class of
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date
to the Holders of any other Class of Principal Balance Certificates
pursuant to Section 4.01(a) above or pursuant to any prior clause of
this Section 4.01(b));
(xxx) to make distributions to the Holders of the Class L
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
-174-
(xxxi) to make distributions of interest to the Holders of
the Class M Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxxii) after the Class Principal Balance of the Class L
Certificates has been reduced to zero, to make distributions of
principal to the Holders of the Class M Certificates, up to an amount
(not to exceed the Class Principal Balance of such Class of
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date
to the Holders of any other Class of Principal Balance Certificates
pursuant to Section 4.01(a) above or pursuant to any prior clause of
this Section 4.01(b));
(xxxiii) to make distributions to the Holders of the Class
M Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxxiv) to make distributions of interest to the Holders
of the Class N Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxxv) after the Class Principal Balance of the Class M
Certificates has been reduced to zero, to make distributions of
principal to the Holders of the Class N Certificates, up to an amount
(not to exceed the Class Principal Balance of such Class of
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date
to the Holders of any other Class of Principal Balance Certificates
pursuant to Section 4.01(a) above or pursuant to any prior clause of
this Section 4.01(b));
(xxxvi) to make distributions to the Holders of the Class
N Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxxvii) to make distributions of interest to the Holders
of the Class P Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxxviii) after the Class Principal Balance of the Class N
Certificates has been reduced to zero, to make distributions of
principal to the Holders of the Class P Certificates, up to an amount
(not to exceed the Class Principal Balance of such Class of
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date
to the Holders of any other Class of Principal Balance Certificates
pursuant to Section 4.01(a) above or pursuant to any prior clause of
this Section 4.01(b));
-175-
(xxxix) to make distributions to the Holders of the Class
P Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xl) to make distributions of interest to the Holders of
the Class Q Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xli) after the Class Principal Balance of the Class P
Certificates has been reduced to zero, to make distributions of
principal to the Holders of the Class Q Certificates, up to an amount
(not to exceed the Class Principal Balance of such Class of
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date
to the Holders of any other Class of Principal Balance Certificates
pursuant to Section 4.01(a) above or pursuant to any prior clause of
this Section 4.01(b));
(xlii) to make distributions to the Holders of the Class Q
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xliii) to make distributions of interest to the Holders
of the Class S Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xliv) after the Class Principal Balance of the Class Q
Certificates has been reduced to zero, to make distributions of
principal to the Holders of the Class S Certificates, up to an amount
(not to exceed the Class Principal Balance of such Class of
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date
to the Holders of any other Class of Principal Balance Certificates
pursuant to Section 4.01(a) above or pursuant to any prior clause of
this Section 4.01(b));
(xlv) to make distributions to the Holders of the Class S
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xlvi) to make distributions of interest to the Holders of
the Class T Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xlvii) after the Class Principal Balance of the Class S
Certificates has been reduced to zero, to make distributions of
principal to the Holders of the Class T Certificates, up
-176-
to an amount (not to exceed the Class Principal Balance of such Class
of Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such
Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to Section 4.01(a) above or pursuant to
any prior clause of this Section 4.01(b));
(xlviii) to make distributions to the Holders of the Class
T Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xlix) to make distributions of interest to the Holders of
the Class U Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(l) after the Class Principal Balance of the Class T
Certificates has been reduced to zero, to make distributions of
principal to the Holders of the Class U Certificates, up to an amount
(not to exceed the Class Principal Balance of such Class of
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date
to the Holders of any other Class of Principal Balance Certificates
pursuant to Section 4.01(a) above or pursuant to any prior clause of
this Section 4.01(b));
(li) to make distributions to the Holders of the Class U
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(lii) to make distributions to the Holders of the Class
R-III Certificates, up to an amount equal to the excess, if any, of (A)
the aggregate distributions (other than distributions of Net Prepayment
Consideration) deemed made in respect of the REMIC II Regular Interests
on such Distribution Date pursuant to Section 4.01(j), over (B) the
aggregate distributions made in respect of the Regular Interest
Certificates on such Distribution Date pursuant to Section 4.01(a)
above and/or pursuant to clauses (i) through (li) of this Section
4.01(b);
(liii) to make distributions to the Holders of the Class
R-II Certificates, up to an amount equal to the excess, if any, of (A)
the aggregate distributions (other than distributions of Net Prepayment
Consideration) deemed made in respect of the REMIC I Regular Interests
on such Distribution Date pursuant to Section 4.01(k), over (B) the
aggregate distributions (other than distributions of Net Prepayment
Consideration) deemed made in respect of the REMIC II Regular Interests
on such Distribution Date pursuant to Section 4.01(j);
(liv) to make distributions to the Holders of the Class
R-LR Certificates, up to an amount equal to the excess, if any, of (A)
that portion of the Available Distribution Amount for such Distribution
Date that is allocable to the Loan REMIC Mortgage Loans and/or any
related REO Properties, over (B) the aggregate distributions (other
than distributions of Net
-177-
Prepayment Consideration) deemed made in respect of the Loan REMIC
Regular Interests on such Distribution Date pursuant to Section
4.01(l); and
(lv) to make distributions to the Holders of the Class R-I
Certificates, up to an amount equal to the excess, if any, of (A) the
Available Distribution Amount for such Distribution Date, over (B) the
aggregate distributions made in respect of the other Classes of
Certificates on such Distribution Date pursuant to Section 4.01(a)
above and/or pursuant to clauses (i) through (liv) of this Section
4.01(b).
(c) On each Distribution Date, the Trustee shall withdraw from
the Collection Account any amount Received by the Trust with respect to any
Mortgage Loan or REO Mortgage Loan during the related Collection Period (or, in
the case of the _______________ Mortgage Loan, Received by the Trust since the
preceding Distribution Date) that represents Net Prepayment Consideration and
shall distribute such Net Prepayment Consideration to the Holders of the
respective Classes of Principal Balance Certificates (other than any Excluded
Class) entitled to distributions of principal pursuant to Section 4.01(a) or
Section 4.01(b) on such Distribution Date, up to an amount equal to, and pro
rata based on, the respective Prepayment Consideration Entitlements for such
Classes of Certificates for such Distribution Date.
Any Net Prepayment Consideration not otherwise distributed in
respect of the Principal Balance Certificates pursuant to the foregoing
paragraph of this Section 4.01(c) shall be distributed to the Holders of the
Class X-CL Certificates, unless such Net Prepayment Consideration relates to the
_______________ Mortgage Loan or any successor REO Mortgage Loan with respect
thereto, in which case it shall be distributed to the Holders of the Class
X-______ Certificates. Any Net Prepayment Consideration distributed in respect
of the Class X-CL Certificates on any Distribution Date shall be deemed to have
been distributed in respect of the respective REMIC III Components of the Class
X-CL Certificates, on a pro rata basis in accordance with the respective amounts
by which the Component Notional Amounts of such REMIC III Components were
reduced on such Distribution Date by deemed distributions of principal pursuant
to Section 4.01(j).
(d) On each Distribution Date, the Trustee shall withdraw from
the Collection Account any amounts that represent Additional Interest Received
by the Trust with respect to the ARD Mortgage Loans and any successor REO
Mortgage Loans during the related Collection Period (or, in the case of the
_______________ Mortgage Loan, Received by the Trust since the preceding
Distribution Date) and shall distribute such amounts to the Holders of the Class
V Certificates.
If a Loan REMIC Mortgage Loan is repurchased during any
Collection Period as contemplated by Section 2.03(d), then, on the related
Distribution Date, the Trustee shall withdraw from the Collection Account any
yield maintenance payment made by the ___ Mortgage Loan Seller in connection
with such repurchase and shall distribute such amount to the Holders of the
Class X-CL Certificates.
(e) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Except as otherwise provided below, all such distributions with
respect to each Class on each Distribution Date shall be made to the
Certificateholders of the respective Class of record at the close of business on
the related Record Date and shall be made by wire transfer of immediately
available funds to the account of any such Certificateholder at a bank or other
entity having
-178-
appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to (or, in the case of the initial Distribution Date, on) the related
Record Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates), or otherwise by check mailed
to the address of such Certificateholder as it appears in the Certificate
Register. The final distribution on each Certificate (determined, in the case of
a Principal Balance Certificate, without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to such Certificate pursuant to Section 4.04(a)) will be made in a
like manner, but only upon presentation and surrender of such Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution. Prior to any
termination of the Trust Fund pursuant to Section 9.01, any distribution that is
to be made with respect to a Certificate in reimbursement of a Realized Loss or
Additional Trust Fund Expense previously allocated thereto, which reimbursement
is to occur after the date on which such Certificate is surrendered as
contemplated by the preceding sentence, will be made by check mailed to the
address of the Certificateholder that surrendered such Certificate as such
address last appeared in the Certificate Register or to any other address of
which the Trustee was subsequently notified in writing. If such check is
returned to the Trustee, then the Trustee, directly or through an agent, shall
take such reasonable steps to contact the related Holder and deliver such check
as it shall deem appropriate. Any funds in respect of a check returned to the
Trustee shall be set aside by the Trustee and held uninvested in trust and
credited to the account of the appropriate Holder. The costs and expenses of
locating the appropriate Holder and holding such funds shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If the Trustee has not, after having taken such
reasonable steps, located the related Holder by the second anniversary of the
initial sending of a check, the Trustee shall, subject to applicable law,
distribute the unclaimed funds to the Class R-III Certificateholders.
(f) Each distribution with respect to a Book-Entry Certificate
shall be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm for which it acts as agent. Each indirect
participating brokerage firm shall be responsible for disbursing funds to the
related Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor or the Master Servicer shall have any
responsibility therefor except as otherwise provided by this Agreement or
applicable law. The Trustee and the Depositor shall perform their respective
obligations under each Letter of Representations among the Depositor, the
Trustee and the initial Depository dated as of the Closing Date and pertaining
to the Book-Entry Certificates.
(g) The rights of the Certificateholders to receive
distributions from the proceeds of the Trust Fund with respect to the
Certificates, and all rights and interests of the Certificateholders in and to
such distributions, shall be as set forth in this Agreement. Neither the Holders
of any Class of Certificates nor any party hereto shall in any way be
responsible or liable to the Holders of any other Class of Certificates with
respect to amounts properly previously distributed on the Certificates.
(h) Except as otherwise provided in Section 9.01, whenever the
Trustee receives written notification of or expects that the final distribution
with respect to any Class of Certificates (determined, in the case of a Class of
Principal Balance Certificates, without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to
-179-
such Class of Certificates pursuant to Section 4.04(a)) will be made on the next
Distribution Date, the Trustee shall, no later than the second Business Day
prior to such Distribution Date, mail to each Holder of record of such Class of
Certificates on such date 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 or at such other location
therein specified, and
(ii) no interest shall accrue on such Certificates from
and after the end of the Interest Accrual Period for such Distribution
Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(h) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
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, then the Trustee, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such non-tendering
Certificateholders following the first anniversary of the delivery of such
second notice thereto shall be paid out of such funds. No interest shall accrue
or be payable to any former Holder on any amount held in trust pursuant to this
paragraph. If all of the Certificates as to which notice has been given pursuant
to this Section 4.01(h) shall not have been surrendered for cancellation by the
second anniversary of the delivery of the second notice, the Trustee shall,
subject to applicable law, distribute to the Class R-III Certificateholders all
unclaimed funds and other assets which remain subject thereto.
(i) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trustee shall indicate the amount withheld to such
Certificateholders.
(j) All distributions made in respect of each Class of
Principal Balance Certificates on each Distribution Date (including the Final
Distribution Date) pursuant to Section 4.01(a), Section 4.01(b), Section 4.01(c)
or Section 9.01 shall be deemed to have first been distributed from REMIC II to
REMIC III with respect to the Corresponding REMIC II Regular Interest(s) for
such Class of Certificates; and all distributions made with respect to the Class
X-______ Certificates on each Distribution Date pursuant to Section 4.01(a),
Section 4.01(c) or Section 9.01 shall be deemed to have been first distributed
from REMIC II to REMIC III in respect of REMIC II Regular Interest X-______; and
all distributions made with respect to each Class of interest Only Certificates
(other than the Class X-______ Certificates) on each Distribution Date pursuant
to Section 4.01(a), Section 4.01(c) or Section
-180-
9.01 and allocable to any particular REMIC III Component of such Class of
Certificates, shall be deemed to have first been distributed from REMIC II to
REMIC III in respect of the Corresponding REMIC II Regular Interest for such
REMIC III Component. In each case, if such distribution on any such Class of
Certificates was a distribution of accrued interest, of principal, of additional
interest (in the form of Net Prepayment Consideration) or in reimbursement of
any Realized Losses and Additional Trust Fund Expenses previously allocated to
such Class of Certificates, then the corresponding distribution deemed to be
made on a REMIC II Regular Interest pursuant to the preceding sentence (and, if
applicable, any of the remaining paragraphs of this Section 4.01(j) and the next
paragraph) shall be deemed to also be, respectively, a distribution of accrued
interest, of principal, of additional interest (in the form of Net Prepayment
Consideration) or in reimbursement of any Realized Losses and Additional Trust
Fund Expenses previously allocated to REMIC III in respect of such REMIC II
Regular Interest.
The Class A-2, Class A-3 and Class F Certificates shall, in
the case of each such Class of Certificates, have three Corresponding REMIC II
Regular Interests. The Class A-4, Class G, Class H and Class J Certificates
shall, in the case of each such Class of Certificates, have two Corresponding
REMIC II Regular Interests. Each other Class of Principal Balance Certificates
shall have one Corresponding REMIC II Regular Interest.
Deemed distributions of accrued interest made on REMIC II
Regular Interest A-2-1, REMIC II Regular Interest A-2-2 and REMIC II Regular
Interest A-2-3 shall be allocated among those three REMIC II Regular Interests
on a pro rata basis in accordance with the respective amounts of accrued
interest deemed payable on each such REMIC II Regular Interest for the subject
Distribution Date. Deemed distributions of principal made on REMIC II Regular
Interest A-2-1, REMIC II Regular Interest A-2-2 and REMIC II Regular Interest
A-2-3 shall be allocated first to REMIC II Regular Interest A-2-1, until its
Uncertificated Principal Balance is reduced to zero, then to REMIC II Regular
Interest A-2-2, until its Uncertificated Principal Balance is reduced to zero,
and last to REMIC II Regular Interest A-2-3, until its Uncertificated Principal
Balance is reduced to zero. Deemed distributions of additional interest (in the
form of Net Prepayment Consideration) made on REMIC II Regular Interest A-2-1,
REMIC II Regular Interest A-2-2 and REMIC II Regular Interest A-2-3 shall be
allocated entirely to REMIC II Regular Interest A-2-1, for so long as its
Uncertificated Principal Balance is greater than zero, then to REMIC II Regular
Interest A-2-2, for so long as its Uncertificated Principal Balance is greater
than zero after the Uncertificated Principal Balance of REMIC II Regular
Interest A-2-1 has been reduced to zero, and last to REMIC II Regular Interest
A-2-3, for so long as its Uncertificated Principal Balance is greater than zero
after the Uncertificated Principal Balance of REMIC II Regular Interest A-2-1
and REMIC II Regular Interest A-2-2 have been reduced to zero. Deemed
distributions in reimbursement of previously allocated Realized Losses and
Additional Trust Fund Expenses made on REMIC II Regular Interest A-2-1, REMIC II
Regular Interest A-2-2 and REMIC II Regular Interest A-2-3 shall be allocated
among those three REMIC II Regular Interests on a pro rata basis in accordance
with the respective amounts deemed reimbursable with respect thereto for the
subject Distribution Date.
Deemed distributions of accrued interest made on REMIC II
Regular Interest A-3-1, REMIC II Regular Interest A-3-2 and REMIC II Regular
Interest A-3-3 shall be allocated among those three REMIC II Regular Interests
on a pro rata basis in accordance with the respective amounts of accrued
interest deemed payable on each such REMIC II Regular Interest for the subject
Distribution Date. Deemed distributions of principal made on REMIC II Regular
Interest A-3-1, REMIC II Regular Interest A-3-2 and REMIC II Regular Interest
A-3-3 shall be allocated first to REMIC II Regular
-181-
Interest A-3-1, until its Uncertificated Principal Balance is reduced to zero,
then to REMIC II Regular Interest A-3-2, until its Uncertificated Principal
Balance is reduced to zero, and last to REMIC II Regular Interest A-3-3, until
its Uncertificated Principal Balance is reduced to zero. Deemed distributions of
additional interest (in the form of Net Prepayment Consideration) made on REMIC
II Regular Interest A-3-1, REMIC II Regular Interest A-3-2 and REMIC II Regular
Interest A-3-3 shall be allocated entirely to REMIC II Regular Interest A-3-1,
for so long as its Uncertificated Principal Balance is greater than zero, then
to REMIC II Regular Interest A-3-2, for so long as its Uncertificated Principal
Balance is greater than zero after the Uncertificated Principal Balance of REMIC
II Regular Interest A-3-1 has been reduced to zero, and last to REMIC II Regular
Interest A-3-3, for so long as its Uncertificated Principal Balance is greater
than zero after the Uncertificated Principal Balance of REMIC II Regular
Interest A-3-1 and REMIC II Regular Interest A-3-2 have been reduced to zero.
Deemed distributions in reimbursement of previously allocated Realized Losses
and Additional Trust Fund Expenses made on REMIC II Regular Interest A-3-1,
REMIC II Regular Interest A-3-2 and REMIC II Regular Interest A-3-3 shall be
allocated among those three REMIC II Regular Interests on a pro rata basis in
accordance with the respective amounts deemed reimbursable with respect thereto
for the subject Distribution Date.
Deemed distributions of accrued interest made on REMIC II
Regular Interest A-4-1 and REMIC II Regular Interest A-4-2 shall be allocated
between those two REMIC II Regular Interests on a pro rata basis in accordance
with the respective amounts of accrued interest deemed payable on each such
REMIC II Regular Interest for the subject Distribution Date. Deemed
distributions of principal made on REMIC II Regular Interest A-4-1 and REMIC II
Regular Interest A-4-2 shall be allocated first to REMIC II Regular Interest
A-4-1, until its Uncertificated Principal Balance is reduced to zero, and then
to REMIC II Regular Interest A-4-2, until its Uncertificated Principal Balance
is reduced to zero. Deemed distributions of additional interest (in the form of
Net Prepayment Consideration) made on REMIC II Regular Interest A-4-1 and REMIC
II Regular Interest A-4-2 shall be allocated entirely to REMIC II Regular
Interest A-4-1, for so long as its Uncertificated Principal Balance is greater
than zero, and then to REMIC II Regular Interest A-4-2, for so long as its
Uncertificated Principal Balance is greater than zero after the Uncertificated
Principal Balance of REMIC II Regular Interest A-4-1 has been reduced to zero.
Deemed distributions in reimbursement of previously allocated Realized Losses
and Additional Trust Fund Expenses made on REMIC II Regular Interest A-4-1 and
REMIC II Regular Interest A-4-2 shall be allocated between those two REMIC II
Regular Interests on a pro rata basis in accordance with the respective amounts
deemed reimbursable with respect thereto for the subject Distribution Date.
Deemed distributions of accrued interest made on REMIC II
Regular Interest F-1, REMIC II Regular Interest F-2 and REMIC II Regular
Interest F-3 shall be allocated among those three REMIC II Regular Interests on
a pro rata basis in accordance with the respective amounts of accrued interest
deemed payable on each such REMIC II Regular Interest for the subject
Distribution Date. Deemed distributions of principal made on REMIC II Regular
Interest F-1, REMIC II Regular Interest F-2 and REMIC II Regular Interest F-3
shall be allocated first to REMIC II Regular Interest F-1, until its
Uncertificated Principal Balance is reduced to zero, then to REMIC II Regular
Interest F-2, until its Uncertificated Principal Balance is reduced to zero, and
last to REMIC II Regular Interest F-3, until its Uncertificated Principal
Balance is reduced to zero. Deemed distributions of additional interest (in the
form of Net Prepayment Consideration) made on REMIC II Regular Interest F-1,
REMIC II Regular Interest F-2 and REMIC II Regular Interest F-3 shall be
allocated entirely to REMIC II Regular Interest F-1, for so long as its
Uncertificated Principal Balance is greater than zero, then to REMIC II Regular
-182-
Interest F-2, for so long as its Uncertificated Principal Balance is greater
than zero after the Uncertificated Principal Balance of REMIC II Regular
Interest F-1 has been reduced to zero, and last to REMIC II Regular Interest
F-3, for so long as its Uncertificated Principal Balance is greater than zero
after the Uncertificated Principal Balance of REMIC II Regular Interest F-1 and
REMIC II Regular Interest F-2 have been reduced to zero. Deemed distributions in
reimbursement of previously allocated Realized Losses and Additional Trust Fund
Expenses made on REMIC II Regular Interest F-1, REMIC II Regular Interest F-2
and REMIC II Regular Interest F-3 shall be allocated among those three REMIC II
Regular Interests on a pro rata basis in accordance with the respective amounts
deemed reimbursable with respect thereto for the subject Distribution Date.
Deemed distributions of accrued interest made on REMIC II
Regular Interest G-1 and REMIC II Regular Interest G-2 shall be allocated
between those two REMIC II Regular Interests on a pro rata basis in accordance
with the respective amounts of accrued interest deemed payable on each such
REMIC II Regular Interest for the subject Distribution Date. Deemed
distributions of principal made on REMIC II Regular Interest G-1 and REMIC II
Regular Interest G-2 shall be allocated first to REMIC II Regular Interest G-1,
until its Uncertificated Principal Balance is reduced to zero, and then to REMIC
II Regular Interest G-2, until its Uncertificated Principal Balance is reduced
to zero. Deemed distributions of additional interest (in the form of Net
Prepayment Consideration) made on REMIC II Regular Interest G-1 and REMIC II
Regular Interest G-2 shall be allocated entirely to REMIC II Regular Interest
G-1, for so long as its Uncertificated Principal Balance is greater than zero,
and then to REMIC II Regular Interest G-2, for so long as its Uncertificated
Principal Balance is greater than zero after the Uncertificated Principal
Balance of REMIC II Regular Interest G-1 has been reduced to zero. Deemed
distributions in reimbursement of previously allocated Realized Losses and
Additional Trust Fund Expenses made on REMIC II Regular Interest G-1 and REMIC
II Regular Interest G-2 shall be allocated between those two REMIC II Regular
Interests on a pro rata basis in accordance with the respective amounts deemed
reimbursable with respect thereto for the subject Distribution Date.
Deemed distributions of accrued interest made on REMIC II
Regular Interest H-1 and REMIC II Regular Interest H-2 shall be allocated
between those two REMIC II Regular Interests on a pro rata basis in accordance
with the respective amounts of accrued interest deemed payable on each such
REMIC II Regular Interest for the subject Distribution Date. Deemed
distributions of principal made on REMIC II Regular Interest H-1 and REMIC II
Regular Interest H-2 shall be allocated first to REMIC II Regular Interest H-1,
until its Uncertificated Principal Balance is reduced to zero, and then to REMIC
II Regular Interest H-2, until its Uncertificated Principal Balance is reduced
to zero. Deemed distributions of additional interest (in the form of Net
Prepayment Consideration) made on REMIC II Regular Interest H-1 and REMIC II
Regular Interest H-2 shall be allocated entirely to REMIC II Regular Interest
H-1, for so long as its Uncertificated Principal Balance is greater than zero,
and then to REMIC II Regular Interest H-2, for so long as its Uncertificated
Principal Balance is greater than zero after the Uncertificated Principal
Balance of REMIC II Regular Interest H-1 has been reduced to zero. Deemed
distributions in reimbursement of previously allocated Realized Losses and
Additional Trust Fund Expenses made on REMIC II Regular Interest H-1 and REMIC
II Regular Interest H-2 shall be allocated between those two REMIC II Regular
Interests on a pro rata basis in accordance with the respective amounts deemed
reimbursable with respect thereto for the subject Distribution Date.
Deemed distributions of accrued interest made on REMIC II
Regular Interest J-1 and REMIC II Regular Interest J-2 shall be allocated
between those two REMIC II Regular Interests on a pro rata basis in accordance
with the respective amounts of accrued interest deemed payable on each
-183-
such REMIC II Regular Interest for the subject Distribution Date. Deemed
distributions of principal made on REMIC II Regular Interest J-1 and REMIC II
Regular Interest J-2 shall be allocated first to REMIC II Regular Interest J-1,
until its Uncertificated Principal Balance is reduced to zero, and then to REMIC
II Regular Interest J-2, until its Uncertificated Principal Balance is reduced
to zero. Deemed distributions of additional interest (in the form of Net
Prepayment Consideration) made on REMIC II Regular Interest J-1 and REMIC II
Regular Interest J-2 shall be allocated entirely to REMIC II Regular Interest
J-1, for so long as its Uncertificated Principal Balance is greater than zero,
and then to REMIC II Regular Interest J-2, for so long as its Uncertificated
Principal Balance is greater than zero after the Uncertificated Principal
Balance of REMIC II Regular Interest J-1 has been reduced to zero. Deemed
distributions in reimbursement of previously allocated Realized Losses and
Additional Trust Fund Expenses made on REMIC II Regular Interest J-1 and REMIC
II Regular Interest J-2 shall be allocated between those two REMIC II Regular
Interests on a pro rata basis in accordance with the respective amounts deemed
reimbursable with respect thereto for the subject Distribution Date.
The actual distributions made by the Trustee on each
Distribution Date in respect of the REMIC III Certificates pursuant to Section
4.01(a), Section 4.01(b), Section 4.01(c) or Section 9.01, as applicable, shall
be deemed to have been so made from the amounts deemed distributed with respect
to the REMIC II Regular Interests on such Distribution Date pursuant to this
Section 4.01(j). Notwithstanding the deemed distributions on the REMIC II
Regular Interests described in this Section 4.01(j), actual distributions of
funds from the Collection Account shall be made only in accordance with Section
4.01(a), Section 4.01(b), Section 4.01(c), Section 4.01(d) or Section 9.01, as
applicable.
(k) On each Distribution Date, including the Final
Distribution Date, the Available Distribution Amount for such date shall be
deemed to have first been distributed from REMIC I to REMIC II in respect of the
REMIC I Regular Interests, in each case to the extent of the remaining portions
of such funds, for the following purposes and in the following order of
priority:
(i) as deemed distributions of interest with respect to
all the REMIC I Regular Interests, up to an amount equal to, and pro
rata in accordance with, all Uncertificated Distributable Interest with
respect to each REMIC I Regular Interest for such Distribution Date
and, to the extent not previously deemed distributed, for all prior
Distribution Dates;
(ii) as deemed distributions of principal with respect to
all the REMIC I Regular Interests, up to an amount equal to, and pro
rata in accordance with, as to each REMIC I Regular Interest, the
portion of the Principal Distribution Amount for such Distribution Date
attributable to the related Mortgage Loan or any successor REO Mortgage
Loan (or, in the case of each of REMIC I Regular Interest ______-1 and
REMIC I Regular Interest ______-2, the applicable Loan Component of the
Mortgage Note for the _______________ Mortgage Loan or any successor
REO Mortgage Loan or, in the case of each of REMIC I Regular Interest
______-1 and REMIC I Regular Interest ______-2, the applicable Loan
Component of the _______________ Mortgage Loan or any successor REO
Mortgage Loan); and
(iii) as deemed distributions with respect to all the
REMIC I Regular Interests, up to an amount equal to, pro rata in
accordance with, and in reimbursement of, any Realized Losses and
Additional Trust Fund Expenses previously allocated to each REMIC I
Regular Interest (with compounded interest).
-184-
Any Net Prepayment Consideration distributed to any Class of
Regular Interest Certificates on any Distribution Date shall, in each case, be
deemed to have been distributed from REMIC I to REMIC II in respect of the REMIC
I Regular Interest corresponding to the prepaid Mortgage Loan or REO Mortgage
Loan (or, in the case of each of REMIC I Regular Interest ______-1 and REMIC I
Regular Interest ______-2, the applicable Loan Component of the Mortgage Note
for the _______________ Mortgage Loan or any successor REO Mortgage Loan or, in
the case of each of REMIC I Regular Interest ______-1, REMIC I Regular Interest
______-2, REMIC I Regular Interest ______-3 and REMIC I Regular Interest
______-4, the applicable Loan Component of the _______________ Mortgage Loan or
any successor REO Mortgage Loan), as the case may be, in respect of which such
Net Prepayment Consideration was received.
(l) On each Distribution Date, including the Final
Distribution Date, the portion of the Available Distribution Amount for such
date allocable to each Loan REMIC Mortgage Loan (or any successor REO Loan)
shall be deemed to have first been distributed from the related Loan REMIC to
REMIC I in respect of the corresponding Loan REMIC Regular Interest, in each
case to the extent of the remaining portions of such funds, for the following
purposes and in the following order of priority:
(i) as deemed distributions of interest in respect of the
related Loan REMIC Regular Interest, up to an amount equal to all
Uncertificated Distributable Interest in respect of such Loan REMIC
Regular Interest for such Distribution Date and, to the extent not
previously deemed distributed, for all prior Distribution Dates;
(ii) as deemed distributions of principal in respect of
the related Loan REMIC Regular Interest, up to an amount equal to the
portion of the Principal Distribution Amount for such Distribution Date
attributable to such Loan REMIC Mortgage Loan (or any successor REO
Loan); and
(iii) as deemed distributions in respect of the related
Loan REMIC Regular Interest, up to an amount equal to, and in
reimbursement of, any Realized Losses and Additional Trust Fund
Expenses previously allocated to such Loan REMIC Regular Interest (with
compounded interest).
Any Net Prepayment Consideration distributed to any Class of
Regular Interest Certificates on any Distribution Date that is allocable to a
Loan REMIC Mortgage Loan (or any successor REO Loan) shall, in each case, be
deemed to have been distributed from the related Loan REMIC to REMIC I in
respect of the Loan REMIC Regular Interest corresponding to the prepaid Loan
REMIC Mortgage Loan or REO Loan, as the case may be, in respect of which such
Net Prepayment Consideration was received.
SECTION 4.02. Statements to Certificateholders; CMSA Loan
Periodic Update File.
(a) On each Distribution Date, the Trustee shall provide or
make available electronically to the Depositor, the Underwriters, the Master
Servicer, the Special Servicer, the Controlling Class Representative, each
Rating Agency, the Holders of each Class of Certificates and, upon their written
request to the Trustee, any Certificate Owners of the Book-Entry Certificates as
may be identified to the reasonable satisfaction of the Trustee, a statement,
substantially in the form attached hereto as Exhibit B (a "Distribution Date
Statement"), which shall also include the CMSA Bond Level
-185-
File and the CMSA Collateral Summary File, based on information provided to it
by the Master Servicer and/or the Special Servicer, setting forth, without
limitation:
(i) the amount of the distribution on such Distribution
Date to the Holders of each Class of Principal Balance Certificates in
reduction of the Class Principal Balance thereof;
(ii) the amount of the distribution on such Distribution
Date to the Holders of each Class of Regular Interest Certificates
allocable to Distributable Certificate Interest;
(iii) the amount of the distribution on such Distribution
Date to the Holders of each Class of Regular Interest Certificates
allocable to Prepayment Premiums and Yield Maintenance Charges,
respectively;
(iv) the amount of the distribution on such Distribution
Date to the Holders of each Class of Principal Balance Certificates in
reimbursement of previously allocated Realized Losses and Additional
Trust Fund Expenses;
(v) the Available Distribution Amount for such
Distribution Date;
(vi) the aggregate amount of P&I Advances made in respect
of the Mortgage Pool for the prior Distribution Date pursuant to
Section 4.03(a) and/or Section 4.03A(a);
(vii) (A) the aggregate amount of xxxxxxxxxxxx X&X
Advances that had been outstanding with respect to the Mortgage Pool at
the close of business on the related Determination Date and the
aggregate amount of any interest accrued and payable to the Master
Servicer, the Trustee or the Fiscal Agent in respect of such
xxxxxxxxxxxx X&X Advances in accordance with Section 4.03(d) or
4.03A(d) as of the close of business on such Determination Date and (B)
the aggregate amount of unreimbursed Servicing Advances that had been
outstanding with respect to the Mortgage Pool as of the close of
business on the related Determination Date and the aggregate amount of
interest accrued and payable to the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent in respect of such
unreimbursed Servicing Advances in accordance with Section 3.11(g) as
of the close of business on such related Determination Date;
(viii) the aggregate unpaid principal balance of the
Mortgage Pool outstanding as of the close of business on the related
Determination Date and the aggregate Stated Principal Balance of the
Mortgage Pool outstanding immediately before and immediately after such
Distribution Date;
(ix) the number, aggregate unpaid principal balance,
weighted average remaining term to maturity and weighted average
Mortgage Rate of the Mortgage Loans (other than REO Loans) as of the
close of business on the related Determination Date;
(x) the number, aggregate unpaid principal balance (as of
the close of business on the related Determination Date and aggregate
Stated Principal Balance (immediately after such Distribution Date) of
Mortgage Loans (A) delinquent 30 to 59 days, (B) delinquent 60
-186-
to 89 days, (C) delinquent 90 or more days, (D) as to which foreclosure
proceedings have been commenced, and (E) as to which, to the knowledge
of the Master Servicer or the Special Servicer, as applicable,
bankruptcy proceedings have commenced in respect of the related
Mortgagor;
(xi) as to each Mortgage Loan referred to in the preceding
clause (x) above, (A) the loan number thereof, (B) the Stated Principal
Balance thereof immediately following such Distribution Date and (C)
whether the delinquency is in respect of its Balloon Payment;
(xii) with respect to any Mortgage Loan as to which a
Liquidation Event occurred during the related Collection Period (other
than a payment in full), (A) the loan number thereof, (B) the nature of
the Liquidation Event and, in the case of a Final Recovery
Determination, a brief description of the basis for such Final Recovery
Determination, (C) the aggregate of all Liquidation Proceeds and other
amounts received in connection with such Liquidation Event (separately
identifying the portion thereof allocable to distributions on the
Certificates), and (D) the amount of any Realized Loss in connection
with such Liquidation Event;
(xiii) with respect to any REO Property that was included
in the Trust Fund as of the close of business on the related
Determination Date, the loan number of the related Mortgage Loan, the
book value of such REO Property and the amount of REO Revenues and
other amounts, if any, received with respect to such REO Property
during the related Collection Period (separately identifying the
portion thereof allocable to distributions on the Certificates) and, if
available, the Appraised Value of such REO Property as expressed in the
most recent appraisal thereof and the date of such appraisal;
(xiv) with respect to any Mortgage Loan as to which the
related Mortgaged Property became an REO Property during the related
Collection Period, the loan number of such Mortgage Loan and the Stated
Principal Balance of such Mortgage Loan as of the related Acquisition
Date;
(xv) with respect to any REO Property included in the
Trust Fund as to which a Final Recovery Determination was made during
the related Collection Period, (A) the loan number of the related
Mortgage Loan, (B) a brief description of the basis for the Final
Recovery Determination, (C) the aggregate of all Liquidation Proceeds
and other amounts received with respect to such REO Property during the
related Collection Period (separately identifying the portion thereof
allocable to distributions on the Certificates), (D) the amount of any
Realized Loss in respect of the related REO Loan in connection with
such Final Recovery Determination and (E), if available, the Appraised
Value of such REO Property as expressed in the most recent appraisal
thereof and the date of such appraisal;
(xvi) the Distributable Certificate Interest and Accrued
Certificate Interest in respect of each Class of Regular Interest
Certificates for such Distribution Date or the related Interest Accrual
Period, as applicable;
(xvii) any unpaid Distributable Certificate Interest in
respect of each Class of Regular Interest Certificates after giving
effect to the distributions made on such Distribution
-187-
Date, and if the full amount of the Principal Distribution Amount was
not distributed on such Distribution Date, the portion of the shortfall
affecting each Class of Principal Balance Certificates;
(xviii) the Pass-Through Rate for each Class of Regular
Interest Certificates for such Distribution Date;
(xix) the Principal Distribution Amount for such
Distribution Date, separately identifying the respective components
thereof (and, in the case of any Principal Prepayment or other
unscheduled collection of principal received during the related
Collection Period, the loan number for the related Mortgage Loan and
the amount of such prepayment or other collection of principal);
(xx) the aggregate of all Realized Losses incurred during
the related Collection Period and from the Closing Date and all
Additional Trust Fund Expenses (with a description thereof) incurred
during the related Collection Period and from the Closing Date;
(xxi) the aggregate of all Realized Losses and Additional
Trust Fund Expenses that remain unallocated immediately following such
Distribution Date;
(xxii) the Class Principal Balance of each Class of
Principal Balance Certificates and the Class Notional Amount of each
Class of Interest Only Certificates, outstanding immediately before and
immediately after such Distribution Date, separately identifying any
reduction therein due to the allocation of Realized Losses and
Additional Trust Fund Expenses on such Distribution Date;
(xxiii) the Certificate Factor for each Class of Regular
Interest Certificates immediately following such Distribution Date;
(xxiv) the aggregate amount of any interest on Advances in
respect of the Mortgage Pool paid to the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent during the related
Collection Period in accordance with Section 3.11(g), Section 4.03(d)
and/or Section 4.03A(d);
(xxv) (A) the loan number for each Required Appraisal Loan
and any related Appraisal Reduction Amount (including an itemized
calculation thereof) as of the related Determination Date and (B) the
aggregate Appraisal Reduction Amount for all Required Appraisal Loans
as of the related Determination Date;
(xxvi) on a cumulative basis from the Cut-off Date, the
number, aggregate Stated Principal Balance immediately after such
Distribution Date (in the case of subclauses (A), (B) and (E)),
aggregate Cut-off Date Balance (in the case of subclauses (C) and (D)),
weighted average extension period (except in the case of subclause (B)
and which shall be zero in the case of subclause (C)), and weighted
average anticipated extension period (in the case of subclause (B)) of
Mortgage Loans (A) as to which the maturity dates have been extended,
(B) as to which the maturity dates are in the process of being
extended, (C) that have paid off and were never extended, (D) as to
which the maturity dates had previously been extended and have paid off
and
-188-
(E) as to which the maturity dates had been previously extended and are
in the process of being further extended;
(xxvii) the original and then current credit support
levels for each Class of Regular Interest Certificates;
(xxviii) the original and then current ratings, if any,
for each Class of Regular Interest Certificates;
(xxix) the aggregate amount of Prepayment Premiums and
Yield Maintenance Charges collected (A) during the related Collection
Period and (B) since the Closing Date;
(xxx) (A) the aggregate amount of servicing compensation
in respect of the Mortgage Pool (separately identifying the amount of
each category of compensation) paid to the Master Servicer, the Special
Servicer and, if payable directly out of the Trust Fund without a
reduction in the servicing compensation otherwise payable to the Master
Servicer or the Special Servicer, to each Sub-Servicer, during the
related Collection Period, and (B) such other information as the
Trustee is required by the Code or other applicable law to furnish to
enable Certificateholders to prepare their tax returns; and
(xxxi) the amounts, if any, actually distributed with
respect to the Class R-I, Class R-II, Class R-III and Class R-LR
Certificates on such Distribution Date.
In the case of information to be furnished pursuant to clauses
(i) through (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. In the case of information provided to the Trustee as a basis for
information to be furnished pursuant to clauses (vi) through (xv), (xix), (xx),
(xxiv), (xxv), (xxvi), (xxix) and (xxx) above, insofar as the underlying
information is solely within the control of the Special Servicer or the Master
Servicer, the Trustee may, absent manifest error, conclusively rely on the
reports to be provided by the Special Servicer or the Master Servicer.
The Trustee shall forward electronically a copy of each
Distribution Date Statement to the Depository. The Trustee shall make available
each month, to Certificateholders, Certificate Owners, the Underwriters, the
Rating Agencies, the Controlling Class Representative, any party hereto or any
Person identified by any Certificateholder or Certificate Owner as a prospective
transferee, via the Trustee's internet website, with the use of a password
provided by the Trustee to such Person upon request and, in the case of a
Certificateholder, a Certificate Owner or a prospective transferee of a
Certificate or any interest therein, upon receipt by the Trustee from such
Person of a certification substantially in the form of Exhibit L-1 or Exhibit
L-2, as applicable, all Certificateholder Reports and any additional files
containing substantially similar information in an alternative format and, with
the consent or at the direction of the Depositor, such other information
regarding the Certificates and/or the Mortgage Loans as the Trustee may have in
its possession. The Trustee shall also make all CMSA NOI Adjustment Worksheets
and CMSA Operating Statement Analysis Reports in its possession available via
its internet website in the same manner as the Certificateholder Reports. The
Trustee will make no representations or warranties as to the accuracy or
completeness of such documents and will assume no responsibility therefor.
-189-
The Trustee's internet website shall initially be located at
___________________ or at such other address as shall be specified by the
Trustee from time to time in the Distribution Date Statement and in one or more
written notices delivered to the other parties hereto, the Controlling Class
Representative (if any), the Certificateholders and the Rating Agencies. In
connection with providing access to the Trustee's internet website, the Trustee
may require the acceptance of a disclaimer. The Trustee shall not be liable for
the dissemination of information in accordance with this Agreement.
The Master Servicer may, but is not required to, make
available each month, to Certificateholders, Certificate Owners (that have been
confirmed as such by the Trustee), the Controlling Class Representative, the
Underwriters, the Rating Agencies or any party hereto, the Certificateholder
Reports, any CMSA NOI Adjustment Worksheet or CMSA Operating Statement Analysis
Report on its internet website. The Master Servicer will make no representations
or warranties as to the accuracy or completeness of any report not prepared by
it and will assume no responsibility for any information for which it is not the
original source.
The Master Servicer's internet website shall initially be
located at _________________ or at such other address as shall be specified by
the Master Servicer from time to time in one or more written notices delivered
to the other parties hereto, the Controlling Class Representative (if any), the
Certificateholders and the Rating Agencies. In connection with providing access
to the Master Servicer's internet website, the Master Servicer may require the
acceptance of a disclaimer. The Master Servicer shall not be liable for the
dissemination of information to Certificateholders and Certificate Owners in
accordance with this Agreement. Access to the Master Servicer's internet website
shall be coordinated with the Trustee and shall be with the use of a password
provided by the Master Servicer, which, in the case of a Certificateholder or a
Certificate Owner, shall only be provided upon receipt by the Master Servicer
from such Person of a certification substantially in the form of Exhibit L-1.
Notwithstanding the foregoing, upon the Depositor's notifying the Master
Servicer that the Non-Registered Certificates have been sold by the Underwriters
to unaffiliated third parties, the Master Servicer may make the Unrestricted
Servicer Reports available on its internet website without a password, provided
that for so long as reports are required to be filed with the Commission in
respect of the Trust pursuant to Section 15(d) of the Exchange Act, the subject
reports shall have been previously filed with the Commission (which shall be
confirmed by the Master Servicer by request made to the Trustee).
During any period that reports are required to be filed with
the Commission with respect to the Trust pursuant to Section 15(d) of the
Exchange Act, each recipient of a Certificateholder Report, a CMSA NOI
Adjustment Worksheet or a CMSA Operating Statement Analysis Report shall be
deemed to have agreed to keep confidential the information therein until such
statement or report is filed with the Commission, and each Certificateholder
Report, CMSA NOI Adjustment Worksheet and CMSA Operating Statement Analysis
Report shall bear a legend to the effect that: "Until this statement/report is
filed with the Commission with respect to the Trust pursuant to Section 15(d) of
the Securities Exchange Act of 1934, as amended, the recipient hereof shall be
deemed to keep the information contained herein confidential and such
information will not, without the prior consent of the Master Servicer or the
Trustee, be disclosed by such recipient or by its officers, directors, partners,
employees, agents or representatives in any manner whatsoever, in whole or in
part."
Absent manifest error of which it has actual knowledge, none
of the Master Servicer, the Special Servicer or the Trustee shall be responsible
for the accuracy or completeness of any information
-190-
supplied to it by a Mortgagor, a Mortgage Loan Seller or third party that is
included in any reports, statements, materials or information prepared or
provided by the Master Servicer, the Special Servicer or the Trustee, as
applicable, pursuant to this Agreement. None of the Trustee, the Master Servicer
or the Special Servicer shall have any obligation to verify the accuracy or
completeness of any information provided by a Mortgagor, a Mortgage Loan Seller,
a third party or each other.
Within a reasonable period of time after the end of each
calendar year, upon request, the Trustee shall send to each Person who at any
time during the calendar year was a Certificateholder of record, a report
summarizing on an annual basis (if appropriate) the items relating to
distributions of interest (including Prepayment Premiums, Yield Maintenance
Charges and Additional Interest) and principal to Certificateholders during such
calendar year set forth in the Distribution Date Statements and such other
information as may be required to enable such Certificateholders to prepare
their federal income tax returns. Such information shall include the amount of
original issue discount accrued on each Class of Certificates and information
regarding the expenses of the Trust Fund. Such requirement shall be deemed to be
satisfied to the extent such information is provided pursuant to applicable
requirements of the Code from time to time in force.
Upon receipt of notice from the Depositor that the
Underwriters have sold the Non-Registered Certificates to unaffiliated third
parties, the Trustee shall make available electronically or, if so requested,
forward by hard copy, on each Distribution Date, to (i) the Trepp Group (at 000
Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other address as
the Trepp Group may designate), (ii) Intex Solutions, Inc. (at 00 Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, or such other address as Intex Solutions,
Inc. may hereafter designate), (iii) Charter Research Corporation (at 000
Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or such other address as Charter
Research Corporation may hereafter designate), and (iv) any other similar third
party information provider, a copy of the reports made available to the Holders
of the Certificates on such Distribution Date as described above.
Upon written request of the Depositor or any Underwriter,
without payment of any fee, and upon written request of any Certificateholders
or any other Person, together with payment of a reasonable fee specified by the
Trustee, the Trustee shall provide any statements, reports and/or information
contemplated by this Section 4.02(a) electronically to such party (such
electronic distribution and such statements, reports, and/or information thereon
to bear such appropriate disclaimers and qualifications as the Depositor and the
Trustee shall determine in their reasonable discretion).
If any Certificate Owner does not receive through the
Depository or any of its Depository Participants any of the statements, reports
and/or other written information described above in this Section 4.02(a) that it
would otherwise be entitled to receive if it were the Holder of a Definitive
Certificate evidencing its ownership interest in the related Class of Book-Entry
Certificates, then the Trustee shall forward such statements, reports and/or
other written information to such Certificate Owner as provided above, upon the
request of such Certificate Owner made in writing to the Corporate Trust Office
(accompanied by current verification of such Certificate Owner's ownership
interest). Such portion of such information as may be agreed upon by the
Depositor and the Trustee shall be furnished to any such Person via overnight
courier delivery or telecopy from the Trustee; provided that the cost of such
overnight courier delivery or telecopy shall be an expense of the party
requesting such information.
-191-
The Trustee shall only be obligated to deliver the statements,
reports and information contemplated by this Section 4.02(a) to the extent it
receives, in the format required by this Agreement, the necessary underlying
information from the Master Servicer, the Special Servicer or the
_______________ Servicers, as applicable, and shall not be liable for any
failure to deliver any thereof on the prescribed due dates, to the extent caused
by failure to receive timely such underlying information. Nothing herein shall
obligate the Trustee, the Master Servicer or the Special Servicer to violate any
applicable law prohibiting disclosure of information with respect to any
Mortgagor and the failure of the Trustee, Master Servicer or the Special
Servicer to disseminate information for such reason shall not be a breach
hereof.
The information to be furnished by the Trustee to the
Certificateholders pursuant to Sections 4.02(a) and (b) shall not limit the
Trustee in furnishing any such information to other Persons to whom it
determines such disclosure to be appropriate and shall not limit the Trustee in
furnishing to Certificateholders or to any Person any other information with
respect to the Mortgage Loans, the Mortgaged Properties or the Trust Fund as may
be provided to it by the Depositor, the Master Servicer or the Special Servicer
or gathered by it in any investigation or other manner from time to time (such
information, other than as described in Sections 4.02(a) and (b), is referred to
herein as "Additional Information") as it may reasonably deem necessary or
appropriate from time to time, provided that (A) the Trustee shall give the
Depositor three Business Days' advance notice before doing so, (B) any such
Additional Information shall only be furnished with the consent or at the
request of the Depositor (except pursuant to clause (E) below), (C) 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
reasonable discretion, (D) the Trustee shall notify Certificateholders of the
availability of any such information in any manner as it, in its sole
discretion, may determine, and (E) this provision shall not prevent the Trustee,
whether with or without the consent of the Depositor, from furnishing
information with respect to the Trust Fund and its administration thereof to any
Person, if it reasonably determines that the furnishing of such information is
required by applicable law. The Trustee shall forward to the Depositor any
requests for Additional Information which, for their fulfillment, require the
consent of the Depositor. 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.
(b) Not later than 1:00 p.m. (New York City time) on the
second Business Day prior to each Distribution Date, the Master Servicer shall
furnish to the Trustee, and upon request, to the Depositor, the Underwriters and
the Special Servicer, by electronic transmission (or in such other form to which
the Trustee or the Depositor, as the case may be, and the Master Servicer may
agree), an accurate and complete CMSA Loan Periodic Update File providing the
required information for the Mortgage Loans (other than the _______________
Mortgage Loan) and any successor REO Mortgage Loans as of the related
Determination Date
In the performance of its obligations set forth in Section
4.05 and its other duties hereunder, the Trustee may conclusively rely on the
CMSA Loan Periodic Update File provided to it by the Master Servicer, and the
Trustee shall not be responsible to recompute, recalculate or verify the
information provided to it by the Master Servicer. In the case of information to
be furnished by the Master Servicer to the Trustee pursuant to this Section
4.02(b), insofar as such information is solely within the control of the Special
Servicer, the Master Servicer (if other than the Special Servicer or an
Affiliate thereof) shall have no obligation to provide such information until it
has received such information from the Special Servicer, shall not be in default
hereunder due to a delay in providing the
-192-
CMSA Loan Periodic Update File caused by the Special Servicer's failure to
timely provide any report required under this Agreement and may, absent actual
knowledge of an error therein, conclusively rely on the reports to be provided
by the Special Servicer. The Master Servicer may conclusively rely on any
information provided by the Depositor or any Mortgagor with respect to the CMSA
Loan Periodic Update File, CMSA Loan Setup File, CMSA Property File and CMSA
Financial File.
SECTION 4.03. P&I Advances.
(a) On or before 2:00 p.m., New York City time, on each Master
Servicer Remittance Date, the Master Servicer shall, subject to Section 4.03(c)
below, satisfy its obligations to make any required P&I Advances with respect to
the related Distribution Date in respect of the Mortgage Pool (other than the
_______________ Mortgage Loan, the _______________ Mortgage Loan or any
successor REO Mortgage Loans with respect thereto), first, by transferring to
the Trustee for deposit in the Collection Account amounts then held in the Pool
Custodial Account for future distribution to Certificateholders in subsequent
months in discharge of such obligations, and second, by remitting its own funds
to the Trustee for deposit in a Collection Account in an amount equal to the
remaining portion of such required P&I Advances. Any amounts held in the Pool
Custodial Account for future distribution and so used to make P&I Advances shall
be appropriately reflected in the Master Servicer's records and replaced by the
Master Servicer by deposit in the Pool Custodial Account on or before the next
succeeding Determination Date (to the extent not previously replaced through the
deposit of Late Collections of the delinquent principal and interest in respect
of which such P&I Advances were made). If, as of 4:00 p.m., New York City time,
on any Master Servicer Remittance Date, the Master Servicer shall not have made
any P&I Advance required to be made on such date pursuant to this Section
4.03(a) (and shall not have delivered to the Trustee the requisite Officer's
Certificate and documentation related to a determination of nonrecoverability of
a P&I Advance), then the Trustee shall provide notice of such failure to a
Servicing Officer of the Master Servicer by facsimile transmission sent to
telecopy no. _________ (or such alternative number provided by the Master
Servicer to the Trustee in writing) and by telephone at telephone no. _________
or _________ (or such alternative number provided by the Master Servicer to the
Trustee in writing) as soon as possible, but in any event before 5:00 p.m., New
York City time, on such Master Servicer Remittance Date. If after such notice by
facsimile, the Trustee does not receive the full amount of such P&I Advances by
10:00 a.m., New York City time, on the related Distribution Date, then the
Trustee (or the Fiscal Agent on its behalf) shall make the portion of such P&I
Advances that was required to be, but was not, made by the Master Servicer on
such Master Servicer Remittance Date. If the Trustee fails to make any such P&I
Advance on the related Distribution Date, but the Fiscal Agent makes such P&I
Advance on such date, then the Trustee shall be deemed not to be in default
hereunder.
[All P&I Advances with respect to the _______________ Mortgage
Loan or any successor REO Mortgage Loan are required to be made by the
_______________ Servicer pursuant to, and as and when required by, the
_______________ Servicing Agreement. If, as of 4:00 p.m., New York City time, on
any Master Servicer Remittance Date, the _______________ Master Servicer shall
not have made the portion of any P&I Advance required to be made pursuant to the
_______________ Servicing Agreement that is allocable to the _______________
Mortgage Loan or any successor REO Mortgage Loan (and shall not have delivered
to the Master Servicer an officer's certificate and documentation related to a
determination of nonrecoverability of a P&I Advance as contemplated by the
_______________ Servicing Agreement), then (subject to Section 4.03(c) below)
the Master Servicer shall make the portion of such P&I Advance that was required
to be, but was not, made by the
-193-
_______________ Master Servicer on such Master Servicer Remittance Date pursuant
to the _______________ Servicing Agreement and that is allocable to the
_______________ Mortgage Loan or any successor REO Loan. If the Master Servicer
fails to make any such P&I Advance on the related Master Servicer Remittance
Date, then (subject to Section 4.03(c) below) the Trustee (or the Fiscal Agent
on its behalf) shall make such P&I Advance on the related Distribution Date.]
(b) The aggregate amount of P&I Advances to be made by the
Master Servicer, the Trustee or the Fiscal Agent, as the case may be, pursuant
to the first paragraph of Section 4.03(a) in respect of any Distribution Date
shall, subject to Section 4.03(c) below, equal the aggregate of all Monthly
Payments (other than Balloon Payments) and any Assumed Monthly Payments, in each
case net of related Master Servicing Fees and any related Workout Fees, due or
deemed due, as the case may be, in respect of the Mortgage Loans (including
Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and
any REO Mortgage Loans in the Mortgage Pool (exclusive of the _______________
Mortgage Loan, the _______________ Mortgage Loan or any successor REO Mortgage
Loans with respect thereto) on their respective Due Dates during the related
Collection Period, in each case to the extent such amount was not paid by or on
behalf of the related Mortgagor or otherwise collected (including as net income
from REO Properties) as of the close of business on the related Determination
Date; provided that if it is determined that an Appraisal Reduction Amount
exists with respect to any such Mortgage Loan or REO Mortgage Loan, then, in the
event of subsequent delinquencies thereon, the amount of each P&I Advance, if
any, required to be made in respect of such Mortgage Loan or REO Mortgage Loan,
as the case may be, during the period that such Appraisal Reduction Amount
continues to exist, shall be reduced to equal the product of (x) the amount of
the subject P&I Advance that would otherwise be required without regard to this
proviso, multiplied by (y) a fraction, the numerator of which is equal to the
Stated Principal Balance of such Mortgage Loan or REO Mortgage Loan, as the case
may be, net of such Appraisal Reduction Amount, and the denominator of which is
equal to the Stated Principal Balance of such Mortgage Loan or REO Mortgage
Loan, as the case may be.
(c) Notwithstanding anything herein to the contrary, no P&I
Advance shall be required to be made under this Section 4.03 if such P&I Advance
would, if made, constitute a Nonrecoverable P&I Advance. The determination by
the Master Servicer that it has made a Nonrecoverable P&I Advance pursuant to
this Section 4.03 or that any proposed P&I Advance, if made pursuant to this
Section 4.03, would constitute a Nonrecoverable P&I Advance, shall be evidenced
by an Officer's Certificate delivered to the Trustee, the Fiscal Agent and the
Depositor on or before the related Master Servicer Remittance Date, setting
forth the basis for such determination, together with any other information that
supports such determination, including an appraisal (which appraisal shall have
been conducted by an Independent Appraiser within the 12-month period preceding
such determination in accordance with the standards of the Appraisal Institute
taking into account the factors specified in Section 3.18), related Mortgagor
operating statements and financial statements, budgets and rent rolls of the
related Mortgaged Properties (to the extent available and/or in the Master
Servicer's or the Special Servicer's possession), engineers' reports,
environmental surveys and any similar reports that the Master Servicer may have
obtained consistent with the Servicing Standard and at the expense of the Trust
Fund, that support such determination by the Master Servicer. If, in connection
with the foregoing, it is necessary for the Master Servicer to obtain an
appraisal, the Master Servicer shall so notify the Special Servicer and consult
with the Special Servicer regarding such appraisal. The Master Servicer shall be
entitled to rely, conclusively, on any determination by the _______________
Master Servicer that a P&I Advance, if made, would be a Nonrecoverable P&I
Advance. The Trustee and the Fiscal Agent shall be
-194-
entitled to rely, conclusively, on any determination by the Master Servicer (or,
in the case of the _______________ Mortgage Loan or any successor REO Mortgage
Loan, the _______________ Master Servicer) that a P&I Advance, if made, would be
a Nonrecoverable P&I Advance; provided, however, that if the Master Servicer
(or, in the case of the _______________ Mortgage Loan or any successor REO
Mortgage Loan, the _______________ Master Servicer) has failed to make a P&I
Advance for reasons other than a determination by the Master Servicer (or, in
the case of the _______________ Mortgage Loan or any successor REO Mortgage
Loan, the _______________ Master Servicer) that such P&I Advance would be
Nonrecoverable P&I Advance, the Trustee or Fiscal Agent shall make such Advance
within the time periods required by Section 4.03(a) unless the Trustee or the
Fiscal Agent, in its good faith, reasonable discretion, makes a determination
prior to the times specified in Section 4.03(a) that such P&I Advance would be a
Nonrecoverable P&I Advance. Upon determining that any P&I Advance previously
made with respect to a Specially Serviced Loan or REO Loan is a Nonrecoverable
P&I Advance, the Special Servicer shall report to the Master Servicer the
Special Servicer's determination. The Master Servicer shall be entitled to
conclusively rely on such determination.
(d) The Master Servicer, the Trustee and the Fiscal Agent
shall each be entitled to receive interest at the Reimbursement Rate in effect
from time to time, compounded annually, accrued on the amount of each P&I
Advance made thereby under this Section 4.03 (with its own funds) for so long as
such P&I Advance is outstanding; provided that if the grace period for the
delinquent Monthly Payment as to which a P&I Advance was made under this section
has not elapsed as of the time such P&I Advance was made, then the total
interest so accrued on such P&I Advance prior to the expiration of such grace
period, shall not exceed the amount of Default Charges, if any, collected in
connection with the late payment of such delinquent Monthly Payment; and
provided, further, that, in no event shall interest so accrue on any P&I Advance
as to which the corresponding Late Collection was received by the Master
Servicer or a Sub-Servicer on its behalf as of the related Master Servicer
Remittance Date. Interest so accrued on any P&I Advance made under this section
shall be payable: (i) out of any Default Charges collected on or in respect of
the Mortgage Pool during the same Collection Period in which such Advance is
reimbursed; and (ii) to the extent that such Default Charges are insufficient,
but only if the related Advance is being reimbursed at the same time or has been
previously reimbursed pursuant to this Agreement, out of general collections on
the Mortgage Loans and REO Properties on deposit in the Pool Custodial Account.
The Master Servicer shall, in accordance with Section 3.05(a), reimburse itself,
the Trustee or the Fiscal Agent, as applicable, for any outstanding P&I Advance
made thereby under this Section 4.03 as soon as practicable after funds
available for such purpose are deposited in the Pool Custodial Account.
XXXXXXX 0.00X. X&X Advances on the _______________ Loan Pair.
(a) On or before 2:00 p.m., New York City time, on each Master
Servicer Remittance Date, the Master Servicer shall, subject to Section 4.03A(c)
below, satisfy its obligations to make any required P&I Advance on such Master
Servicer Remittance Date in respect of the _______________ Loan Pair by
depositing into the _______________ Custodial Account, out of amounts held in
such Custodial Account for future distribution (subject to replacement of such
amounts by the following Master Servicer Remittance Date) and, if such amounts
are insufficient, then out of its own funds, the amount of such P&I Advance
required to be made. If, as of 4:00 p.m., New York City time, on any Master
Servicer Remittance Date, the Master Servicer shall not have made any P&I
Advance required to be made on such date pursuant to this Section 4.03A(a) in
respect of the _______________ Loan Pair on
-195-
the preceding Master Servicer Remittance Date (and shall not have delivered to
the Trustee the requisite Officer's Certificate and documentation related to a
determination of nonrecoverability of a P&I Advance), then the Trustee shall
provide notice of such failure to a Servicing Officer of the Master Servicer by
facsimile transmission sent to telecopy no. ______________ (or such alternative
number provided by the Master Servicer to the Trustee in writing) and by
telephone at telephone no. ______________ or ______________ (or such alternative
number provided by the Master Servicer to the Trustee in writing) as soon as
possible, but in any event before 5:00 p.m., New York City time, on such Master
Servicer Remittance Date. If after such notice, the Trustee does not receive the
full amount of such P&I Advance(s) by 10:00 a.m., New York City time, on the
related Distribution Date, then the Trustee (or the Fiscal Agent on its behalf)
shall make the portion of such P&I Advances that was required to be, but was
not, made by the Master Servicer in respect of the _______________ Mortgage Loan
or any successor REO Mortgage Loan on the preceding Master Servicer Remittance
Date. If the Trustee fails to make any such P&I Advance on the related
Distribution Date, but the Fiscal Agent makes such P&I Advance on such date,
then the Trustee shall be deemed not to be in default hereunder.
(b) The aggregate amount of the P&I Advances to be made by the
Master Servicer in respect of the _______________ Loan Pair on any Master
Servicer Remittance Date shall, subject to Section 4.03A(c) below, equal the sum
of (i) the aggregate of the Monthly Payments or, if applicable, the Assumed
Monthly Payments, net of related Master Servicing Fees and any related Workout
Fees, due (or, in the case of Assumed Monthly Payments, deemed due) in respect
of the _______________ Loan Pair on their Due Date during the related Collection
Period, but only to the extent that such amounts were not paid by or on behalf
of the related Mortgagor or otherwise collected (including as net income from
the _____________ REO Property) as of the close of business on the related
Determination Date and (ii) following the occurrence and during the continuance
of an event of default with respect to the _______________ Loan Pair and, in any
event, following an REO Acquisition with respect to the _______________
Mortgaged Property (in circumstances where collections on the _______________
Loan Pair or related Mortgaged Property that would otherwise be applied to pay
accrued interest (exclusive of Default Interest and/or Additional Interest) due
with respect to the _______________ Companion Loan or any related REO Loan on
its Due Date during the related Collection Period, are instead being applied,
pursuant to the related loan agreement and/or the _______________ Co-Lender
Agreement, to pay principal of the _______________ Mortgage Loan or any related
REO Mortgage Loan ), an amount allocable to interest on the _______________
Companion Loan or any related REO Loan that is equal to (A) that portion of the
aggregate Monthly Payments or, if applicable, the Assumed Monthly Payments, net
of related Master Servicing Fees and any related Workout Fees, due (or, in the
case of Assumed Monthly Payments, deemed due) in respect of the _______________
Loan Pair on their Due Date during the related Collection Period, that would
have been allocated to accrued interest on the _______________ Companion Loan or
any related REO Loan on such Due Date pursuant to the related loan agreement
and/or the _______________ Co-Lender Agreement, had such event of default and/or
REO Acquisition not occurred, minus (B) that portion of the P&I Advance made
pursuant to the immediately preceding clause (i) that is to be remitted to the
_______________ Companion Loan Noteholder in respect of such accrued interest on
the _______________ Companion Loan or any related REO Loan on such Master
Servicer Remittance Date; provided that if it is determined that an Appraisal
Reduction Amount exists with respect to the _______________ Loan Pair, then, in
the event of subsequent delinquencies on the _______________ Loan Pair, each P&I
Advance, if any, required to be made in respect of the _______________ Loan Pair
during the period that such Appraisal Reduction Amount continues to exist, shall
be reduced to equal the product of (i) the amount of the subject P&I Advance
that would otherwise be required in respect of the
-196-
_______________ Loan Pair without regard to this proviso and the immediately
following sentence, multiplied by (ii) a fraction, the numerator of which is
equal to the aggregate Stated Principal Balance of the _______________ Loan
Pair, net of the Appraisal Reduction Amount as of the related Determination
Date, and the denominator of which is equal to the aggregate Stated Principal
Balance of the _______________ Loan Pair; and provided, further, that any
reduction in the P&I Advance to be made in respect of the _______________ Loan
Pair on any Master Servicer Remittance Date in accordance with the immediately
preceding proviso shall be allocable, first, against the portion of the
delinquent Monthly Payments or, if applicable, Assumed Monthly Payments
allocable to the _______________ Companion Loan or any related REO Loan and,
then, against the portion of the delinquent Monthly Payments or, if applicable,
Assumed Monthly Payments allocable to the _______________ Mortgage Loan or any
related REO Mortgage Loan. Notwithstanding the foregoing, at the request of the
_______________ Companion Loan Noteholder, the Master Servicer shall cease
making P&I Advances in respect of the _______________ Companion Loan or any
related REO Loan or any particular component(s) of such Loan or REO Loan, as the
case may be (i.e., the Master Servicer shall not advance the portion of the
delinquent Monthly Payments or, if applicable, Assumed Monthly Payments
allocable to the _______________ Companion Loan or any related REO Loan or such
component(s) of such Loan or REO Loan, as the case may be) until such time as
the _______________ Companion Loan Noteholder requests that such P&I Advances
again commence (each such request to be made at least five (5) Business Days
prior to the date on which the P&I Advance would otherwise be made).
(c) Notwithstanding anything herein to the contrary, no P&I
Advance shall be required to be made under this Section 4.03A with respect to a
Loan or REO Loan in the _______________ Loan Pair if such P&I Advance would, if
made, constitute a Nonrecoverable P&I Advance. The determination by the Master
Servicer that any proposed P&I Advance, if made pursuant to this Section 4.03A
with respect to a Loan or REO Loan in the _______________ Loan Pair, would
constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's
Certificate delivered to the Trustee and the _______________ Companion Loan
Noteholder on or before the next Master Servicer Remittance Date, setting forth
the basis for such determination, together with any other information that
supports such determination, including an appraisal (which appraisal shall be an
expense payable out of the _______________ Custodial Account and shall have been
conducted by an Independent Appraiser in accordance with the standards of the
Appraisal Institute, within the twelve months preceding such determination of
nonrecoverability), Mortgagor operating statements and financial statements,
budgets and rent rolls of the Mortgaged Property (to the extent available and/or
in the Master Servicer's or the Special Servicer's possession), engineers'
reports, environmental surveys and any similar reports that the Master Servicer
may have obtained consistent with the Servicing Standard and that support such
determination by the Master Servicer. If, in connection with the foregoing, it
is necessary for the Master Servicer to obtain an appraisal, the Master Servicer
shall so notify the Special Servicer and consult with the Special Servicer
regarding such appraisal. The Trustee and the Fiscal Agent shall be entitled to
rely, conclusively, on any determination by the Master Servicer that a P&I
Advance to be made in respect of the _______________ Mortgage Loan or any
successor REO Mortgage Loan, if made, would be a Nonrecoverable Advance;
provided, however, that if the Master Servicer has failed to make such a P&I
Advance with respect to the _______________ Mortgage Loan or any successor REO
Mortgage Loan for reasons other than a determination by the Master Servicer that
such P&I Advance would be Nonrecoverable Advance, the Trustee or Fiscal Agent
shall make such Advance within the time periods required by Section 4.03A(a)
unless the Trustee or the Fiscal Agent, in its good faith, reasonable
discretion, makes a determination prior to the times specified
-197-
in Section 4.03A(a) that such P&I Advance would be a Nonrecoverable P&I Advance.
In the event the _______________ Mortgage Loan is a Specially Serviced Mortgage
Loan, then upon determining that any P&I Advance made with respect to the
_______________ Mortgage Loan or any successor REO Mortgage Loan with respect
thereto is a Nonrecoverable P&I Advance, the Special Servicer shall report to
the Master Servicer the Special Servicer's determination. The Master Servicer
shall be entitled to conclusively rely on such determination.
(d) The Master Servicer, the Trustee and the Fiscal Agent
shall be entitled to receive interest at the Reimbursement Rate in effect from
time to time, compounded annually, accrued on the amount of each P&I Advance
made thereby in respect of a Loan or REO Loan in the _______________ Loan Pair
under this Section 4.03A (with its own funds) for so long as such P&I Advance is
outstanding; provided that, if the grace period for the delinquent Monthly
Payment as to which a P&I Advance was made under this section has not elapsed as
of the time such P&I Advance was made, then the total interest so accrued on
such P&I Advance prior to the expiration of such grace period, shall not exceed
the amount of Default Charges, if any, collected in connection with the late
payment of such delinquent Monthly Payment; and provided, further, that, in no
event shall interest so accrue on any P&I Advance in respect of a Loan in the
_______________ Loan Pair as to which the corresponding Late Collection was
received by the Master Servicer or a Sub-Servicer on its behalf as of the Master
Servicer Remittance Date on which such P&I Advance was made. Interest so accrued
on any P&I Advance made under this section shall be payable: (i) first, out of
Default Charges collected on or in respect of the _______________ Companion Loan
during the same Collection Period in which such Advance is reimbursed, (ii)
second, out of Default Charges collected on or in respect of the _______________
Mortgage Loan during the same Collection Period in which such Advance is
reimbursed, and (iii) third, to the extent that the Default Charges described in
the immediately preceding clauses (i) and (ii) are insufficient, but only if
such Advance is being reimbursed at the same time or if such Advance has been
previously reimbursed, out of any other collections that were made on or in
respect of the _______________ Loan Pair; provided that interest on P&I Advances
made with respect to the _______________ Companion Loan may be paid solely,
pursuant to clauses (i) and (iii) above, from Default Charges or other
collections Received by the Trust on or in respect of the _______________
Companion Loan. The Master Servicer shall, in accordance with Section 3.05A,
reimburse itself, the Trustee and the Fiscal Agent, as applicable, for any
outstanding P&I Advance made thereby in respect of a Loan in the _______________
Loan Pair under this Section 4.03A as soon as practicable after funds available
for such purpose are deposited in the _______________ Custodial Account for such
related Loan in the _______________ Loan Pair in respect of which the P&I
Advance was made.
SECTION 4.04. Allocation of Realized Losses and Additional
Trust Fund Expenses
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01, the Trustee
shall determine the amount, if any, by which (i) the then aggregate of the Class
Principal Balances of all the Classes of Principal Balance Certificates, exceeds
(ii) the aggregate Stated Principal Balance of the Mortgage Pool that will be
outstanding immediately following such Distribution Date. If such excess does
exist, then the Class Principal Balances of the Class U, Class T, Class S, Class
Q, Class P, Class N, Class M, Class L, Class K, Class J, Class H, Class G, Class
F, Class E, Class D, Class C and Class B Certificates shall be reduced
sequentially, in that order, in each case, until such excess or the related
Class Principal Balance is reduced to zero (whichever occurs first). If, after
the foregoing reductions, the amount described in clause (i) of the second
preceding sentence still exceeds the amount described in clause (ii) of such
-198-
sentence, then the respective Class Principal Balances of all the outstanding
Classes of the Class A Certificates shall be reduced on a pro rata basis in
accordance with the relative sizes of such Class Principal Balances, until any
such remaining excess is reduced to zero. All such reductions in the Class
Principal Balances of the respective Classes of the Principal Balance
Certificates shall constitute allocations of Realized Losses and Additional
Trust Fund Expenses.
(b) On each Distribution Date, following the deemed
distributions to be made in respect of the REMIC II Regular Interests on such
date pursuant to Section 4.01(j), the Trustee shall determine the amount, if
any, by which (i) the then aggregate Uncertificated Principal Balance of the
REMIC II Regular Interests, exceeds (ii) the aggregate Stated Principal Balance
of the Mortgage Pool that will be outstanding immediately following such
Distribution Date. If such excess does exist, then the Uncertificated Principal
Balances of REMIC II Regular Interest U, REMIC II Regular Interest T, REMIC II
Regular Interest S, REMIC II Regular Interest Q, REMIC II Regular Interest P,
REMIC II Regular Interest N, REMIC II Regular Interest M, REMIC II Regular
Interest L, REMIC II Regular Interest K, REMIC II Regular Interest J-1, REMIC II
Regular Interest J-2, REMIC II Regular Interest H-1, REMIC II Regular Interest
H-2, REMIC II Regular Interest G-1, REMIC II Regular Interest G-2, REMIC II
Regular Interest F-1, REMIC II Regular Interest F-2, REMIC II Regular Interest
F-3, REMIC II Regular Interest E, REMIC II Regular Interest D, REMIC II Regular
Interest C and REMIC II Regular Interest B, shall be reduced sequentially, in
that order, in each case, until such excess or the related Uncertificated
Principal Balance is reduced to zero (whichever occurs first). If, after the
foregoing reductions, the amount described in clause (i) of the second preceding
sentence still exceeds the amount described in clause (ii) of such sentence,
then the respective Uncertificated Principal Balances of (A) REMIC II Regular
Interest A-1, (B) REMIC II Regular Interest A-2-1, REMIC II Regular Interest
A-2-2 and REMIC II Regular Interest A-2-3, as a collective matter, in the order
described in the next sentence, (C) REMIC II Regular Interest A-3-1, REMIC II
Regular Interest A-3-2 and REMIC II Regular Interest A-3-3, as a collective
matter, in the order described in the second following sentence, and (D) REMIC
II Regular Interest A-4-1 and REMIC II Regular Interest A-4-2, as a collective
matter, in the order described in the third following sentence, shall be reduced
on a pro rata basis in accordance with the relative sizes of such Uncertificated
Principal Balances, until any such remaining excess is reduced to zero. Any
reductions in the Uncertificated Principal Balances of REMIC II Regular Interest
A-2-1, REMIC II Regular Interest A-2-2 and REMIC II Regular Interest A-2-3
pursuant to the preceding sentence shall be made: first, to the Uncertificated
Principal Balance of REMIC II Regular Interest A-2-1, until such Uncertificated
Principal Balance is reduced to zero; second, to the Uncertificated Principal
Balance of REMIC II Regular Interest A-2-2, until such Uncertificated Principal
Balance is reduced to zero; and last, to the Uncertificated Principal Balance of
REMIC II Regular Interest A-2-3, until such Uncertificated Principal Balance is
reduced to zero. Any reductions in the Uncertificated Principal Balances of
REMIC II Regular Interest A-3-1, REMIC II Regular Interest A-3-2 and REMIC II
Regular Interest A-3-3 pursuant to the second preceding sentence shall be made:
first, to the Uncertificated Principal Balance of REMIC II Regular Interest
A-3-1, until such Uncertificated Principal Balance is reduced to zero; second,
to the Uncertificated Principal Balance of REMIC II Regular Interest A-3-2,
until such Uncertificated Principal Balance is reduced to zero; and last, to the
Uncertificated Principal Balance of REMIC II Regular Interest A-3-3, until such
Uncertificated Principal Balance is reduced to zero. Any reductions in the
Uncertificated Principal Balances of REMIC II Regular Interest A-4-1 and REMIC
II Regular Interest A-4-2 pursuant to the third preceding sentence shall be
made: first, to the Uncertificated Principal Balance of REMIC II Regular
Interest A-4-1, until such Uncertificated Principal Balance is reduced to zero;
and second, to the Uncertificated Principal Balance of REMIC II Regular Interest
A-4-2. All such reductions in the
-199-
Uncertificated Principal Balances of the respective REMIC II Regular Interests
shall be deemed to constitute allocations of Realized Losses and Additional
Trust Fund Expenses.
(c) On each Distribution Date, following the deemed
distributions to be made in respect of the REMIC I Regular Interests pursuant to
Section 4.01(k), the Uncertified Principal Balance of each REMIC I Regular
Interest (after taking account of such deemed distributions) shall be reduced to
equal the Stated Principal Balance of the related Mortgage Loan or REO Mortgage
Loan (or, in the case of REMIC I Regular Interest ______-1 and REMIC I Regular
Interest ______-2, the respective portions of that Stated Principal Balance
allocable to the related Loan Components of the Mortgage Note for the
_______________ Mortgage Loan or any successor REO Mortgage Loan; or, in the
case of REMIC I Regular Interest ______-1 and REMIC I Regular Interest ______-2,
the respective portions of that Stated Principal Balance allocable to the
related Loan Components of the Mortgage Note for the _______________ Mortgage
Loan or any successor REO Mortgage Loan), as the case may be, that will be
outstanding immediately following such Distribution Date. Any such reductions in
the Uncertificated Principal Balances of the respective REMIC I Regular
Interests shall be deemed to constitute allocations of Realized Losses and
Additional Trust Fund Expenses.
(d) On each Distribution Date, following the deemed
distributions to be made in respect of the Loan REMIC Regular Interests pursuant
to Section 4.01(l), the Uncertificated Principal Balance of each Loan REMIC
Regular Interest (after taking account of such deemed distributions) shall be
reduced to equal the Stated Principal Balance of the related Mortgage Loan or
REO Loan, as the case may be, that will be outstanding immediately following
such Distribution Date. Any such reductions in the Uncertificated Principal
Balances of the respective Loan REMIC Regular Interests shall be deemed to
constitute allocations of Realized Losses and Additional Trust Fund Expenses.
SECTION 4.05. Calculations.
The Trustee shall, provided it receives the necessary
information from the Master Servicer and the Special Servicer, be responsible
for performing all calculations necessary in connection with the actual and
deemed distributions and allocations to be made pursuant to Section 4.01 and
Article IX and the actual and deemed allocations of Realized Losses and
Additional Trust Fund Expenses to be made pursuant to Section 4.04. The Trustee
shall calculate the Available Distribution Amount for each Distribution Date and
shall allocate such amount among Certificateholders in accordance with this
Agreement, and the Trustee shall have no obligation to recompute, recalculate or
verify any information provided to it by the Special Servicer or Master
Servicer. The calculations by the Trustee of such amounts shall, in the absence
of manifest error, be presumptively deemed to be correct for all purposes
hereunder.
SECTION 4.06. Use of Agents.
The Master Servicer, the Special Servicer or the Trustee may
at its own expense utilize agents or attorneys-in-fact in performing any of its
obligations under this Article IV (except the obligation to make P&I Advances),
but no such utilization shall relieve the Master Servicer, the Special Servicer
or the Trustee, as applicable, from any of such obligations, and the Master
Servicer, the Special Servicer or the Trustee, as applicable, shall remain
responsible for all acts and omissions of any such agent or attorney-in-fact.
-200-
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective
forms attached hereto as Exhibits X-0, X-0, X-0, X-0, X-0, X-0 and A-7; provided
that any of the Certificates may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions
of this Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
The Certificates will be issuable in registered form only; provided, however,
that in accordance with Section 5.03, beneficial ownership interests in the
Class A, Class B, Class C, Class D, Class E, Class F, Class X-CL, Class X-CP,
Class X-______, Class H, Class J, Class K, Class L, Class M and Class N
Certificates shall initially be held and transferred through the book-entry
facilities of the Depository. The Regular Interest Certificates will be issuable
only in denominations corresponding to initial Certificate Principal Balances or
initial Certificate Notional Amounts, as the case may be, as of the Closing Date
of $10,000 in the case of the Class A-1, Class A-2, Class A-3, Class A-4, Class
B, Class C, Class D, Class E, Class F and Class G Certificates, $250,000 in the
case of the Interest Only Certificates, and $250,000 in the case of the
remaining Regular Interest Certificates, and in each such case in integral
multiples of $1 in excess thereof. The Class R-I, Class R-II, Class R-III, Class
R-LR and Class V Certificates will be issuable in denominations representing
Percentage Interests in the related Class of not less than 10%.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by the Certificate Registrar hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers or signatories of the
Certificate Registrar shall be entitled to all benefits under this Agreement,
subject to the following sentence, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, however, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein executed by the Authenticating Agent by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
SECTION 5.02. Registration of Transfer and Exchange of
Certificates.
(a) At all times during the term of this Agreement, there
shall be maintained at the office of the Certificate Registrar a Certificate
Register in which, subject to such reasonable regulations as the Certificate
Registrar may prescribe, the Certificate Registrar shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided. The Trustee is hereby initially appointed (and hereby agrees to
act in accordance with the terms hereof) as Certificate Registrar for the
purpose of registering Certificates and transfers and exchanges of Certificates
as herein provided. The offices of the Trustee responsible for its duties as
initial Certificate Register shall be located, as of
-201-
the Closing Date, at ________________________, Attention:______________________.
The Certificate Registrar may appoint, by a written instrument delivered to the
Depositor, the Master Servicer, the Special Servicer and (if the Trustee is not
the Certificate Registrar) 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. If the Trustee resigns or is removed in accordance
with the terms hereof, the successor trustee shall immediately succeed to its
duties as Certificate Registrar. The Depositor, the Trustee (if it is no longer
the Certificate Registrar), the Master Servicer and the Special Servicer shall
have the right to inspect the Certificate Register or to obtain a copy thereof
at all reasonable times, and to rely conclusively upon a certificate of the
Certificate Registrar as to the information set forth in the Certificate
Register.
If three or more Holders make written request to the Trustee,
and such request states that such Holders desire to communicate with other
Holders with respect to their rights under this Agreement or under the
Certificates and is accompanied by a copy of the communication which such
Holders propose to transmit, then the Trustee shall, within 30 days after the
receipt of such request, afford (or cause any other Certificate Registrar to
afford) the requesting Holders access during normal business hours to the most
recent list of Certificateholders held by the Certificate Registrar.
(b) No Transfer of any Non-Registered Certificate or interest
therein shall be made unless that Transfer is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of any Definitive Non-Registered Certificate is
to be made without registration under the Securities Act (other than in
connection with the initial issuance of the Non-Registered Certificates or a
Transfer of such Certificate by the Depositor, Xxxxxx Brothers or any of their
respective Affiliates or, in the case of a Global Certificate for any Class of
Book-Entry Non-Registered Certificates, a Transfer thereof to a successor
Depository or to the applicable Certificate Owner(s) in accordance with Section
5.03), then the Certificate Registrar shall refuse to register such Transfer
unless it receives (and, upon receipt, may conclusively rely upon) either: (i) a
certificate from the Certificateholder desiring to effect such Transfer
substantially in the form attached hereto as Exhibit F-1 and a certificate from
such Certificateholder's prospective Transferee substantially in the form
attached hereto either as Exhibit F-2A or as Exhibit F-2B; or (ii) an Opinion of
Counsel satisfactory to the Trustee to the effect that the prospective
Transferee is an Institutional Accredited Investor or a Qualified Institutional
Buyer and such Transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust Fund or of
the Depositor, the Master Servicer, the Special Servicer, the Tax Administrator,
the Trustee, the Fiscal Agent or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such Transfer from the Certificateholder desiring to effect such
Transfer and/or such Certificateholder's prospective Transferee on which such
Opinion of Counsel is based.
If a Transfer of any interest in the Rule 144A Global
Certificate for any Class of Book-Entry Non-Registered Certificates is to be
made without registration under the Securities Act (other than in connection
with the initial issuance of the Book-Entry Non-Registered Certificates or a
Transfer of any interest therein by the Depositor, Xxxxxx Brothers or any of
their respective Affiliates), then the Certificate Owner desiring to effect such
Transfer shall be required to obtain either (i) a certificate from
-202-
such Certificate Owner's prospective Transferee substantially in the form
attached hereto as Exhibit F-2C, or (ii) an Opinion of Counsel to the effect
that the prospective Transferee is a Qualified Institutional Buyer and such
Transfer may be made without registration under the Securities Act. Except as
provided in the following two paragraphs, no interest in the Rule 144A Global
Certificate for any Class of Book-Entry Non-Registered Certificates shall be
transferred to any Person who takes delivery other than in the form of an
interest in such Rule 144A Global Certificate. If any Transferee of an interest
in the Rule 144A Global Certificate for any Class of Book-Entry Non-Registered
Certificates does not, in connection with the subject Transfer, deliver to the
Transferor the Opinion of Counsel or one of the certifications described in the
preceding sentence, then such Transferee shall be deemed to have represented and
warranted that all the certifications set forth in Exhibit F-2C hereto are, with
respect to the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the
Rule 144A Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred (without delivery of any certificate or Opinion
of Counsel described in clauses (i) and (ii) of the first sentence of the
preceding paragraph) by the Depositor or any Affiliate of the Depositor to any
Person who takes delivery in the form of a beneficial interest in the Regulation
S Global Certificate for such Class of Certificates upon delivery to the
Certificate Registrar of (x) a certificate to the effect that the Certificate
Owner desiring to effect such Transfer is the Depositor or an Affiliate of the
Depositor and (y) such written orders and instructions as are required under the
applicable procedures of the Depository, Clearstream and Euroclear to direct the
Trustee to debit the account of a Depository Participant by a denomination of
interests in such Rule 144A Global Certificate, and credit the account of a
Depository Participant by a denomination of interests in such Regulation S
Global Certificate, that is equal to the denomination of beneficial interests in
the Class X-CL, Class X-CP, Class X-______, Class H, Class J, Class K, Class L,
Class M or Class N Certificates, as applicable, to be transferred. Upon delivery
to the Certificate Registrar of such certification and orders and instructions,
the Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the Rule 144A Global Certificate in
respect of the Class X-CL, Class X-CP, Class X-______, Class H, Class J, Class
K, Class L, Class M or Class N Certificates, as applicable, and increase the
denomination of the Regulation S Global Certificate for such Class, by the
denomination of the beneficial interest in such Class specified in such orders
and instructions.
Also notwithstanding the foregoing, any interest in a Rule
144A Global Certificate with respect to any Class of Book-Entry Non-Registered
Certificates may be transferred by any Certificate Owner holding such interest
to any Institutional Accredited Investor (other than a Qualified Institutional
Buyer) that takes delivery in the form of a Definitive Certificate of the same
Class as such Rule 144A Global Certificate upon delivery to the Certificate
Registrar and the Trustee of (i) such certifications and/or opinions as are
contemplated by the second paragraph of this Section 5.02(b) and (ii) such
written orders and instructions as are required under the applicable procedures
of the Depository to direct the Trustee to debit the account of a Depository
Participant by the denomination of the transferred interests in such Rule 144A
Global Certificate. Upon delivery to the Certificate Registrar of the
certifications and/or opinions contemplated by the second paragraph of this
Section 5.02(b), the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the subject Rule
144A Global Certificate by the denomination of the transferred interests in such
Rule 144A Global Certificate, and shall cause a Definitive Certificate of the
same Class as such Rule 144A Global Certificate, and in a denomination equal to
the reduction in the denomination of such Rule 144A
-203-
Global Certificate, to be executed, authenticated and delivered in accordance
with this Agreement to the applicable Transferee.
Except as provided in the next paragraph, no beneficial
interest in the Regulation S Global Certificate for any Class of Book-Entry
Non-Registered Certificates shall be transferred to any Person who takes
delivery other than in the form of a beneficial interest in such Regulation S
Global Certificate. On and prior to the Release Date, the Certificate Owner
desiring to effect any such Transfer shall be required to obtain from such
Certificate Owner's prospective Transferee a written certification substantially
in the form set forth in Exhibit F-2D hereto certifying that such Transferee is
not a United States Securities Person. On or prior to the Release Date,
beneficial interests in the Regulation S Global Certificate for each Class of
Book-Entry Non-Registered Certificates may be held only through Euroclear or
Clearstream. The Regulation S Global Certificate for each Class of Book-Entry
Non-Registered Certificates shall be deposited with the Trustee as custodian for
the Depository and registered in the name of Cede & Co. as nominee of the
Depository.
Notwithstanding the preceding paragraph, after the Release
Date, any interest in the Regulation S Global Certificate for a Class of
Book-Entry Non-Registered Certificates may be transferred by the Depositor or
any Affiliate of the Depositor to any Person who takes delivery in the form of a
beneficial interest in the Rule 144A Global Certificate for such Class of
Certificates upon delivery to the Certificate Registrar of (x) a certificate to
the effect that the Certificate Owner desiring to effect such Transfer is the
Depositor or an Affiliate of the Depositor and (y) such written orders and
instructions as are required under the applicable procedures of the Depository,
Clearstream and Euroclear to direct the Trustee to debit the account of a
Depository Participant by a denomination of interests in such Regulation S
Global Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Rule 144A Global Certificate, that is equal to
the denomination of beneficial interests in the Class X-CL, Class X-CP, Class
X-______, Class H, Class J, Class K, Class L, Class M or Class N Certificates,
as applicable, to be transferred. Upon delivery to the Certificate Registrar of
such certification and orders and instructions, the Trustee, subject to and in
accordance with the applicable procedures of the Depository, shall reduce the
denomination of the Regulation S Global Certificate in respect of the Class
X-CL, Class X-CP, Class X-______, Class H, Class J, Class K, Class L, Class M or
Class N Certificates, as applicable, and increase the denomination of the Rule
144A Global Certificate for such Class, by the denomination of the beneficial
interest in such Class specified in such orders and instructions.
None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify any Class of Non-Registered
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under this Agreement to permit the Transfer of any
Non-Registered Certificate or interest therein without registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of any Non-Registered Certificate or interest therein shall, and does
hereby agree to, indemnify the Depositor, the Underwriters, the Trustee, the
Fiscal Agent, the Master Servicer, the Special Servicer, the Tax Administrator
and the Certificate Registrar against any liability that may result if such
Transfer is not exempt from the registration and/or qualification requirements
of the Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws.
(c) No Transfer of a Certificate or any interest therein shall
be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and
-204-
annuities, Xxxxx plans and collective investment funds and separate accounts in
which such plans, accounts or arrangements are invested, including insurance
company general accounts, that is subject to ERISA or the Code (each, a "Plan"),
or (B) to 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, if the purchase and holding of such Certificate or interest
therein by the prospective Transferee would result in a violation of Section 406
or 407 of ERISA or Section 4975 of the Code or would result in the imposition of
an excise tax under Section 4975 of the Code. Except in connection with the
initial issuance of the Non-Registered Certificates or any Transfer of a
Non-Registered Certificate or any interest therein by the Depositor, Xxxxxx
Brothers or any of their respective Affiliates or, in the case of a Global
Certificate for any Class of Book-Entry Non-Registered Certificates, any
Transfer thereof to a successor Depository or to the applicable Certificate
Owner(s) in accordance with Section 5.03, the Certificate Registrar shall refuse
to register the Transfer of a Definitive Non-Registered Certificate unless it
has received from the prospective Transferee, and any Certificate Owner
transferring an interest in a Global Certificate for any Class of Book-Entry
Non-Registered Certificates shall be required to obtain from its prospective
Transferee, either (i) a certification to the effect that such prospective
Transferee is not a Plan and is not 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; or (ii) alternatively, a certification to the
effect that the purchase and holding of such Certificate or interest therein by
such prospective Transferee is exempt from the prohibited transaction provisions
of Sections 406(a) and (b) and 407 of ERISA and the excise taxes imposed on such
prohibited transactions by Sections 4975(a) and (b) of the Code, by reason of
Sections I and III of Prohibited Transaction Class Exemption 95-60; or (iii)
alternatively, but only in the case of a Non-Registered Certificate that is an
Investment Grade Certificate (other than, if applicable, a Class R-I, Class
R-II, Class R-III or Class V Certificate) that is being acquired by or on behalf
of a Plan in reliance on the Prohibited Transaction Exemption, a certification
to the effect that such Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, (Y) is not sponsored (within
the meaning of Section 3(16)(B) of ERISA) by the Trustee, the Depositor, either
Mortgage Loan Seller, the Master Servicer, the Special Servicer, any
Sub-Servicer, any Exemption Favored Party or any Mortgagor with respect to
Mortgage Loans constituting more than 5% of the aggregate unamortized principal
balance of all the Mortgage Loans determined as of the Closing Date, or by any
Affiliate of such Person, and (Z) agrees that it will obtain from each of its
Transferees that are Plans a written representation that such Transferee, if a
Plan, satisfied the requirements of the immediately preceding clauses (iii)(X)
and (iii)(Y), together with a written agreement that such Transferee will obtain
from each of its Transferees that are Plans a similar written representation
regarding satisfaction of the requirements of the immediately preceding clauses
(iii)(X) and (iii)(Y); or (iv) alternatively, a certification of facts and an
Opinion of Counsel which otherwise establish to the reasonable satisfaction of
the Trustee or such Certificate Owner, as the case may be, that such Transfer
will not result in a violation of Section 406 or 407 of ERISA or Section 4975 of
the Code or result in the imposition of an excise tax under Section 4975 of the
Code. It is hereby acknowledged that the forms of certification attached hereto
as Exhibit G-1 (in the case of Definitive Non-Registered Certificates) and
Exhibit G-2 (in the case of ownership interests in Book-Entry Non-Registered
Certificates) are acceptable for purposes of the preceding sentence. If any
Transferee of a Certificate (including a Registered Certificate) or any interest
therein does not, in connection with the subject Transfer, deliver to the
Certificate Registrar (in the case of a Definitive Certificate) or the
Transferor (in the case of ownership interests in a Book-Entry Certificate) any
certification and/or Opinion of Counsel contemplated by the second preceding
sentence, then such Transferee shall be deemed to have represented and warranted
that either: (i) such Transferee is not a Plan and is not directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with
-205-
assets of a Plan; or (ii) the purchase and holding of such Certificate or
interest therein by such Transferee is exempt from the prohibited transaction
provisions of Sections 406(a) and (b) and 407 of ERISA and the excise taxes
imposed on such prohibited transactions by Sections 4975(a) and (b) of the Code.
(d) (i) Each Person who has or who acquires any Ownership
Interest in a Residual Interest Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Trustee under clause
(ii) (A) below to deliver payments to a Person other than such Person and to
have irrevocably authorized the Trustee under clause (ii) (B) below to negotiate
the terms of any mandatory disposition and to execute all instruments of
Transfer and to do all other things necessary in connection with any such
disposition. The rights of each Person acquiring any Ownership Interest in a
Residual Interest Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership
Interest in a Residual Interest Certificate shall be
a Permitted Transferee and shall promptly notify the
Tax Administrator and the Trustee of any change or
impending change in its status as a Permitted
Transferee.
(B) In connection with any proposed Transfer of any
Ownership Interest in a Residual Interest
Certificate, the Certificate Registrar shall require
delivery to it, and shall not register the Transfer
of any Residual Interest Certificate until its
receipt, of an affidavit and agreement substantially
in the form attached hereto as Exhibit H-1 (a
"Transfer Affidavit and Agreement"), from the
proposed Transferee, representing and warranting,
among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its
Ownership Interest in the Residual Interest
Certificate that is the subject of the proposed
Transfer as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for
so long as it retains its Ownership Interest in a
Residual Interest Certificate it will endeavor to
remain a Permitted Transferee, and that it has
reviewed the provisions of this Section 5.02(d) and
agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit
and Agreement by a proposed Transferee under clause
(B) above, if a Responsible Officer of either the
Trustee or the Certificate Registrar has actual
knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership
Interest in a Residual Interest Certificate to such
proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership
Interest in a Residual Interest Certificate shall
agree (1) to require a Transfer Affidavit and
Agreement from any prospective Transferee to whom
such Person attempts to Transfer its Ownership
Interest in such Residual Interest Certificate and
(2) not to Transfer its Ownership Interest in such
Residual Interest Certificate unless it provides to
the Certificate Registrar a certificate substantially
in the form attached hereto as Exhibit H-2 stating
-206-
that, among other things, it has no actual knowledge
that such prospective Transferee is not a Permitted
Transferee.
(E) Each Person holding or acquiring an Ownership
Interest in a Residual Interest Certificate, by
purchasing such Ownership Interest, agrees to give
the Tax Administrator and the Trustee written notice
that it is a "pass-through interest holder" within
the meaning of temporary Treasury regulation section
1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Residual Interest
Certificate, if it is, or is holding an Ownership
Interest in a Residual Interest Certificate on behalf
of, a "pass-through interest holder".
(ii) (A) If any purported Transferee shall become a Holder
of a Residual Interest Certificate in violation of
the provisions of this Section 5.02(d), then the last
preceding Holder of such Residual Interest
Certificate that was in compliance with the
provisions of this Section 5.02(d) shall be restored,
to the extent permitted by law, to all rights as
Holder thereof retroactive to the date of
registration of such Transfer of such Residual
Interest Certificate. None of the Depositor, the
Trustee or the Certificate Registrar shall be under
any liability to any Person for any registration of
Transfer of a Residual Interest Certificate that is
in fact not permitted by this Section 5.02(d) or for
making any payments due on such Certificate to the
Holder thereof or for taking any other action with
respect to such Holder under the provisions of this
Agreement.
(B) If any purported Transferee shall become a Holder of
a Residual Interest Certificate in violation of the
restrictions in this Section 5.02(d), then, to the
extent that retroactive restoration of the rights of
the preceding Holder of such Residual Interest
Certificate as described in clause (ii)(A) above
shall be invalid, illegal or unenforceable, the
Trustee shall have the right but not the obligation,
to cause the Transfer of such Residual Interest
Certificate to a Permitted Transferee selected by the
Trustee on such terms as the Trustee may choose, and
the Trustee shall not be liable to any Person having
an Ownership Interest in such Residual Interest
Certificate as a result of the Trustee's exercise of
such discretion. Such purported Transferee shall
promptly endorse and deliver such Residual Interest
Certificate in accordance with the instructions of
the Trustee. Such Permitted Transferee may be the
Trustee itself or any Affiliate of the Trustee.
(iii) The Tax Administrator shall make available to the
IRS and to those Persons specified by the REMIC Provisions all information
furnished to it by the other parties hereto necessary to compute any tax imposed
(A) as a result of the Transfer of an Ownership Interest in a Residual Interest
Certificate to any Person who is a Disqualified Organization, including the
information described in Treasury regulations sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Interest
Certificate and (B) as a result of any regulated investment company, real estate
investment trust, common trust fund,
-207-
partnership, trust, estate or organization described in Section 1381 of the Code
that holds an Ownership Interest in a Residual Interest Certificate having as
among its record holders at any time any Person which is a Disqualified
Organization, and each of the other parties hereto shall furnish to the Tax
Administrator all information in its possession necessary for the Tax
Administrator to discharge such obligation. The Person holding such Ownership
Interest shall be responsible for the reasonable compensation of the Tax
Administrator for providing information thereto pursuant to this subsection
(d)(iii) and Section 10.01(h)(i).
(iv) The provisions of this Section 5.02(d) set forth
prior to this clause (iv) may be modified, added to or eliminated, provided that
there shall have been delivered to the Trustee and the Tax Administrator the
following:
(A) written confirmation from each Rating Agency to the
effect that the modification of, addition to or
elimination of such provisions will not cause an
Adverse Rating Event; and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Trustee and the Tax
Administrator, obtained at the expense of the party
seeking such modification of, addition to or
elimination of such provisions (but in no event at
the expense of the Trustee, the Tax Administrator or
the Trust), to the effect that doing so will not (1)
cause any REMIC Pool to cease to qualify as a REMIC
or be subject to an entity-level tax caused by the
Transfer of any Residual Interest Certificate to a
Person which is not a Permitted Transferee or (2)
cause a Person other than the prospective Transferee
to be subject to a REMIC-related tax caused by the
Transfer of a Residual Interest Certificate to a
Person that is not a Permitted Transferee.
(e) If a Person is acquiring any Non-Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of an
interest in a Book-Entry Non-Registered Certificate, to the Certificate Owner
that is transferring such interest) a certification to the effect that, and such
other evidence as may be reasonably required by the Trustee (or such Certificate
Owner) to confirm that, it has (i) sole investment discretion with respect to
each such account and (ii) full power to make the applicable foregoing
acknowledgments, representations, warranties, certifications and agreements with
respect to each such account as set forth in Subsections (b), (c) and/or (d), as
appropriate, of this Section 5.02.
(f) Subject to the preceding provisions of this Section 5.02,
upon surrender for registration of transfer of any Certificate at the offices of
the Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute and the Authenticating Agent shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class evidencing a like aggregate Percentage Interest
in such Class.
(g) At the option of any Holder, its Certificates may be
exchanged for other Certificates of authorized denominations of the same Class
evidencing a like aggregate Percentage Interest in such Class upon surrender of
the Certificates to be exchanged at the offices of the Certificate Registrar
maintained for such purpose. Whenever any Certificates are so surrendered for
exchange, the
-208-
Certificate Registrar shall execute and the Authenticating Agent shall
authenticate and deliver the Certificates which the Certificateholder making the
exchange is entitled to receive.
(h) 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.
(i) No service charge shall be imposed for any transfer or
exchange of Certificates, but the Trustee or 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.
(j) All Certificates surrendered for transfer and exchange
shall be physically canceled by the Certificate Registrar, and the Certificate
Registrar shall dispose of such canceled Certificates in accordance with its
standard procedures.
SECTION 5.03. Book-Entry Certificates.
(a) The Class A-1, Class A-2, Class A-3, Class A-4, Class B,
Class C, Class D, Class E, Class F, Class X-CL, Class X-CP, Class X-______,
Class H, Class J, Class K, Class L, Class M and Class N Certificates shall, in
the case of each such Class, initially be issued as one or more Certificates
registered in the name of the Depository or its nominee and, except as provided
in Section 5.03(c) and in the fifth paragraph of Section 5.02(b), a Transfer of
such Certificates may not be registered by the Certificate Registrar unless such
Transfer is to a successor Depository that agrees to hold such Certificates for
the respective Certificate Owners with Ownership Interests therein. Such
Certificate Owners shall hold and Transfer their respective Ownership Interests
in and to such Certificates through the book-entry facilities of the Depository
and, except as provided in Section 5.03(c) and in the fifth paragraph of Section
5.02(b), shall not be entitled to definitive, fully registered Certificates
("Definitive Certificates") in respect of such Ownership Interests. The Class
X-CL, Class X-CP, Class X-______, Class H, Class J, Class K, Class L, Class M
and Class N Certificates initially sold to Qualified Institutional Buyers in
reliance on Rule 144A or in reliance on another exemption from the registration
requirements of the Securities Act shall, in the case of each such Class, be
represented by the Rule 144A Global Certificate for such Class, which shall be
deposited with the Trustee as custodian for the Depository and registered in the
name of Cede & Co. as nominee of the Depository. The Class X-CL, Class X-CP,
Class X-______, Class H, Class J, Class K, Class L, Class M and Class N
Certificates initially sold in offshore transactions in reliance on Regulation S
shall, in the case of each such Class, be represented by the Regulation S Global
Certificate for such Class, which shall be deposited with the Trustee as
custodian for the Depository and registered in the name of Cede & Co. as nominee
of the Depository. 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 each such Certificate Owner. Each Depository Participant shall only
transfer the Ownership Interests in the Book-Entry Certificates of Certificate
Owners it represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures.
(b) The Trustee, the Master Servicer, the Special Servicer,
the Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with
-209-
respect to such Certificates for the purposes of exercising the rights of
Certificateholders hereunder. The rights of Certificate Owners with respect to
the Book-Entry Certificates shall be limited to those established by law and
agreements between such Certificate Owners and the Depository Participants and
brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of the Book-Entry
Certificates with respect to any particular matter shall not be deemed
inconsistent if they are made with respect to different Certificate Owners. The
Trustee may establish a reasonable record date in connection with solicitations
of consents from or voting by Certificateholders and shall give notice to the
Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the
Certificate Registrar in writing that the Depository is no longer willing or
able to properly discharge its responsibilities with respect to a Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to a Class of Book-Entry
Certificates, the Certificate Registrar shall notify all affected Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same.
Upon surrender to the Certificate Registrar of the Book-Entry
Certificates of any Class thereof by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, the Definitive Certificates in respect of such Class to the Certificate
Owners identified in such instructions. None of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar shall
be liable for any delay in delivery of such instructions, and each of them may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates for purposes of evidencing
ownership of any Class of Registered Certificates, the registered holders of
such Definitive Certificates shall be recognized as Certificateholders hereunder
and, accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
(d) Notwithstanding any other provisions contained herein,
neither the Trustee nor the Certificate Registrar shall have any responsibility
whatsoever to monitor or restrict the Transfer of ownership interests in any
Certificate (including but not limited to any Non-Registered Certificate or any
Subordinate Certificate) which interests are transferable through the book-entry
facilities of the Depository.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen
Certificates.
If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (ii)
there is delivered to the Trustee and the Certificate Registrar such security or
indemnity as may be reasonably required by them to save each of them harmless,
then, in the absence of actual notice to the Trustee or the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser, the
Certificate Registrar shall execute and the Authenticating Agent shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of the same Class and
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
-210-
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 applicable REMIC created hereunder, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, 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 4.01 and for all other
purposes whatsoever and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Certificate Registrar or any agent of any of them
shall be affected by notice to the contrary.
-211-
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER
AND THE CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and
Special Servicer.
The Depositor, the Master Servicer and the Special Servicer
shall be liable in accordance herewith only to the extent of the respective
obligations specifically imposed upon and undertaken by the Depositor, the
Master Servicer and the Special Servicer herein.
SECTION 6.02. Continued Qualification and Compliance of Master
Servicer; Merger, Consolidation or Conversion of
Depositor, Master Servicer or Special Servicer.
Subject to the following paragraph, the Depositor, the Master
Servicer and the Special Servicer shall each keep in full effect its existence,
rights and franchises as a legal entity under the laws of the jurisdiction of
its organization, and each will obtain and preserve its qualification to do
business as a foreign entity in, and will otherwise remain in compliance with
the laws of, each jurisdiction in which such qualification and compliance is or
shall be necessary to protect the validity and enforceability of this Agreement,
the Certificates or any of the Loans and to perform its respective duties under
this Agreement.
Each of the Depositor, the Master Servicer and the Special
Servicer may be merged or consolidated with or into any Person, or transfer all
or substantially all of its assets (which, in the case of the Master Servicer or
the Special Servicer, may be limited to all or substantially all of its assets
related to commercial mortgage loan servicing) to any Person, in which case any
Person resulting from any merger or consolidation to which the Depositor, the
Master Servicer or the Special Servicer shall be a party, or any Person
succeeding to the business (which, in the case of the Master Servicer or the
Special Servicer, may be limited to the commercial mortgage loan servicing
business) of the Depositor, the Master Servicer or the Special Servicer, shall
be the successor of the Depositor, the Master Servicer or the Special Servicer,
as the case may be, 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 no successor or surviving
Person shall succeed to the rights of the Master Servicer or the Special
Servicer unless (i) as confirmed in writing by each of the Rating Agencies, such
succession will not result in an Adverse Rating Event, and (ii) such successor
or surviving Person makes the applicable representations and warranties set
forth in Section 3.23 (in the case of a successor or surviving Person to the
Master Servicer) or Section 3.24 (in the case of a successor or surviving Person
to the Special Servicer), as applicable.
SECTION 6.03. Limitation on Liability of Depositor, Master
Servicer and Special Servicer.
None of the Depositor, the Master Servicer or the Special
Servicer shall be under any liability to the Trust Fund, the Trustee, the
Certificateholders or the _______________ Companion Loan Noteholder for any
action taken, or not taken, in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect the
Depositor, the Master Servicer or
-212-
the Special Servicer against any liability to the Trust Fund, the Trustee, the
Certificateholders or the _______________ Companion Loan Noteholder for the
breach of a representation or warranty made herein by such party, or against any
expense or liability specifically required to be borne by such party without
right of reimbursement pursuant to the terms hereof, or against any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of its obligations or duties hereunder or
negligent disregard of such obligations or duties. The Depositor, the Master
Servicer, the Special Servicer and any director, manager, member, officer,
employee or agent of the Depositor, the Master Servicer or the Special Servicer
may rely in good faith on any document of any kind which, prima facie, is
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Master Servicer, the Special Servicer and any
director, manager, member, officer, employee or agent of the Depositor, the
Master Servicer or the Special Servicer shall be indemnified and held harmless
by the Trust Fund out of the Pool Custodial Account (or, if and to the extent
the matter relates to the _______________ Loan Pair, out of the _______________
Custodial Account) against any loss, liability or reasonable expense (including
reasonable legal fees and expenses) incurred in connection with any legal action
or claim relating to this Agreement or the Certificates (including in connection
with the dissemination of information and reports as contemplated by this
Agreement), other than any such loss, liability or expense: (i) specifically
required to be borne by the party seeking indemnification, without right of
reimbursement pursuant to the terms hereof; (ii) which constitutes a Servicing
Advance that is otherwise reimbursable hereunder; (iii) incurred in connection
with any legal action or claim against the party seeking indemnification,
resulting from any breach on the part of that party of a representation or
warranty made herein; or (iv) incurred in connection with any legal action or
claim against the party seeking indemnification, resulting from any willful
misfeasance, bad faith or negligence on the part of that party in the
performance of its obligations or duties hereunder or negligent disregard of
such obligations or duties. None of the Depositor, the Master Servicer or the
Special Servicer shall be under any obligation to appear in, prosecute or defend
any legal action, unless such action is related to its respective duties under
this Agreement and either (i) it is specifically required hereunder to bear the
costs of such action or (ii) such action will not, in its reasonable and good
faith judgment, involve it in any ultimate expense or liability for which it
would not be reimbursed hereunder. Notwithstanding the foregoing, the Depositor,
the Master Servicer or the Special Servicer may in its discretion undertake any
such action which it may deem necessary or desirable with respect to the
enforcement and/or protection of the rights and duties of the parties hereto and
the interests of the Certificateholders (or, if the _______________ Loan Pair is
affected, the rights of the Certificateholders and the _______________ Companion
Loan Noteholder (as a collective whole)). In such event, the legal expenses and
costs of such action, and any liability resulting therefrom, shall be expenses,
costs and liabilities of the Trust Fund, and the Depositor, the Master Servicer
and the Special Servicer shall be entitled to be reimbursed therefor from the
Pool Custodial Account as provided in Section 3.05; provided, however, that if
the _______________ Loan Pair and/or the _______________ Companion Loan
Noteholder is involved, such expenses, costs and liabilities shall be payable
out of the _______________ Custodial Account pursuant to Section 3.05A and, to
the extent attributable to the Mortgage Loan in such Loan Pair, shall also be
payable out of the Pool Custodial Account if amounts on deposit in the
_______________ Custodial Account are insufficient therefor. In no event shall
the Master Servicer or the Special Servicer be liable or responsible for any
action taken or omitted to be taken by the other of them (unless they are the
same Person or Affiliates) or for any action taken or omitted to be taken by the
Depositor, the Trustee, any Certificateholder or the _______________ Companion
Loan Noteholder, subject to the provisions of Section 8.05(c).
-213-
SECTION 6.04. Resignation of Master Servicer and the Special
Servicer.
(a) The Master Servicer and, subject to Section 6.09, the
Special Servicer may each resign from the obligations and duties hereby imposed
on it, upon a determination that its duties hereunder are no longer permissible
under applicable law or are in material conflict by reason of applicable law
with any other activities carried on by it (the other activities of the Master
Servicer or the Special Servicer, as the case may be, so causing such a conflict
being of a type and nature carried on by the Master Servicer or the Special
Servicer, as the case may be, at the date of this Agreement). Any such
determination requiring the resignation of the Master Servicer or the Special
Servicer, as applicable, shall be evidenced by an Opinion of Counsel to such
effect which shall be delivered to the Trustee. Unless applicable law requires
the Master Servicer's or Special Servicer's resignation to be effective
immediately, and the Opinion of Counsel delivered pursuant to the prior sentence
so states, no such resignation shall become effective until the Trustee or other
successor shall have assumed the responsibilities and obligations of the
resigning party in accordance with Section 6.09 or Section 7.02 hereof. The
Master Servicer and, subject to the rights of the Controlling Class under
Section 6.09 to appoint a successor special servicer, the Special Servicer shall
each have the right to resign at any other time, provided that (i) a willing
successor thereto reasonably acceptable to the Depositor has been found
(provided that if the Depositor has not responded to a request for consent to a
successor within 15 days, such successor shall be deemed approved thereby), (ii)
each of the Rating Agencies confirms in writing that the successor's appointment
will not result in an Adverse Rating Event, (iii) the resigning party pays all
costs and expenses in connection with such resignation and the resulting
transfer of servicing, and (iv) the successor accepts appointment prior to the
effectiveness of such resignation and agrees in writing to be bound by the terms
and conditions of this Agreement. Neither the Master Servicer nor the Special
Servicer shall be permitted to resign except as contemplated above in this
Section 6.04(a).
(b) Consistent with Section 6.04(a), neither the Master
Servicer nor the Special Servicer shall, except as expressly provided herein,
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person or, except as provided in Sections 3.22, 4.06, 7.01(c) and 7.01(d),
delegate to or subcontract with, or authorize or appoint any other Person to
perform any of the duties, covenants or obligations to be performed by it
hereunder. If, pursuant to any provision hereof, the duties of the Master
Servicer or the Special Servicer are transferred to a successor thereto, the
Master Servicing Fee, the Special Servicing Fee, any Workout Fee (except as
expressly contemplated by Section 3.11(c)) and/or any Liquidation Fee, as
applicable, that accrues or otherwise becomes payable pursuant hereto from and
after the date of such transfer shall be payable to such successor.
SECTION 6.05. Rights of Depositor, Trustee and the
_______________ Companion Loan Noteholder in
Respect of the Master Servicer and the Special
Servicer.
The Master Servicer and the Special Servicer shall each afford
the Depositor, each Underwriter, the Trustee and the _______________ Companion
Loan Noteholder, upon reasonable notice, during normal business hours access to
all records maintained thereby in respect of its rights and obligations
hereunder. Upon reasonable request, the Master Servicer and the Special Servicer
shall each furnish the Depositor, each Underwriter, the Trustee and the
_______________ Companion Loan Noteholder with its most recent publicly
available financial statements and such other non-proprietary information as the
Master Servicer or the Special Servicer, as the case may be, shall determine in
its sole and absolute discretion as it possesses, which is relevant to the
performance of its duties hereunder and
-214-
which it is not prohibited by applicable law or contract from disclosing. The
Depositor may, but is not obligated to, enforce the obligations of the Master
Servicer and the Special Servicer hereunder and may, but is not obligated to,
perform, or cause a designee to perform, any defaulted obligation of the Master
Servicer or Special Servicer hereunder or exercise the rights of the Master
Servicer and the Special Servicer hereunder; provided, however, that neither the
Master Servicer nor the Special Servicer shall be relieved of any of its
obligations hereunder by virtue of such performance by the Depositor or its
designee and, provided, further, that the Depositor may not exercise any right
pursuant to Section 7.01 to terminate the Master Servicer or the Special
Servicer as a party to this Agreement. The Depositor shall not have any
responsibility or liability for any action or failure to act by the Master
Servicer or the Special Servicer and is not obligated to supervise the
performance of the Master Servicer or the Special Servicer under this Agreement
or otherwise.
SECTION 6.06. Depositor, Master Servicer and Special Servicer
to Cooperate with Trustee.
The Depositor, the Master Servicer and the Special Servicer
shall each furnish such reports, certifications and information as are
reasonably requested by the Trustee in order to enable it to perform its duties
hereunder.
SECTION 6.07. Depositor, Special Servicer and Trustee to
Cooperate with Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Master Servicer in order to enable it to perform its duties hereunder.
SECTION 6.08. Depositor, Master Servicer and Trustee to
Cooperate with Special Servicer.
The Depositor, the Master Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Special Servicer in order to enable it to perform its duties hereunder.
SECTION 6.09. Designation of Special Servicer and Controlling
Class Representative by the Controlling Class.
(a) The Holder or Holders of the Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class may at any time
and from time to time designate a Person to serve as Special Servicer hereunder
and to replace any existing Special Servicer or any Special Servicer that has
resigned or otherwise ceased to serve (including in connection with termination
pursuant to Section 7.01) as Special Servicer. Such Holder or Holders shall so
designate a Person to serve as replacement Special Servicer by the delivery to
the Trustee, the Master Servicer, the _______________ Companion Loan Noteholder
and the existing Special Servicer of a written notice stating such designation.
The Trustee shall, promptly after receiving any such notice, deliver to the
Rating Agencies an executed Notice and Acknowledgment in the form attached
hereto as Exhibit I-1. If such Holders have not replaced the Special Servicer
within 30 days of such Special Servicer's resignation or the date such Special
Servicer has ceased to serve in such capacity, the Trustee shall designate a
successor Special Servicer, subject to removal by the Controlling Class and
appointment of a successor thereto
-215-
pursuant to the terms of this Section 6.09. Any designated Person (whether
designated by Holders of the Controlling Class or by the Trustee) shall become
the Special Servicer on the date as of which the Trustee shall have received all
of the following: (1) written confirmation from all of the Rating Agencies that
the appointment of such Person will not result in an Adverse Rating Event; (2)
an Acknowledgment of Proposed Special Servicer in the form attached hereto as
Exhibit I-2, executed by the designated Person, and (3) an Opinion of Counsel
(at the expense of the Person designated to become the Special Servicer) to the
effect that, upon the execution and delivery of the Acknowledgment of Proposed
Special Servicer, the designated Person shall be bound by the terms of this
Agreement and, subject to customary limitations, that this Agreement shall be
enforceable against the designated Person in accordance with its terms. Any
existing Special Servicer shall be deemed to have resigned simultaneously with
such designated Person's becoming the Special Servicer hereunder; provided,
however, that (i) the resigning Special Servicer shall continue to be entitled
to receive all amounts accrued or owing to it under this Agreement on or prior
to the effective date of such resignation, whether in respect of Servicing
Advances or otherwise, (ii) if the resigning Special Servicer was terminated
without cause, it shall be entitled to a portion of certain Workout Fees
thereafter payable with respect to the Corrected Loans (but only if and to the
extent permitted by Section 3.11(c)) and (iii) the resigning Special Servicer
shall continue to be entitled to the benefits of Section 6.03 notwithstanding
any such resignation. Such resigning Special Servicer shall cooperate with the
Trustee and the replacement Special Servicer in effecting the termination of the
resigning Special Servicer's responsibilities and rights hereunder, including
the transfer within two Business Days to the replacement Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the Special Servicer to a Custodial Account, a Servicing
Account, a Reserve Account or an REO Account or should have been delivered to
the Master Servicer or that are thereafter received with respect to Specially
Serviced Loans and REO Properties. The Trustee shall notify the other parties
hereto, the Certificateholders and the _______________ Companion Loan Noteholder
of any termination of the Special Servicer and appointment of a new Special
Servicer in accordance with this Section 6.09.
Any out-of-pocket costs and expenses incurred in connection
with the removal of a Special Servicer and its replacement by a Person
designated by the Holder or Holders of Certificates evidencing a majority of the
Voting Rights allocated to the Controlling Class, that are not paid by the
replacement Special Servicer shall be paid by such Holder or Holders.
(b) The Holder or Holders of the Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class may also select
a representative (the "Controlling Class Representative") from whom the Special
Servicer will seek advice and approval and take direction under certain
circumstances, as described herein, and shall promptly notify the Trustee, the
Master Servicer and the Special Servicer of that selection; provided that, if no
such selection is made, any single Holder of Certificates evidencing a majority
of the Voting Rights allocated to the Controlling Class, shall be deemed to be
the Controlling Class Representative. The Controlling Class Representative shall
be required to keep all non-public information received by it in such capacity
pursuant to this Agreement confidential and, upon its designation as such, shall
deliver to the Trustee a confirmation to such effect.
(c) Notwithstanding the foregoing, if the Controlling Class
consists of Book-Entry Certificates, then the rights of the Holders of the
Controlling Class set forth above in this Section 6.09 may be exercised directly
by the relevant Certificate Owners, provided that the identity of such
Certificate Owners has been confirmed to the Trustee to its reasonable
satisfaction.
-216-
SECTION 6.10. Master Servicer or Special Servicer as Owner of
a Certificate.
The Master Servicer, the Special Servicer or any Affiliate of
either of them may become the Holder of (or, in the case of a Book-Entry
Certificate, Certificate Owner with respect to) any Certificate with (except as
otherwise set forth in the definition of "Certificateholder") the same rights it
would have if it were not the Master Servicer or the Special Servicer or an
Affiliate thereof. If, at any time during which the Master Servicer or the
Special Servicer or an Affiliate of the Master Servicer or the Special Servicer
is the Holder of (or, in the case of a Book-Entry Certificate, Certificate Owner
with respect to) any Certificate, the Master Servicer or the Special Servicer
proposes to take action (including for this purpose, omitting to take action)
that is not expressly prohibited by the terms hereof and would not, in the
Master Servicer's or the Special Servicer's reasonable, good faith judgment,
violate the Servicing Standard, but that, if taken, might nonetheless, in the
Master Servicer's or the Special Servicer's good faith judgment, be considered
by other Persons to violate the Servicing Standard, then the Master Servicer or
the Special Servicer may (but need not) seek the approval of the
Certificateholders to such action by delivering to the Trustee a written notice
that (a) states that it is delivered pursuant to this Section 6.10, (b)
identifies the Percentage Interest in each Class of Certificates beneficially
owned by the Master Servicer or an Affiliate thereof or the Special Servicer or
an Affiliate thereof, as appropriate, and (c) describes in reasonable detail the
action that the Master Servicer or the Special Servicer proposes to take. The
Trustee, upon receipt of such notice, shall forward it to the Certificateholders
(other than the Master Servicer and its Affiliates or the Special Servicer and
its Affiliates, as appropriate), together with such instructions for response as
the Trustee shall reasonably determine. If at any time Certificateholders
holding greater than 50% of the Voting Rights of all Certificateholders
(calculated without regard to the Certificates beneficially owned by the Master
Servicer or its Affiliates or the Special Servicer or its Affiliates, as
appropriate) shall have failed to object in writing (with a copy to the
_______________ Companion Loan Noteholder, if the _______________ Loan Pair is
involved) to the proposal described in the written notice, and if the Master
Servicer or the Special Servicer shall act as proposed in the written notice
within 30 days, such action shall be deemed to comply with, but not modify, the
Servicing Standard. The Trustee shall be entitled to reimbursement from the
Master Servicer or the Special Servicer, as applicable, for the reasonable
expenses of the Trustee incurred pursuant to this paragraph. It is not the
intent of the foregoing provision that the Master Servicer or the Special
Servicer be permitted to invoke the procedure set forth herein with respect to
routine servicing matters arising hereunder, but rather only in the case of
unusual circumstances.
SECTION 6.11. Certain Powers of the Controlling Class
Representative.
(a) Subject to Section 6.11(b), the Controlling Class
Representative will be entitled to advise the Special Servicer with respect to
the following actions of the Special Servicer; and, further subject to Section
6.11(b), the Special Servicer will not be permitted to take any of the following
actions unless and until it has notified the Controlling Class Representative in
writing (with a copy to the _______________ Companion Loan Noteholder, if the
_______________ Loan Pair is involved) and the Controlling Class Representative
has not objected in writing within 10 Business Days of having been notified
thereof and having been provided with all information that the Controlling Class
Representative has reasonably requested with respect thereto promptly following
its receipt of the subject notice (it being understood and agreed that if such
written objection has not been received by the Special Servicer within such
10-Business Day period, then the Controlling Class Representative will be deemed
to have approved the taking of the subject action):
-217-
(i) any foreclosure upon or comparable conversion (which
may include acquisitions of an REO Property) of the ownership of properties
securing such of the Specially Serviced Loans as come into and continue in
default;
(ii) any modification, extension, amendment or waiver of a
monetary term (including the timing of payments) or any material non-monetary
term of a Specially Serviced Loan;
(iii) any proposed sale of an REO Property (other than in
connection with the termination of the Trust Fund) for less than the Purchase
Price;
(iv) any acceptance of a discounted payoff with respect to
a Specially Serviced Loan;
(v) any determination to bring a Mortgaged Property or an
REO Property into compliance with applicable environmental laws or to otherwise
address Hazardous Materials located at a Mortgaged Property or an REO Property;
(vi) any release of collateral for a Specially Serviced
Loan (other than in accordance with the terms of, or upon satisfaction of, such
Loan);
(vii) any acceptance of substitute or additional
collateral for a Specially Serviced Loan (other than in accordance with the
terms of such Mortgage Loan);
(viii) any waiver of a "due-on-sale" or
"due-on-encumbrance" clause with respect to any Loan; and
(ix) any acceptance of an assumption agreement releasing a
borrower from liability under a Loan;
provided that, in the event that the Special Servicer determines that immediate
action is necessary to protect the interests of the Certificateholders (as a
collective whole) (or, in the case of the _______________ Loan Pair, to protect
the interests of the Certificateholders and the _______________ Companion Loan
Noteholder (as a collective whole)), the Special Servicer may take any such
action without waiting for the Controlling Class Representative's response; and
provided, further, that, in the case of the _______________ Loan Pair, upon
request of the _______________ Companion Loan Noteholder during the 10 Business
Day period referred to above, the Special Servicer shall consult with the
_______________ Companion Loan Noteholder regarding its views as to the proposed
action (but may, in its sole discretion, reject any advice or direction from the
_______________ Companion Loan Noteholder).
In addition, the Controlling Class Representative may direct
the Special Servicer to take, or to refrain from taking, any actions with
respect to the servicing and/or administration of a Specially Serviced Loan
(other than the _______________ Mortgage Loan, if applicable) as the Controlling
Class Representative may deem advisable or as to which provision is otherwise
made herein subject to Section 6.11(b). Upon reasonable request, the Special
Servicer shall provide the Controlling Class Representative with any information
in the Special Servicer's possession with respect to such matters, including its
reasons for determining to take a proposed action; provided that such
information shall also
-218-
be provided, in a written format, to the Trustee, who shall make it available
for review pursuant to Section 8.14(b) and, insofar as the _______________ Loan
Pair is involved, for review by the _______________ Companion Loan Noteholder.
Each of the Master Servicer and the Special Servicer shall
notify the Controlling Class Representative (and, in the case of the
_______________ Loan Pair, the _______________ Companion Loan Noteholder) of any
release or substitution of collateral for a Loan even if such release or
substitution is in accordance with such Loan.
(b) Notwithstanding anything herein to the contrary, no
advice, direction or objection from or by the Controlling Class Representative,
as contemplated by Section 6.11(a), may (and the Special Servicer shall ignore
and act without regard to any such advice, direction or objection that the
Special Servicer has determined, in its reasonable, good faith judgment, would)
require or cause the Special Servicer to violate any provision of this Agreement
(exclusive of Section 6.11(a)) (including the Special Servicer's obligation to
act in accordance with the Servicing Standard), the related loan documents or
the REMIC Provisions. Furthermore, the Special Servicer shall not be obligated
to seek approval from the Controlling Class Representative for any actions to be
taken by the Special Servicer with respect to any particular Specially Serviced
Loan if:
(i) the Special Servicer has, as provided in Section
6.11(a), notified the Controlling Class Representative in writing of
various actions that the Special Servicer proposes to take with respect
to the workout or liquidation of that Mortgage Loan; and
(ii) for 60 days following the first such notice, the
Controlling Class Representative has objected to all of those proposed
actions and has failed to suggest any alternative actions that the
Special Servicer considers to be consistent with the Servicing
Standard.
In addition, notwithstanding anything herein to the contrary: if the unpaid
principal amount of the _______________ Companion Loan (net of any existing
Appraisal Reduction Amount calculated in respect of the _______________ Loan
Pair as if it was a single Mortgage Loan) is equal to or greater than ____% of
the original unpaid principal amount of the _______________ Companion Loan, then
(i) the Controlling Class Representative shall not be authorized to exercise any
of its rights and powers provided for in Section 6.11(a) with respect to the
_______________ Loan Pair, and (ii) Section 6.11A(a) shall apply with respect to
the _______________ Loan Pair, instead of Section 6.11(a).
(c) The Controlling Class Representative will have no
liability to the Certificateholders or the _______________ Companion Loan
Noteholder 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 the Controlling Class Representative will not be
protected against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of negligent disregard of obligations or duties. Each Certificateholder
acknowledges and agrees, by its acceptance of its Certificates, that: (i) the
Controlling Class Representative may, and is permitted hereunder to, have
special relationships and interests that conflict with those of Holders of one
or more Classes of Certificates; (ii) the Controlling Class Representative may,
and is permitted hereunder to, act solely in the interests of the Holders of the
Controlling Class; (iii) the Controlling Class Representative does not have any
duties to the Holders of any Class of Certificates other than the Controlling
Class; (iv) the Controlling Class Representative may,
-219-
and is permitted hereunder to, take actions that favor interests of the Holders
of the Controlling Class over the interests of the Holders of one or more other
Classes of Certificates; (v) the Controlling Class Representative shall not be
deemed to have been negligent or reckless, or to have acted in bad faith or
engaged in willful misconduct, by reason of its having acted solely in the
interests of the Holders of the Controlling Class; and (vi) the Controlling
Class Representative shall have no liability whatsoever for having so acted, and
no Certificateholder may take any action whatsoever against the Controlling
Class Representative, any Holder of the Controlling Class or any director,
officer, employee, agent or principal thereof for having so acted.
(d) The _______________ Companion Loan Noteholder shall be
entitled to receive, upon request made to any party hereto, a copy of any notice
or report required to be delivered (upon request or otherwise) by such party to
the Controlling Class Representative or the Trustee with respect to the related
Loan Pair. Any such party shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing such copies.
(e) Pursuant to Section 3.23(d) of the _______________
Intercreditor Agreement and Section 6.11A(d) of the _______________ Trust and
Servicing Agreement, the Trustee, as holder of the _______________ Mortgage
Loan, is entitled to select a representative to exercise its rights and powers,
in its capacity as holder of the Mortgage Note for the _______________ Mortgage
Loan, under Section 3.23(a) of the _______________ Intercreditor Agreement and
Section 6.11A(a) of the _______________ Trust and Servicing Agreement,
respectively. The Trustee hereby selects the Controlling Class Representative as
such representative, and the Trustee shall, simultaneously with the execution
and delivery of this Agreement, inform (in writing) the _______________
Servicers under the _______________ Servicing Agreement of such selection. The
Controlling Class Representative is hereby authorized to act as "Lead Lender"
under Section 3.23(a) of the _______________ Intercreditor Agreement and as a
"Companion Loan Noteholder" under Section 6.11A(a) of the _______________ Trust
and Servicing Agreement, to the same extent as, and subject to the same
limitations, constraints and restrictions in exercising such rights and powers
as would be applicable to, the Trustee, as holder of the Mortgage Note for the
_______________ Mortgage Loan. Notwithstanding the foregoing, the Controlling
Class Representative, so acting as a representative of the Lead Lender or the
Companion Loan Noteholder, as applicable, shall not approve or recommend the
waiver of a "due-on-sale" or "due-on-encumbrance" clause with respect to the
_______________ Loan Pair unless it shall have received prior written
confirmation from _____ that such action would not result in an Adverse Rating
Event with respect to the Certificates rated by _____.
If (i) the Trustee is requested to take any action in its
capacity as holder of the _______________ Mortgage Loan, pursuant to the
_______________ Intercreditor Agreement and/or the _______________ Trust and
Servicing Agreement, or (ii) a Responsible Officer of the Trustee becomes aware
of a default or event of default on the part of any other party under the
_______________ Servicing Agreement, the Trustee will notify (in writing), and
act in accordance with the instructions of, the Controlling Class
Representative; provided that, if such instructions are not provided within the
prescribed time period, the Trustee will take such action or inaction as it
deems to be in the best interests of the Certificateholders (as a collective
whole). Subject to the rights of the _______________ Non-Trust Loan Noteholder,
the Controlling Class Representative may direct the Trustee in writing to waive
any event of default under the _______________ Servicing Agreement, to the
extent that such event of default relates to the _______________ Mortgage Loan.
During the continuance of any event of default or other default under the
_______________ Servicing Agreement,
-220-
the Trustee shall have the right to take all actions 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). The Trustee shall promptly forward to
the Depositor and the Controlling Class Representative all material notices or
other communications delivered to it in connection with the _______________
Servicing Agreement.
SECTION 6.11A. Certain Powers of the _______________ Companion
Loan Noteholder.
(a) Subject to Section 6.11A(b), the _______________ Companion
Loan Noteholder will be entitled to advise the Special Servicer with respect to
the following actions of the Special Servicer in connection with the ___________
Loan Pair; and, further subject to Section 6.11A(b), the Special Servicer will
not be permitted to take any of the following actions with respect to the
_______________ Loan Pair unless and until it has notified the _______________
Companion Loan Noteholder in writing and the _______________ Companion Loan
Noteholder has not objected in writing within 10 Business Days of having been
notified thereof and having been provided with all reasonably requested
information with respect thereto (it being understood and agreed that if such
written objection has not been received by the Special Servicer within such 10
Business Day period, then the _______________ Companion Loan Noteholder will be
deemed to have approved of the subject action):
(i) any foreclosure upon or comparable conversion (which
may include acquisition of an REO Property) of the ownership of the
_______________ Mortgaged Property and the other collateral securing
the _______________ Loan Pair if the Loans in the Loan Pair come into
and continue in default;
(ii) any modification, amendment or waiver of a monetary
term (including the timing of payments) or any material non-monetary
term (including any material term relating to insurance) of the
_______________ Mortgage Loan and/or the _______________ Companion
Loan;
(iii) any proposed sale of the _______________ Mortgaged
Property after it becomes an REO Property (other than in connection
with the termination of the Trust Fund);
(iv) any acceptance of a discounted payoff of the ________
_______________ Companion Loan;
(v) any determination to bring the _______________
Mortgaged Property into compliance with applicable environmental laws
or to otherwise address Hazardous Materials located at such Mortgaged
Property; (vi) any release of collateral for the _______________ Loan
Pair (other than in accordance with the terms of, or upon satisfaction
of, the _______________ Loan Pair);
(vii) any acceptance of substitute or additional
collateral for the _______________ Loan Pair (other than in accordance
with the terms of the Loan Pair);
-221-
(viii) any waiver of any rights under a "due-on-sale" or
"due-on-encumbrance" clause for the _______________ Loan Pair; and
(ix) any acceptance of an assumption agreement releasing
the Mortgagor from liability under the _______________ Loan Pair;
provided that, in the event that the Special Servicer determines that immediate
action is necessary to protect the interests of the Certificateholders and the
_______________ Companion Loan Noteholder (as a collective whole), the Special
Servicer may take any such action without waiting for the _______________
Companion Loan Noteholder's response.
In addition, subject to Section 6.11A(b), with respect to the
_______________ Loan Pair, the _______________ Companion Loan Noteholder may
direct the Special Servicer to take, or to refrain from taking, such actions as
the _______________ Companion Loan Noteholder may deem advisable or as to which
provision is otherwise made herein. Upon reasonable request, the Special
Servicer shall, with respect to the _______________ Loan Pair, provide the
_______________ Companion Loan Noteholder with any information in the Special
Servicer's possession with respect to such matters, including its reasons for
determining to take a proposed action.
(b) Notwithstanding anything herein to the contrary, no
advice, direction or objection from or by the _______________ Companion Loan
Noteholder, as contemplated by Section 6.11A(a), may (and the Special Servicer
shall ignore and act without regard to any such advice, direction or objection
that the Special Servicer has determined, in its reasonable, good faith
judgment, would) require or cause the Special Servicer to violate any provision
of this Agreement (exclusive of Section 6.11A(a)) (including the Special
Servicer's obligation to act in accordance with the Servicing Standard), or the
related loan documents or the REMIC Provisions. Furthermore, the Special
Servicer shall not be obligated to seek approval from the _______________
Companion Loan Noteholder for any actions to be taken by the Special Servicer
with respect to the _______________ Loan Pair if:
(i) the Special Servicer has, as provided in Section
6.11A(a), notified the _______________ Companion Loan Noteholder in
writing of various actions that the Special Servicer proposes to take
with respect to the workout or liquidation of the _______________ Loan
Pair; and
(ii) for 60 days following the first such notice, the
_______________ Companion Loan Noteholder has objected to all of those
proposed actions and has failed to suggest any alternative actions that
the Special Servicer considers to be consistent with the Servicing
Standard.
In addition, notwithstanding anything herein to the contrary,
unless the unpaid principal amount of the _______________ Companion Loan (net of
any existing Appraisal Reduction Amount calculated in respect of the Loan Pair)
is equal to or greater than ____% of the original unpaid principal amount of the
_______________ Companion Loan, then: (i) the _______________ Companion Loan
Noteholder shall not be authorized to exercise any of its rights and powers
provided for in Section 6.11A(a) with respect to the _______________ Companion
Loan or the _______________ Mortgage Loan; and (ii) Section 6.11(a) shall apply
with respect to the _______________ Companion Loan and the _______________
Mortgage Loan, instead of Section 6.11A(a).
-222-
(c) The _______________ Companion Loan Noteholder will not
have any liability to the Trust or the Certificateholders for any action taken,
or for refraining from the taking of any action, in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that the
_______________ Companion Loan Noteholder will not be protected against any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or negligence in the performance of duties or by reason of negligent
disregard of obligations or duties.
(d) The _______________ Companion Loan Noteholder may
designate, in writing, a representative to exercise its rights and powers under
this Section 6.11A or otherwise under this Agreement (copies of such writing to
be delivered to each of the parties hereto). Such designation shall remain in
effect until it is revoked by the _______________ Companion Loan Noteholder by a
writing delivered to each of the parties hereto.
(e) The _______________ Companion Loan Noteholder shall be
entitled to receive, upon request, a copy of any notice or report required to be
delivered (upon request or otherwise) to the Trustee with respect to the
_______________ Loan Pair or any related REO Property by any other party hereto.
Any such other party shall be permitted to require payment of a sum sufficient
to cover the reasonable costs and expenses of providing such copies.
-223-
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default", wherever used herein, means any one of
the following events:
(i) any failure by the Master Servicer to deposit into a
Custodial Account, any amount, including a P&I Advance, required to be
so deposited or remitted by it under this Agreement, which failure
continues unremedied for one Business Day following the date on which a
deposit or remittance was first required to be made; or
(ii) any failure by the Special Servicer to deposit into
an REO Account or to deposit into, or to remit to the Master Servicer
for deposit into, a Custodial Account, any amount required to be so
deposited or remitted under this Agreement, which failure continues
unremedied for one Business Day following the date on which a deposit
or remittance was first required to be made; or
(iii) any failure by the Master Servicer to deposit into,
or remit to the Trustee for deposit into, the Collection Account, any
amount (including any P&I Advances and any amounts to cover Prepayment
Interest Shortfalls) required to be so deposited or remitted by it
under this Agreement, which failure continues unremedied until 11:00
a.m. (New York City time) on the applicable Distribution Date, or any
failure by the Master Servicer to make, on a timely basis, the required
payments (including any P&I Advances) to the _______________ Companion
Loan Noteholder on any Master Servicer Remittance Date, which failure
continues unremedied until 11:00 a.m. (New York City time) on the
Business Day after such remittance date; or
(iv) any failure by the Master Servicer or the Special
Servicer to timely make any Servicing Advance required to be made by it
hereunder, which Servicing Advance remains unmade for a period of three
Business Days following the date on which notice shall have been given
to the Master Servicer or the Special Servicer, as the case may be, by
the Trustee as provided in Section 3.11(f); or
(v) any failure on the part of the Master Servicer or the
Special Servicer duly to observe or perform in any material respect any
other covenants or agreements on the part of the Master Servicer or the
Special Servicer, as the case may be, contained in this Agreement,
which continues unremedied for a period of 30 days (15 days in the case
of payment of insurance premiums) after the date on which written
notice of such failure, requiring the same to be remedied, shall have
been given to the Master Servicer or the Special Servicer, as the case
may be, by any other party hereto or to the Master Servicer or the
Special Servicer, as the case may be (with a copy to each other party
hereto), by the _______________ Companion Loan Noteholder (if affected
thereby) or the Holders of Certificates entitled to at least 25% of the
Voting Rights, provided, however, that with respect to any such failure
which is not curable within such 30-day period, the Master Servicer or
the Special Servicer, as the case may be, shall have an additional cure
period of 30 days to effect such cure so long as the Master Servicer or
the Special Servicer,
-224-
as the case may be, has commenced to cure such failure within the
initial 30-day period and has provided the Trustee and the
_______________ Companion Loan Noteholder with an Officer's Certificate
certifying that it has diligently pursued, and is diligently continuing
to pursue, a full cure; or
(vi) any breach on the part of the Master Servicer or the
Special Servicer of any of its representations or warranties contained
in this Agreement that materially and adversely affects the interests
of any Class of Certificateholders or the _______________ Companion
Loan Noteholder and which breach continues unremedied for a period of
30 days after the date on which written notice of such breach,
requiring the same to be remedied, shall have been given to the Master
Servicer or the Special Servicer, as the case may be, by any other
party hereto or to the Master Servicer or the Special Servicer, as the
case may be (with a copy to each other party hereto), by the
_______________ Companion Loan Noteholder (if affected thereby) or the
Holders of Certificates entitled to at least 25% of the Voting Rights,
provided, however, that with respect to any such breach which is not
curable within such 30-day period, the Master Servicer or the Special
Servicer, as the case may be, shall have an additional cure period of
30 days so long as the Master Servicer or the Special Servicer, as the
case may be, has commenced to cure such breach within the initial
30-day period and provided the Trustee and the _______________
Companion Loan Noteholder with an Officer's Certificate certifying that
it has diligently pursued, and is diligently continuing to pursue, a
full cure; or
(vii) a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises in an
involuntary case under any present or future federal or state
bankruptcy, insolvency or similar law for the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer or the Special Servicer and such decree or order shall have
remained in force undischarged, undismissed or unstayed for a period of
60 days; or
(viii) the Master Servicer or the Special Servicer shall
consent to the appointment of a conservator, receiver, liquidator,
trustee or similar official in any bankruptcy, insolvency, readjustment
of debt, marshaling of assets and liabilities or similar proceedings of
or relating to it or of or relating to all or substantially all of its
property; or
(ix) the Master Servicer or the Special Servicer shall
admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable
bankruptcy, insolvency or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the
foregoing; or
(x) [one or more ratings assigned by _________ to the
Certificates (or the _____________ Companion Loan Securities, if the
_____________ Companion Loan is then serviced and administered
hereunder) has been qualified, downgraded or withdrawn, or otherwise
made the subject of a "negative" credit watch, which _________ has
determined, and given notice in writing (including through a
publication or newsletter) or electronically
-225-
(including through an internet website), is solely or in material part
a result of the Master Servicer or Special Servicer, as the case may
be, acting in such capacity];
(xi) the Master Servicer fails to be rated at least "CMS3"
by _________ or the Special Servicer fails to be rated at least "CSS3"
by _________; or
(xii) the Master Servicer or the Special Servicer is
removed from _____'s approved master servicer list or special servicer
list, as the case may be, and the ratings of any of the Certificates
(or the _____________ Companion Loan Securities, if the _____________
Companion Loan is then serviced and administered hereunder) by _____
are qualified, downgraded or withdrawn in connection with the removal.
When a single entity acts as the Master Servicer and the
Special Servicer, an Event of Default in one capacity shall constitute an Event
of Default in the other capacity.
(b) If any Event of Default described in clauses (i) - (ix)
and (xii) of subsection (a) above shall occur with respect to the Master
Servicer or the Special Servicer (in either case, for purposes of this Section
7.01(b), the "Defaulting Party") and shall be continuing, then, and in each and
every such case, so long as such Event of Default shall not have been remedied,
the Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 25% of the Voting Rights or, to the extent that it is
affected by such Event of Default, the _______________ Companion Loan
Noteholder, the Trustee shall, by notice in writing to the Defaulting Party
(with a copy of such notice to each other party hereto and the Rating Agencies)
terminate, subject to Section 7.01(d), all of the rights and obligations (but
not the liabilities for actions and omissions occurring prior thereto) of the
Defaulting Party under this Agreement and in and to the Trust Fund and the
_______________ Companion Loan, other than its rights, if any, as a
Certificateholder hereunder or as the holder of the _______________ Companion
Loan or any interest therein. If any Event of Default described in clause (x) of
subsection (a) above shall occur with respect to the Master Servicer or the
Special Servicer (in either case, under such circumstances, for purposes of this
Section 7.01(b), the "Defaulting Party"), the Trustee shall, by notice in
writing (to be sent immediately by facsimile transmission) to the Defaulting
Party (with a copy of such notice to each other party hereto and the Rating
Agencies), terminate, subject to Section 7.01(d), all of the rights and
obligations (but not the liabilities for actions and omissions occurring prior
thereto) of the Defaulting Party under this Agreement and in and to the Trust
Fund and the _______________ Companion Loan, other than its rights, if any, as a
Certificateholder hereunder or as the holder of the _______________ Companion
Loan or any interest therein, within 30 days following the occurrence of such
Event of Default. From and after the receipt by the Defaulting Party of such
written notice of termination, all authority and power of the Defaulting Party
under this Agreement, whether with respect to the Certificates (other than as a
holder of any Certificate), the Loans (other than as a holder thereof or any
interest therein) or otherwise, shall pass to and be vested in the Trustee
pursuant to and under this section, and, without limitation, the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of and at the
expense of the Defaulting Party, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Loans and related documents, or otherwise. The Master Servicer and the
Special Servicer each agree that, if it is terminated pursuant to this Section
7.01(b), it shall promptly (and in any event no later than 10 Business Days
subsequent to its receipt of the notice of termination) provide the Trustee with
all documents and records, including those in electronic form, requested
-226-
thereby to enable the Trustee to assume the Master Servicer's or Special
Servicer's, as the case may be, functions hereunder, and shall cooperate with
the Trustee in effecting the termination of the Master Servicer's or Special
Servicer's, as the case may be, responsibilities and rights hereunder, including
(i) if the Master Servicer is the Defaulting Party, the immediate transfer to
the Trustee or a successor Master Servicer for administration by it of all cash
amounts that shall at the time be or should have been credited by the Master
Servicer to a Custodial Account, the Collection Account, the Defeasance Deposit
Account, a Servicing Account or a Reserve Account or that are thereafter
received by or on behalf of it with respect to any Loan or (ii) if the Special
Servicer is the Defaulting Party, the transfer within two Business Days to the
Trustee or a successor Special Servicer for administration by it of all cash
amounts that shall at the time be or should have been credited by the Special
Servicer to an REO Account, a Custodial Account, a Servicing Account or a
Reserve Account or should have been delivered to the Master Servicer or that are
thereafter received by or on behalf of it with respect to any Loan or REO
Property; provided, however, that the Master Servicer and the Special Servicer
each shall, if terminated pursuant to this Section 7.01(b), continue to be
entitled to receive all amounts accrued or owing to it under this Agreement on
or prior to the date of such termination, whether in respect of Advances or
otherwise, and it shall continue to be entitled to the benefits of Section 6.03
notwithstanding any such termination. Any cost or expenses in connection with
any actions to be taken by any party hereto pursuant to this paragraph shall be
borne by the Defaulting Party and if not paid by the Defaulting Party within 90
days after the presentation of reasonable documentation of such costs and
expenses, such expense shall be reimbursed by the Trust Fund; provided, however,
that the Defaulting Party shall not thereby be relieved of its liability for
such expenses. For purposes of this Section 7.01 and also for purposes of
Section 7.03(b), the Trustee shall not be deemed to have knowledge of an event
which constitutes, or which with the passage of time or notice, or both, would
constitute an Event of Default unless a Responsible Officer of the Trustee
assigned to and working in the Trustee's Corporate Trust Office has actual
knowledge thereof or unless notice of any event which is in fact such an Event
of Default is received by the Trustee and such notice references the
Certificates, the Trust Fund or this Agreement.
(c) In the case of an Event of Default under Section
7.01(a)(x) or (xi) of which the Trustee has notice, the Trustee shall provide
written notice thereof to the Master Servicer promptly upon receipt of such
notice. Notwithstanding Section 7.01(b), if the Master Servicer receives a
notice of termination under Section 7.01(b) solely due to an Event of Default
under 7.01(a)(x) or (xi), and if the terminated Master Servicer provides the
Trustee with the appropriate "request for proposal" materials within five
Business Days following such termination, then the Master Servicer shall
continue to serve in such capacity hereunder until a successor thereto is
selected in accordance with this Section 7.01(c) or the expiration of 45 days
from the Master Servicer's receipt of the notice of termination, whichever
occurs first. Upon receipt of such "request for proposal" materials from the
terminated Master Servicer, the Trustee shall promptly thereafter (using such
"request for proposal" materials) solicit good faith bids for the rights to
master service the Loans under this Agreement from at least three (3) Persons
qualified to act as a successor Master Servicer hereunder in accordance with
Section 6.02 and Section 7.02 (any such Person so qualified, a "Qualified
Bidder") or, if three (3) Qualified Bidders cannot be located, then from as many
Persons as the Trustee can determine are Qualified Bidders; provided that at the
Trustee's request, the terminated Master Servicer shall supply the Trustee with
the names of Persons from whom to solicit such bids; and provided, further, that
the Trustee shall not be responsible if less than three (3) or no Qualified
Bidders submit bids for the right to master service the Loans (other than the
_______________ Mortgage Loan) under this Agreement. The bid proposal shall
require any Successful Bidder (as defined below), as a condition of such bid, to
enter into this Agreement as
-227-
successor Master Servicer, and to agree to be bound by the terms hereof, within
45 days after the receipt of notice of termination by the terminated Master
Servicer. The Trustee shall solicit bids: (i) on the basis of such successor
Master Servicer retaining all Sub-Servicers to continue the primary servicing of
the Loans (other than the _______________ Mortgage Loan) pursuant to the terms
of the respective Sub-Servicing Agreements and to enter into a Sub-Servicing
Agreement with the terminated Master Servicer to sub-service each of the Loans
(other than the _______________ Mortgage Loan) not subject to a Sub-Servicing
Agreement at a sub-servicing fee rate per annum equal to the Master Servicing
Fee Rate minus two and one-half (2.5) basis points per Loan serviced (each, a
"Servicing-Retained Bid"); and (ii) on the basis of terminating each
Sub-Servicing Agreement and Sub-Servicer that it is permitted to terminate in
accordance with Section 3.22 (each, a "Servicing-Released Bid"). The Trustee
shall select the Qualified Bidder with the highest cash Servicing-Retained Bid
(or, if none, the highest cash Servicing Released Bid) (the "Successful Bidder")
to act as successor Master Servicer hereunder. The Trustee shall direct the
Successful Bidder to enter into this Agreement as successor Master Servicer
pursuant to the terms hereof (and, if the successful bid was a Servicing
Retained Bid, to enter into a Sub-Servicing Agreement with the terminated Master
Servicer as contemplated above) no later than 45 days after the receipt of
notice of termination by the terminated Master Servicer.
Upon the assignment and acceptance of the master servicing
rights hereunder to and by the Successful Bidder, the Trustee shall remit or
cause to be remitted (i) if the successful bid was a Servicing-Retained Bid, to
the terminated Master Servicer the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
The terminated Master Servicer shall be responsible for all
out-of-pocket expenses incurred in connection with the attempt to sell its
rights to service the Loans (exclusive of the _______________ Mortgage Loan),
which expenses are not reimbursed to the party that incurred such expenses
pursuant to the preceding paragraph.
If the Successful Bidder has not entered into this Agreement
as successor Master Servicer within 45 days after the terminated Master Servicer
received written notice of termination or no Successful Bidder was identified
within such 45-day period, the terminated Master Servicer shall reimburse the
Trustee for all reasonable "out-of-pocket" expenses incurred by the Trustee in
connection with such bid process and the Trustee shall have no further
obligations under this Section 7.01(c). The Trustee thereafter may act or may
select a successor to act as Master Servicer hereunder in accordance with
Section 7.02.
(d) Notwithstanding Section 7.01(b), if any Event of Default
on the part of the Master Servicer occurs that affects only a Companion Loan or
the _______________ Companion Loan Securities, and neither the Certificates nor
any Mortgage Loan are affected by such Event of Default, then, instead of
terminating the Master Servicer in accordance with Section 7.01(b), the Trustee
shall require the Master Servicer to appoint, within 30 days of the Trustee's
request, a Sub-Servicer (or, if the _______________ Loan Pair is currently being
sub-serviced, to replace, within 30 days of the Trustee's request, the
then-current Sub-Servicer with a new Sub-Servicer) with respect to the
_______________ Loan Pair. In connection with the Master Servicer's appointment
of a Sub-Servicer at the request of the Trustee in accordance with this Section
7.01(d), the Master Servicer shall obtain written confirmation from each Rating
Agency that such appointment will not result in an Adverse Rating Event. The
related
-228-
Sub-Servicing Agreement shall provide that any Sub-Servicer appointed by
the Master Servicer at the request of the Trustee in accordance with this
Section 7.01(d) shall be responsible for all duties, and shall be entitled to
all compensation, of the Master Servicer under this Agreement with respect to
the _______________ Loan Pair, except that the Master Servicer shall be entitled
to retain a portion of the Master Servicing Fee for the Mortgage Loan in the
_______________ Loan Pair calculated at 0.025% per annum. Such Sub-Servicing
Agreement shall also provide that such Sub-Servicer shall agree to become the
master servicer under a separate servicing agreement for the _______________
Loan Pair in the event that the _______________ Loan Pair is no longer to be
serviced and administered hereunder, which separate servicing agreement shall
contain servicing and administration, limitation of liability, indemnification
and servicing compensation provisions substantially similar to the corresponding
provisions of this Agreement, except for the fact that the _______________ Loan
Pair and the _______________ Mortgaged Property shall be the sole assets
serviced and administered thereunder and the sole source of funds thereunder. If
any Sub-Servicer appointed by the Master Servicer at the request of the Trustee
in accordance with this Section 7.01(d) shall at any time resign or be
terminated, the Master Servicer shall be required to promptly appoint a
substitute Sub-Servicer, which appointment shall not result in an Adverse Rating
Event (as evidenced in writing by each Rating Agency). In the event that a
successor Master Servicer is acting hereunder and that successor Master Servicer
desires to terminate the Sub-Servicer appointed under this Section 7.01(d), the
terminated Master Servicer that was responsible for the Event of Default that
led to the appointment of such Sub-Servicer shall be responsible for all costs
incurred in connection with such termination, including the payment of any
termination fee.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special
Servicer resigns pursuant to Section 6.04 or receives a notice of termination
pursuant to Section 7.01, the Trustee shall, unless and until a successor is
appointed pursuant to Section 6.04, Section 6.09 or Section 7.01(c), be the
successor in all respects to the Master Servicer or the Special Servicer, as the
case may be, in its capacity as such under this Agreement and the transactions
set forth or provided for herein and shall have all (and the former Master
Servicer or the Special Servicer, as the case may be, shall cease to have any)
of the responsibilities, duties and liabilities of the Master Servicer or the
Special Servicer, as the case may be, arising thereafter, including, if the
Master Servicer is the resigning or terminated party, the Master Servicer's
obligation to make P&I Advances, including in connection with any termination of
the Master Servicer for an Event of Default described in clause 7.01(a)(iii),
the unmade P&I Advances that gave rise to such Event of Default; provided that
any failure to perform such duties or responsibilities caused by the Master
Servicer's or the Special Servicer's, as the case may be, failure to provide
information or monies required by Section 7.01 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 resigning or terminated party or for any
losses incurred by the resigning or terminated party pursuant to Section 3.06
hereunder nor shall the Trustee be required to purchase any Loan hereunder. As
compensation therefor, the Trustee shall be entitled to all fees and other
compensation which the resigning or terminated party would have been entitled to
if the resigning or terminated party had continued to act hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to so act
as either Master Servicer or Special Servicer, as the case may be, or shall, if
it is unable to so act as either Master Servicer or Special Servicer, as the
case may be, or if the Trustee is not approved as a master servicer or a special
servicer, as the case may be, by any of the Rating Agencies, or if the Holders
of Certificates entitled to a majority of the Voting Rights so request in
writing to the Trustee, promptly appoint, or
-229-
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution as the successor to the resigning or terminated
Master Servicer or the Special Servicer, as the case may be, hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the resigning or terminated Master Servicer or the Special Servicer, as the case
may be, hereunder; provided, however, that no such appointee shall succeed to
the rights and obligations of the Master Servicer or Special Servicer hereunder
unless (i) as confirmed in writing by each of the Rating Agencies, such
succession will not result in an Adverse Rating Event, and (ii) such appointee
makes the applicable representations and warranties set forth in Section 3.23;
and provided, further, that in the case of a resigning or terminated Special
Servicer, such appointment shall be subject to the rights of the Holders of
Certificates evidencing a majority of the Voting Rights allocated to the
Controlling Class to designate a successor pursuant to Section 6.09. No
appointment of a successor to the Master Servicer or the Special Servicer
hereunder shall be effective until the assumption by the successor to such party
of all its responsibilities, duties and liabilities under this Agreement.
Pending appointment of a successor to the Master Servicer or the Special
Servicer hereunder, the Trustee shall act in such capacity as hereinabove
provided. In connection with any such appointment and assumption described
herein, the Trustee may make such arrangements for the compensation of such
successor out of payments on the Loans as it and such successor shall agree,
subject to the terms of this Agreement limiting the use of funds Received by the
Trust in respect of the _______________ Loan Pair to matters related to the
_______________ Loan Pair; provided, however, that no such compensation shall be
in excess of that permitted the resigning or terminated party hereunder. Such
successor and the other parties hereto shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.09, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register and to the
_______________ Companion Loan Noteholder.
(b) Not later than 10 days after a Responsible Officer of the
Trustee has notice of the occurrence of any event which constitutes or, with
notice or lapse of time or both, would constitute an Event of Default, the
Trustee shall transmit by mail to the Depositor, all the Certificateholders, the
_______________ Companion Loan Noteholder and the Rating Agencies notice of such
occurrence, unless such default shall have been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders representing at least 66-2/3% of the Voting Rights
allocated to each Class of Certificates affected by any Event of Default
hereunder, together with the _______________ Companion Loan Noteholder, if any,
that is affected by such Event of Default, may waive such Event of Default;
provided, however, that an Event of Default under any of clauses (i), (ii),
(iii), (x) and (xi) of Section 7.01(a) may be waived only by all of the
Certificateholders of the affected Classes, together with the _______________
Companion Loan Noteholder, if any, that is affected by such Event of Default.
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.
No such waiver shall extend to any
-230-
subsequent or other Event of Default or impair any right consequent thereon
except to the extent expressly so waived. Notwithstanding any other provisions
of this Agreement, for purposes of waiving any Event of Default pursuant to this
Section 7.04, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor shall be entitled to Voting Rights with respect to
the matters described above.
The foregoing paragraph notwithstanding, if the Holders
representing at least the requisite percentage of the Voting Rights allocated to
each affected Class of Certificates desire to waive an Event of Default under
clause (v) of Section 7.01(a) by the Master Servicer, but the _______________
Companion Loan Noteholder (if affected thereby) does not wish to waive that
Event of Default, then those Holders may still waive that default and the
_______________ Companion Loan Noteholder will be entitled to request that the
Master Servicer appoint, within 60 days of the _______________ Companion Loan
Noteholder's request, a Sub-Servicer (or, if the _______________ Loan Pair is
currently being subserviced, to replace, within 60 days of the _______________
Companion Loan Noteholder's request, the then-current Sub-Servicer with a new
Sub-Servicer) with respect to the _______________ Loan Pair. In connection with
the Master Servicer's appointment of a Sub-Servicer at the request of the
_______________ Companion Loan Noteholder in accordance with this Section 7.04,
the Master Servicer shall obtain written confirmation from each Rating Agency
that such appointment will not result in an Adverse Rating Event. The related
Sub-Servicing Agreement shall provide that any Sub-Servicer appointed by the
Master Servicer at the request of the _______________ Companion Loan Noteholder
in accordance with this Section 7.04 shall be responsible for all duties, and
shall be entitled to all compensation, of the Master Servicer under this
Agreement with respect to the _______________ Loan Pair, except that the Master
Servicer shall be entitled to retain a portion of the Master Servicing Fee for
the Mortgage Loan in the _______________ Loan Pair calculated at 0.025% per
annum. Such Sub-Servicing Agreement shall also provide that such Sub-Servicer
shall become the master servicer under a separate servicing agreement in the
event that the _______________ Loan Pair is no longer to be serviced and
administered hereunder, which separate servicing agreement shall contain
servicing and administration, limitation of liability, indemnification and
servicing compensation provisions substantially similar to the corresponding
provisions of this Agreement, except for the fact that the _______________ Loan
Pair and the _______________ Mortgaged Property shall be the sole assets
serviced and administered thereunder and the sole source of funds thereunder.
Such Sub-Servicer shall meet the requirements of Section 3.22. If any
Sub-Servicer appointed by the Master Servicer at the request of the
_______________ Companion Loan Noteholder in accordance with this Section 7.04
shall at any time resign or be terminated, the Master Servicer shall be required
to promptly appoint a substitute Sub-Servicer, which appointment shall not
result in an Adverse Rating Event (as evidenced in writing by each Rating
Agency). In the event a successor Master Servicer is acting hereunder and that
successor Master Servicer desires to terminate the Sub-Servicer appointed under
this Section 7.04, the terminated Master Servicer that was responsible for the
Event of Default that led to the appointment of such Sub-Servicer shall be
responsible for all costs incurred in connection with such termination,
including the payment of any termination fee.
SECTION 7.05. 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 7.01, shall have the right, in its own name and
as trustee of an express trust and on behalf of the _______________ Companion
Loan Noteholder, to take all actions now or hereafter existing at law, in equity
or by statute
-231-
to enforce its rights and remedies and to protect the interests, and enforce the
rights and remedies, of the Certificateholders and the _______________ Companion
Loan Noteholder (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.
-232-
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of 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; provided that if the Trustee is acting as Master
Servicer or Special Servicer, it shall act in accordance with the Servicing
Standard. Any permissive right of the Trustee contained in this Agreement shall
not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement (other than the Mortgage
Files, the review of which is specifically governed by the terms of Article II),
shall examine them to determine whether they conform to the requirements of this
Agreement. If any such instrument is found not to conform to the requirements of
this Agreement in a material manner, the Trustee shall 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 personally liable for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of Holders of Certificates
entitled to at least 25% of the Voting Rights relating to the time,
method and place of
-233-
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement; and
(iv) The protections, immunities and indemnities afforded
to the Trustee hereunder shall also be available to it in its capacity
as Authenticating Agent, Certificate Registrar, Tax Administrator and
Custodian.
SECTION 8.02. Certain Matters Affecting Trustee.
Except as otherwise provided in Section 8.01 and Article X:
(i) the Trustee may rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document reasonably believed
by it to be genuine and to have been signed or presented by the proper
party or parties;
(ii) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance
therewith;
(iii) the Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by this Agreement or to make
any investigation of matters arising hereunder or, except as provided
in Section 10.01 or 10.02, 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;
except as provided in Section 10.01 or 10.02, the Trustee shall not be
required to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it; nothing contained herein shall, however, relieve the
Trustee of the obligation, upon the occurrence of an Event of Default
which has not been cured, to exercise such of the rights and powers
vested in it by this Agreement, and to use the same degree of care and
skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs;
(iv) the Trustee shall not be 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;
(v) prior to the occurrence of an Event of Default
hereunder and after the curing of all Events of Default which may have
occurred, and except as may be provided in Section 10.01 or 10.02, 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,
-234-
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;
(vi) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys; provided, however, that the Trustee shall
remain responsible for all acts and omissions of such agents or
attorneys within the scope of their employment to the same extent as it
is responsible for its own actions and omissions hereunder; and
(vii) the Trustee shall not be responsible for any act or
omission of the Master Servicer or the Special Servicer (unless the
Trustee is acting as Master Servicer or the Special Servicer) or the
Depositor.
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity
or Sufficiency of Certificates or Loans.
The recitals contained herein and in the Certificates, other
than the statements attributed to the Trustee and the Fiscal Agent in Article II
and Section 8.16 and Section 8.18 and the signature of the Certificate Registrar
and the Authenticating Agent set forth on each outstanding Certificate, shall
not be taken as the statements of the Trustee or the Fiscal Agent, and neither
the Trustee nor the Fiscal Agent shall assume any responsibility for their
correctness. Except as expressly set forth in Section 8.16 and 8.18, the Trustee
and the Fiscal Agent make no representations as to the validity or sufficiency
of this Agreement or of any Certificate (other than as to the signature of the
Trustee set forth thereon) or of any Loan or related document. The Trustee and
the Fiscal Agent 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 a Custodial Account or any other account by
or on behalf of the Depositor, the Master Servicer or the Special Servicer. The
Trustee and the Fiscal Agent shall not be responsible for the accuracy or
content of any resolution, certificate, statement, opinion, report, document,
order or other instrument furnished by the Depositor, the Master Servicer or the
Special Servicer, and accepted by the Trustee in good faith, pursuant to this
Agreement.
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
The Trustee, the Fiscal Agent or any agent of the Trustee and
the Fiscal Agent, in its individual or any other capacity, may become the owner
or pledgee of Certificates with (except as otherwise provided in the definition
of "Certificateholder") the same rights it would have if it were not the
Trustee, the Fiscal Agent or such agent.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of
and by Trustee.
(a) On each Distribution Date, the Trustee shall withdraw from
the general funds on deposit in the Collection Account, prior to any
distributions to be made therefrom on such date, and pay to itself the Trustee
Fee for such Distribution Date and, to the extent not previously paid, for all
prior
-235-
Distribution Dates, as compensation for all services rendered by the Trustee 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. The Trustee Fees
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) shall constitute the Trustee's
sole compensation for such services to be rendered by it.
(b) The Trustee and any director, officer, employee or agent
of the Trustee shall be entitled to be indemnified for and held harmless by the
Trust Fund against any loss, liability or reasonable "out-of-pocket" expense
(including costs and expenses incurred in connection with removal of the Special
Servicer and Master Servicer pursuant to Sections 7.01 and 7.02, costs and
expenses of litigation, and of investigation, counsel fees, damages, judgments
and amounts paid in settlement) arising out of, or incurred in connection with,
this Agreement or the Certificates ("Trustee Liability"); provided that such
loss, liability or expense constitutes an "unanticipated expense" within the
meaning of Treasury regulation section 1.860G-1(b)(3)(ii); and provided,
further, that neither the Trustee nor any of the other above specified Persons
shall be entitled to indemnification pursuant to this Section 8.05(b) for (1)
any liability specifically required to be borne thereby pursuant to the terms of
this Agreement, or (2) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of, or the
negligent disregard of, the Trustee's obligations and duties hereunder, or as
may arise from a breach of any representation, warranty or covenant of the
Trustee made herein, or (3) any loss, liability or expense that constitutes
allocable overhead. The provisions of this Section 8.05(b) and of Section
8.05(c) shall survive any resignation or removal of the Trustee and appointment
of a successor trustee.
(c) If the Trustee Liability arises from the issuance or sale
of the Certificates and the indemnification provided for in Section 8.05(b) is
invalid or unenforceable, then the Trust Fund shall contribute to the amount
paid or payable by the Trustee as a result of such Trustee Liability in such
proportion as is appropriate to reflect the relative fault of any of the other
parties on the one hand and the Trustee on the other in connection with the
actions or omissions which resulted in such Trustee Liability, as well as any
other relevant equitable considerations.
(d) The Trustee shall indemnify and hold harmless the Trust
Fund against any losses arising out of any errors made solely by the Trustee in
calculating distributions to be made hereunder and any other calculation or
reporting hereunder (in each case not attributable to information provided to
the Trustee by the Master Servicer or the Special Servicer); provided that such
loss arose by reason of willful misfeasance, bad faith or negligence on the part
of the Trustee. The provisions of this Section 8.05(d) shall survive any
resignation or removal of the Trustee and appointment of a successor trustee.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a bank, a trust
company, an association or a corporation organized and doing business under the
laws of the United States of America or any state thereof 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 banking authority. If such bank, trust company,
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 bank, trust company, association or corporation shall be deemed
to be its combined capital and surplus
-236-
as set forth in its most recent report of condition so published. The Trustee
shall at all times maintain a long-term unsecured debt rating of at least "AA-"
and "Aa3" (or, if a Fiscal Agent meeting the requirements of Section 8.17(a) is
then currently acting in such capacity, of at least "A-") from _____ and
_________, respectively (or, in the case of either Rating Agency, such other
rating as shall not result in an Adverse Rating Event, as confirmed in writing
by such Rating Agency). The Trustee's acting in such capacity shall not
adversely affect the application of the Prohibited Transaction Exemption to the
Investment Grade Certificates. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 8.07;
provided that if the Trustee shall cease to be so eligible because its combined
capital and surplus is no longer at least $50,000,000 or its long-term unsecured
debt rating no longer conforms to the requirements of the immediately preceding
sentence, and if the Trustee proposes to the other parties hereto to enter into
an agreement with (and reasonably acceptable to) each of them, and if in light
of such agreement the Trustee's continuing to act in such capacity would not (as
evidenced in writing by each Rating Agency) cause an Adverse Rating Event, then
upon the execution and delivery of such agreement the Trustee shall not be
required to resign, and may continue in such capacity, for so long as none of
the ratings assigned by the Rating Agencies to the Certificates is adversely
affected thereby. The bank, trust company, corporation or association serving as
Trustee may have normal banking and trust relationships with the Depositor, the
Master Servicer, the Special Servicer and their respective Affiliates.
SECTION 8.07. 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, all Certificateholders and the __________
_______________ Companion Loan Noteholder. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor trustee acceptable
to the Depositor 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 Master Servicer, the Special Servicer, the
Certificateholders and the _______________ Companion Loan Noteholder by the
Depositor. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or if
the Trustee shall fail (other than by reason of the failure of either the Master
Servicer or the Special Servicer to timely perform its obligations hereunder or
as a result of other circumstances beyond the Trustee's reasonable control), to
timely deliver or otherwise make available in accordance with this Agreement any
current or revised Distribution Date Statement, CMSA Loan Periodic Update File,
CMSA Property File, CMSA Financial File or other report or statement required by
Section 4.02 and such failure shall continue unremedied for a period of five
days after receipt of written notice by the Trustee of such failure, or if a tax
is imposed or threatened with respect to the Trust Fund by any state in which
the Trustee is located or in which it holds any portion of the Trust Fund, then
the Depositor may remove the Trustee and appoint a successor trustee acceptable
to the Depositor and the Master Servicer
-237-
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 Master Servicer, the Special Servicer, the
Certificateholders and the _______________ Companion Loan Noteholder by the
successor trustee so appointed.
(c) The Holders of Certificates entitled to 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, 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 trustee so appointed. A copy of such
instrument shall be delivered to the Depositor, the Special Servicer, the
remaining Certificateholders and the _______________ Companion Loan Noteholder
by the successor trustee so appointed.
(d) In the event that the Trustee is terminated or removed
pursuant to this Section 8.07, all of its and any corresponding Fiscal Agent's
rights and obligations under this Agreement and in and to the Loans shall be
terminated, other than any rights or obligations that accrued prior to the date
of such termination or removal (including the right to receive all fees,
expenses and other amounts (including P&I Advances and any accrued interest
thereon) accrued or owing to it under this Agreement, with respect to periods
prior to the date of such termination or removal, and no termination without
cause shall be effective until the payment of such amounts to the Trustee and
such Fiscal Agent).
(e) Any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to any of the provisions of this Section 8.07
shall not become effective until acceptance of appointment by the successor
trustee as provided in Section 8.08.
SECTION 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section
8.07 shall execute, acknowledge and deliver to the Depositor, the Master
Servicer, the Special Servicer and to the predecessor trustee an instrument
accepting such appointment hereunder and thereupon the resignation or removal of
the predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
the like effect as if originally named as trustee herein. The predecessor
trustee shall deliver to the successor trustee (at the expense of the
Certificateholders that effected the removal, if the Trustee has been removed in
accordance with Section 8.07(c) without cause or if such expenses are not paid
by such Certificateholders within ninety (90) days after they are incurred, at
the expense of the Trust, provided that such Certificateholders shall remain
liable to the Trust for such expenses) all Mortgage Files and related documents
and statements held by it hereunder (other than any Mortgage Files at the time
held on its behalf by a third-party Custodian, which Custodian shall become the
agent of the successor trustee), and the Depositor, the Master Servicer, the
Special Servicer and the predecessor trustee shall execute and deliver such
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor trustee all such rights, powers,
duties and obligations, and to enable the successor trustee to perform its
obligations hereunder.
(b) No successor trustee shall accept appointment as provided
in this Section 8.08, unless at the time of such acceptance such successor
trustee shall be eligible under the provisions of Section 8.06.
-238-
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor, the Master Servicer, the
Special Servicer, the Certificateholders and the _______________ Companion Loan
Noteholder.
SECTION 8.09. Merger or Consolidation of Trustee and Fiscal
Agent.
Any entity into which the Trustee or the Fiscal Agent may be
merged or converted, or with which the Trustee or the Fiscal Agent may be
consolidated, or any entity resulting from any merger, conversion or
consolidation to which the Trustee or the Fiscal Agent shall be a party, or any
entity succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee or the Fiscal Agent, as the case may be, hereunder,
provided such entity shall be eligible under the provisions of Section 8.06 or
Section 8.17, as applicable, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing the same may at the time be
located, the Trustee shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee or co-trustees, jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of the Trust Fund, and to vest in such
Person or Persons, in such capacity, such title to the Trust Fund, or any part
thereof, and, subject to the other provisions of this Section 8.10, such powers,
duties, obligations, rights and trusts as the Master Servicer and the Trustee
may consider necessary or desirable. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor trustee under
Section 8.06 hereunder and no notice to Holders of Certificates of the
appointment of co-trustee(s) or separate trustee(s) shall be required under
Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer or the Special Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
-239-
(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 vested therein pursuant
to the applicable instrument of appointment and this Section 8.10, shall vest in
and be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under
this Section 8.10 shall not relieve the Trustee of its duties and
responsibilities hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may appoint at the Trustee's expense one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking 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 File and shall not be the Depositor,
either Mortgage Loan Seller or any Affiliate of any of them. Neither the Master
Servicer nor the Special Servicer shall have any duty to verify that any such
Custodian is qualified to act as such in accordance with the preceding sentence.
The Trustee may enter into agreements to appoint a Custodian which is not the
Trustee, provided that such agreement: (i) is consistent with this Agreement in
all material respects and requires the Custodian to comply with all of the
applicable conditions of this Agreement; (ii) provides that if the Trustee shall
for any reason no longer act in the capacity of Trustee hereunder, the successor
Trustee or its designee may thereupon assume all of the rights and, except to
the extent they arose prior to the date of assumption, obligations of the
Custodian under such agreement or, alternatively, may terminate such agreement
without cause and without payment of any penalty or termination fee; and (iii)
does not permit the Custodian any rights of indemnification that may be
satisfied out of assets of the Trust Fund. 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. In the absence of any other Person appointed in accordance herewith
acting as Custodian, the Trustee agrees to act in such capacity in accordance
with the terms hereof. Notwithstanding anything herein to the contrary, if the
Trustee is no longer the Custodian, any provision or requirement herein
requiring notice or any information or documentation to be provided to the
Custodian shall be construed to require that such notice, information or
documents also be provided to the Trustee. Any Custodian hereunder shall at all
times maintain a fidelity bond and errors and omissions policy in amounts
customary for custodians performing duties similar to those set forth in this
Agreement and, in any event, satisfying the same requirements (including as to
the insurer) as are applicable to any such bond or policy required to be
maintained by the Master Servicer pursuant to Section 3.07.
SECTION 8.12. Appointment of Authenticating Agents.
(a) The Trustee may appoint at the Trustee's expense an
Authenticating Agent, which shall be authorized to act on behalf of the Trustee
in authenticating Certificates. The Trustee shall cause any such Authenticating
Agent to execute and deliver to the Trustee an instrument in which such
Authenticating Agent shall agree to act in such capacity, with the obligations
and responsibilities herein. Each Authenticating Agent must be organized and
doing business under the laws of the United States of
-240-
America or of any State, authorized under such laws to carry on a trust
business, have a combined capital and surplus of at least $15,000,000, and be
subject to supervision or examination by federal or state authorities. Each
Authenticating Agent shall be subject to the same obligations, standard of care,
protection and indemnities as would be imposed on, or would protect, the Trustee
hereunder. The appointment of an Authenticating Agent shall not relieve the
Trustee from any of its obligations hereunder, and the Trustee shall remain
responsible for all acts and omissions of the Authenticating Agent. In the
absence of any other Person appointed in accordance herewith acting as
Authenticating Agent, the Trustee hereby agrees to act in such capacity in
accordance with the terms hereof. Notwithstanding anything herein to the
contrary, if the Trustee is no longer the Authenticating Agent, any provision or
requirement herein requiring notice or any information or documentation to be
provided to the Authenticating Agent shall be construed to require that such
notice, information or documentation also be provided to the Trustee.
(b) Any Person into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion, or consolidation to which any
Authenticating Agent shall be a party, or any Person succeeding to the corporate
agency business of any Authenticating Agent, shall continue to be the
Authenticating Agent without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
(c) Any Authenticating Agent appointed in accordance with this
Section 8.12 may at any time resign by giving at least 30 days' advance written
notice of resignation to the Trustee, the Master Servicer, the Special Servicer
and the Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent appointed in accordance with this Section 8.12 by giving
written notice of termination to such Authenticating Agent, the Master Servicer
and the Depositor. Upon receiving a notice of such a resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 8.12, the Trustee may
appoint a successor Authenticating Agent, in which case the Trustee shall give
written notice of such appointment to the Master Servicer, the Certificate
Registrar and the Depositor and shall mail notice of such appointment to all
Holders of Certificates; provided, however, that no successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section
8.12. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Authenticating Agent.
SECTION 8.13. Appointment of Tax Administrators.
(a) The Trustee may appoint at the Trustee's expense any
Person with appropriate tax-related experience to act as Tax Administrator
hereunder; provided that, in the absence of any other Person appointed in
accordance herewith acting as Tax Administrator, the Trustee agrees to act in
such capacity in accordance with the terms hereof. The appointment of a Tax
Administrator shall not relieve the Trustee from any of its obligations
hereunder, and the Trustee shall remain responsible for all acts and omissions
of the Tax Administrator. The Trustee shall cause any such Tax Administrator
appointed by it to execute and deliver to the Trustee an instrument in which
such Tax Administrator shall agree to act in such capacity, with the obligations
and responsibilities herein.
-241-
(b) Any Person into which any Tax Administrator may be merged
or converted or with which it may be consolidated, or any Person resulting from
any merger, conversion, or consolidation to which any Tax Administrator shall be
a party, or any Person succeeding to the corporate agency business of any Tax
Administrator, shall continue to be the Tax Administrator without the execution
or filing of any paper or any further act on the part of the Trustee or the Tax
Administrator.
(c) Any Tax Administrator appointed in accordance with this
Section 8.13 may at any time resign by giving at least 30 days' advance written
notice of resignation to the Trustee, the Master Servicer, the Special Servicer
and the Depositor. The Trustee may at any time terminate the agency of any Tax
Administrator appointed in accordance with this Section 8.13 by giving written
notice of termination to such Tax Administrator, the Master Servicer, and the
Depositor. Upon receiving a notice of such a resignation or upon such a
termination, or in case at any time any Tax Administrator shall cease to be
eligible in accordance with the provisions of this Section 8.13, the Trustee may
appoint a successor Tax Administrator, in which case the Trustee shall give
written notice of such appointment to the Master Servicer, the Special Servicer
and the Depositor and shall mail notice of such appointment to all Holders of
Certificates; provided, however, that no successor Tax Administrator shall be
appointed unless eligible under the provisions of this Section 8.13. Any
successor Tax Administrator upon acceptance of its appointment hereunder shall
become vested with all the rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Tax
Administrator.
SECTION 8.14. Access to Certain Information.
(a) The Trustee shall afford to the Master Servicer, the
Special Servicer and the Depositor, and to the OTS, the FDIC and any other
banking or insurance regulatory authority that may exercise authority over any
Certificateholder, access to any documentation regarding the Loans within its
control that may be required to be provided by this Agreement or by applicable
law. Such access shall be afforded without charge but only upon reasonable prior
written request and during normal business hours at the offices of the Trustee
designated by it.
(b) The Trustee shall maintain in its possession and, upon
reasonable prior written request and during normal business hours, shall make
available at its offices for review by the Depositor, the Rating Agencies, the
_______________ Companion Loan Noteholder and its designees, the Controlling
Class Representative and, subject to the succeeding paragraph, any
Certificateholder, Certificate Owner or Person identified to the Trustee as a
prospective Transferee of a Certificate or an interest therein, originals and/or
copies of the following items: (i) the Prospectus, any private placement
memorandum and any other disclosure document relating to the Certificates, in
the form most recently provided to the Trustee by the Depositor or by any Person
designated by the Depositor; (ii) this Agreement, each Sub-Servicing Agreement
delivered to the Trustee since the Closing Date, the _______________ Servicing
Agreement and any amendments hereto or thereto; (iii) all Certificateholder
Reports made available to Certificateholders pursuant to Section 4.02(a) since
the Closing Date; (iv) all Annual Performance Certifications delivered by the
Master Servicer and the Special Servicer, respectively, to the Trustee since the
Closing Date; (v) all Annual Accountants' Reports caused to be delivered by or
on behalf of the Master Servicer and the Special Servicer, respectively, to the
Trustee since the Closing Date; (vi) any and all notices and reports delivered
to the Trustee with respect to any Mortgaged Property as to which the
environmental testing contemplated by
-242-
Section 3.09(c) revealed that either of the conditions set forth in clauses
(i) and (ii) of the first sentence thereof was not satisfied; (vii) each of the
Mortgage Files, including any and all modifications, extensions, waivers and
amendments of the terms of a Loan entered into or consented to by the Special
Servicer and delivered to the Trustee pursuant to Section 3.20; (viii) the most
recent appraisal for each Mortgaged Property and REO Property that has been
delivered to the Trustee (each appraisal obtained hereunder with respect to any
Mortgaged Property or REO Property to be delivered to the Trustee by the Master
Servicer or Special Servicer, as applicable, promptly following its having been
obtained); (ix) any and all Officer's Certificates and other evidence delivered
to or by the Trustee to support its, the Master Servicer's, the Special
Servicer's or the Fiscal Agent's, as the case may be, determination that any
Advance was (or, if made, would be) a Nonrecoverable Advance; (x) any and all
information provided to the Trustee pursuant to Section 6.11(a) or 6.11A(a);
(xi) the Schedule of Exceptions to Mortgage File Delivery prepared by the
Trustee pursuant to Section 2.02(a) and any exception report prepared by the
Trustee pursuant to Section 2.02(b); (xii) all notices of a breach of
representation and warranty given by or received by the Trustee with respect to
any party hereto; (xiii) any Officer's Certificate delivered to the Trustee by
the Special Servicer in connection with a Final Recovery Determination pursuant
to Section 3.09(h), and (xiv) any and all reports and other written or
electronic information relating to the _______________ Mortgage Loan received by
the Trustee as holder of the Mortgage Note for the _______________ Mortgage Loan
since the Closing Date. The Trustee shall provide copies of any and all of the
foregoing items upon written request of any of the parties set forth in the
previous sentence; however, except in the case of the Rating Agencies, the
Trustee shall be permitted to require payment of a sum sufficient to cover the
reasonable costs and expenses of providing such copies. Upon the reasonable
request of any Certificateholder, or any Certificate Owner identified to the
Trustee to the Trustee's reasonable satisfaction, the Trustee shall request from
the Master Servicer copies (at the expense of such Certificateholder or
Certificate Owner if the Master Servicer or Special Servicer charges a fee to
cover the reasonable cost of making such copies available) of any inspection
reports prepared by the Master Servicer or the Special Servicer, copies of any
operating statements, rent rolls and financial statements obtained by the Master
Servicer or the Special Servicer and copies of any CMSA Operating Statement
Analysis Reports and CMSA NOI Adjustment Worksheets prepared by the Master
Servicer or the Special Servicer; and, upon receipt, the Trustee shall make such
items available to the requesting Certificateholder or Certificate Owner.
In connection with providing access to or copies of the items
described in the preceding paragraph, the Trustee shall require: (i) in the case
of Certificateholders and Certificate Owners, a written confirmation executed by
the requesting Person substantially in the form of Exhibit L-1 (or in such other
form as may be reasonably acceptable to the Trustee) generally to the effect
that such Person is a Certificateholder or a beneficial holder of Book-Entry
Certificates and will keep such information confidential (except that such
Certificateholder or 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 (ii) in the case of a prospective purchaser of a
Certificate or an interest therein, confirmation executed by the requesting
Person substantially in the form of Exhibit L-2 (or in such other form as may be
reasonably acceptable to the Trustee) generally to the effect that such Person
is a prospective purchaser of a Certificate or an interest therein, is
requesting the information for use in evaluating a possible investment in
Certificates and will otherwise keep such information confidential.
-243-
(c) The Trustee shall not be liable for providing or
disseminating information in accordance with Section 8.14(a) or (b).
SECTION 8.15. Reports to the Securities and Exchange
Commission and Related Reports.
(a) With respect to the Trust's fiscal year _____ (and, if as
of the beginning of any other fiscal year for the Trust, the Registered
Certificates are held (directly or, in the case of Registered Certificates held
in book-entry form, through the Depository) by at least 300 Holders and/or
Depository Participants having accounts with the Depository), the Trustee shall:
(i) during such fiscal year, in accordance with the
Exchange Act, the rules and regulations promulgated thereunder and
applicable "no-action letters" issued by the Commission, prepare for
filing, execute and properly file with the Commission monthly, with
respect to the Trust, a Current Report on Form 8-K with copies of the
Distribution Date Statements, Mortgage Pool Data Update Reports and
Unrestricted Servicer Reports attached as exhibits;
(ii) during such fiscal year, (A) monitor for and promptly
notify the Depositor of the occurrence or existence of any of the
matters identified in Section 11.11(a) and/or Section 8.15(b) (in each
case to the extent that a Responsible Officer of the Trustee has actual
knowledge thereof), (B) cooperate with the Depositor in obtaining all
necessary information in order to enable the Depositor to prepare a
Current Report on Form 8-K reporting any such matter in accordance with
the Exchange Act, the rules and regulations promulgated thereunder and
applicable "no-action letters" issued by the Commission, and (C)
execute and promptly file with the Commission any such Current Report
on Form 8-K prepared by or on behalf of the Depositor and delivered to
the Trustee; and
(iii) within 90 days following the end of such fiscal
year, prepare, execute and properly file with the Commission, with
respect to the Trust, an Annual Report on Form 10-K which complies in
all material respects with the requirements of the Exchange Act, the
rules and regulations promulgated thereunder and applicable "no-action
letters" issued by the Commission;
provided that (x) the Trustee shall not have any responsibility to file any
items (other than those generated by it) that have not been received in a format
suitable (or readily convertible into a format suitable) for electronic filing
via the XXXXX system and shall not have any responsibility to convert any such
items (other than those generated by it or that are readily convertible) to such
format and (y) the Depositor shall be responsible for preparing, executing and
filing (via the XXXXX system within fifteen (15) days following the Closing
Date) a Current Report on Form 8-K reporting the establishment of the Trust and
whereby this Agreement is filed as an exhibit. Each of the other parties to this
Agreement shall deliver to the Trustee in the format required (or readily
convertible into the format required) for electronic filing via the XXXXX system
any and all items (including, in the case of the Master Servicer and the Special
Servicer, Unrestricted Servicer Reports) contemplated to be filed with the
Commission pursuant to this Section 8.15(a).
(b) At all times during the Trust's fiscal year _____ (and, if
as of the beginning of any other fiscal year for the Trust, the Registered
Certificates are held (directly or, in the case of
-244-
Registered Certificates held in book-entry form, through the Depository) by at
least 300 Holders and/or Depository Participants having accounts with the
Depository, at all times during such other fiscal year), the Trustee shall
promptly notify the Depositor of the occurrence or existence of any of the
following matters of which a Responsible Officer of the Trustee has actual
knowledge:
(i) any failure of the Trustee to make any monthly
distributions to the Holders of any Class of Certificates, which
failure is not otherwise reflected in the Certificateholder Reports
filed with the Commission or has not otherwise been reported to the
Depositor pursuant to any other section of this Agreement;
(ii) any acquisition or disposition by the Trust of a
Mortgage Loan or an REO Property, which acquisition or disposition has
not otherwise been reflected in the Certificateholder Reports filed
with the Commission or has not otherwise been reported to the Depositor
pursuant to any other section of this Agreement;
(iii) any other acquisition or disposition by the Trust of
a significant amount of assets (other than Permitted Investments,
Mortgage Loans and REO Properties), other than in the normal course of
business;
(iv) any change in the fiscal year of the Trust;
(v) any material legal proceedings, other than ordinary
routine litigation incidental to the business of the Trust, to which
the Trust (or any party to this Agreement on behalf of the Trust) is a
party or of which any property included in the Trust Fund is subject,
or any threat by a governmental authority to bring any such legal
proceedings;
(vi) any event of bankruptcy, insolvency, readjustment of
debt, marshalling of assets and liabilities, or similar proceedings in
respect of or pertaining to the Trust or any party to this Agreement,
or any actions by or on behalf of the Trust or any party to this
Agreement indicating its bankruptcy, insolvency or inability to pay its
obligations; and
(vii) any change in the rating or ratings assigned to any
Class of Certificates not otherwise reflected in the Certificateholder
Reports filed with the Commission;
provided that (1) the actual knowledge of a Responsible Officer of the Trustee
of any material legal proceedings of which property included in the Trust Fund
is subject or of any material legal proceedings threatened by a governmental
authority is limited (except where the Trustee received information regarding
such proceeding from the Master Servicer or the Special Servicer pursuant to
subsection (c) below) to circumstances where it would be reasonable for the
Trustee to identify such property as an asset of, or as securing an asset of,
the Trust or such threatened proceedings as concerning the Trust and (2) no
Responsible Officer of the Trustee shall be deemed to have actual knowledge of
the matters described in clauses (vi) and (vii) of this Section 8.15(b) unless
(x) any such matter contemplated in clause (vi) occurred or related specifically
to the Trust or (y) such Responsible Officer was notified in a written
instrument addressed to it.
(c) The Master Servicer, the Special Servicer and the
Depositor shall each, as applicable, promptly notify the Trustee of the
occurrence or existence of any of the following matters of which a Servicing
Officer thereof has actual knowledge:
-245-
(i) any material legal proceedings, other than ordinary
routine litigation incidental to the business of such Person, to which
the Trust or such Person or such Person on behalf of the Trust is a
party or of which any property included in the Trust Fund is subject,
or any threat by a governmental authority to bring any such legal
proceedings; and
(ii) any event of bankruptcy, insolvency, readjustment of
debt, marshalling of assets and liabilities, or similar proceedings in
respect of such Person or the Trust, or any actions by or on behalf of
such Person or the Trust indicating its bankruptcy, insolvency or
inability to pay its obligations.
(d) If as of the beginning of any fiscal year for the Trust
(other than fiscal year _____), the Registered Certificates are held (directly
or, in the case of Registered Certificates held in book-entry form, through the
Depository) by less than 300 Holders and/or Depository Participants having
accounts with the Depository, the Trustee shall, in accordance with the Exchange
Act and the rules and regulations promulgated thereunder, timely file a Form 15
with respect to the Trust.
SECTION 8.16. Representations and Warranties of Trustee.
(a) The Trustee hereby represents and warrants to the Master
Servicer, the Special Servicer and the Depositor and for the benefit of the
Certificateholders and the _______________ Companion Loan Noteholder, as of the
Closing Date, that:
(i) The Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States of America.
(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 party or which is applicable to it or any of its assets.
(iii) Except to the extent that the laws of certain
jurisdictions in which any part of the Trust Fund may be located
require that a co-trustee or separate trustee be appointed to act with
respect to such property as contemplated by Section 8.10, 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 other parties hereto, constitutes a valid, legal
and binding obligation of the Trustee, enforceable against the Trustee
in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (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, including, but
-246-
not limited to, its responsibility to make P&I Advances if the Master
Servicer fails to make a P&I Advance, 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 that, if determined
adversely to the Trustee, would prohibit the Trustee from entering into
this Agreement or, in the Trustee's good faith and reasonable judgment,
is likely to materially and adversely affect either the ability of the
Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee.
(vii) Any consent, approval, authorization or order of any
court or governmental agency or body required for the execution,
delivery and performance by the Trustee of or compliance by the Trustee
with this Agreement, or the consummation of the transactions
contemplated by this Agreement, has been obtained and is effective,
except where the lack of consent, approval, authorization or order
would not have a material adverse effect on the performance by the
Trustee under this Agreement.
(viii) The Trustee is eligible to act as trustee hereunder
in accordance with Section 8.06.
(b) The representations and warranties of the Trustee set
forth in Section 8.16(a) shall survive the execution and delivery of this
Agreement 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
any party hereto of any breach of any of the foregoing representations,
warranties and covenants, the party discovering such breach shall give prompt
written notice thereof to the other parties hereto.
(c) Any successor Trustee shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 8.16(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 8.16(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 8.17. The Fiscal Agent.
(a) The Fiscal Agent shall at all times maintain a long-term
unsecured debt rating of no less than "AA-" from each of _____ and _________
(or, in the case of either Rating Agency, such lower rating as will not (as
confirmed in writing by such Rating Agency) result in an Adverse Rating Event).
(b) To the extent that the Trustee is required, pursuant to
the terms of this Agreement, to make any Advance, whether as successor master
servicer or otherwise, and has failed to do so in accordance with the terms
hereof, the Fiscal Agent shall make such Advance when and as required by the
terms of this Agreement on behalf the Trustee as if the Fiscal Agent were the
Trustee hereunder. To the extent that the Fiscal Agent makes an Advance pursuant
to this Section 8.17(b) or otherwise pursuant to this Agreement, the obligations
of the Trustee under this Agreement in respect of such
-247-
Advance shall be satisfied. Notwithstanding anything contained in this Agreement
to the contrary, the Fiscal Agent shall be entitled to all limitations on
liability, rights of reimbursement and indemnities that the Trustee is entitled
to hereunder as if it were the Trustee.
(c) All fees and expenses of the Fiscal Agent (other than any
interest owed to the Fiscal Agent in respect of unreimbursed Advances) incurred
by the Fiscal Agent in connection with the transactions contemplated by this
Agreement shall be borne by the Trustee, and neither the Trustee nor the Fiscal
Agent shall be entitled to reimbursement therefor from any of the Trust Fund,
the Depositor, the Master Servicer or the Special Servicer.
(d) The obligations of the Fiscal Agent set forth in this
Section 8.17 or otherwise pursuant to this Agreement shall exist only for so
long as the Trustee that appointed it (or, in the case of the initial Fiscal
Agent, so long as the initial Trustee) shall act as Trustee hereunder. The
Fiscal Agent may resign or be removed by the Trustee only if and when the
existence of such Fiscal Agent is no longer necessary for such Trustee to
satisfy the eligibility requirements of Section 8.06; provided that the Fiscal
Agent shall be deemed to have resigned at such time as the Trustee that
appointed it (or, in the case of the initial Fiscal Agent, at such time as the
initial Trustee) resigns or is removed as Trustee hereunder (in which case the
responsibility for appointing a successor Fiscal Agent shall belong to the
successor Trustee, and which appointment the successor Trustee shall use its
best efforts to make, insofar as such appointment is necessary for such
successor Trustee to satisfy the eligibility requirements of Section 8.06). Any
successor fiscal agent so appointed shall be required to execute and deliver to
the other parties hereto a written agreement to assume and perform the duties of
the Fiscal Agent set forth in this Agreement; provided that no such successor
shall become Fiscal Agent hereunder unless either (i) it satisfies the rating
requirements of Section 8.17(a) or (ii) the Trustee shall have received written
confirmation from each Rating Agency that the succession of such proposed
successor fiscal agent would not, in and of itself, result in an Adverse Rating
Event.
(e) The Trustee shall promptly notify the other parties
hereto, the Certificateholders and the Companion Loan Noteholders in writing of
the appointment, resignation or removal of any Fiscal Agent.
SECTION 8.18. Representations and Warranties of Fiscal Agent.
(a) The Fiscal Agent hereby represents and warrants to each of
the other parties hereto and for the benefit of the Certificateholders and the
_______________ Companion Loan Noteholder, as the Closing Date, that:
(i) The Fiscal Agent is a banking association duly
organized, validly existing and in good standing under the laws of the
Netherlands.
(ii) The execution and delivery of this Agreement by the
Fiscal Agent, and the performance and compliance with the terms of this
Agreement by the Fiscal Agent, will not violate the Fiscal Agent's
organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in a material breach of, any material agreement or
other instrument to which it is a party or by which it is bound.
-248-
(iii) The Fiscal Agent has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and delivery by the other parties hereto, constitutes a valid, legal
and binding obligation of the Fiscal Agent, enforceable against the
Fiscal Agent in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Fiscal Agent is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or
any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Fiscal
Agent's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Fiscal Agent to
perform its obligations under this Agreement or the financial condition
of the Fiscal Agent.
(vi) No litigation is pending or, to the best of the
Fiscal Agent's knowledge, threatened against the Fiscal Agent that, if
determined adversely to the Fiscal Agent, would prohibit the Fiscal
Agent from entering into this Agreement or, in the Fiscal Agent's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Fiscal Agent to perform its
obligations under this Agreement or the financial condition of the
Fiscal Agent.
(vii) Any consent, approval, authorization or order of any
court or governmental agency or body required for the execution,
delivery and performance by the Fiscal Agent of or compliance by the
Fiscal Agent with this Agreement, or the consummation of the
transactions contemplated by this Agreement, has been obtained and is
effective, except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by
the Fiscal Agent under this Agreement.
(b) The representations and warranties of the Fiscal Agent set
forth in Section 8.18(a) shall survive the execution and delivery of this
Agreement 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
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall given prompt written notice
thereof to the other parties hereto.
(c) Any successor Fiscal Agent shall be deemed to have made,
as of the date of its succession, each of the representations and warranties set
forth in Section 8.18(a) subject to such appropriate modifications to the
representations and warranties set forth in Section 8.18(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
-249-
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of
All Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer, the Fiscal Agent and the Trustee (other
than the obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment): (i) to the Certificateholders of all amounts held by or
on behalf of the Trustee and required hereunder to be so paid on the
Distribution Date following the earlier to occur of (A) the purchase by the
Depositor, Xxxxxx Brothers, the Special Servicer, any Controlling Class
Certificateholder or the Master Servicer of all Mortgage Loans and each REO
Property remaining in REMIC I and the Loan REMICs at a price equal to (1) the
sum (x) of the aggregate Purchase Price of all the Mortgage Loans and (y) the
aggregate Appraised Values of any REO Properties then included in REMIC I and
the Loan REMICs, minus (2) if the purchaser is the Master Servicer or the
Special Servicer, the aggregate amount of unreimbursed Advances made by such
Person, together with any interest accrued and payable to such Person in respect
of unreimbursed Advances in accordance with Section 3.11(g) and, in the case of
the Master Servicer, Section 4.03(d) or Section 4.03A(d), and any unpaid
servicing compensation remaining outstanding (which items shall be deemed to
have been paid or reimbursed to the Master Servicer or the Special Servicer, as
the case may be, in connection with such purchase), and (B) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in REMIC I or a Loan REMIC; and (ii) to the
Trustee, the Fiscal Agent, the Master Servicer, the Special Servicer and the
members, managers, officers, directors, employees and/or agents of each of them
of all amounts which may have become due and owing to any of them hereunder;
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.
Each of the Depositor, Xxxxxx Brothers, the Special Servicer,
any Controlling Class Certificateholder (with priority among such Holders being
given to the Holder of Certificates representing the greatest Percentage
Interest in the Controlling Class) or the Master Servicer, in that order of
priority (with the Depositor having the most senior priority), may at its option
elect to purchase all of the Mortgage Loans and each REO Property remaining in
REMIC I and the Loan REMICs as contemplated by clause (i) of the preceding
paragraph by giving written notice to the other parties hereto no later than 60
days prior to the anticipated date of purchase; provided, however, that (i) the
aggregate Stated Principal Balance of the Mortgage Pool at the time of such
election is less than 1% of the Initial Pool Balance set forth in the
Preliminary Statement, and (ii) no such Person shall have the right to effect
such a purchase if, within 30 days following its delivery of a notice of
election pursuant to this paragraph, any other such Person with a higher
priority shall give notice of its election to purchase all of the Mortgage Loans
and each REO Property remaining in REMIC I and the Loan REMICs and shall
thereafter effect such purchase in accordance with the terms hereof. If the
Trust Fund is to be terminated in connection with the Master Servicer's, the
Special Servicer's, a Controlling Class Certificateholder's, Xxxxxx Brothers' or
the Depositor's purchase of all of the Mortgage Loans and each REO Property
remaining in REMIC I and the Loan REMICs, the Master Servicer, the Special
-250-
Servicer, such Controlling Class Certificateholder, Xxxxxx Brothers or the
Depositor, as applicable, shall deliver to the Trustee not later than the fifth
Business Day preceding the Distribution Date on which the final distribution on
the Certificates is to occur: (x) for deposit in the Pool Custodial Account, an
amount in immediately available funds equal to the above-described purchase
price (provided, however, that if the _______________ REO Property is being
purchased pursuant to the foregoing, the portion of the above-described purchase
price allocable to such REO Property shall initially be deposited into the
_______________ Custodial Account); and (y) an Opinion of Counsel, at the
expense of the party effecting the purchase, stating that the termination of the
Trust satisfies the requirements of a qualified liquidation under Section 860F
of the Code and any regulations thereunder. In addition, the Master Servicer
shall transfer to the Collection Account all amounts required to be transferred
thereto on such Master Servicer Remittance Date from the Pool Custodial Account
pursuant to the first paragraph of Section 3.04(b), together with any other
amounts on deposit in the Pool Custodial Account that would otherwise be held
for future distribution. Upon confirmation that such final deposits have been
made, subject to Section 3.25, the Trustee shall release or cause to be released
to the Master Servicer, the Special Servicer, the purchasing Controlling Class
Certificateholder, Xxxxxx Brothers or the Depositor, as applicable, the Mortgage
Files for the remaining Mortgage Loans and shall execute all assignments,
endorsements and other instruments furnished to it by the Master Servicer, the
Special Servicer, the purchasing Controlling Class Certificateholder, Xxxxxx
Brothers or the Depositor, as applicable, as shall be necessary to effectuate
transfer of the Mortgage Loans and REO Properties to the Master Servicer, the
Special Servicer, the purchasing Controlling Class Certificateholder, Xxxxxx
Brothers or the Depositor (or their respective designees), as applicable. Any
transfer of Mortgage Loans, except in the case of the _______________ Mortgage
Loan, pursuant to this paragraph shall be on a servicing-released basis; and, if
any Mortgage Loan purchased pursuant to this Section 9.01 is the _______________
Mortgage Loan, the release, endorsement or assignment of the documents
constituting the related Mortgage File and Servicing File shall be in the manner
contemplated by Section 3.25 hereof.
Notice of any termination shall be given promptly by the
Trustee by letter to Certificateholders and the _______________ Companion Loan
Noteholder mailed (a) if such notice is given in connection with the
Depositor's, the Master Servicer's, the Special Servicer's, Xxxxxx Brothers' or
a Controlling Class Certificateholder's purchase of the Mortgage Loans and each
REO Property remaining in REMIC I and the Loan REMICs, not earlier than the 15th
day and not later than the 25th day of the month next preceding the month of the
final distribution on the Certificates or (b) otherwise during the month of such
final distribution on or before the eighth day of such month, in each case
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment of the Certificates will be made, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the offices of the Certificate Registrar or
such other location therein designated. The Trustee shall give such notice to
the Master Servicer, the Special Servicer and the Depositor at the time such
notice is given to Certificateholders.
Upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts then on
deposit in the Collection Account that are allocable to payments on the Class of
Certificates so presented and surrendered. Amounts on deposit in the Collection
Account as of the final Distribution Date, exclusive of any portion thereof that
would be payable to any Person in accordance with clauses (ii) through (viii)
-251-
of Section 3.05(b), and further exclusive of any portion thereof that represents
Prepayment Premiums, Yield Maintenance Charges and/or Additional Interest, shall
be allocated in the following order of priority, in each case to the extent of
remaining available funds:
(i) to distributions of interest to the Holders of the
respective Classes of the Senior Certificates, up to an amount equal
to, and pro rata in accordance with, all Distributable Certificate
Interest in respect of each such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(ii) to distributions of principal to the Holders of the
respective Classes of Class A Certificates, up to an amount equal to,
and pro rata in accordance with, the Class Principal Balance of each
such Class of Certificates outstanding immediately prior to such
Distribution Date;
(iii) to distributions to the Holders of the respective
Classes of Class A Certificates, up to an amount equal to, pro rata in
accordance with, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to each
such Class of Certificates pursuant to Section 4.04(a) and not
previously reimbursed;
(iv) to distributions of interest to the Holders of the
Class B Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class B Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(v) to distributions of principal to the Holders of the
Class B Certificates, up to an amount equal to the Class Principal
Balance of the Class B Certificates outstanding immediately prior to
such Distribution Date;
(vi) to distributions to the Holders of the Class B
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class B Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(vii) to distributions of interest to the Holders of the
Class C Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class C Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(viii) to distributions of principal to the Holders of the
Class C Certificates, up to an amount equal to the Class Principal
Balance of the Class C Certificates outstanding immediately prior to
such Distribution Date;
(ix) to distributions to the Holders of the Class C
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class C Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(x) to distributions of interest to the Holders of the
Class D Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class D Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
-252-
(xi) to distributions of principal to the Holders of the
Class D Certificates, up to an amount equal to the Class Principal
Balance of the Class D Certificates outstanding immediately prior to
such Distribution Date;
(xii) to distributions to the Holders of the Class D
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class D Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xiii) to distributions of interest to the Holders of the
Class E Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class E Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xiv) to distributions of principal to the Holders of the
Class E Certificates, up to an amount equal to the Class Principal
Balance of the Class E Certificates outstanding immediately prior to
such Distribution Date;
(xv) to distributions to the Holders of the Class E
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class E Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xvi) to distributions of interest to the Holders of the
Class F Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class F Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xvii) to distributions of principal to the Holders of the
Class F Certificates, up to an amount equal to the Class Principal
Balance of the Class F Certificates outstanding immediately prior to
such Distribution Date;
(xviii) to distributions to the Holders of the Class F
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class F Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xix) to distributions of interest to the Holders of the
Class G Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class G Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xx) to distributions of principal to the Holders of the
Class G Certificates, up to an amount equal to the Class Principal
Balance of the Class G Certificates outstanding immediately prior to
such Distribution Date;
(xxi) to distributions to the Holders of the Class G
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class G Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
-253-
(xxii) to distributions of interest to the Holders of the
Class H Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class H Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxiii) to distributions of principal to the Holders of
the Class H Certificates, up to an amount equal to the Class Principal
Balance of the Class H Certificates outstanding immediately prior to
such Distribution Date;
(xxiv) to distributions to the Holders of the Class H
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class H Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxv) to distributions of interest to the Holders of the
Class J Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class J Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxvi) to distributions of principal to the Holders of the
Class J Certificates, up to an amount equal to the Class Principal
Balance of the Class J Certificates outstanding immediately prior to
such Distribution Date;
(xxvii) to distributions to the Holders of the Class J
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class J Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxviii) to distributions of interest to the Holders of
the Class K Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class K Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxix) to distributions of principal to the Holders of the
Class K Certificates, up to an amount equal to the Class Principal
Balance of the Class K Certificates outstanding immediately prior to
such Distribution Date;
(xxx) to distributions to the Holders of the Class K
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class K Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxxi) to distributions of interest to the Holders of the
Class L Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class L Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxxii) to distributions of principal to the Holders of
the Class L Certificates, up to an amount equal to the Class Principal
Balance of the Class L Certificates outstanding immediately prior to
such Distribution Date;
-254-
(xxxiii) to distributions to the Holders of the Class L
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class L Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxxiv) to distributions of interest to the Holders of the
Class M Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class M Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxxv) to distributions of principal to the Holders of the
Class M Certificates, up to an amount equal to the Class Principal
Balance of the Class M Certificates outstanding immediately prior to
such Distribution Date;
(xxxvi) to distributions to the Holders of the Class M
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class M Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxxvii) to distributions of interest to the Holders of
the Class N Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class N Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxxviii)to distributions of principal to the Holders of
the Class N Certificates, up to an amount equal to the Class Principal
Balance of the Class N Certificates outstanding immediately prior to
such Distribution Date;
(xxxix) to distributions to the Holders of the Class N
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class N Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xl) to distributions of interest to the Holders of the
Class P Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class P Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xli) to distributions of principal to the Holders of the
Class P Certificates, up to an amount equal to the Class Principal
Balance of the Class P Certificates outstanding immediately prior to
such Distribution Date;
(xlii) to distributions to the Holders of the Class P
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class P Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xliii) to distributions of interest to the Holders of the
Class Q Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class Q Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
-255-
(xliv) to distributions of principal to the Holders of the
Class Q Certificates, up to an amount equal to the Class Principal
Balance of the Class Q Certificates outstanding immediately prior to
such Distribution Date;
(xlv) to distributions to the Holders of the Class Q
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class Q Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xlvi) to distributions of interest to the Holders of the
Class S Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class S Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xlvii) to distributions of principal to the Holders of
the Class S Certificates, up to an amount equal to the Class Principal
Balance of the Class S Certificates outstanding immediately prior to
such Distribution Date;
(xlviii) to distributions to the Holders of the Class S
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class S Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xlix) to distributions of interest to the Holders of the
Class T Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class T Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(l) to distributions of principal to the Holders of the
Class T Certificates, up to an amount equal to the Class Principal
Balance of the Class T Certificates outstanding immediately prior to
such Distribution Date;
(li) to distributions to the Holders of the Class T
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class T Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(lii) to distributions of interest to the Holders of the
Class U Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class U Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(liii) to distributions of principal to the Holders of the
Class U Certificates, up to an amount equal to the Class Principal
Balance of the Class U Certificates outstanding immediately prior to
such Distribution Date;
(liv) to distributions to the Holders of the Class U
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class U Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
-256-
(lv) to distributions to the Holders of the Class R-III
Certificates, up to an amount equal to the excess, if any, of (A) the
aggregate distributions (other than distributions of Net Prepayment
Consideration) deemed made in respect of the REMIC II Regular Interests
on such Distribution Date pursuant to Section 4.01(j), over (B) the
aggregate distributions made in respect of the Regular Interest
Certificates on such Distribution Date pursuant to clauses (i) through
(li) above;
(lvi) to distributions to the Holders of the Class R-II
Certificates, up to an amount equal to the excess, if any, of (A) the
aggregate distributions (other than distributions of Net Prepayment
Consideration) deemed made in respect of the REMIC I Regular Interests
on such Distribution Date pursuant to Section 4.01(k), over (B) the
aggregate distributions (other than distributions of Net Prepayment
Consideration) deemed made in respect of the REMIC II Regular Interests
on such Distribution Date pursuant to Section 4.01(j);
(lvii) to make distributions to the Holders of the Class
R-LR Certificates, up to an amount equal to the excess, if any, of (A)
that portion of the Available Distribution Amount for such Distribution
Date that is allocable to the Loan REMIC Mortgage Loans and/or any
related REO Properties, over (B) the aggregate distributions (other
than distributions of Net Prepayment Consideration) deemed made in
respect of the Loan REMIC Regular Interests on such Distribution Date
pursuant to Section 4.01(l); and
(lviii) to distributions to the Holders of the Class R-I
Certificates, up to an amount equal to the balance, if any, of the
Available Distribution Amount for such Distribution Date remaining
after the distributions to be made on such Distribution Date pursuant
to clauses (i) through (lvii) above.
All distributions of interest made in respect of the Class
X-CP Certificates and the Class X-CL Certificates on the final Distribution Date
pursuant to clause (i) above, shall be deemed to have been made, in the case of
each such Class, in respect of the respective REMIC III Components of such
Class, pro rata in accordance with the respective amounts of Distributable
Component Interest in respect of such REMIC III Components for such Distribution
Date and, to the extent not previously deemed paid pursuant to Section 4.01(a),
for all prior Distribution Dates.
Any Prepayment Premiums and Yield Maintenance Charges on
deposit in the Collection Account as of the final Distribution Date (net of any
Workout Fees and/or Liquidation Fees payable therefrom) shall be distributed
among the Holders of the Class X-CL, Class X-______, Class X-0, Xxxxx X-0, Class
A-3, Class A-4, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J and Class K Certificates in accordance with Section 4.01(c).
Any amounts representing Additional Interest on deposit in the
Collection Account as of the Final Distribution Date shall be distributed to the
Holders of the Class V Certificates in accordance with Section 4.01(d). Any
yield maintenance payment made by the ___ Mortgage Seller in connection with a
repurchase of a Loan REMIC Mortgage Loan as contemplated by Section 2.03(d) that
may be on deposit in the Collection Account as of the Final Distribution Date
shall be distributed to the Holders of the Class X-CL Certificates in accordance
with Section 4.01(d).
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
-257-
such date, be set aside and held uninvested in trust and credited to the account
or accounts of the appropriate non-tendering Holder or Holders. If any
Certificates as to which notice has been given pursuant to this Section 9.01
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining 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 reasonable steps to contact the remaining non-tendering
Certificateholders concerning the surrender of their Certificates as it shall
deem appropriate. The costs and expenses of holding such funds in trust and of
contacting such Certificateholders following the first anniversary of the
delivery of such second notice to the non-tendering Certificateholders shall be
paid out of such funds. No interest shall accrue or be payable to any former
Holder on any amount held in trust hereunder. If by the second anniversary of
the delivery of such second notice, all of the Certificates shall not have been
surrendered for cancellation, then, subject to applicable law, the Trustee shall
distribute to the Class R-III Certificateholders all unclaimed funds and other
assets which remain subject hereto.
All actual distributions on the respective Classes of REMIC
III Certificates on the final Distribution Date in accordance with foregoing
provisions of this Section 9.01 shall be deemed to first have been distributed
from REMIC I to REMIC II on the various REMIC I Regular Interests in accordance
with Section 4.01(k) and then from REMIC II to REMIC III on the various REMIC II
Regular Interests in accordance with Section 4.01(j).
SECTION 9.02. Additional Termination Requirements.
(a) If the Depositor, Xxxxxx Brothers, any Controlling Class
Certificateholder, the Special Servicer or the Master Servicer purchases all of
the Mortgage Loans and each REO Property remaining in REMIC I as provided in
Section 9.01, the Trust Fund (and, accordingly, each REMIC Pool) shall be
terminated in accordance with the following additional requirements, unless the
Person effecting such purchase obtains at its own expense and delivers to the
Trustee and the Tax Administrator, an Opinion of Counsel, addressed to the
Trustee and the Tax Administrator, to the effect that the failure of the Trust
Fund to comply with the requirements of this Section 9.02 will not result in an
Adverse REMIC Event or an Adverse Grantor Trust Event:
(i) the Tax Administrator shall specify the first day in
the 90-day liquidation period in a statement attached to the final Tax
Return for each REMIC Pool pursuant to Treasury regulation section
1.860F-1 and shall satisfy all requirements of a qualified liquidation
under Section 860F of the Code and any regulations thereunder as set
forth in the Opinion of Counsel obtained pursuant to Section 9.01 from
the party effecting the purchase of all the Mortgage Loans and REO
Property remaining in REMIC I and the Loan REMICs;
(ii) during such 90-day liquidation period and at or prior
to the time of making of the final payment on the Certificates, the
Trustee shall sell all of the assets of REMIC I and the Loan REMICs to
the Master Servicer, Xxxxxx Brothers, the purchasing Controlling Class
Certificateholder, the Special Servicer or the Depositor, as
applicable, for cash; and
(iii) at the time of the making of the final payment on
the Certificates, the Trustee shall distribute or credit, or cause to
be distributed or credited, to the Certificateholders
-258-
in accordance with Section 9.01 all cash on hand (other than cash
retained to meet claims), and each REMIC Pool shall terminate at that
time.
(b) By their acceptance of Certificates, the Holders thereof
hereby agree to authorize the Tax Administrator to specify the 90-day
liquidation period for each REMIC Pool, which authorization shall be binding
upon all successor Certificateholders.
SECTION 9.03. _______________ Mortgage Loan.
References to "REO Property" and "REO Properties" in Sections
9.01 and 9.02 shall be deemed to include the Trust's rights with respect to any
REO Property relating to the _______________ Mortgage Loan and such rights shall
be taken into account in calculating the Termination Price.
-259-
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The Tax Administrator shall elect to treat each REMIC Pool
as a REMIC under the Code and, if necessary, under applicable state law. Such
election will be made on Form 1066 or other appropriate federal or state Tax
Returns for the taxable year ending on the last day of the calendar year in
which the Certificates are issued.
(b) Each Loan REMIC Regular Interest is hereby designated as
the "regular interest" (within the meaning of Section 860G(a)(1) of the Code) in
the related Loan REMIC. The REMIC I Regular Interests, the REMIC II Regular
Interests and the Regular Interest Certificates (or, in the case of the Class
X-CP and Class X-CL Certificates, each of the REMIC III Components of each such
Class) are hereby designated as "regular interests" (within the meaning of
Section 860G(a)(1) of the Code) in REMIC I, REMIC II and REMIC III,
respectively. The Class R-LR Certificates will evidence the single class of
"residual interests" (within the meaning of Section 860G(a)(2) of the Code) in
each Loan REMIC. The Class R-I Certificates, the Class R-II Certificates and the
Class R-III Certificates are hereby designated as the single class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code) in REMIC I,
REMIC II and REMIC III, respectively. None of the Master Servicer, the Special
Servicer or the Trustee shall (to the extent within its control) permit the
creation of any other "interests" in the Loan REMICs, REMIC I, REMIC II or REMIC
III (within the meaning of Treasury regulation section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day"
of each REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(d) The related Plurality Residual Interest Certificateholder
as to the applicable taxable year is hereby designated as the Tax Matters Person
of each REMIC Pool, and shall act on behalf of the related REMIC in relation to
any tax matter or controversy and shall represent the related REMIC in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority; provided that the Tax Administrator is hereby
irrevocably appointed to act and shall act (in consultation with the Tax Matters
Person for each REMIC Pool) as agent and attorney-in-fact for the Tax Matters
Person for each REMIC Pool in the performance of its duties as such.
(e) For purposes of Treasury regulation section
1.860G-1(a)(4)(iii), the related Legal Final Distribution Date has been
designated the "latest possible maturity date" of each Loan REMIC Regular
Interest, each REMIC I Regular Interest, each REMIC II Regular Interest and each
Class of Regular Interest Certificates (or, in the case of the Class X-CP and
Class X-CL Certificates, each REMIC III Component of each such Class).
(f) Except as otherwise provided in Section 3.17(a) and
subsections (i) and (j) below, the Tax Administrator shall pay out of its own
funds any and all routine tax administration expenses of the Trust Fund incurred
with respect to each REMIC Pool (but not including any professional fees or
expenses related to audits or any administrative or judicial proceedings with
respect to the Trust Fund
-260-
that involve the IRS or state tax authorities which extraordinary expenses shall
be payable or reimbursable to the Tax Administrator from the Trust Fund
(exclusive of the Grantor Trusts Assets), unless otherwise provided in
Section 10.01(i) or 10.01(j)).
(g) Within 30 days after the Closing Date, the Tax
Administrator shall prepare and file with the IRS Form 8811, "Information Return
for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for the Trust Fund. In addition, the Tax
Administrator shall prepare, sign and file all of the other Tax Returns in
respect of each REMIC Pool. The expenses of preparing and filing such returns
shall be borne by the Tax Administrator without any right of reimbursement
therefor. The other parties hereto shall provide on a timely basis to the Tax
Administrator or its designee such information with respect to each REMIC Pool
as is in its possession and reasonably requested by the Tax Administrator to
enable it to perform its obligations under this Section 10.01. Without limiting
the generality of the foregoing, the Depositor, within ten days following the
Tax Administrator's request therefor, shall provide in writing to the Tax
Administrator such information as is reasonably requested by the Tax
Administrator for tax purposes, as to the valuations and issue prices of the
Certificates, and the Tax Administrator's duty to perform its reporting and
other tax compliance obligations under this Section 10.01 shall be subject to
the condition that it receives from the Depositor such information possessed by
the Depositor that is necessary to permit the Tax Administrator to perform such
obligations.
(h) The Tax Administrator shall perform on behalf of each
REMIC Pool all reporting and other tax compliance duties that are the
responsibility of each such REMIC Pool under the Code, the REMIC Provisions or
other compliance guidance issued by the IRS or any state or local taxing
authority. Included among such duties, the Tax Administrator shall provide to:
(i) any Transferor of a Residual Interest Certificate, such information as is
necessary for the application of any tax relating to the transfer of a Residual
Interest Certificate to any Person who is not a Permitted Transferee; (ii) the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions, including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption as
required hereunder); and (iii) the IRS, the name, title, address and telephone
number of the Person who will serve as the representative of each REMIC Pool.
(i) The Tax Administrator shall perform its duties hereunder
so as to maintain the status of each REMIC Pool as a REMIC under the REMIC
Provisions (and the Trustee, the Master Servicer and the Special Servicer shall
assist the Tax Administrator to the extent reasonably requested by the Tax
Administrator and to the extent of information within the Trustee's, the Master
Servicer's or the Special Servicer's possession or control). None of the Tax
Administrator, the Master Servicer, the Special Servicer, or the Trustee shall
knowingly take (or cause any REMIC Pool to take) any action or fail to take (or
fail to cause to be taken) any action that, under the REMIC Provisions, if taken
or not taken, as the case may be, could (i) endanger the status of any REMIC
Pool as a REMIC, or (ii) except as provided in Section 3.17(a), result in the
imposition of a tax upon any REMIC Pool (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) or
result in the imposition of a tax on "net income from foreclosure property" as
defined in Section 860G(c) of the Code (any such endangerment of REMIC status
or, except as provided in Section 3.17(a), imposition of a tax, an "Adverse
REMIC Event"), unless the Tax Administrator has obtained or received an Opinion
of Counsel (at the expense of the party requesting such action or at the expense
of the Trust Fund if the Tax Administrator seeks to take such action or to
refrain from acting for the benefit of the Certificateholders)
-261-
to the effect that the contemplated action will not result in an Adverse REMIC
Event or an Adverse Grantor Trust Event. None of the other parties hereto shall
take any action or fail to take any action (whether or not authorized hereunder)
as to which the Tax Administrator has advised it in writing that the Tax
Administrator has received or obtained an Opinion of Counsel to the effect that
an Adverse REMIC Event or an Adverse Grantor Trust Event could result from such
action or failure to act. In addition, prior to taking any action with respect
to any REMIC Pool, or causing any REMIC Pool to take any action, that is not
expressly permitted under the terms of this Agreement, the Master Servicer and
the Special Servicer shall consult with the Tax Administrator or its designee,
in writing, with respect to whether such action could cause an Adverse REMIC
Event or an Adverse Grantor Trust Event to occur. The Tax Administrator may
consult with counsel to make such written advice, and the cost of same shall be
borne by the party seeking to take the action not permitted by this Agreement,
but in no event at the cost or expense of the Trust Fund or the Trustee. At all
times as may be required by the Code, the Tax Administrator shall make
reasonable efforts to ensure that substantially all of the assets of each REMIC
Pool will consist of "qualified mortgages" as defined in Section 860G(a)(3) of
the Code and "permitted investments" as defined in Section 860G(a)(5) of the
Code.
(j) If any tax is imposed on any REMIC Pool, including
"prohibited transactions" taxes as defined in Section 860F(a)(2) of the Code,
any tax on "net income from foreclosure property" as defined in Section 860G(c)
of the Code, any taxes on contributions to any REMIC Pool after the Startup Day
pursuant to Section 860G(d) of the Code, and any other tax imposed by the Code
or any applicable provisions of State or Local Tax laws (other than any tax
permitted to be incurred by the Special Servicer pursuant to Section 3.17(a)),
such tax, together with all incidental costs and expenses (including penalties
and reasonable attorneys' fees), shall be charged to and paid by: (i) the Tax
Administrator, if such tax arises out of or results from a breach by the Tax
Administrator of any of its obligations under this Section 10.01; (ii) the
Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its obligations under Article III or this Section
10.01; (iii) the Master Servicer, if such tax arises out of or results from a
breach by the Master Servicer of any of its obligations under Article III or
this Section 10.01; (iv) the Trustee, if such tax arises out of or results from
a breach by the Trustee of any of its obligations under Article IV, Article VIII
or this Section 10.01; (v) the Depositor, if such tax was imposed due to the
fact that any of the Xxxxxx Mortgage Loans did not, at the time of their
transfer to REMIC I or the related Loan REMIC, constitute a "qualified mortgage"
as defined in Section 860G(a)(3) of the Code; or (vi) the Trust Fund, excluding
the portion thereof constituting the Grantor Trust, in all other instances. Any
tax permitted to be incurred by the Special Servicer pursuant to Section 3.17(a)
shall be charged to and paid by the Trust Fund (exclusive of the Grantor Trust
Assets). Any such amounts payable by the Trust Fund shall be paid by the Trustee
upon the written direction of the Tax Administrator out of amounts on deposit in
the Collection Account in reduction of the Available Distribution Amount
pursuant to Section 3.05(b).
(k) The Tax Administrator shall, for federal income tax
purposes, maintain books and records with respect to each REMIC Pool on a
calendar year and on an accrual basis.
(l) Following the Startup Day, none of the Trustee, the Master
Servicer and the Special Servicer shall accept any contributions of assets to
any REMIC Pool unless it shall have received an Opinion of Counsel (at the
expense of the party seeking to cause such contribution and in no event at the
expense of the Trust Fund or the Trustee) to the effect that the inclusion of
such assets in such REMIC Pool will not cause: (i) such REMIC Pool to fail to
qualify as a REMIC at any time that
-262-
any Certificates are outstanding; or (ii) the imposition of any tax on such
REMIC Pool under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(m) None of the Trustee, the Master Servicer and the Special
Servicer shall consent to or, to the extent it is within the control of such
Person, permit: (i) the sale or disposition of any of the Mortgage Loans (except
in connection with (A) the default or reasonably foreseeable material default of
a Mortgage Loan, including, but not limited to, the sale or other disposition of
a Mortgaged Property acquired by deed in lieu of foreclosure, (B) the bankruptcy
of any REMIC Pool, (C) the termination of any REMIC Pool pursuant to Article IX
of this Agreement, or (D) a purchase of Mortgage Loans pursuant to or as
contemplated by Article II or III of this Agreement); (ii) the sale or
disposition of any investments in the Pool Custodial Account or the Pool REO
Account for gain; or (iii) the acquisition of any assets for any REMIC Pool
(other than a Mortgaged Property acquired through foreclosure, deed in lieu of
foreclosure or otherwise in respect of a defaulted Mortgage Loan and other than
Permitted Investments acquired in connection with the investment of funds in the
Pool Custodial Account or the Pool REO Account); in any event unless it has
received an Opinion of Counsel (at the expense of the party seeking to cause
such sale, disposition, or acquisition but in no event at the expense of the
Trust Fund or the Trustee) to the effect that such sale, disposition, or
acquisition will not cause: (x) any REMIC Pool to fail to qualify as a REMIC at
any time that any Certificates are outstanding; or (y) the imposition of any tax
on any REMIC Pool under the REMIC Provisions or other applicable provisions of
federal, state and local law or ordinances.
(n) Except as permitted by Section 3.17(a), none of the
Trustee, the Master Servicer and the Special Servicer shall enter into any
arrangement by which any REMIC Pool will receive a fee or other compensation for
services nor permit any REMIC Pool to receive any income from assets other than
"qualified mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code.
SECTION 10.02. Grantor Trust Administration.
(a) The Tax Administrator shall treat the Grantor Trust, for
tax return preparation purposes, as a grantor trust under the Code and, if
necessary, under applicable state law and will file appropriate federal or state
Tax Returns for each taxable year ending on or after the last day of the
calendar year in which the Certificates are issued.
(b) The Tax Administrator shall pay out of its own funds any
and all routine tax administration expenses of the Trust Fund incurred with
respect to the Grantor Trust (but not including any professional fees or
expenses related to audits or any administrative or judicial proceedings with
respect to the Trust Fund that involve the IRS or state tax authorities which
extraordinary expenses shall be payable or reimbursable to the Tax Administrator
from the Grantor Trust Assets in the Trust Fund unless otherwise provided in
Section 10.02(e) or 10.02(f)).
(c) The Tax Administrator shall prepare, sign and file all of
the Tax Returns in respect of the Grantor Trust. The expenses of preparing and
filing such returns shall be borne by the Tax Administrator without any right of
reimbursement therefor. The Tax Administrator shall comply with such requirement
by filing Form 1041, indicating the name and address of the Trust and signed by
the Tax Administrator but otherwise left blank. There shall be appended to each
such form a schedule for each Certificateholder indicating such
Certificateholder's share of income and expenses of the Trust for the portion of
the preceding calendar year in which such Certificateholder possessed an
Ownership
-263-
Interest in a Certificate. Such form shall be prepared in sufficient detail to
enable reporting on the cash or accrual method of accounting, as applicable, and
to report on such Certificateholder's fiscal year if other than the calendar
year. The other parties hereto shall provide on a timely basis to the Tax
Administrator or its designee such information with respect to the Grantor Trust
as is in its possession and reasonably requested by the Tax Administrator to
enable it to perform its obligations under this Section 10.02. Without limiting
the generality of the foregoing, the Depositor, within ten days following the
Tax Administrator's request therefor, shall provide in writing to the Tax
Administrator such information as is reasonably requested by the Tax
Administrator for tax purposes, and the Tax Administrator's duty to perform its
reporting and other tax compliance obligations under this Section 10.02 shall be
subject to the condition that it receives from the Depositor such information
possessed by the Depositor that is necessary to permit the Tax Administrator to
perform such obligations.
(d) The Tax Administrator shall perform on behalf of the
Grantor Trust all reporting and other tax compliance duties that are required in
respect thereof under the Code, the Grantor Trust Provisions or other compliance
guidance issued by the IRS or any state or local taxing authority, including the
furnishing to Certificateholders of the schedules described in Section 10.01(c).
(e) The Tax Administrator shall perform its duties hereunder
so as to maintain the status of the Grantor Trust as a grantor trust under the
Grantor Trust Provisions (and the Trustee, the Master Servicer and the Special
Servicer shall assist the Tax Administrator to the extent reasonably requested
by the Tax Administrator and to the extent of information within the Trustee's,
the Master Servicer's or the Special Servicer's possession or control). None of
the Tax Administrator, Master Servicer, the Special Servicer or the Trustee
shall knowingly take (or cause the Grantor Trust to take) any action or fail to
take (or fail to cause to be taken) any action that, under the Grantor Trust
Provisions, if taken or not taken, as the case may be, could endanger the status
of the Grantor Trust as a grantor trust under the Grantor Trust Provisions or
result in the imposition of a tax upon the Grantor Trust or its assets or
transactions (any such endangerment or imposition, an "Adverse Grantor Trust
Event"), unless the Tax Administrator has obtained or received an Opinion of
Counsel (at the expense of the party requesting such action or at the expense of
the Trust Fund if the Tax Administrator seeks to take such action or to refrain
from taking any action for the benefit of the Certificateholders) to the effect
that the contemplated action will not result in an Adverse Grantor Trust Event.
None of the other parties hereto shall take any action or fail to take any
action (whether or not authorized hereunder) as to which the Tax Administrator
has advised it in writing that the Tax Administrator has received or obtained an
Opinion of Counsel to the effect that an Adverse Grantor Trust Event could
result from such action or failure to act. In addition, prior to taking any
action with respect to the Grantor Trust, or causing the Trust Fund to take any
action, that is not expressly permitted under the terms of this Agreement, the
Master Servicer and the Special Servicer shall consult with the Tax
Administrator or its designee, in writing, with respect to whether such action
could cause an Adverse Grantor Trust Event to occur. The Tax Administrator may
consult with counsel to make such written advice, and the cost of same shall be
borne by the party seeking to take the action not permitted by this Agreement,
but in no event at the cost or expense of the Trust Fund, the Tax Administrator
or the Trustee.
(f) If any tax is imposed on the Grantor Trust, such tax,
together with all incidental costs and expenses (including penalties and
reasonable attorneys' fees), shall be charged to and paid by: (i) the Tax
Administrator, if such tax arises out of or results from a breach by the Tax
Administrator of any of its obligations under this Section 10.02; (ii) the
Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its obligations under Article III or this Section
-264-
10.02; (iii) the Master Servicer, if such tax arises out of or results from a
breach by the Master Servicer of any of its obligations under Article III or
this Section 10.02; (iv) the Trustee, if such tax arises out of or results from
a breach by the Trustee of any of its obligations under Article IV, Article VIII
or this Section 10.02; or (v) the portion of the Trust Fund constituting the
Grantor Trust in all other instances.
-265-
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the
mutual agreement of the parties hereto, without the consent of any of the
Certificateholders or the _______________ Companion Loan Noteholder, (i) to cure
any ambiguity, (ii) to correct, modify or supplement any provision herein which
may be inconsistent with any other provision herein or with the description
thereof in the Prospectus or the Prospectus Supplement, (iii) to add any other
provisions with respect to matters or questions arising hereunder which shall
not be inconsistent with the existing 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, (v) to relax or eliminate any requirement imposed by the
Securities Act or the rules thereunder if the Securities Act or those rules are
amended or clarified so as to allow for the relaxation or elimination of that
requirement; (vi) as evidenced by an Opinion of Counsel delivered to the Master
Servicer, the Special Servicer and the Trustee, either (A) 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 such proposed action which, if made effective, would apply
retroactively to any of the REMIC Pools or the Grantor Trust at least from the
effective date of such amendment, or (B) 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 any REMIC Pool or the Grantor
Trust; (vii) as provided in Section 5.02(d)(iv) to modify, add to or eliminate
any of the provisions of Section 5.02(d)(i), (ii) or (iii); or (viii), to
otherwise modify or delete existing provisions of this Agreement; provided that
such amendment (other than any amendment for any of the specific purposes
described in clauses (i), (ii), (iv), (v), (vi) and (vii) above) shall not
adversely affect in any material respect the interests of any Certificateholder
or Companion Loan Noteholder, as evidenced by either an Opinion of Counsel
delivered to the Trustee and each other party hereto to such effect or, in the
case of a Class of Certificates or a class of Companion Loan Securities to which
a rating has been assigned by one or more Rating Agencies, written confirmation
from each applicable Rating Agency to the effect that such amendment shall not
result in an Adverse Rating Event; and provided, further, that such amendment
shall not significantly change the activities of the Trust.
(b) This Agreement may also be amended from time to time by
the agreement of the parties hereto with the consent of the Holders of
Certificates entitled to at least 66-2/3% of the Voting Rights allocated to the
affected Classes 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 received or advanced on Loans which are required to be distributed
on any Certificate, without the consent of the Holder of such Certificate, or
which are required to be distributed to the _______________ Companion Loan
Noteholder, without the consent of the _______________ Companion Loan
Noteholder, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates or the interests of the _______________
Companion Loan Noteholder in a manner other than as described in the immediately
preceding clause (i) without the consent of the Holders of all Certificates of
such Class or the consent of the
-266-
_______________ Companion Loan Noteholder, as the case may be, (iii)
significantly change the activities of the Trust without the consent of the
Holders of Certificates entitled to 51% of all the Voting Rights (without regard
to Certificates held by the Depositor or any of the Depositor's Affiliates
and/or agents), (iv) modify the provisions of this Section 11.01, without the
consent of the Holders of all Certificates then outstanding and the consent of
the _______________ Companion Loan Noteholder, (v) modify the provisions of
Section 3.20 or the Servicing Standard, without the consent of the Holders of
all Regular Interest Certificates then outstanding and the consent of the
_______________ Companion Loan Noteholder, or (vi) modify the specified
percentage of Voting Rights which are required to be held by Certificateholders
to consent or not to object to any particular action pursuant to any provision
of this Agreement 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 11.01(b),
Certificates registered in the name of any party hereto or any Affiliate thereof
shall be entitled to the same Voting Rights with respect to matters described
above as they would if any other Person held such Certificates, so long as the
subject amendment does not relate to increasing its rights or reducing or
limiting its obligations hereunder as a party to this Agreement.
(c) Notwithstanding any contrary provision of this Agreement,
the Trustee shall not consent to any amendment to this Agreement unless it shall
first have obtained or been furnished with an Opinion of Counsel (at the expense
of the party seeking such amendment) addressed to the Trustee and each other
party hereto, to the effect that (i) such amendment or the exercise of any power
granted to the Trustee, the Master Servicer or the Special Servicer in
accordance with such amendment will not result in the imposition of a tax on any
REMIC Pool pursuant to the REMIC Provisions, cause any REMIC Pool to fail to
qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust within the meaning of the Grantor Trust Provisions at any time that any
Certificates are outstanding and (ii) such amendment complies in all material
respects with the provisions of this Section 11.01.
(d) Promptly after the execution of any such amendment, the
Trustee shall send a copy thereof to each Certificateholder and Companion Loan
Noteholder.
(e) It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) Each of the Master Servicer, the Special Servicer and 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 11.01(a) or (c) shall be borne by the Person seeking the
related amendment, except that if the Master Servicer, the Special Servicer or
the Trustee requests any amendment of this Agreement that protects or is in
furtherance of the rights and interests of Certificateholders, the cost of any
Opinion of Counsel required in connection therewith pursuant to Section 11.01(a)
or (c) shall be payable out of the Pool Custodial Account, in the case of the
Master Servicer and the Special Servicer, pursuant to Section 3.05(a), or out of
the Collection Account, in the case of the Trustee, pursuant to Section 3.05(b).
-267-
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust Fund, but only upon
direction accompanied by an Opinion of Counsel (the cost of which may be paid
out of the Pool Custodial Account pursuant to Section 3.05(a) or, to the extent
that it benefits the _______________ Companion Loan Noteholder, out of the
_______________ Custodial Account pursuant to Section 3.05(A)(a)) to the effect
that such recordation materially and beneficially affects the interests of the
Certificateholders and/or the _______________ Companion Loan Noteholder;
provided, however, that the Trustee shall have no obligation or responsibility
to determine whether any such recordation of this Agreement is required.
(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 11.03. Limitation on Rights of Certificateholders and
the _______________ Companion Loan Noteholder.
(a) The death or incapacity of any Certificateholder or
Companion Loan Noteholder shall not operate to terminate this Agreement or the
Trust Fund, nor entitle such Certificateholder's or Companion Loan Noteholder'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) The Certificateholders and the _______________ Companion
Loan Noteholder (except as expressly provided for herein) shall not have any
right to vote 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 and/or the _______________ Companion
Loan Noteholder from time to time as partners or members of an association; nor
shall any Certificateholder or Companion Loan Noteholder 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) Neither any of the Certificateholders nor the
_______________ Companion Loan Noteholder 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 Loan,
unless, with respect to any suit, action or proceeding upon or under or with
respect to this Agreement, such Person previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) 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
-268-
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 whatsoever by virtue of any provision of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, which priority or preference is not otherwise provided for
herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
section, each and every Certificateholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
SECTION 11.04. Governing Law; Consent to Jurisdiction.
This Agreement will be governed by and construed in accordance
with the laws of the State of New York, applicable to agreements negotiated,
made and to be performed entirely in said state. To the fullest extent permitted
under applicable law, the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent each hereby irrevocably (i) submits to the
jurisdiction of any New York State and federal courts sitting in New York City
with respect to matters arising out of or relating to this Agreement; (ii)
agrees that all claims with respect to such action or proceeding may be heard
and determined in such New York State or federal courts; (iii) waives the
defense of an inconvenient forum; and (iv) agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall
be in writing and, unless otherwise expressly provided herein, shall be deemed
to have been duly given when delivered to: (i) in the case of the Depositor,
Structured Asset Securities Corporation II, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: _____________________, facsimile number: ________; (ii)
in the case of the Master Servicer, __________________________, ______________,
Attention: _________________; facsimile number: __________; (iii) in the case of
the Special Servicer, __________________________, __________________________,
Attention: _________________; facsimile number: __________; (iv) in the case of
the Trustee, __________________________, __________________________, Attention:
_________________; facsimile number: __________; (v) in the case of the Fiscal
Agent, __________________________, __________________________, Attention:
_________________; facsimile number: __________; (vi) in the case of the
Underwriters, (A) Xxxxxx Brothers, Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: ____________, facsimile number: ______________, (B) ________,
__________________________, __________________________, Attention: ____________;
facsimile number: __________, with a copy to ____________________, and (C)
__________________________, __________________________, Attention: ____________;
facsimile number: __________; (vii) in the case of the Rating Agencies, (A)
_______________, __________________________, __________________________,
Attention: _________________; facsimile number: __________, and (B) ___________,
__________________________, Attention: _________________; facsimile number:
__________; and (viii) in the case of the Fiscal Agent, to the Trustee on behalf
of the Fiscal Agent; or, as to each such Person, such other address as may
hereafter be furnished by such Person to the parties hereto in writing.
-269-
Any communication required or permitted to be delivered to a Certificateholder
shall be deemed to have been duly given when mailed first class, postage
prepaid, to the address of such Holder as shown in the Certificate Register.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07. Grant of a Security Interest.
The Depositor and the Trustee agree that it is their intent
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 and the Trustee agree that it is
their intent that the rights and obligations of the parties to such loan shall
be established pursuant to the terms of this Agreement. The Depositor and the
Trustee also intend and agree that, in such event, (i) in order to secure
performance of the Depositor's obligations hereunder and payment of the
Certificates, the Depositor shall be deemed to have granted, and does hereby
grant, 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
constituting the Trust Fund, including the Mortgage Loans, all principal and
interest received or receivable with respect to the Mortgage Loans (other than
principal and interest payments due and payable prior to the Cut-off Date and
any Principal Prepayments received on or prior to the Cut-off Date), all amounts
held from time to time in the Pool Custodial Account, the Collection Account,
the Interest Reserve Account, the Excess Liquidation Proceeds Account and, if
established, the Pool REO Account and the Defeasance Deposit Account and any and
all reinvestment earnings on such amounts, and all of the Depositor's right,
title and interest in and to the proceeds of any title, hazard or other
Insurance Policies related to such Mortgage Loans, and (ii) this Agreement shall
constitute a security agreement under applicable law. The Depositor shall file
or cause to be filed, as a precautionary filing, a Form UCC-1 substantially in
the form attached as Exhibit J hereto in the State of Delaware promptly
following the initial issuance of the Certificates, and the Trustee shall
prepare, execute and file at each such office, with the consent of the Depositor
hereby given, continuation statements with respect thereto, 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 and the
Master Servicer in preparing and filing such continuation statements. This
Section 11.07 shall constitute notice to the Trustee pursuant to any of the
requirements of the UCC.
SECTION 11.08. Xxxxxx Act.
Any provisions required to be contained in this Agreement by
Section 126 of Article 4-A of the New York Real Property Law are hereby
incorporated herein, and such provisions shall be in addition to those conferred
or imposed by this Agreement; provided, however, that to the extent that such
Section 126 shall not have any effect, and if said Section 126 should at any
time be repealed or cease to apply to this Agreement or be construed by judicial
decision to be inapplicable, said Section 126 shall cease to have any further
effect upon the provisions of this Agreement. In case of a conflict between the
provisions of this Agreement and any mandatory provisions of Article 4-A of the
New York
-270-
Real Property Law, such mandatory provisions of said Article 4-A shall
prevail, provided that if said Article 4-A shall not apply to this Agreement,
should at any time be repealed, or cease to apply to this Agreement or be
construed by judicial decision to be inapplicable, such mandatory provisions of
such Article 4-A shall cease to have any further effect upon the provisions of
this Agreement.
SECTION 11.09. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the parties
hereto, and all such provisions shall inure to the benefit of the
Certificateholders. Each Underwriter shall be a third party beneficiary to this
Agreement solely with respect to its right to receive the reports, statements
and other information to which it is entitled hereunder, to preserve such
Underwriter's rights under Sub-Servicing Agreements as contemplated by Section
3.22(d) and, in the case of Xxxxxx Brothers, to terminate the Trust Fund
pursuant to Section 9.01. Each of the Sub-Servicers that is a party to a
Sub-Servicing Agreement in effect on the Closing Date (or being negotiated as of
the Closing Date and in effect within 90 days thereafter) shall be a third party
beneficiary to obligations of a successor Master Servicer under Section 3.22,
provided that the sole remedy for any claim by a Sub-Servicer as a third party
beneficiary pursuant to this Section 11.09 shall be against a successor Master
Servicer solely in its corporate capacity and no Sub-Servicer shall have any
rights or claims against the Trust Fund or any party hereto (other than a
successor Master Servicer in its corporate capacity as set forth in this Section
11.09) as a result of any rights conferred on such Sub-Servicer as a third party
beneficiary pursuant to this Section 11.09. The _______________ Companion Loan
Noteholder and any designees thereof acting on behalf of or exercising the
rights of the _______________ Companion Loan Noteholder shall be third-party
beneficiaries to this Agreement with respect to their rights as specifically
provided for herein. The _______________ Trustee and the _______________ Fiscal
Agent shall be third-party beneficiaries to this Agreement solely with respect
to reimbursement of P&I Advances made by such Persons, with interest, as
provided in Section 3.05A hereof. This Agreement may not be amended in any
manner that would adversely affect the rights of any such third party
beneficiary without its consent. No other Person, including any Mortgagor, shall
be entitled to any benefit or equitable right, remedy or claim under this
Agreement.
SECTION 11.10. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.11. Notices to Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not
been cured;
(iii) the resignation or termination of the Fiscal Agent,
the Master Servicer or the Special Servicer;
-271-
(iv) the repurchase of Mortgage Loans by the Depositor
pursuant to Section 2.03;
(v) any change in the location of the Collection Account
or the Interest Reserve Account;
(vi) the final payment to any Class of Certificateholders;
and
(vii) any sale or disposition of any Mortgage Loan or REO
Property.
(b) The Master Servicer shall promptly provide notice to each
Rating Agency with respect to each of the following of which it has actual
knowledge:
(i) the resignation or removal of the Trustee; and
(ii) any change in the location of any Custodial Account.
(c) The Special Servicer shall furnish each Rating Agency with
respect to a Specially Serviced Loan such information as the Rating Agency shall
reasonably request and which the Special Servicer can reasonably provide in
accordance with applicable law, with copies to the Trustee.
(d) To the extent applicable, each of the Master Servicer and
the Special Servicer shall promptly furnish to each Rating Agency copies of the
following items:
(i) each of its annual statements as to compliance
described in Section 3.13;
(ii) each of its annual independent public accountants'
servicing reports described in Section 3.14; and
(iii) any Officer's Certificate delivered by it to the
Trustee pursuant to Section 3.11(h), 4.03(c) or 4.03A(c).
(e) The Trustee shall (i) make available to each Rating
Agency, upon reasonable notice, the items described in Section 8.14(b) and (ii)
promptly deliver to each Rating Agency a copy of any notices given pursuant to
Section 7.03(a) or Section 7.03(b).
(f) The Trustee shall promptly deliver to each Rating Agency a
copy of each of the statements and reports described in Section 4.02(a) that is
prepared by it.
(g) Each of the Trustee, the Master Servicer and the Special
Servicer shall provide to each Rating Agency such other information with respect
to the Mortgage Loans and the Certificates, to the extent such party possesses
such information, as such Rating Agency shall reasonably request.
SECTION 11.12. Global Opinions.
Notwithstanding anything herein to the contrary, where any
party hereto is required or permitted to rely upon an Opinion of Counsel with
respect to any particular matter, such Opinion of Counsel need not specifically
reference such particular matter, but rather such Opinion of Counsel may address
general matters of law in respect of nonspecific circumstances which clearly
encompass the
-272-
facts of such particular matter (any such Opinion of Counsel, a "Global
Opinion"); provided that no Global Opinion may be relied upon if it is more than
12 months old or if the subject party has reason to believe that such Global
Opinion no longer expresses a correct legal opinion.
SECTION 11.13. Complete Agreement.
This Agreement embodies the complete agreement among the
parties and may not be varied or terminated except by a written agreement
conforming to the provisions of Section 11.01. All prior negotiations or
representations of the parties are merged into this Agreement and shall have no
force or effect unless expressly stated herein.
-273-
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.
STRUCTURED ASSET SECURITIES CORPORATION II
Depositor
By: _____________________________________
Name:
Title:
--------------------------
Master Servicer
By: _____________________________________
Name:
Title:
--------------------------
Special Servicer
By: _____________________________________
Name:
Title:
--------------------------
Trustee
By: _____________________________________
Name:
Title:
--------------------------
Fiscal Agent
By: _____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of _____________, _____, before me, a notary
public in and for said State, personally appeared ________________________,
known to me to be a _________________________________ of STRUCTURED ASSET
SECURITIES CORPORATION II, one of the entities that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such entity, and acknowledged to me that such entity executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
----------------------------------------
Notary Public
[Notarial Seal]
STATE OF _________________ )
) ss.:
COUNTY OF ________________ )
On the ______ day of _____________, _____, before me, a notary
public in and for said State, personally appeared ___________________________,
known to me to be a ___________________________________ of _________________,
one of the entities that executed the within instrument, and also known to me to
be the person who executed it on behalf of such entity, and acknowledged to me
that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
----------------------------------------
Notary Public
[Notarial Seal]
STATE OF __________________ )
) ss.:
COUNTY OF _________________ )
On the ______ day of _____________, _____, before me, a notary
public in and for said State, personally appeared _____________________________,
known to me to be a __________________________________ of ___________________,
one of the entities that executed the within instrument, and also known to me to
be the person who executed it on behalf of such entity, and acknowledged to me
that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
----------------------------------------
Notary Public
[Notarial Seal]
STATE OF __________________ )
) ss.:
COUNTY OF _________________ )
On the ______ day of _____________, _____, before me, a notary
public in and for said State, personally appeared ____________________________,
known to me to be a ___________________________________ of ___________________,
one of the entities that executed the within instrument, and also known to me to
be the person who executed it on behalf of such entity, and acknowledged to me
that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
----------------------------------------
Notary Public
[Notarial Seal]
STATE OF __________________ )
) ss.:
COUNTY OF _________________ )
On the ______ day of _____________, _____, before me, a notary
public in and for said State, personally appeared ______________________________
and ___________________________, known to me to be a __________________________
and _______________________, respectively, of __________________________, one of
the entities that executed the within instrument, and also known to me to be the
persons who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
----------------------------------------
Notary Public
[Notarial Seal]
SCHEDULE I
MORTGAGE LOAN SCHEDULE
SCHEDULE II
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
SCHEDULE III
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR
--------------------------------------------------------------------------------
REPRESENTATION FROM SECTION 2.04 PROPERTY AND EXCEPTION
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SCHEDULE IV
SCHEDULE OF ENVIRONMENTALLY INSURED MORTGAGE LOANS
--------------------------------------------------------------------------------
MORTGAGE LOAN CUT-OFF DATE
NUMBER PROPERTY NAME ADDRESS BALANCE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SCHEDULE V
REFERENCE RATE SCHEDULE
INTEREST INTEREST
MONTHS ACCRUAL PERIOD* REFERENCE RATE MONTHS ACCRUAL PERIOD* REFERENCE RATE
------ --------------- -------------- ------ --------------- --------------
--------------------------
* For each relevant Interest Accrual Period, specified month indicates month
in which that Interest Accrual Period begins.
EXHIBIT A-1
FORM OF CLASS [A-1][A-2][A-3][A-4][A-5] CERTIFICATES
LB COMMERCIAL MORTGAGE TRUST ______-____
CLASS [A-1][A-2][A-3][A-4][A-5] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES ______-____
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION II
Pass-Through Rate: [___]% Initial Certificate Principal Balance of this Certificate
as of the Closing Date:
$____________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class [A-1][A-2][A-3]
__________________ [A-4] [A-5] Certificates as of the Closing Date:
$____________
Cut-off Date: __________________ Aggregate unpaid principal balance of the Mortgage Pool as
of the Cut-off Date, after deducting payments of principal
Closing Date: __________________ due on or before such date (the "Initial Pool Balance"):
$___________
First Distribution Date: __________________
Master Servicer: __________________ Trustee: __________________
Special Servicer: __________________ Fiscal Agent: __________________
Certificate No. [A-1][A-2][A-3][A-4][A-5]-___ CUSIP No.: _____________
A-1-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY
SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, IF THE
PURCHASE OR HOLDING OF THIS CERTIFICATE OR SUCH INTEREST HEREIN WOULD RESULT IN
A VIOLATION OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE OR WOULD
RESULT IN THE IMPOSITION OF AN EXCISE TAX UNDER SECTION 4975 OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION II, __________________, _______________,
_______________, __________________, OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Structured Asset Securities Corporation II as depositor (the "Depositor", which
term includes any successor entity under the Agreement),
___________________________ as master servicer (the "Master Servicer", which
term includes any successor entity under the Agreement), _____________________
as special servicer (the "Special Servicer", which term includes any successor
entity under the Agreement), __________________ ___________ as trustee (the
"Trustee", which term includes any successor entity under the Agreement) and
__________________ as fiscal agent (the "Fiscal Agent", 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 respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which
A-1-2
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the event of any conflict between
any provision of this Certificate and any provision of the Agreement, such
provision of this Certificate shall be superseded to the extent of such
inconsistency.
Pursuant to the terms of the Agreement, distributions will be
made on the ______ Business Day following the ____ calendar day of each month
(or, if such ____ calendar day is not a Business Day, then the ___ Business Day
following such ____ calendar day) (each, 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 (or, in the case
of the first Distribution Date, at the close of business on the Closing Date
specified above) ( in any event, 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 pursuant to the Agreement on the applicable
Distribution Date in respect of the Class of Certificates to which this
Certificate belongs. All distributions made under the Agreement in respect of
this Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with written wiring instructions no less than five (5)
Business Days prior to (or, in the case of the first such distribution, on) the
Record Date for such distribution (which wiring instructions may be in the form
of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice. Also notwithstanding the foregoing, any distribution that may be made
with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal 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.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The 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, the
Certificates are exchangeable for new Certificates of the same Class 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 offices 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
A-1-3
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 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.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof,
shall be deemed to have agreed to keep confidential any information it obtains
from the Trustee (except that such Holder may provide any such information
obtained by it to any other Person that holds or is contemplating the purchase
of this Certificate or an interest herein, provided that such other Person
confirms in writing such ownership interest or prospective ownership interest
and agrees to keep such information confidential).
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the
Agreement, the Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment (or any advance with respect thereto) on or
other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust, and (ii) the purchase by the Depositor, Xxxxxx Brothers Inc., the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust. The Agreement permits, but does not require,
the Depositor, Xxxxxx Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder to purchase from the Trust all
Mortgage Loans and any REO Properties remaining therein. 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
Pool at the time of purchase being less than ____% of the Initial Pool Balance
specified on the face hereof.
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, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66 2/3% of the Voting Rights allocated to the
affected Classes. 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 circumstances, including any amendment necessary to maintain the status
of any REMIC Pool 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.
A-1-4
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust (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 applicable to agreements made and to be
performed in said State, without applying any conflicts of law principles of
such state (other than the provisions of Section 5-1401 of the New York General
Obligations Law), and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-1-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
-----------------------------------,
as Trustee
By: ___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1][A-2][A-3][A-4][A-5]
Certificates referred to in the within-mentioned Agreement.
Dated: _____________
-----------------------------------,
as Certificate Registrar
By: ___________________________________
Authorized Officer
A-1-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and delivery of such Commercial Mortgage Pass-Through
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
___________________________________________for the account of __________________
_______________________________.
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
________________________________.
This information is provided by ______________________________
______________________________, the assignee named above, or __________________,
as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS [X-CL][X-CP][X-VF]CERTIFICATE
LB COMMERCIAL MORTGAGE TRUST ______-____
CLASS [X-CL][X-CP][X-VF] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES ______-____
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION II
Pass-Through Rate: [____]% [Variable] Initial Certificate Notional Amount of this Certificate as
of the Closing Date:
$____________
Date of Pooling and Servicing Agreement: Class Notional Amount of all the Class [X-CL][X-CP]
_________________ [X-VF]Certificates as of the Closing Date:
$_____________
Cut-off Date: ____________________ Aggregate unpaid principal balance of the Mortgage Pool as
of the Cut-off Date, after deducting payments of principal
Closing Date: ____________________ due on or before such date (the "Initial Pool Balance"):
$______________
First Distribution Date: ____________________
Master Servicer: ____________________ Trustee: ____________________
Special Servicer: ____________________ Fiscal Agent: ____________________
Certificate No. [X-CL][X-CP][X-VF]-___ CUSIP No.: _____________
A-2-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR
OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION II, _______________________, _______________,
_____________________, __________________, OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF
THIS CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
[FOR A REGULATION S GLOBAL CERTIFICATE: PRIOR TO THE DATE (THE "RELEASE DATE")
THAT IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING TO
PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S UNDER THE SECURITIES
ACT, AND (B) THE DATE OF CLOSING OF THE OFFERING, THIS CERTIFICATE MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED
A-2-2
STATES OR TO A U.S. PERSON WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE
SHALL BE ENTITLED TO RECEIVE PAYMENTS HEREON UNLESS THE REQUIRED CERTIFICATIONS
HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.]
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Closing Date by the aggregate notional principal amount of
all the Certificates of the same Class as this Certificate (their "Class
Notional Amount") as of the Closing Date) in that certain beneficial ownership
interest in the Trust evidenced by all the Certificates of the same Class as
this Certificate. The Trust was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Structured Asset Securities Corporation II as depositor (the
"Depositor", which term includes any successor entity under the Agreement),
_____________________ as master servicer (the "Master Servicer", which term
includes any successor entity under the Agreement), ________________ as special
servicer (the "Special Servicer", which term includes any successor entity under
the Agreement), ________________ as trustee (the "Trustee", which term includes
any successor entity under the Agreement) and __________________ as fiscal agent
(the "Fiscal Agent", 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 respective 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. In the event of any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be
made on the ___ Business Day following the ____ calendar day of each month (or,
if such ____ calendar day is not a Business Day, then the ___ Business Day
following such ____ calendar day) (each, 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 (or, in the case
of the first Distribution Date, at the close of business on the Closing Date
specified above) (in any event, 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 pursuant to the Agreement on the applicable
Distribution Date in respect of the Class of Certificates to which this
Certificate belongs. All distributions made under the Agreement in respect of
this Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with written wiring instructions no less than five (5)
Business Days prior to (or, in the case of the first such distribution, on) the
Record Date for such distribution (which wiring instructions may be in the form
of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
A-2-3
The 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, the
Certificates are exchangeable for new Certificates of the same Class 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 offices 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 direct or indirect transfer, sale, pledge, hypothecation or
other disposition (each, a "Transfer") of this Certificate or any interest
herein shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with the initial issuance of the Certificates or a
Transfer of this Certificate by the Depositor, Xxxxxx Brothers Inc. or any of
their respective Affiliates or, if this Certificate is a Global Certificate, a
Transfer of this Certificate to a successor Depository or to the applicable
Certificate Owner in accordance with Section 5.03 of the Agreement), then the
Certificate Registrar shall refuse to register such Transfer unless it receives
(and, upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such Transferee is an Institutional
Accredited Investor or a Qualified Institutional Buyer and such Transfer
substantially in the form attached as Exhibit F-1 to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A to the Agreement or as Exhibit F-2B
to the Agreement; or (ii) an Opinion of Counsel satisfactory to the Trustee to
the effect that such Transfer may be made without registration under the
Securities Act (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, the Fiscal Agent or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such Transfer from the Certificateholder desiring to effect such
Transfer and/or such Certificateholder's prospective Transferee on which such
Opinion of Counsel is based. If any Transferee of this Certificate does not, in
connection with the subject Transfer, deliver to the Certificate Registrar one
of the certifications described in clause (i) of the preceding sentence or the
Opinion of Counsel described in clause (ii) of the preceding sentence, then such
Transferee shall be deemed to have represented and warranted that all the
certifications set forth in either Exhibit F-2A or Exhibit F-2B attached to the
Agreement are, with respect to the subject Transfer, true and correct.
If this Certificate constitutes a Rule 144A Global Certificate
and a Transfer of any interest herein is to be made without registration under
the Securities Act (other than in connection with the initial issuance of the
Certificates or a Transfer of any interest herein by the Depositor, Xxxxxx
Brothers Inc. or any of their respective Affiliates), then the Certificate Owner
desiring to effect such Transfer shall be required to obtain either (i) a
certificate from such Certificate Owner's prospective Transferee substantially
in the form attached as Exhibit F-2C to the Agreement, or (ii) an Opinion of
Counsel to the effect that such Transferee is a Qualified Institutional Buyer
and such Transfer may be made without registration under the Securities Act.
Except as discussed below, an interest in a Rule 144A Global Certificate for any
Class of Book-Entry Non-Registered Certificates may not be transferred to any
Person who takes delivery other than in the form of an interest in such Rule
144A Global Certificate. If this Certificate constitutes a Rule 144A Global
Certificate and any Transferee of an interest herein does not, in connection
with the subject Transfer, deliver to the Transferor the Opinion of Counsel or
the certification described in the second preceding sentence, then such
Transferee shall be deemed to have
A-2-4
represented and warranted that all the certifications set forth in Exhibit F-2C
attached to the Agreement are, with respect to the subject Transfer, true and
correct.
Notwithstanding the preceding paragraph, any interest in a
Rule 144A Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred (without delivery of any certificate or Opinion
of Counsel described in clauses (i) and (ii) of the first sentence of the
preceding paragraph) by the Depositor or any Affiliate of the Depositor to any
Person who takes delivery in the form of a beneficial interest in the Regulation
S Global Certificate for such Class of Certificates upon delivery to the
Certificate Registrar of (x) a certificate to the effect that the Certificate
Owner desiring to effect such Transfer is the Depositor or an Affiliate of the
Depositor and (y) such written orders and instructions as are required under the
applicable procedures of the Depository, Clearstream and Euroclear to direct the
Trustee to debit the account of a Depository Participant by a denomination of
interests in such Rule 144A Global Certificate, and credit the account of a
Depository Participant by a denomination of interests in such Regulation S
Global Certificate, that is equal to the denomination of beneficial interests in
the subject Class of Certificates to be transferred. Upon delivery to the
Certificate Registrar of such certification and such orders and instructions,
the Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the Rule 144A Global Certificate in
respect of the subject Class of Certificates and increase the denomination of
the Regulation S Global Certificate for such Class, by the denomination of the
beneficial interest in such Class specified in such orders and instructions.
Also notwithstanding the second preceding paragraph, any
interest in a Rule 144A Global Certificate with respect to any Class of
Book-Entry Non-Registered Certificates may be transferred by any Certificate
Owner holding such interest to any Institutional Accredited Investor (other than
a Qualified Institutional Buyer) that takes delivery in the form of a Definitive
Certificate of the same Class as such Rule 144A Global Certificate upon delivery
to the Certificate Registrar and the Trustee of (i) such certifications and/or
opinions as are contemplated by the second paragraph of Section 5.02(b) of the
Agreement, (ii) a certification from such Certificate Owner to the effect that
it is the lawful owner of the beneficial interest being transferred and (iii)
such written orders and instructions as are required under the applicable
procedures of the Depository to direct the Trustee to debit the account of a
Depository Participant by the denomination of the transferred interests in such
Rule 144A Global Certificate. Upon delivery to the Certificate Registrar of such
certifications and/or opinions and such orders and instructions, the Trustee,
subject to and in accordance with the applicable procedures of the Depository,
shall reduce the denomination of the subject Rule 144A Global Certificate by the
denomination of the transferred interests in such Rule 144A Global Certificate,
and shall cause a Definitive Certificate of the same Class as such Rule 144A
Global Certificate, and in a denomination equal to the reduction in the
denomination of such Rule 144A Global Certificate, to be executed, authenticated
and delivered in accordance with the Agreement to the applicable Transferee.
Except as provided in the next paragraph no beneficial
interest in a Regulation S Global Certificate for any Class of Book-Entry
Non-Registered Certificates shall be transferred to any Person who takes
delivery other than in the form of a beneficial interest in such Regulation S
Global Certificate. On and prior to the Release Date, the Certificate Owner
desiring to effect any such Transfer shall be required to obtain from such
Certificate Owner's prospective Transferee a written certification substantially
in the form set forth in Exhibit F-2D to the Agreement certifying that such
Transferee is not a United States Securities Person. On or prior to the Release
Date, beneficial interests in the Regulation S Global Certificate for each Class
of Book-Entry Non-Registered Certificates may be held only through Euroclear or
Clearstream.
Notwithstanding the preceding paragraph, any interest in a
Regulation S Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred by the Depositor or any Affiliate of the
Depositor to any Person who takes delivery in the form of a beneficial interest
in the Rule 144A Global Certificate for such Class of Certificates upon delivery
to the Certificate Registrar of (x) a certificate to the effect that the
Certificate Owner desiring to effect such Transfer is the Depositor or an
Affiliate of the Depositor and (y) such written orders and instructions as are
required under the applicable procedures of the Depository, Clearstream and
Euroclear to direct the Trustee to debit the account of a Depository Participant
by a denomination
A-2-5
of interests in such Regulation S Global Certificate, and credit the account of
a Depository Participant by a denomination of interests in such Rule 144A Global
Certificate, that is equal to the denomination of beneficial interests in the
subject Class of Certificates to be transferred. Upon delivery to the
Certificate Registrar of such certification and such orders and instructions,
the Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the Regulation S Global Certificate
in respect of the subject Class of Certificates and increase the denomination of
the Rule 144A Global Certificate for such Class, by the denomination of the
beneficial interest in such Class specified in such orders and instructions.
None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify the Class of Certificates to which
this Certificate belongs, under the Securities Act or any other securities law
or to take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, Xxxxxx Brothers Inc., UBS Warburg LLC, the Trustee,
the Master Servicer, the Special Servicer, the Fiscal Agent, the Certificate
Registrar and their respective Affiliates against any liability that may result
if such Transfer is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein 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 in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is
directly or indirectly purchasing this Certificate or such interest herein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, if
the purchase and holding of this Certificate or such interest herein by the
prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in connection with the initial
issuance of the Certificates or any Transfer of this Certificate or any interest
herein by the Depositor, Xxxxxx Brothers Inc. or any of their respective
Affiliates or, if this Certificate constitutes a Global Certificate, any
Transfer of this Certificate to a successor Depository or to the applicable
Certificate Owner in accordance with Section 5.03 of the Agreement, the
Certificate Registrar shall refuse to register the Transfer of this Certificate
unless it has received from the prospective Transferee, and, if this Certificate
constitutes a Global Certificate, any Certificate Owner transferring an interest
herein shall be required to obtain from its prospective Transferee, one of the
following: (i) a certification to the effect that such prospective Transferee is
not a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) a certification to the effect that the purchase and
holding of this Certificate or such interest herein by such prospective
Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code, by reason of Sections I
and III of Prohibited Transaction Class Exemption 95-60; or (iii) if this
Certificate is rated in one of the four highest generic rating categories by
either Rating Agency, and this Certificate or an interest herein is being
acquired by or on behalf of a Plan in reliance on any of Prohibited Transaction
Exemption 91-14, a certification to the effect that such Plan (X) is an
accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (Y) is not sponsored (within the meaning of Section 3(16)((B) of
ERISA) by the Trustee, the Depositor, either Mortgage Loan Seller, the Master
Servicer, the Special Servicer, any Sub-Servicer, any Person responsible for
servicing the 1166 Avenue of the Americas Mortgage Loan or any related REO
Property, any Exemption-Favored Party or any Mortgagor with respect to Mortgage
Loans constituting more than 5% of the aggregate unamortized principal balance
of all the Mortgage Loans determined as of the Closing Date, or by any Affiliate
of such Person, and (Z) agrees that it will obtain from each of its Transferees
that are Plans a written representation that such Transferee, if a Plan,
satisfies the requirements of the immediately preceding clauses (X) and (Y),
together with a written agreement that such Transferee will obtain from each of
its Transferees that are Plans a similar written representation regarding
satisfaction of the requirements of the immediately preceding clauses (X) and
(Y); or (iv)
A-2-6
a certification of facts and an Opinion of Counsel which otherwise establish to
the reasonable satisfaction of the Trustee or such Certificate Owner, as the
case may be, that such Transfer will not result in a violation of Section 406 or
407 of ERISA or Section 4975 of the Code or result in the imposition of an
excise tax under Section 4975 of the Code. If any Transferee of this Certificate
or any interest herein does not, in connection with the subject Transfer,
deliver to the Certificate Registrar (if this Certificate constitutes a
Definitive Certificate) or the Transferor (if this Certificate constitutes a
Global Certificate) a certification and/or Opinion of Counsel as required by the
preceding sentence, then such Transferee shall be deemed to have represented and
warranted that either: (i) such Transferee is not a Plan and is not directly or
indirectly purchasing this Certificate or any interest herein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) the
purchase and holding of this Certificate or such interest herein by such
Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code.
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.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof,
shall be deemed to have agreed to keep confidential any information it obtains
from the Trustee (except that such Holder may provide any such information
obtained by it to any other Person that holds or is contemplating the purchase
of this Certificate or an interest herein, provided that such other Person
confirms in writing such ownership interest or prospective ownership interest
and agrees to keep such information confidential).
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the
Agreement, the Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment (or any advance with respect thereto) on or
other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust, and (ii) the purchase by the Depositor, ____________________, the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust. The Agreement permits, but does not require,
the Depositor, Xxxxxx Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder to purchase from the Trust all
Mortgage Loans and any REO Properties remaining therein. 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
Pool at the time of purchase being less than 3% of the Initial Pool Balance
specified on the face hereof.
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, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66 2/3% of the Voting Rights allocated to the
affected Classes. Any such consent
A-2-7
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 circumstances, including any amendment
necessary to maintain the status of any REMIC Pool 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 (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 applicable to agreements made and to be
performed in said State, without applying any conflicts of law principles of
such state (other than the provisions of Section 5-1401 of the New York General
Obligations Law), and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-2-8
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
-----------------------------,
as Trustee
By: _________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [X-CL][X-CP][X-VF] Certificates
referred to in the within-mentioned Agreement.
Dated: _____________
-----------------------------------,
as Certificate Registrar
By: ___________________________________
Authorized Officer
A-2-9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal
zip code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and delivery of such Commercial Mortgage Pass-Through
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
-----------------------------------,
Signature by or on behalf of Assignor
-----------------------------------,
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
______________________________________________for the account of _______________
_____________________________________________________.
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by _____________________________,
the assignee named above, or __________________________________, as its agent.
X-0-00
XXXXXXX X-0
FORM OF CLASS [B][C][D][E][F][G] CERTIFICATES
LB COMMERCIAL MORTGAGE TRUST ______-____
CLASS [B][C][D][E][F][G] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES ______-____
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION II
Pass-Through Rate: [____]% [Variable] Initial Certificate Principal Balance of this Certificate as
of the Closing Date:
$_______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class [B][C][D][E][F]
_________________ [G] Certificates as of the Closing Date:
$____________
Cut-off Date: _________________ Aggregate unpaid principal balance of the Mortgage Pool as
of the Cut-off Date, after deducting payments of principal
Closing Date: _________________ due on or before such date (the "Initial Pool Balance"):
$____________
First Distribution Date: _________________
Master Servicer: _________________________ Trustee: _________________________
Special Servicer: _________________________ Fiscal Agent: _________________________
Certificate No. [B][C][D][E][F][G]-___ CUSIP No.: _____________
A-3-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY
SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, IF THE
PURCHASE OR HOLDING OF THIS CERTIFICATE OR SUCH INTEREST HEREIN WOULD RESULT IN
A VIOLATION OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE OR WOULD
RESULT IN THE IMPOSITION OF AN EXCISE TAX UNDER SECTION 4975 OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION II, _________________________, ___________________,
_________________________, _________________________, OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Structured Asset Securities Corporation II as depositor (the "Depositor", which
term includes any successor entity under the Agreement), ___________________as
master servicer (the "Master Servicer", which term includes any successor entity
under the Agreement), _________________________ as special servicer (the
A-3-2
"Special Servicer", which term includes any successor entity under the
Agreement), _________________________ as trustee (the "Trustee", which term
includes any successor entity under the Agreement) and _________________________
as fiscal agent (the "Fiscal Agent", 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 respective 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. In
the event of any conflict between any provision of this Certificate and any
provision of the Agreement, such provision of this Certificate shall be
superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be
made on the ______ Business Day following the ______ calendar day of each month
(or, if such ______ calendar day is not a Business Day, then the ______ Business
Day following such ______ calendar day) (each, 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
(or, in the case of the first Distribution Date, at the close of business on the
Closing Date specified above) (in any event, 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 pursuant to the Agreement on the
applicable Distribution Date in respect of the Class of Certificates to which
this Certificate belongs. All distributions made under the Agreement in respect
of this Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with written wiring instructions no less than five (5)
Business Days prior to (or, in the case of the first such distribution, on) the
Record Date for such distribution (which wiring instructions may be in the form
of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice. Also notwithstanding the foregoing, any distribution that may be made
with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal 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.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The 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, the
Certificates are exchangeable for new Certificates of the same Class in
authorized
A-3-3
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 offices 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 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.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof,
shall be deemed to have agreed to keep confidential any information it obtains
from the Trustee (except that such Holder may provide any such information
obtained by it to any other Person that holds or is contemplating the purchase
of this Certificate or an interest herein, provided that such other Person
confirms in writing such ownership interest or prospective ownership interest
and agrees to keep such information confidential).
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the
Agreement, the Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment (or any advance with respect thereto) on or
other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust, and (ii) the purchase by the Depositor, Xxxxxx Brothers Inc., the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust. The Agreement permits, but does not require,
the Depositor, Xxxxxx Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder to purchase from the Trust all
Mortgage Loans and any REO Properties remaining therein. 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
Pool at the time of purchase being less than 3% of the Initial Pool Balance
specified on the face hereof.
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, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66 2/3% of the Voting Rights allocated to the
affected Classes. 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
A-3-4
whether or not notation of such consent is made upon this Certificate. The
Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of any REMIC Pool 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 (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 applicable to agreements made and to be
performed in said State, without applying any conflicts of law principles of
such state (other than the provisions of Section 5-1401 of the New York General
Obligations Law), and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-3-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
-------------------------,
as Trustee
By: __________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B][C][D][E][F][G] Certificates
referred to in the within-mentioned Agreement.
Dated: _____________
-----------------------------------,
as Certificate Registrar
By: ___________________________________
Authorized Officer
A-3-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and delivery of such Commercial Mortgage Pass-Through
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_____________________________________________for the account of ________________
__________________________________________________.
Distributions made by check (such check to be made payable to
______________________________) and all applicable statements and notices should
be mailed to ___________________________________________________________________
______________________________.
This information is provided by ___________________________,
the assignee named above, or __________________________________, as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS [H][J][K][L][M][N] CERTIFICATES
LB COMMERCIAL MORTGAGE TRUST ______-____
CLASS [H][J][K][L][M][N]COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES ______-____
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION II
Pass-Through Rate: [____]% [Variable] Initial Certificate Principal Balance of this Certificate
as of the Closing Date:
$_______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class [H][J][K][L]
_________________ [M][N] Certificates as of the Closing Date:
$________________
Cut-off Date: _________________ Aggregate unpaid principal balance of the Mortgage Pool as
of the Cut-off Date, after deducting payments of principal
Closing Date: _________________ due on or before such date (the "Initial Pool Balance"):
$______________
First Distribution Date: _________________
Master Servicer: _________________________ Trustee: _________________________
Special Servicer: _________________________ Fiscal Agent: _________________________
Certificate No. [H][J][K][L][M][N]-___ CUSIP No.: _____________
A-4-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY
SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION II, _________________________, ___________________,
_________________________, _________________________, OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
[FOR A REGULATION S GLOBAL CERTIFICATE: PRIOR TO THE DATE (THE "RELEASE DATE")
THAT IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING TO
PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S UNDER THE
A-4-2
SECURITIES ACT, AND (B) THE DATE OF CLOSING OF THE OFFERING, THIS CERTIFICATE
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES
OR TO A U.S. PERSON WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO
RECEIVE PAYMENTS HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED
PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.]
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Structured Asset Securities Corporation II as depositor (the "Depositor", which
term includes any successor entity under the Agreement), ___________________as
master servicer (the "Master Servicer", which term includes any successor entity
under the Agreement), _________________________ as special servicer (the
"Special Servicer", which term includes any successor entity under the
Agreement), _________________________ as trustee (the "Trustee", which term
includes any successor entity under the Agreement) and _________________________
as fiscal agent (the "Fiscal Agent", 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 respective 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. In
the event of any conflict between any provision of this Certificate and any
provision of the Agreement, such provision of this Certificate shall be
superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be
made on the ______ Business Day following the ______ calendar day of each month
(or, if such ______ calendar day is not a Business Day, then the ______ Business
Day following such ______ calendar day) (each, 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
(or, in the case of the first Distribution Date, at the close of business on the
Closing Date specified above) (in any event, 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 pursuant to the Agreement on the
applicable Distribution Date in respect of the Class of Certificates to which
this Certificate belongs. All distributions made under the Agreement in respect
of this Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with written wiring instructions no less than five (5)
Business Days prior to (or, in the case of the first such distribution, on) the
Record Date for such distribution (which wiring instructions may be in the form
of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice. Also notwithstanding the foregoing, any distribution that may be made
with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
A-4-3
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal 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.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The 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, the
Certificates are exchangeable for new Certificates of the same Class 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 offices 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 direct or indirect transfer, sale, pledge, hypothecation or
other disposition (each, a "Transfer") of this Certificate or any interest
herein shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with the initial issuance of the Certificates or a
Transfer of this Certificate by the Depositor, Xxxxxx Brothers Inc. or any of
their respective Affiliates or, if this Certificate is a Global Certificate, a
Transfer of this Certificate to a successor Depository or to the applicable
Certificate Owner in accordance with Section 5.03 of the Agreement), then the
Certificate Registrar shall refuse to register such Transfer unless it receives
(and, upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such Transfer substantially in the form
attached as Exhibit F-1 to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A to the Agreement or as Exhibit F-2B to the Agreement; or
(ii) an Opinion of Counsel satisfactory to the Trustee to the effect that such
Transferee is an Institutional Accredited Investor or a Qualified Institutional
Buyer and such Transfer may be made without registration under the Securities
Act (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, the
Fiscal Agent or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such Transfer from the Certificateholder desiring to effect such Transfer and/or
such Certificateholder's prospective Transferee on which such Opinion of Counsel
is based. If any Transferee of this Certificate does not, in connection with the
subject Transfer, deliver to the Certificate Registrar one of the certifications
described in clause (i) of the preceding sentence or the Opinion of
A-4-4
Counsel described in clause (ii) of the preceding sentence, then such Transferee
shall be deemed to have represented and warranted that all the certifications
set forth in either Exhibit F-2A or Exhibit F-2B attached to the Agreement are,
with respect to the subject Transfer, true and correct.
If this Certificate constitutes a Rule 144A Global Certificate
and a Transfer of any interest herein is to be made without registration under
the Securities Act (other than in connection with the initial issuance of the
Certificates or a Transfer of any interest herein by the Depositor, Xxxxxx
Brothers Inc. or any of their respective Affiliates), then the Certificate Owner
desiring to effect such Transfer shall be required to obtain either (i) a
certificate from such Certificate Owner's prospective Transferee substantially
in the form attached as Exhibit F-2C to the Agreement, or (ii) an Opinion of
Counsel to the effect that such Transferee is a Qualified Institutional Buyer
and such Transfer may be made without registration under the Securities Act.
Except as discussed below, an interest in a Rule 144A Global Certificate for any
Class of Book-Entry Non-Registered Certificates may not be transferred to any
Person who takes delivery other than in the form of an interest in such Rule
144A Global Certificate. If this Certificate constitutes a Rule 144A Global
Certificate and any Transferee of an interest herein does not, in connection
with the subject Transfer, deliver to the Transferor the Opinion of Counsel or
the certification described in the second preceding sentence, then such
Transferee shall be deemed to have represented and warranted that all the
certifications set forth in Exhibit F-2C attached to the Agreement are, with
respect to the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in a
Rule 144A Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred (without delivery of any certificate or Opinion
of Counsel described in clauses (i) and (ii) of the first sentence of the
preceding paragraph) by the Depositor or any Affiliate of the Depositor to any
Person who takes delivery in the form of a beneficial interest in the Regulation
S Global Certificate for such Class of Certificates upon delivery to the
Certificate Registrar of (x) a certificate to the effect that the Certificate
Owner desiring to effect such Transfer is the Depositor or an Affiliate of the
Depositor and (y) such written orders and instructions as are required under the
applicable procedures of the Depository, Clearstream and Euroclear to direct the
Trustee to debit the account of a Depository Participant by a denomination of
interests in such Rule 144A Global Certificate, and credit the account of a
Depository Participant by a denomination of interests in such Regulation S
Global Certificate, that is equal to the denomination of beneficial interests in
the subject Class of Certificates to be transferred. Upon delivery to the
Certificate Registrar of such certification and such orders and instructions,
the Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the Rule 144A Global Certificate in
respect of the subject Class of Certificates and increase the denomination of
the Regulation S Global Certificate for such Class, by the denomination of the
beneficial interest in such Class specified in such orders and instructions.
Also notwithstanding the second preceding paragraph, any
interest in a Rule 144A Global Certificate with respect to any Class of
Book-Entry Non-Registered Certificates may be transferred by any Certificate
Owner holding such interest to any Institutional Accredited Investor (other than
a Qualified Institutional Buyer) that takes delivery in the form of a Definitive
Certificate of the same Class as such Rule 144A Global Certificate upon delivery
to the Certificate Registrar and the Trustee of (i) such certifications and/or
opinions as are contemplated by the second paragraph of Section 5.02(b) of the
Agreement, (ii) a certification from such Certificate Owner to the effect that
it is the lawful owner of the beneficial interest being transferred and (iii)
such written orders and instructions as are required under the applicable
procedures of the Depository to direct the Trustee to debit the account of a
Depository Participant by the denomination of the transferred interests in such
Rule 144A Global Certificate. Upon delivery to the Certificate Registrar of such
certifications and/or opinions and such orders and instructions, the Trustee,
subject to and in accordance with the applicable procedures of the Depository,
shall reduce the denomination of the subject Rule 144A Global Certificate by the
denomination of the transferred interests in such Rule 144A Global Certificate,
and shall cause a Definitive Certificate of the same Class as such Rule 144A
Global Certificate, and in a denomination equal to the reduction in the
denomination of such Rule 144A Global Certificate, to be executed, authenticated
and delivered in accordance with the Agreement to the applicable Transferee.
A-4-5
Except as provided in the next paragraph no beneficial
interest in a Regulation S Global Certificate for any Class of Book-Entry
Non-Registered Certificates shall be transferred to any Person who takes
delivery other than in the form of a beneficial interest in such Regulation S
Global Certificate. On and prior to the Release Date, the Certificate Owner
desiring to effect any such Transfer shall be required to obtain from such
Certificate Owner's prospective Transferee a written certification substantially
in the form set forth in Exhibit F-2D to the Agreement certifying that such
Transferee is not a United States Securities Person. On or prior to the Release
Date, beneficial interests in the Regulation S Global Certificate for each Class
of Book-Entry Non-Registered Certificates may be held only through Euroclear or
Clearstream.
Notwithstanding the preceding paragraph, any interest in a
Regulation S Global Certificate for a Class of Book-Entry Non-Registered
Certificates may be transferred by the Depositor or any Affiliate of the
Depositor to any Person who takes delivery in the form of a beneficial interest
in the Rule 144A Global Certificate for such Class of Certificates upon delivery
to the Certificate Registrar of (x) a certificate to the effect that the
Certificate Owner desiring to effect such Transfer is the Depositor or an
Affiliate of the Depositor and (y) such written orders and instructions as are
required under the applicable procedures of the Depository, Clearstream and
Euroclear to direct the Trustee to debit the account of a Depository Participant
by a denomination of interests in such Regulation S Global Certificate, and
credit the account of a Depository Participant by a denomination of interests in
such Rule 144A Global Certificate, that is equal to the denomination of
beneficial interests in the subject Class of Certificates to be transferred.
Upon delivery to the Certificate Registrar of such certification and such orders
and instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the Regulation S
Global Certificate in respect of the subject Class of Certificates and increase
the denomination of the Rule 144A Global Certificate for such Class, by the
denomination of the beneficial interest in such Class specified in such orders
and instructions.
None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify the Class of Certificates to which
this Certificate belongs, under the Securities Act or any other securities law
or to take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, Xxxxxx Brothers Inc., UBS Warburg LLC, the Trustee,
the Master Servicer, the Special Servicer, the Fiscal Agent, the Certificate
Registrar and their respective Affiliates against any liability that may result
if such Transfer is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein 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 in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is
directly or indirectly purchasing this Certificate or such interest herein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, if
the purchase and holding of this Certificate or such interest herein by the
prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in connection with the initial
issuance of the Certificates or any Transfer of this Certificate or any interest
herein by the Depositor, Xxxxxx Brothers Inc. or any of their respective
Affiliates or, if this Certificate constitutes a Global Certificate, any
Transfer of this Certificate to a successor Depository or to the applicable
Certificate Owner in accordance with Section 5.03 of the Agreement, the
Certificate Registrar shall refuse to register the Transfer of this Certificate
unless it has received from the prospective Transferee, and, if this Certificate
constitutes a Global Certificate, any Certificate Owner transferring an interest
herein shall be required to obtain from its prospective Transferee, one of the
following: (i) a certification to the effect that such prospective Transferee is
not a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) a certification to the effect that the purchase and
holding of this Certificate or such interest herein by such prospective
Transferee is exempt from the prohibited transaction
A-4-6
provisions of Sections 406(a) and (b) and 407 of ERISA and the excise taxes
imposed on such prohibited transactions by Sections 4975(a) and (b) of the Code,
by reason of Sections I and III of Prohibited Transaction Class Exemption 95-60;
or (iii) if this Certificate is rated in one of the four highest generic rating
categories by either Rating Agency, and this Certificate or an interest herein
is being acquired by or on behalf of a Plan in reliance on any of Prohibited
Transaction Exemption 91-14, a certification to the effect that such Plan (X) is
an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (Y) is not sponsored (within the meaning of Section 3(16)(B) of
ERISA) by the Trustee, the Depositor, either Mortgage Loan Seller, the Master
Servicer, the Special Servicer, any Sub-Servicer, any Person responsible for
servicing the 1166 Avenue of the Americas Mortgage Loan or any related REO
Property, any Exemption-Favored Party or any Mortgagor with respect to Mortgage
Loans constituting more than 5% of the aggregate unamortized principal balance
of all the Mortgage Loans determined as of the Closing Date, or by any Affiliate
of such Person, and (Z) agrees that it will obtain from each of its Transferees
that are Plans a written representation that such Transferee, if a Plan,
satisfies the requirements of the immediately preceding clauses (X) and (Y),
together with a written agreement that such Transferee will obtain from each of
its Transferees that are Plans a similar written representation regarding
satisfaction of the requirements of the immediately preceding clauses (X) and
(Y); or (iv) a certification of facts and an Opinion of Counsel which otherwise
establish to the reasonable satisfaction of the Trustee or such Certificate
Owner, as the case may be, that such Transfer will not result in a violation of
Section 406 or 407 of ERISA or Section 4975 of the Code or result in the
imposition of an excise tax under Section 4975 of the Code. If any Transferee of
this Certificate or any interest herein does not, in connection with the subject
Transfer, deliver to the Certificate Registrar (if this Certificate constitutes
a Definitive Certificate) or the Transferor (if this Certificate constitutes a
Global Certificate) a certification and/or Opinion of Counsel as required by the
preceding sentence, then such Transferee shall be deemed to have represented and
warranted that either: (i) such Transferee is not a Plan and is not directly or
indirectly purchasing this Certificate or any interest herein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) the
purchase and holding of this Certificate or such interest herein by such
Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code.
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.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof,
shall be deemed to have agreed to keep confidential any information it obtains
from the Trustee (except that such Holder may provide any such information
obtained by it to any other Person that holds or is contemplating the purchase
of this Certificate or an interest herein, provided that such other Person
confirms in writing such ownership interest or prospective ownership interest
and agrees to keep such information confidential).
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the
Agreement, the Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment (or any advance with respect thereto) on or
other
A-4-7
liquidation of the last Mortgage Loan or REO Property remaining in the Trust,
and (ii) the purchase by the Depositor, Xxxxxx Brothers Inc., the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust. The Agreement permits, but does not require,
the Depositor, Xxxxxx Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder to purchase from the Trust all
Mortgage Loans and any REO Properties remaining therein. 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
Pool at the time of purchase being less than 3% of the Initial Pool Balance
specified on the face hereof.
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, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66 2/3% of the Voting Rights allocated to the
affected Classes. 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 circumstances, including any amendment necessary to maintain the status
of any REMIC Pool 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 (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 applicable to agreements made and to be
performed in said State, without applying any conflicts of law principles of
such state (other than the provisions of Section 5-1401 of the New York General
Obligations Law), and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-4-8
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
------------------------------,
as Trustee
By: ___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [H][J][K][L][M][N] Certificates
referred to in the within-mentioned Agreement.
Dated: _____________
-----------------------------------,
as Certificate Registrar
By: _________________________________
Authorized Officer
A-4-9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and delivery of such Commercial Mortgage Pass-Through
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_________________________________________for the account of ____________________
_______________________________________________________________.
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices should be
mailed to _____________________________________________________________________
___________________________________________________.
This information is provided by _____________________________,
the assignee named above, or __________________________________, as its agent.
X-0-00
XXXXXXX X-0
FORM OF CLASS [P][Q][S][T][U] CERTIFICATES
LB COMMERCIAL MORTGAGE TRUST ______-____
CLASS [P][Q][S][T][U] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES ______-____
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION II
Pass-Through Rate: ______% Initial Certificate Principal Balance of this Certificate as
of the Closing Date:
$________________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class [P][Q][S][T][U]
_________________ Certificates as of the Closing Date:
$________________
Cut-off Date: _________________ Aggregate unpaid principal balance of the Mortgage Pool as
of the Cut-off Date, after deducting payments of principal
Closing Date: _________________ due on or before such date (the "Initial Pool Balance"):
$____________
First Distribution Date: _________________
Master Servicer: _________________________ Trustee: _________________________
Special Servicer: _________________________ Fiscal Agent: _________________________
Certificate No. [P][Q][S][T][U]-___ CUSIP No.: _____________
A-5-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY
SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION II, _________________________, __________________,
_________________________, _________________________, OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL 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 Certificate
(obtained by dividing the principal balance of this Certificate (its
"Certificate Principal Balance") as of the Closing Date by the aggregate
principal balance of all the Certificates of the same Class as this Certificate
(their "Class Principal Balance") as of the Closing Date) in that certain
beneficial ownership interest in the Trust evidenced by all the Certificates of
the same Class as this Certificate. The Trust was created and the Certificates
were issued pursuant to a Pooling and Servicing Agreement, dated as specified
above (the "Agreement"), among Structured Asset Securities Corporation II as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), _________________________ as master servicer (the "Master Servicer",
which term includes any successor entity under the Agreement),
_________________________ as special servicer (the "Special Servicer", which
term includes any successor entity under the Agreement),
_________________________ as trustee (the "Trustee", which term includes any
successor entity under the Agreement) and _________________________ as fiscal
agent (the "Fiscal Agent", 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
A-5-2
respective 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. In the event of any conflict
between any provision of this Certificate and any provision of the Agreement,
such provision of this Certificate shall be superseded to the extent of such
inconsistency.
Pursuant to the terms of the Agreement, distributions will be
made on the ______ Business Day following the ______ calendar day of each month
(or, if such ______ calendar day is not a Business Day, then the ______ Business
Day following such ______ calendar day) (each, 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
(or, in the case of the first Distribution Date, at the close of business on the
Closing Date specified above) (in any event, 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 pursuant to the Agreement on the
applicable Distribution Date in respect of the Class of Certificates to which
this Certificate belongs. All distributions made under the Agreement in respect
of this Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with written wiring instructions no less than five (5)
Business Days prior to (or, in the case of the first such distribution, on) the
Record Date for such distribution (which wiring instructions may be in the form
of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice. Also notwithstanding the foregoing, any distribution that may be made
with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal 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.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The 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, the
Certificates are exchangeable for new Certificates of the same Class 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
A-5-3
transfer at the offices 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 direct or indirect transfer, sale, pledge, hypothecation or
other disposition (each, a "Transfer") of this Certificate or any interest
herein shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of this Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Certificates or a Transfer of this Certificate by the Depositor,
Xxxxxx Brothers Inc. or any of their respective Affiliates), then the
Certificate Registrar shall refuse to register such Transfer unless it receives
(and, upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such Transfer substantially in the form
attached as Exhibit F-1 to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A to the Agreement or as Exhibit F-2B to the Agreement; or
(ii) an Opinion of Counsel satisfactory to the Trustee to the effect that such
Transferee is an Institutional Accredited Investor or a Qualified Institutional
Buyer and such Transfer may be made without registration under the Securities
Act (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, the
Fiscal Agent or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such Transfer from the Certificateholder desiring to effect such Transfer and/or
such Certificateholder's prospective Transferee on which such Opinion of Counsel
is based. If any Transferee of this Certificate does not, in connection with the
subject Transfer, deliver to the Certificate Registrar one of the certifications
described in clause (i) of the preceding sentence or the Opinion of Counsel
described in clause (ii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in either Exhibit F-2A or Exhibit F-2B attached to the Agreement are, with
respect to the subject Transfer, true and correct.
None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify the Class of Certificates to which
this Certificate belongs, under the Securities Act or any other securities law
or to take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, Xxxxxx Brothers Inc., UBS Warburg LLC, the Trustee,
the Master Servicer, the Special Servicer, the Fiscal Agent, the Certificate
Registrar and their respective Affiliates against any liability that may result
if such Transfer is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein 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 in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is
directly or indirectly purchasing this Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, if the purchase and
holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the imposition of an excise tax under
Section 4975 of the Code. Except in connection with the initial issuance of the
Certificates or any Transfer of this Certificate or any interest herein by the
Depositor, Xxxxxx Brothers Inc. or any of their respective Affiliates, the
Certificate Registrar shall refuse to register the Transfer of this Certificate
unless it has received from the prospective Transferee, one of the following:
(i) a certification to the effect that such prospective Transferee is not a Plan
and is not directly or indirectly purchasing this Certificate
A-5-4
or such interest herein on behalf of, as named fiduciary of, as trustee of, or
with assets of a Plan; or (ii) a certification to the effect that the purchase
and holding of this Certificate by such prospective Transferee is exempt from
the prohibited transaction provisions of Sections 406(a) and (b) and 407 of
ERISA and the excise taxes imposed on such prohibited transactions by Sections
4975(a) and (b) of the Code, by reason of Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (iii) if this Certificate is rated in one
of the four highest generic rating categories by either Rating Agency, and this
Certificate is being acquired by or on behalf of a Plan in reliance on any of
Prohibited Transaction Exemption 91-14, a certification to the effect that such
Plan (X) is an accredited investor as defined in Rule 501(a)(1) of Regulation D
of the Securities Act, (Y) is not sponsored (within the meaning of Section
3(16)(B) of ERISA) by the Trustee, the Depositor, either Mortgage Loan Seller,
the Master Servicer, the Special Servicer, any Sub-Servicer, any Person
responsible for servicing the 1166 Avenue of the Americas Mortgage Loan or any
related REO Property, any Exemption-Favored Party or any Mortgagor with respect
to Mortgage Loans constituting more than 5% of the aggregate unamortized
principal balance of all the Mortgage Loans determined as of the Closing Date,
or by any Affiliate of such Person, and (Z) agrees that it will obtain from each
of its Transferees that are Plans a written representation that such Transferee,
if a Plan, satisfies the requirements of the immediately preceding clauses (X)
and (Y), together with a written agreement that such Transferee will obtain from
each of its Transferees that are Plans a similar written representation
regarding satisfaction of the requirements of the immediately preceding clauses
(X) and (Y); or (iv) a certification of facts and an Opinion of Counsel which
otherwise establish to the reasonable satisfaction of the Trustee that such
Transfer will not result in a violation of Section 406 or 407 of ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code. If any Transferee of this Certificate or any interest
herein does not, in connection with the subject Transfer, deliver to the
Certificate Registrar a certification and/or Opinion of Counsel as required by
the preceding sentence, then such Transferee shall be deemed to have represented
and warranted that either: (i) such Transferee is not a Plan and is not directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan; or (ii) the
purchase and holding of this Certificate or such interest herein by such
Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code.
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 Holder of this Certificate, by its acceptance hereof,
shall be deemed to have agreed to keep confidential any information it obtains
from the Trustee (except that such Holder may provide any such information
obtained by it to any other Person that holds or is contemplating the purchase
of this Certificate or an interest herein, provided that such other Person
confirms in writing such ownership interest or prospective ownership interest
and agrees to keep such information confidential).
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the
Agreement, the Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment (or any advance with respect thereto) on or
other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust, and (ii) the purchase by the Depositor, Xxxxxx Brothers Inc., the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust. The Agreement permits, but does not require,
the Depositor, Xxxxxx Brothers
A-5-5
Inc., the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder to purchase from the Trust all Mortgage Loans and any REO
Properties remaining therein. 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 Pool at the time of
purchase being less than 3% of the Initial Pool Balance specified on the face
hereof.
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, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66 2/3% of the Voting Rights allocated to the
affected Classes. 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 circumstances, including any amendment necessary to maintain the status
of any REMIC Pool 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 (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 applicable to agreements made and to be
performed in said State, without applying any conflicts of law principles of
such state (other than the provisions of Section 5-1401 of the New York General
Obligations Law), and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-5-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
------------------------------,
as Trustee
By: ___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [P] [Q] [S] [T] [U] Certificates
referred to in the within-mentioned Agreement.
Dated: _____________
-----------------------------------,
as Certificate Registrar
By: __________________________________
Authorized Officer
A-5-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and delivery of such Commercial Mortgage Pass-Through
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
____________________________________________for the account of _________________
_____________________________________________.
Distributions made by check (such check to be made payable to
____________________________________________) and all applicable statements and
notices should be mailed to ____________________________________________________
________________________________________________.
This information is provided by __________________________,
the assignee named above, or __________________________________, as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS [R-I][R-II][R-III][R-LR] CERTIFICATES
LB COMMERCIAL MORTGAGE TRUST ______-____
CLASS [R-I][R-II][R-III][R-LR] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES ______-____
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION II
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this Certificate in the
_________________ related Class: ___%
Cut-off Date: _________________ Aggregate unpaid principal balance of the Mortgage Pool as
of the Cut-off Date, after deducting payments of principal
Closing Date: _________________ due on or before such date (the "Initial Pool Balance"):
$____________
First Distribution Date: _________________
Master Servicer: _________________________ Trustee: _________________________
Special Servicer: _________________________ Fiscal Agent: _________________________
Certificate No. [R-I][R-II][R-III][R-LR]-___ CUSIP No.: _____________
A-6-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY
SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION II, _________________________, _________________,
_________________________, _________________________, OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE [FOR CLASSES R-I,
R-II AND R-III: IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" (A "REMIC")] [FOR CLASS R-LR: EVIDENCES THE SOLE "RESIDUAL INTEREST" IN
EACH OF FOUR "REAL ESTATE MORTGAGE INVESTMENT CONDUITS" (EACH, A "REMIC")] AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). CONSEQUENTLY, THE TRANSFER OF THIS
CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX RELATED TRANSFER RESTRICTIONS
DESCRIBED HEREIN. IF ANY PERSON BECOMES THE REGISTERED HOLDER OF THIS
CERTIFICATE IN VIOLATION OF SUCH TRANSFER RESTRICTIONS, 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.
This certifies that _______________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate (as
specified above) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Structured Asset Securities Corporation II as depositor (the "Depositor", which
term includes any successor entity under the Agreement),
_________________________ as master servicer (the "Master Servicer", which term
includes any successor entity under the Agreement), _________________________ as
special servicer (the
A-6-2
"Special Servicer", which term includes any successor entity under the
Agreement), _________________________ as trustee (the "Trustee", which term
includes any successor entity under the Agreement) and _________________________
as fiscal agent (the "Fiscal Agent", 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 respective 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. In
the event of any conflict between any provision of this Certificate and any
provision of the Agreement, such provision of this Certificate shall be
superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be
made on the ______ Business Day following the ______ calendar day of each month
(or, if such ______ calendar day is not a Business Day, then the ______ Business
Day following such ______ calendar day) (each, 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
(or, in the case of the first Distribution Date, at the close of business on the
Closing Date specified above) (in any event, 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 pursuant to the Agreement on the
applicable Distribution Date in respect of the Class of Certificates to which
this Certificate belongs. All distributions made under the Agreement in respect
of this Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with written wiring instructions no less than five (5)
Business Days prior to (or, in the case of the first such distribution, on) the
Record Date for such distribution (which wiring instructions may be in the form
of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The 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, the
Certificates are exchangeable for new Certificates of the same Class 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 offices 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.
A-6-3
No direct or indirect transfer, sale, pledge, hypothecation or
other disposition (each, a "Transfer") of this Certificate or any interest
herein shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of this Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Certificates or a Transfer of this Certificate by the Depositor,
Xxxxxx Brothers Inc. or any of their respective Affiliates), then the
Certificate Registrar shall refuse to register such Transfer unless it receives
(and, upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such Transfer substantially in the form
attached as Exhibit F-1 to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A to the Agreement or as Exhibit F-2B to the Agreement; or
(ii) an Opinion of Counsel satisfactory to the Trustee to the effect that such
Transferee is an Institutional Accredited Investor or a Qualified Institutional
Buyer and such Transfer may be made without registration under the Securities
Act (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, the
Fiscal Agent or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such Transfer from the Certificateholder desiring to effect such Transfer and/or
such Certificateholder's prospective Transferee on which such Opinion of Counsel
is based. If any Transferee of this Certificate does not, in connection with the
subject Transfer, deliver to the Certificate Registrar one of the certifications
described in clause (i) of the preceding sentence or the Opinion of Counsel
described in clause (ii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in either Exhibit F-2A or Exhibit F-2B attached to the Agreement are, with
respect to the subject Transfer, true and correct.
None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify the Class of Certificates to which
this Certificate belongs, under the Securities Act or any other securities law
or to take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder desiring to effect a Transfer of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, Xxxxxx Brothers Inc., UBS Warburg LLC, the Trustee, the Master
Servicer, the Special Servicer, the Fiscal Agent, the Certificate Registrar and
their respective Affiliates against any liability that may result if such
Transfer is not exempt from the registration and/or qualification requirements
of the Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein 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 in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is
directly or indirectly purchasing this Certificate or such interest herein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, if
the purchase and holding of this Certificate or such interest herein by the
prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in connection with the initial
issuance of the Certificates or any Transfer of this Certificate by the
Depositor, Xxxxxx Brothers Inc. or any of their respective Affiliates, the
Certificate Registrar shall refuse to register the Transfer of this Certificate
unless it has received from the prospective Transferee, one of the following:
(i) a certification to the effect that such prospective Transferee is not a Plan
and is not directly or indirectly purchasing this Certificate on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) a
certification of facts and an Opinion of Counsel which otherwise establish to
the reasonable satisfaction of the Trustee that such Transfer will not result in
a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or result
in the imposition of an excise tax under Section 4975 of the Code. If any
Transferee of this Certificate or any interest herein does not, in connection
with the subject Transfer, deliver to the Certificate Registrar a certification
and/or Opinion of Counsel as required by the preceding sentence, then such
Transferee shall be deemed to have
A-6-4
represented and warranted that either: (i) such Transferee is not a Plan and is
not directly or indirectly purchasing this Certificate or such interest herein
on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan; or
(ii) the purchase and holding of this Certificate or such interest herein by
such Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code.
Each Person who has or who acquires any Ownership Interest in
this Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the provisions of Section
5.02(d) of the Agreement and, if any purported Transferee shall become a Holder
of this Certificate in violation of the provisions of such Section 5.02(d), to
have irrevocably authorized the Trustee under clause (ii)(A) of such Section
5.02(d) to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) of such Section 5.02(d)
to negotiate the terms of any mandatory disposition and to execute all
instruments of transfer and to do all other things necessary in connection with
any such disposition. Each Person holding or acquiring any Ownership Interest in
this Certificate must be a Permitted Transferee and shall promptly notify the
Trustee and the Tax Administrator of any change or impending change in its
status as a Permitted Transferee. In connection with any proposed Transfer of
any Ownership Interest in this Certificate, the Certificate Registrar shall
require delivery to it, and shall not register the transfer of this Certificate
until its receipt of, an affidavit and agreement substantially in the form
attached as Exhibit H-1 to the Agreement (a "Transfer Affidavit and Agreement")
from the proposed Transferee, representing and warranting, among other things,
that such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee. In addition,
the Certificate Registrar shall not register the transfer of an Ownership
Interest in this Certificate to any entity classified as a partnership under the
Code unless at the time of transfer, all of its beneficial owners are United
States Persons.
Each Person holding or acquiring any Ownership Interest in
this Certificate shall agree (x) to require a Transfer Affidavit and Agreement
from any other Person to whom such Person attempts to Transfer its Ownership
Interest herein and (y) not to Transfer its Ownership Interest herein unless it
provides to the Certificate Registrar a certificate substantially in the form
attached as Exhibit H-2 to the Agreement stating that, among other things, it
has no actual knowledge that such other Person is not a Permitted Transferee.
Each Person holding or acquiring an Ownership Interest in this Certificate, by
purchasing such Ownership Interest herein, agrees to give the Trustee and the
Tax Administrator written notice that it is a "pass-through interest holder"
within the meaning of temporary Treasury regulation section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be
modified, added to or eliminated, provided that there shall have been delivered
to the Trustee and the Tax Administrator the following: (a) written notification
from each Rating Agency to the effect that the modification of, addition to or
elimination of such provisions will not cause such Rating Agency to withdraw,
qualify or downgrade its then-current rating of any Class of Certificates; and
(b) an opinion of counsel, in form and substance satisfactory to the Trustee and
the Tax Administrator, to the effect that such modification of, addition to or
elimination of such provisions will not (i) cause any REMIC Pool to (A) cease to
qualify as a REMIC or (B) be subject to an entity-level tax caused by the
Transfer of a Residual Interest Certificate to a Person which is not a Permitted
Transferee, or (ii) cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a Residual Interest
Certificate to a Person that is not a Permitted Transferee.
A-6-5
A "Permitted Transferee" is any Transferee that is not (i) a
Disqualified Organization, (ii) any Person as to whom the transfer of this
Certificate may cause any REMIC Pool to fail to qualify as a REMIC, (iii) a
Disqualified Non-United States Tax Person, (iv) a Disqualified Partnership or
(v) a foreign permanent establishment or fixed base (within the meaning of any
applicable income tax treaty between the United States and any foreign
jurisdiction) of a United States Tax Person..
A "Disqualified Organization" is (i) the United States, any
State or political subdivision thereof, a foreign government, an international
organization, or any agency or instrumentality of any of the foregoing, (ii) any
organization (other than certain farmers' cooperatives described in Section 521
of the Code) that is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iii) rural electric and telephone cooperatives described in
Section 1381 of the Code and (iv) any other Person so designated by the Tax
Administrator based upon an opinion of counsel that the holding of an Ownership
Interest in a Residual Interest Certificate by such Person may cause the Trust
or any Person having an Ownership Interest in any Class of Certificates (other
than such Person) to incur a liability for any federal tax imposed under the
Code that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Interest Certificate to such Person. The terms "United
States", "State" and "international organization" shall have the meanings set
forth in Section 7701 of the Code or successor provisions.
A "Disqualified Non-United States Tax Person" is, with respect
to any Residual Interest Certificate, any Non-United States Tax Person or agent
thereof other than: (1) a Non-United States Tax Person that (a) holds such
Residual Interest Certificate and, for purposes of Treasury regulation section
1.860G-3(a)(3), is subject to tax under Section 882 of the Code, (b) certifies
that it understands that, for purposes of Treasury regulation section
1.860E-1(c)(4)(ii), as a holder of such Residual Interest Certificate for United
States federal income tax purposes, it may incur tax liabilities in excess of
any cash flows generated by such Residual Interest Certificate and intends to
pay taxes associated with holding such Residual Interest Certificate, and (c)
has furnished the Transferor and the Trustee with an effective IRS Form W-8ECI
or successor form and has agreed to update such form as required under the
applicable Treasury regulations; or (2) a Non-United States Tax Person that has
delivered to the Transferor, the Trustee and the Certificate Registrar an
opinion of nationally recognized tax counsel to the effect that (x) the Transfer
of such Residual Interest Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and (y) such
Transfer of such Residual Interest Certificate will not be disregarded for
United States federal income tax purposes.
A "Disqualified Partnership" is any domestic entity classified
as a partnership under the Code, if any of its beneficial owners are
Disqualified Non-United States Tax Persons.
A "Non-United States Tax Person" is any Person other than a
United States Tax Person. A "United States Tax Person" is 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 whose income from sources without the United
States is includable 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 if a court within the United States is able
to exercise supervision over the administration of the trust and one or more
United States persons have the authority to control all substantial decisions of
the trust (or to the extent provided in the Treasury regulations, if the trust
was in existence on August 20, 1996 and elected to be treated as a United States
Person), all within the meaning of Section 7701(a)(30) of the Code.
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 Holder of this Certificate, by its acceptance hereof,
shall be deemed to have agreed to keep confidential any information it obtains
from the Trustee (except that such Holder may provide any such
A-6-6
information obtained by it to any other Person that holds or is contemplating
the purchase of this Certificate or an interest herein, provided that such other
Person confirms in writing such ownership interest or prospective ownership
interest and agrees to keep such information confidential).
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the
Agreement, the Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment (or any advance with respect thereto) on or
other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust, and (ii) the purchase by the Depositor, Xxxxxx Brothers Inc., the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust. The Agreement permits, but does not require,
the Depositor, Xxxxxx Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder to purchase from the Trust all
Mortgage Loans and any REO Properties remaining therein. 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
Pool at the time of purchase being less than 3% of the Initial Pool Balance
specified on the face hereof.
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, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66 2/3% of the Voting Rights allocated to the
affected Classes. 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 circumstances, including any amendment necessary to maintain the status
of any REMIC Pool 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 (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 applicable to agreements made and to be
performed in said State, without applying any conflicts of law principles of
such state (other than the provisions of Section 5-1401 of the New York General
Obligations Law), and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-6-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
-------------------------,
as Trustee
By: ___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R-I][R-II][R-III][R-LR]
Certificates referred to in the within-mentioned Agreement.
Dated: _____________
----------------------------,
as Certificate Registrar
By:____________________________________
Authorized Officer
A-6-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and delivery of such Commercial Mortgage Pass-Through
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_______________________________________ for the account of _____________________
_______________________________________________.
Distributions made by check (such check to be made payable to
___________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
__________________________________.
This information is provided by ___________________________,
the assignee named above, or __________________________________, as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS V CERTIFICATES
LB COMMERCIAL MORTGAGE TRUST ______-____
CLASS V COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES ______-____
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION II
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this Certificate in the
_________________ related Class: ___%
Cut-off Date: _________________ Aggregate unpaid principal balance of the Mortgage Pool as
of the Cut-off Date, after deducting payments of principal
Closing Date: _________________ due on or before such date (the "Initial Pool Balance"):
$____________
First Distribution Date: _________________
Master Servicer: _________________________ Trustee: _________________________
Special Servicer: _________________________ Fiscal Agent: _________________________
Certificate No. V-___ CUSIP No.: _____________
A-7-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY
SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION II, _________________________, __________________,
_________________________, _________________________, OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS ENTITLED ONLY TO CERTAIN ADDITIONAL INTEREST (IF ANY)
RECEIVED IN RESPECT OF THE ARD LOANS SUBJECT TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
This certifies that ________________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate (as
specified above) in that certain beneficial ownership interest in the Trust
evidenced by all the Class V Certificates. The Trust was created and the
Certificates were issued pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among Structured Asset Securities Corporation
II as depositor (the "Depositor", which term includes any successor entity under
the Agreement), _________________________ as master servicer (the "Master
Servicer", which term includes any successor entity under the Agreement),
_________________________ as special servicer (the "Special Servicer", which
term includes any successor entity under the Agreement), _____________________
as trustee (the "Trustee", which term includes any successor entity under the
Agreement) and _________________________ as fiscal agent (the "Fiscal Agent",
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 respective
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. In the event of any conflict between
any provision of this Certificate and any provision of the Agreement, such
provision of this Certificate shall be superseded to the extent of such
inconsistency.
Pursuant to the terms of the Agreement, distributions will be
made on the ______ Business Day following the ______ calendar day of each month
(or, if such ______ calendar day is not a Business Day, then the ______ Business
Day following such ______ calendar day) (each, 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
(or, in the case of the first Distribution Date, at the close of business on the
Closing Date specified above) (in any event, the
A-7-2
"Record Date"), in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed pursuant
to the Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to (or, in the case of
the first such distribution, on) the Record Date for such distribution (which
wiring instructions may be in the form of a standing order applicable to all
subsequent distributions as well), or otherwise by check mailed to the address
of such Certificateholder appearing in the Certificate Register. Notwithstanding
the above, the final distribution in respect of this Certificate will be made
after due notice by the Trustee of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar appointed as provided in the Agreement or such other
location as may be specified in such notice.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The 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, the
Certificates are exchangeable for new Certificates of the same Class 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 offices 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 direct or indirect transfer, sale, pledge, hypothecation or
other disposition (each, a "Transfer") of this Certificate or any interest
herein shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of this Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Certificates or a Transfer of this Certificate by the Depositor,
Xxxxxx Brothers Inc. or any of their respective Affiliates), then the
Certificate Registrar shall refuse to register such Transfer unless it receives
(and, upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such Transfer substantially in the form
attached as Exhibit F-1 to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A to the Agreement or as Exhibit F-2B to the Agreement; or
(ii) an Opinion of Counsel satisfactory to the Trustee to the effect that such
Transferee is an Institutional Accredited Investor or a Qualified Institutional
Buyer and such Transfer may be made without registration under the Securities
Act (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, the
Fiscal Agent or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such Transfer from the Certificateholder desiring to effect such Transfer and/or
such Certificateholder's prospective Transferee on which such Opinion of Counsel
is
A-7-3
based. If any Transferee of this Certificate does not, in connection with the
subject Transfer, deliver to the Certificate Registrar one of the certifications
described in clause (i) of the preceding sentence or the Opinion of Counsel
described in clause (ii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in either Exhibit F-2A or Exhibit F-2B attached to the Agreement are, with
respect to the subject Transfer, true and correct.
None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify the Class of Certificates to which
this Certificate belongs, under the Securities Act or any other securities law
or to take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder desiring to effect a Transfer of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, Xxxxxx Brothers Inc., UBS Warburg LLC, the Trustee, the Master
Servicer, the Special Servicer, the Fiscal Agent, the Certificate Registrar and
their respective Affiliates against any liability that may result if such
Transfer is not exempt from the registration and/or qualification requirements
of the Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein 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 in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is
directly or indirectly purchasing this Certificate or such interest herein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, if
the purchase and holding of this Certificate or such interest herein by the
prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in connection with the initial
issuance of the Certificates or any Transfer of this Certificate by the
Depositor, Xxxxxx Brothers Inc. or any of their respective Affiliates, the
Certificate Registrar shall refuse to register the Transfer of this Certificate
unless it has received from the prospective Transferee, one of the following:
(i) a certification to the effect that such prospective Transferee is not a Plan
and is not directly or indirectly purchasing this Certificate or such interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) a certification to the effect that the purchase and holding of
this Certificate or such interest herein by such prospective Transferee is
exempt from the prohibited transaction provisions of Sections 406(a) and (b) and
407 of ERISA and the excise taxes imposed on such prohibited transactions by
Sections 4975(a) and (b) of the Code, under Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (iii) a certification of facts and an
Opinion of Counsel which otherwise establish to the reasonable satisfaction of
the Trustee that such Transfer will not result in a violation of Section 406 or
407 of ERISA or Section 4975 of the Code or result in the imposition of an
excise tax under Section 4975 of the Code. If any Transferee of this Certificate
or any interest herein does not, in connection with the subject Transfer,
deliver to the Certificate Registrar a certification and/or Opinion of Counsel
as required by the preceding sentence, then such Transferee shall be deemed to
have represented and warranted that either: (i) such Transferee is not a Plan
and is not directly or indirectly purchasing this Certificate or such interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) the purchase and holding of this Certificate or such interest
herein by such Transferee is exempt from the prohibited transaction provisions
of Sections 406(a) and (b) and 407 of ERISA and the excise taxes imposed on such
prohibited transactions by Sections 4975(a) and (b) of the Code.
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 Holder of this Certificate, by its acceptance hereof,
shall be deemed to have agreed to keep confidential any information it obtains
from the Trustee (except that such Holder may provide any such information
obtained by it to any other Person that holds or is contemplating the purchase
of this Certificate or an
A-7-4
interest herein, provided that such other Person confirms in writing such
ownership interest or prospective ownership interest and agrees to keep such
information confidential).
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar and any agents of any of
them may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar
or any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the
Agreement, the Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment (or any advance with respect thereto) on or
other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust, and (ii) the purchase by the Depositor, Xxxxxx Brothers Inc., the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust. The Agreement permits, but does not require,
the Depositor, Xxxxxx Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder to purchase from the Trust all
Mortgage Loans and any REO Properties remaining therein. 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
Pool at the time of purchase being less than 3% of the Initial Pool Balance
specified on the face hereof.
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, the
Trustee and the Fiscal Agent thereunder and the rights of the Certificateholders
thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66 2/3% of the Voting Rights allocated to the
affected Classes. 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 circumstances, including any amendment necessary to maintain the status
of any REMIC Pool 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 (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 applicable to agreements made and to be
performed in said State, without applying any conflicts of law principles of
such state (other than the provisions of Section 5-1401 of the New York General
Obligations Law), and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-7-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
------------------------------,
as Trustee
By: ___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class V Certificates referred to in the
within-mentioned Agreement.
Dated: _____________
-----------------------------------,
as Certificate Registrar
By: ___________________________________
Authorized Officer
A-7-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and delivery of such Commercial Mortgage Pass-Through
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_______________________________________for the account of ______________________
________________________________________________.
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
__________________________.
This information is provided by __________________________,
the assignee named above, or __________________________________, as its agent.
A-7-7
EXHIBIT B
FORM OF DISTRIBUTION DATE STATEMENT
B-1
EXHIBIT C
FORM OF CUSTODIAL CERTIFICATION
To the parties listed on the attached Schedule A
Re: LB Commercial Mortgage Trust ______-____
Commercial Mortgage Pass Through Certificates,
Series ______-____ (the "Certificates")
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing
Agreement dated as of _________________, relating to the above-referenced
Certificates (the "Agreement"), _________________________, in its capacity as
trustee (the "Trustee"), hereby certifies as to each Loan subject as of the date
hereof to the Agreement (except as identified in the exception report attached
hereto) that: (i) all documents specified in clauses (a)(i) through (a)(v),
(a)(vii) and (a)(viii) (without regard to the second parenthetical in such
clause (a)(viii)) of the definition of "Mortgage File" or, in the case of the
1166 Avenue of the Americas Mortgage Loan, in clauses (b)(i) through (b)(iii) of
the definition of "Mortgage File", are in its possession or the possession of a
Custodian on its behalf; (ii) the recordation/filing contemplated by Section
2.01(c) of the Agreement has been completed (based solely on receipt by the
Trustee of the particular recorded/filed documents); (iii) all documents
received by it or any Custodian with respect to such Loan have been reviewed by
it or by such Custodian on its behalf and (A) appear regular on their face
(handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Mortgagor), (B) appear to have been executed
(where appropriate) and (C) purport to relate to such Loan; and (iv) based on
the examinations referred to in Section 2.02(a) of the Agreement and in this
Certification and only as to the foregoing documents, the information set forth
in the Mortgage Loan Schedule with respect to the items specified in clauses (v)
and (vi)(B) of the definition of "Mortgage Loan Schedule" accurately reflects
the information set forth in the Mortgage File.
Neither the Trustee nor any Custodian is under any duty or
obligation to inspect, review or examine any of the documents, instruments,
certificates or other papers relating to the Loans delivered to it to determine
that the same are valid, legal, effective, genuine, binding, enforceable,
sufficient or appropriate for the represented purpose or that they are other
than what they purport to be on their face. Furthermore, neither the Trustee nor
any Custodian shall have any responsibility for determining whether the text of
any assignment or endorsement is in proper or recordable form, whether the
requisite recording of any document is in accordance with the requirements of
any applicable jurisdiction, or whether a blanket assignment is permitted in any
applicable jurisdiction. In performing the review contemplated herein, the
Trustee or any Custodian may rely on the Depositor as to the purported
genuineness of any such document and any signature thereon.
C-1
Capitalized terms used herein and not otherwise defined shall
have the respective meanings assigned to them in the Agreement.
Respectfully,
-------------------------,
as Trustee
By: ___________________________________
Name:
Title:
C-2
SCHEDULE A
[ADDRESSEES]
[MORTGAGE LOAN SELLERS]
C-3
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
[TRUSTEE]
Attention: Asset-Backed Securities Trust Services Group--
LB Commercial Mortgage Trust ______-____
Re: LB Commercial Mortgage Trust ______-____,
Commercial Mortgage Pass-Through Certificates,
Series ______-____
In connection with the administration of the Mortgage Files
held by or on behalf of you as Trustee under that certain Pooling and Servicing
Agreement dated as of _________________ (the "Pooling and Servicing Agreement"),
by and among Structured Asset Securities Corporation II as depositor, the
undersigned as master servicer (the "Master Servicer"), ____________________ as
special servicer (the "Special Servicer"), you as trustee (the "Trustee") and
_________________________ as fiscal agent, the undersigned hereby requests a
release of the Mortgage File (or the portion thereof specified below) held by or
on behalf of you as Trustee with respect to the following described Mortgage
Loan for the reason indicated below.
Property Name: _______________________________________________
Address: _____________________________________________________
Control No.: _________________________________________________
If only particular documents in the Mortgage File are
requested, please specify which: _____________________________
______________________________________________________________
______________________________________________________________
Reason for requesting file (or portion thereof):
______ 1. Mortgage Loan paid in full. The undersigned
hereby certifies that all amounts received in
connection with the Mortgage Loan that are
required to be credited to the Custodial Account
pursuant to the Pooling and Servicing Agreement,
have been or will be so credited.
______ 2. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently.
D-1-1
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
-------------------------
By: ___________________________________
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
-----------
[TRUSTEE]
Attention: Asset-Backed Securities Trust Services Group--
LB Commercial Mortgage Trust ______-____
Re: LB Commercial Mortgage Trust ______-____,
Commercial Mortgage Pass-Through Certificates,
Series ______-____
In connection with the administration of the Mortgage Files held by or
on behalf of you as Trustee under that certain Pooling and Servicing Agreement
dated as of _________________ (the "Pooling and Servicing Agreement"), by and
among Structured Asset Securities Corporation II as depositor, ________________
as master servicer (the "Master Servicer"), the undersigned as special servicer
(the "Special Servicer"), you as trustee (the "Trustee") and
_________________________ as fiscal agent, the undersigned hereby requests a
release of the Mortgage File (or the portion thereof specified below) held by or
on behalf of you as Trustee with respect to the following described Mortgage
Loan for the reason indicated below.
Property Name: _______________________________________________
Address: _____________________________________________________
Control No.: _________________________________________________
If only particular documents in the Mortgage File are
requested, please specify which: _____________________________
______________________________________________________________
______________________________________________________________
Reason for requesting file (or portion thereof):
______ 1. Mortgage Loan paid in full. The undersigned
hereby certifies that all amounts received in
connection with the Mortgage Loan that are
required to be credited to the Custodial
Account pursuant to the Pooling and Servicing
Agreement, have been or will be so credited.
______ 2. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof (or within such
longer period as we have indicated as part of our reason for the request),
unless the Mortgage Loan has been paid in full or otherwise liquidated, in which
case the Mortgage File (or such portion thereof) will be retained by us
permanently.
D-2-1
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
-------------------------
By: ___________________________________
Name:
Title:
X-0-0
XXXXXXX X
XXXX XX XXXX XXXXXX NOTIFICATION REPORT
LOAN PAYMENT NOTIFICATION REPORT
AS OF _____________________
-------------------------------------------------------------------------------------------------------------------------
X0 X00 X00 X00 X0 X0 X00 X00 X00 X00
-------------------------------------------------------------------------------------------------------------------------
PRECEDING
SHORT NAME SCHEDULED PAID CURRENT FISCAL YR.
(WHEN PROPERTY LOAN THRU INTEREST MATURITY DSCR MOST RECENT
PROSPECTUS ID APPROPRIATE) TYPE STATE BALANCE DATE RATE DATE NCR DSCR NCF
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
SCHEDULED PAYMENTS
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
UNSCHEDULED PAYMENT
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
TOTAL: $
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------
S4 SERVICER ESTIMATED INFORMATION
------------------------------------------------------------
EXPECTED EXPECTED
YIELD PAYMENT DISTRIBUTION
PROSPECTUS ID MAINTENANCE DATE DATE
------------------------------------------------------------
-------------------------------------------------------------
SCHEDULED PAYMENTS
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
UNSCHEDULED PAYMENT
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
TOTAL:
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
THE BORROWER HAS ONLY REQUESTED THE INFORMATION TO PAY-OFF. THIS DOES NOT
INDICATE A DEFINITE PAYMENT.
E-1
EXHIBIT F-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
[CERTIFICATE REGISTRAR
Attention: Asset-Backed Securities Trust Services Group--
LB Commercial Mortgage Trust ______-____
Re: LB Commercial Mortgage Trust ______-____, Commercial
Mortgage Pass-Through Certificates, Series ______-____,
Class _____, [having an initial aggregate [Certificate
Principal Balance] [Certificate Notional Amount] as of
_________________ (the "Closing Date") of $__________]
[representing a ____% Percentage Interest in the subject
Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _________________________ (the "Transferor") to ___________________
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of _________________, between
Structured Asset Securities Corporation II, as Depositor,
_________________________, as Master Servicer, _________________________, as
Special Servicer, _________________________, as Trustee, and
_________________________, as Fiscal Agent. All capitalized terms used herein
and not otherwise defined shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, and for the benefit of the Trustee
and the Depositor, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any
offer to buy or accept a transfer, pledge or other disposition of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security with
any person in any manner, (d) made any general solicitation with respect
to any Transferred Certificate, any interest in a Transferred Certificate
or any other similar security by means of general advertising or in any
other manner, or (e) taken any other action with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security, which (in the case of any of the acts described
in clauses (a) through (e) hereof) would constitute a distribution of the
Transferred Certificates under the Securities Act of 1933, as amended
(the "Securities Act"), would render the disposition of the Transferred
Certificates a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of the
Transferred Certificates pursuant to the Securities Act or any state
securities laws.
Very truly yours,
_______________________________________
(Transferor)
By: ___________________________________
Name:
Title:
F-1-1
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
[CERTIFICATE REGISTRAR]
Attention: Asset-Backed Securities Trust Services Group--
LB Commercial Mortgage Trust ______-____
Re: LB Commercial Mortgage Trust ______-____, Commercial
Mortgage Pass-Through Certificates, Series ______-____,
Class ___, [having an initial aggregate [Certificate
Principal Balance] [Certificate Notional Amount] as of
_________________ (the "Closing Date") of $__________]
[representing a ____% Percentage Interest in the subject
Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by ____________________________ (the "Transferor") to
________________________________ (the "Transferee") of the captioned
Certificates (the "Transferred Certificates"), pursuant to Section 5.02 of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of _________________, among Structured Asset Securities Corporation II, as
Depositor, _________________________, as Master Servicer,
_________________________, as Special Servicer, _________________________, as
Trustee, and _________________________, as Fiscal Agent. All capitalized terms
used herein and not otherwise defined shall have the respective meanings set
forth in the Pooling and Servicing Agreement. The Transferee hereby certifies,
represents and warrants to you, as Certificate Registrar, and for the benefit of
the Trustee and the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the
"Securities Act"), and has completed one of the forms of certification
to that effect attached hereto as Annex 1 and Annex 2. The Transferee
is aware that the sale to it is being made in reliance on Rule 144A.
The Transferee is acquiring the Transferred Certificates for its own
account or for the account of another Qualified Institutional Buyer,
and understands that such Transferred Certificates may be resold,
pledged or transferred only (a) to a person reasonably believed to be a
Qualified Institutional Buyer that purchases for its own account or for
the account of another Qualified Institutional Buyer and to whom notice
is given that the resale, pledge or transfer is being made in reliance
on Rule 144A, or (b) pursuant to another exemption from registration
under the Securities Act.
2. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the nature, performance and servicing of the
Mortgage Loans, (d) the Pooling and Servicing Agreement and the Trust
Fund created pursuant thereto, and (e) all related matters, that it has
requested.
F-2A-1
3. If the Transferee proposes that the Transferred
Certificates be registered in the name of a nominee, such nominee has
completed the Nominee Acknowledgement below.
Very truly yours,
_______________________________________
(Transferee)
By: ___________________________________
Name:
Title:
NOMINEE ACKNOWLEDGEMENT
-----------------------
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
_______________________________________
(Nominee)
By: ___________________________________
Name:
Title:
F-2A-2
ANNEX 1 TO EXHIBIT F-2A
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and [name of Certificate Registrar], as
Certificate Registrar, with respect to the mortgage pass-through certificates
(the "Transferred Certificates") described in the Transferee certificate to
which this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificates (the
"Transferee").
2. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A ("Rule 144A") under the Securities Act of
1933, as amended, because (i) [the Transferee] [each of the
Transferee's equity owners] owned and/or invested on a discretionary
basis $______________________1 in securities (other than the excluded
securities referred to below) as of the end of such entity's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
_____ Corporation, etc. The Transferee is a corporation (other
than a bank, savings and loan association or similar
institution), Massachusetts or similar business trust,
partnership, or any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986.
_____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of
which is substantially confined to banking and is
supervised by the state or territorial banking commission
or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a
date not more than 16 months preceding the date of sale of
the Transferred Certificates in the case of a U.S. bank,
and not more than 18 months preceding such date of sale in
the case of a foreign bank or equivalent institution.
_____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative
bank, homestead association or similar institution, which
is supervised and examined by a state or federal authority
having supervision over any such institutions, or is a
foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a
date not more than 16 months preceding the date of sale of
the Transferred Certificates in the case of a U.S. savings
----------
1 Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee
or any such equity owner, as the case may be, is a dealer, and, in that
case, Transferee or such equity owner, as the case may be, must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
F-2A-3
and loan association, and not more than 18 months preceding
such date of sale in the case of a foreign savings and loan
association or equivalent institution.
_____ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act of
1934, as amended.
_____ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the
writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is subject to
supervision by the insurance commissioner or a similar
official or agency of a state, U.S. territory or the
District of Columbia.
_____ State or Local Plan. The Transferee is a plan established
and maintained by a state, its political subdivisions, or
any agency or instrumentality of the state or its political
subdivisions, for the benefit of its employees.
_____ ERISA Plan. The Transferee is an employee benefit plan
within the meaning of Title I of the Employee Retirement
Income Security Act of 1974.
_____ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
_____ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule
144A.
_____ Other. (Please supply a brief description of the entity and
a cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it
qualifies. Note that registered investment companies should
complete Annex 2 rather than this Annex 1)_________________
___________________________________________________________
__________________________________________________________.
3. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by any
Person, the Transferee did not include (i) securities of issuers that
are affiliated with such Person, (ii) securities that are part of an
unsold allotment to or subscription by such Person, if such Person is a
dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by any
Person, the Transferee used the cost of such securities to such Person,
unless such Person reports its securities holdings in its financial
statements on the basis of their market value, and no current
information with respect to the cost of those securities has been
published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of such Person, but only if such
subsidiaries are consolidated with such Person in its financial
statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed
under such Person's direction. However, such securities were not
included if such Person is a majority-owned, consolidated subsidiary of
another enterprise and such Person is not itself a reporting company
under the Securities Exchange Act of 1934, as amended.
F-2A-4
5. The Transferee is familiar with Rule 144A and understands
that the Transferor and other parties related to the Transferred
Certificates are relying and will continue to rely on the statements
made herein because one or more sales to the Transferee may be in
reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the
Yes No Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is purchasing for an account other than
its own, such account belongs to a third party that is itself a
"qualified institutional buyer" within the meaning of Rule 144A, and
the "qualified institutional buyer" status of such third party has been
established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which
this certification is made of any changes in the information and
conclusions herein. Until such notice is given, the Transferee's
purchase of the Transferred Certificates will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Transferee is a bank or savings and loan as provided
above, the Transferee agrees that it will furnish to such parties any
updated annual financial statements that become available on or before
the date of such purchase, promptly after they become available.
8. Capitalized terms used but not defined herein have the
respective meanings ascribed thereto in the Pooling and Servicing
Agreement pursuant to which the Transferred Certificates were issued.
_______________________________________
Print Name of Transferee
By: ___________________________________
Name:
Title:
Date:
F-2A-5
ANNEX 2 TO EXHIBIT F-2A
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and [name of Certificate Registrar], as
Certificate Registrar, with respect to the mortgage pass-through certificates
(the "Transferred Certificates") described in the Transferee Certificate to
which this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional
buyer" as that term is defined in Rule 144A ("Rule 144A") under the
Securities Act of 1933, as amended, because the Transferee is part of a
Family of Investment Companies (as defined below), is an executive
officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as
defined in Rule 144A because (i) the Transferee is an investment
company registered under the Investment Company Act of 1940, and (ii)
as marked below, the Transferee alone owned and/or invested on a
discretionary basis, or the Transferee's Family of Investment Companies
owned, at least $100,000,000 in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of
securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment
Companies, as the case may be, reports its securities holdings in its
financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been
published, in which case the securities of such entity were valued at
market.
______ The Transferee owned and/or invested on a discretionary
basis $___________________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
______ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as
of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule
144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are
affiliated (by virtue of being majority owned subsidiaries of the same
parent or because one investment adviser is a majority owned subsidiary
of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are
part of the Transferee's Family of Investment Companies, (ii) bank
deposit notes and certificates of deposit, (iii) loan participations,
(iv) repurchase agreements, (v) securities owned but subject to a
repurchase agreement and (vi) currency, interest rate and commodity
swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis
F-2A-6
by the Transferee, or owned by the Transferee's Family of Investment
Companies, the securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands
that the Transferor and other parties related to the Transferred
Certificates are relying and will continue to rely on the statements
made herein because one or more sales to the Transferee will be in
reliance on Rule 144A.
_____ _____ Will the Transferee be purchasing the
Yes No Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is purchasing for an account other than
its own, such account belongs to a third party that is itself a
"qualified institutional buyer" within the meaning of Rule 144A, and
the "qualified institutional buyer" status of such third party has been
established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification by
the undersigned as of the date of such purchase.
8. Capitalized terms used but not defined herein have the
respective meanings ascribed thereto in the Pooling and Servicing
Agreement pursuant to which the Transferred Certificates were issued.
Print Name of Transferee or Adviser
By: ___________________________________
Name:
Title:
Date:
IF AN ADVISER:
_______________________________________
Print Name of Transferee
Date: _________________________________
F-2A-7
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
[CERTIFICATE REGISTRAR]
Attention: Asset-Backed Securities Trust Services Group--
LB Commercial Mortgage Trust ______-____
Re: LB Commercial Mortgage Trust ______-____, Commercial
Mortgage Pass-Through Certificates, Series ______-____,
Class _____,[having an initial aggregate [Certificate
Principal Balance] [Certificate Notional Amount] as of
_________________ (the "Closing Date") of $__________]
[representing a ____% Percentage Interest in the subject
Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _________________________ (the "Transferor") to ________________(the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of _________________, between Structured
Asset Securities Corporation II, as Depositor, _________________________, as
Master Servicer, _________________________, as Special Servicer, ______________
_____________________, as Trustee, and _________________________, as Fiscal
Agent. All capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, and for the benefit of the Trustee and the Depositor, that:
1. The Transferee is acquiring the Transferred Certificates
for its own account for investment and not with a view to or for sale
or transfer in connection with any distribution thereof, in whole or in
part, in any manner which would violate the Securities Act of 1933, as
amended (the "Securities Act"), or any applicable state securities
laws.
2. The Transferee understands that (a) the Transferred
Certificates have not been and will not be registered under the
Securities Act or registered or qualified under any applicable state
securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the Class
of Certificates to which the Transferred Certificates belong, and (c)
neither a Transferred Certificate nor any security issued in exchange
therefor or in lieu thereof may be resold or transferred unless it is
(i) registered pursuant to the Securities Act and registered or
qualified pursuant to any applicable state securities laws or (ii) sold
or transferred in transactions which are exempt from such registration
and qualification and the Certificate Registrar has received: (A) a
certification from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit F-1 to the
Pooling and Servicing Agreement and a certification from such
Certificateholder's prospective transferee substantially in the form
attached either as Exhibit F-2A to the Pooling and Servicing Agreement
or as Exhibit F-2B to the Pooling and Servicing Agreement; or (B) an
opinion of counsel satisfactory to the Trustee with respect to, among
other things, the availability of such exemption from registration
under the Securities Act, together with copies of the written
certification(s) from the transferor and/or transferee setting forth
the facts surrounding the transfer upon which such opinion is based.
F-2B-1
3. The Transferee understands that it may not sell or
otherwise transfer any Transferred Certificate or interest therein,
except in compliance with the provisions of Section 5.02 of the Pooling
and Servicing Agreement, which provisions it has carefully reviewed,
and that each Transferred Certificate will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY
BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE
MADE TO (A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN
OR ARRANGEMENT 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 (THE "CODE"), OR (B)
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT,
EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has
(a) offered, pledged, sold, disposed of or otherwise transferred any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security to any person in any manner, (b) solicited
any offer to buy or accept a pledge, disposition or other transfer of
any Transferred Certificate, any interest in any Transferred
Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security with any person in any manner, (d) made any
general solicitation with respect to any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security
by means of general advertising or in any other manner, or (e) taken
any other action with respect to any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security,
which (in the case of any of the acts described in clauses (a) through
(e) above) would constitute a distribution of the Transferred
Certificates under the Securities Act, would render the disposition of
the Transferred Certificates a violation of Section 5 of the Securities
Act or any state securities law or would require registration or
qualification of the Transferred Certificates pursuant thereto. The
Transferee will not act, nor has it authorized or will it authorize any
person to act, in any manner set forth in the foregoing sentence with
respect to any Transferred Certificate, any interest in any Transferred
Certificate or any other similar security.
5. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the Pooling and Servicing Agreement and the
Trust Fund created pursuant thereto, (d) the nature, performance and
servicing of the Mortgage Loans, and (e) all related matters, that it
has requested.
F-2B-2
6. The Transferee is an "accredited investor" as defined in
any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the
Securities Act or an entity in which all of the equity owners come
within such paragraphs. The Transferee has such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and tax
advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
investment and can afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred
Certificates be registered in the name of a nominee, such nominee has
completed the Nominee Acknowledgement below.
Very truly yours,
_______________________________________
(Transferee)
By: ___________________________________
Name:
Title:
Nominee Acknowledgement
-----------------------
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
_______________________________________
(Nominee)
By: ___________________________________
Name:
Title:
F-2B-3
EXHIBIT F-2C
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN RULE 144A GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: LB Commercial Mortgage Trust ______-____, Commercial
Mortgage Pass-Through Certificates, Series ______-____,
Class _____, having an initial aggregate [Certificate
Principal Balance] [Certificate Notional Amount] as of
_________________ (the "Closing Date") of $__________
Ladies and Gentlemen:
This letter is delivered to you in connection with the
Transfer by _________________________ (the "Transferor") to __________________
(the "Transferee") through our respective Depository Participants of the
Transferor's beneficial ownership interest (currently maintained on the books
and records of The Depository Trust Company ("DTC") and the Depository
Participants) in the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of _________________, between Structured
Asset Securities Corporation II, as Depositor, _________________________, as
Master Servicer, _________________________, as Special Servicer, ____________
_________________________, as Trustee, and _________________________, as Fiscal
Agent. All capitalized terms used but not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to and agrees with you, and
for the benefit of the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the
"Securities Act"), and has completed one of the forms of certification
to that effect attached hereto as Annex 1 and Annex 2. The Transferee
is aware that the Transfer to it of the Transferor's interest in the
Transferred Certificates is being made in reliance on Rule 144A. The
Transferee is acquiring such interest in the Transferred Certificates
for its own account or for the account of another Qualified
Institutional Buyer.
2. The Transferee understands that (a) the Transferred
Certificates have not been and will not be registered under the
Securities Act or registered or qualified under any applicable state
securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the
Transferred Certificates and (c) no interest in the Transferred
Certificates may be resold or transferred unless (i) such Certificates
are registered pursuant to the Securities Act and registered or
qualified pursuant any applicable state securities laws, or (ii) such
interest is sold or transferred in a transaction which is exempt from
such registration and qualification and the Transferor desiring to
effect such transfer has received (A) a certificate from such
Certificate Owner's prospective transferee substantially in the form
attached as Exhibit F-2C to the Pooling and Servicing Agreement or (B)
an opinion of counsel to the effect that, among other things, such
prospective transferee is a Qualified Institutional Buyer and such
transfer may be made without registration under the Securities Act.
F-2C-1
3. The Transferee understands that it may not sell or
otherwise transfer the Transferred Certificates or any interest therein
except in compliance with the provisions of Section 5.02 of the Pooling
and Servicing Agreement, which provisions it has carefully reviewed,
and that the Transferred Certificates will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY
BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE
MADE TO (A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN
OR ARRANGEMENT 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 (THE "CODE"), OR (B)
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT,
EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the nature, performance and servicing of the
Mortgage Loans, (d) the Pooling and Servicing Agreement and the Trust
Fund created pursuant thereto, (e) any credit enhancement mechanism
associated with the Transferred Certificates, and (f) all related
matters, that it has requested.
Very truly yours,
_______________________________________
(Transferee)
By: ___________________________________
Name:
Title:
F-2C-2
ANNEX 1 TO EXHIBIT F-2C
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and for the benefit of Structured Asset
Securities Corporation II with respect to the mortgage pass-through certificates
being transferred in book-entry form (the "Transferred Certificates") as
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity acquiring interests in the Transferred
Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as
amended ("Rule 144A"), because (i) [the Transferee] [each of the
Transferee's equity owners] owned and/or invested on a discretionary
basis $____________2 in securities (other than the excluded securities
referred to below) as of the end of such entity's most recent fiscal
year (such amount being calculated in accordance with Rule 144A) and
(ii) the Transferee satisfies the criteria in the category marked
below.
_____ Corporation, etc. The Transferee is a corporation (other
than a bank, savings and loan association or similar
institution), Massachusetts or similar business trust,
partnership, or any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986.
_____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of
which is substantially confined to banking and is
supervised by the state or territorial banking commission
or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a
date not more than 16 months preceding the date of sale of
the Transferred Certificates in the case of a U.S. bank,
and not more than 18 months preceding such date of sale in
the case of a foreign bank or equivalent institution.
_____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative
bank, homestead association or similar institution, which
is supervised and examined by a state or federal authority
having supervision over any such institutions or is a
foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a
date not more than 16 months preceding the date of sale of
the Transferred Certificates in the case of a U.S. savings
and loan association, and not more than 18 months preceding
such date of sale in the case of a foreign savings and loan
association or equivalent institution.
----------
1 Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee
or any such equity owner, as the case may be, is a dealer, and, in that
case, Transferee or such equity owner, as the case may be, must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
F-2C-3
___ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act of
1934, as amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the
writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is subject to
supervision by the insurance commissioner or a similar
official or agency of a state, U.S. territory or the
District of Columbia.
___ State or Local Plan. The Transferee is a plan established
and maintained by a state, its political subdivisions, or
any agency or instrumentality of the state or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan
within the meaning of Title I of the Employee Retirement
Income Security Act of 1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as
amended.
___ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule
144A.
___ Other. (Please supply a brief description of the entity and
a cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it
qualifies. Note that registered investment companies should
complete Annex 2 rather than this Annex 1.)
3. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by any
Person, the Transferee did not include (i) securities of issuers that
are affiliated with such Person, (ii) securities that are part of an
unsold allotment to or subscription by such Person, if such Person is a
dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by any
Person, the Transferee used the cost of such securities to such Person,
unless such Person reports its securities holdings in its financial
statements on the basis of their market value, and no current
information with respect to the cost of those securities has been
published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of such Person, but only if such
subsidiaries are consolidated with such Person in its financial
statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed
under such Person's direction. However, such securities were not
included if such Person is a majority-owned, consolidated subsidiary of
another enterprise and such Person is not itself a reporting company
under the Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor and other parties related to
the Transferred Certificates are relying and will continue to rely on
the statements made herein because one or more Transfers to the
Transferee may be in reliance on Rule 144A.
F-2C-4
___ ___ Will the Transferee be acquiring interests
Yes No in the Transferred Certificates only for
the Transferee's own account?
6. If the answer to the foregoing question is "no," then in
each case where the Transferee is acquiring any interest in the
Transferred Certificates for an account other than its own, such
account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the
"qualified institutional buyer" status of such third party has been
established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which
this certification is made of any changes in the information and
conclusions herein. Until such notice is given, the Transferee's
acquisition of any interest in of the Transferred Certificates will
constitute a reaffirmation of this certification as of the date of such
acquisition. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to
such parties any updated annual financial statements that become
available on or before the date of such acquisition, promptly after
they become available.
8. Capitalized terms used but not defined herein have the
meanings ascribed thereto in the Pooling and Servicing Agreement
pursuant to which the Transferred Certificates were issued.
_______________________________________
(Transferee)
By: ___________________________________
Name:
Title:
Date:
F-2C-5
ANNEX 2 TO EXHIBIT F-2C
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and for the benefit of Structured Asset
Securities Corporation II with respect to the mortgage pass-through certificates
being transferred in book-entry form (the "Transferred Certificates") as
described in the Transferee certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity acquired interests the Transferred Certificates
(the "Transferee") or, if the Transferee is a "qualified institutional
buyer" as that term is defined in Rule 144A under the Securities Act of
1933, as amended ("Rule 144A"), because the Transferee is part of a
Family of Investment Companies (as defined below), is an executive
officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as
defined in Rule 144A because (i) the Transferee is an investment
company registered under the Investment Company Act of 1940, as
amended, and (ii) as marked below, the Transferee alone owned and/or
invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other
than the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family
of Investment Companies, the cost of such securities was used, unless
the Transferee or any member of the Transferee's Family of Investment
Companies, as the case may be, reports its securities holdings in its
financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been
published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary
basis $___________________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as
of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule
144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are
affiliated (by virtue of being majority owned subsidiaries of the same
parent or because one investment adviser is a majority owned subsidiary
of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are
part of the Transferee's Family of Investment Companies, (ii) bank
deposit notes and certificates of deposit, (iii) loan participations,
(iv) repurchase agreements, (v) securities owned but subject to a
repurchase agreement and (vi) currency, interest rate and commodity
swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or
owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
F-2C-6
5. The Transferee is familiar with Rule 144A and understands
that the Transferor and other parties related to the Transferred
Certificates are relying and will continue to rely on the statements
made herein because one or more Transfers to the Transferee will be in
reliance on Rule 144A.
___ ___ Will the Transferee be acquiring interests
Yes No in the Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no," then in
each case where the Transferee is acquiring any interest in the
Transferred Certificates for an account other than its own, such
account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the
"qualified institutional buyer" status of such third party has been
established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Transferee's acquisition of any interest
in the Transferred Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such acquisition.
8. Capitalized terms used but not defined herein have the
meanings ascribed thereto in the Pooling and Servicing Agreement
pursuant to which the Transferred Certificates were issued.
_______________________________________
(Transferee or Adviser)
By: ___________________________________
Name:
Title:
Date:
IF AN ADVISER:
Print Name of Transferee
_______________________________________
Date:
F-2C-7
EXHIBIT F-2D
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: LB Commercial Mortgage Trust ______-____, Commercial
Mortgage Pass-Through Certificates, Series ______-____,
Class _____, having an initial aggregate [Certificate
Principal Balance] [Certificate Notional Amount] as of
_________________ (the "Closing Date") of $__________
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _________________________ (the "Transferor") to ___________________
(the "Transferee") through our respective Depository Participants of the
Transferor's beneficial ownership interest (currently maintained on the books
and records of The Depository Trust Company ("DTC") and the Depository
Participants) in the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of _________________, between Structured
Asset Securities Corporation II, as Depositor, _________________________, as
Master Servicer, _________________________, as Special Servicer, ___________
_________________________, as Trustee, and _________________________, as Fiscal
Agent. All capitalized terms used but not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to and agrees with you, and
for the benefit of the Depositor, that the Transferee is not a United States
Securities Person.
For purposes of this certification, "United States Securities
Person" means (i) any natural person resident in the United States, (ii) any
partnership or corporation organized or incorporated under the laws of the
United States; (iii) any estate of which any executor or administrator is a
United States Securities Person, other than any estate of which any professional
fiduciary acting as executor or administrator is a United States Securities
Person if an executor or administrator of the estate who is not a United States
Securities Person has sole or shared investment discretion with respect to the
assets of the estate and the estate is governed by foreign law, (iv) any trust
of which any trustee is a United States Securities Person, other than a trust of
which any professional fiduciary acting as trustee is a United States Securities
Person if a trustee who is not a United States Securities Person has sole or
shared investment discretion with respect to the trust assets and no beneficiary
of the trust (and no settlor if the trust is revocable) is a United States
Securities Person, (v) any agency or branch of a foreign entity located in the
United States, unless the agency or branch operates for valid business reasons
and is engaged in the business of insurance or banking and is subject to
substantive insurance or banking regulation, respectively, in the jurisdiction
where located, (vi) any non-discretionary account or similar account (other than
an estate or trust) held by a dealer or other fiduciary for the benefit or
account of a United States Securities Person, (vii) any discretionary account or
similar account (other than an estate or trust) held by a dealer or other
fiduciary organized, incorporated or (if an individual) resident in the United
States, other than one held for the benefit or account of a non-United States
Securities Person by a dealer or other professional fiduciary organized,
incorporated or (if any individual) resident in the United States, (viii) any
partnership or corporation if (a) organized or incorporated under the laws of
any foreign jurisdiction and (b) formed by a United States Securities Person
principally for the purpose of investing in securities not registered under the
Securities Act, unless it is organized or incorporated, and owned, by
"accredited investors" (as defined in Rule 501(a)) under the United States
Securities Act of 1933, as amended (the "Securities Act"), who are not natural
persons, estates or trusts;
F-2D-1
provided, however, that the International Monetary Fund, the International Bank
for Reconstruction and Development, the Inter-American Development Bank, the
Asian Development Bank, the African Development Bank, the United Nations and
their agencies, affiliates and pension plans, any other similar international
organizations, their agencies, affiliates and pension plans shall not constitute
United States Securities Persons.
We understand that this certification is required in
connection with certain securities laws of the United States. In connection
therewith, if administrative or legal proceedings are commenced or threatened in
connection with which this certification is or would be relevant, we irrevocably
authorize you to produce this certification to any interested party in such
proceedings.
Dated: __________, _____
By: ___________________________________
As, or agent for, the beneficial
owner(s) of the Certificates to
which this certificate relates.
F-2D-2
EXHIBIT G-1
FORM I OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA (DEFINITIVE NON-REGISTERED CERTIFICATES)
_____________, 20__
[CERTIFICATE REGISTRAR]
Attention: Asset-Backed Securities Trust Services Group--
LB Commercial Mortgage Trust ______-____
Re: LB Commercial Mortgage Trust ______-____, Commercial
Mortgage Pass-Through Certificates, Series ______-____ (the
"Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of Class ______ Certificates [having an initial aggregate
[Certificate Principal Balance] [Certificate Notional Amount] as of
_________________ (the "Closing Date") of $__________] [evidencing a ____%
Percentage Interest in the subject Class] (the "Transferred Certificates"). The
Certificates, including the Transferred Certificates, were issued pursuant to
the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of _________________, among Structured Asset Securities Corporation II
as depositor, _________________________ as master servicer,
_________________________ as special servicer, _________________________ as
trustee and _________________________ as fiscal agent. All capitalized terms
used but not otherwise defined herein shall have the respective meanings set
forth in the Pooling and Servicing Agreement. The Transferee hereby certifies,
represents and warrants to you as Certificate Registrar, as follows (check the
applicable paragraph):
_____ The Transferee (A) is not an employee benefit plan or other
retirement arrangement, including an individual retirement
account or annuity, a Xxxxx plan or a collective investment
fund or separate account in which such plans, accounts or
arrangements are invested, including, without limitation,
an insurance company general account, that is subject to
ERISA or the Code (each, a "Plan"), and (B) is not directly
or indirectly purchasing the Transferred Certificates on
behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or
_____ The Transferee is using funds from an insurance company
general account to acquire the Transferred Certificates,
however, the purchase and holding of such Certificates by
such Person is exempt from the prohibited transaction
provisions of Sections 406 and 407 of ERISA and the excise
taxes imposed on such prohibited transactions by Section
4975 of the Code, by reason of Sections I and III of
Prohibited Transaction Class Exemption 95-60.
_____ The Transferred Certificates are rated in one of the four
highest generic rating categories by one of the Rating
Agencies and are being acquired by or on behalf of a Plan
in reliance on Prohibited Transaction Exemption 91-14; and
such Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, (Y) is not
sponsored (within the meaning of Section 3(16)(B) of ERISA)
by the Trustee, the Depositor, any Mortgage Loan Seller,
the Master Servicer, the Special Servicer, any
Sub-Servicer, any Person responsible for servicing the 1166
Avenue of the Americas
G-1-1
Mortgage Loan or any related REO Property or any Mortgagor
with respect to Mortgage Loans constituting more than 5% of
the aggregate unamortized principal balance of all the
Mortgage Loans determined on the date of the initial
issuance of the Certificates, or by any Affiliate of such
Person, and (Z) agrees that it will obtain from each of its
Transferees that are Plans, a written representation that
such Transferee, if a Plan, satisfies the requirements of
the immediately preceding clauses (X) and (Y), together
with a written agreement that such Transferee will obtain
from each of its Transferees that are Plans a similar
written representation regarding satisfaction of the
requirements of the immediately preceding clauses (X) and
(Y).
Very truly yours,
_______________________________________
(Transferee)
By: ___________________________________
Name:
Title:
G-1-2
EXHIBIT G-2
FORM II OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA
(BOOK-ENTRY NON-REGISTERED CERTIFICATES)
[Date]
[TRANSFEROR]
Re: LB Commercial Mortgage Trust ______-____, Commercial
Mortgage Pass-Through Certificates, Series ______-____,
(the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by ______________________ (the "Transferor") to _________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Corporation ("DTC") and the Depository Participants) in
Class ___ Certificates [having an initial aggregate [Certificate Principal
Balance] [Certificate Notional Amount] as of _________________ (the "Closing
Date") of $__________] [evidencing a ____% Percentage Interest in the related
Class] (the "Transferred Certificates"). The Certificates, including the
Transferred Certificates, were issued pursuant to the Pooling and Servicing
Agreement, dated as of _________________ (the "Pooling and Servicing
Agreement"), among Structured Asset Securities Corporation II, as depositor,
_________________________ as master servicer, _________________________ as
special servicer, _________________________ as trustee and
_________________________ as fiscal agent. All capitalized terms used but not
otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you as follows (check the applicable paragraph):
______ The Transferee (A) is not an employee benefit plan or other
retirement arrangement, including an individual retirement
account or annuity, a Xxxxx plan or a collective investment
fund or separate account in which such plans, accounts or
arrangements are invested, including, without limitation,
an insurance company general account, that is subject to
ERISA or the Code (each, a "Plan"), and (B) is not directly
or indirectly purchasing an interest in the Transferred
Certificates on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan;
______ The Transferee is using funds from an insurance company
general account to acquire an interest in the Transferred
Certificates, however, the purchase and holding of such
interest by such Person is exempt from the prohibited
transaction provisions of Sections 406(a) and (b) and 407
of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code, by
reason of Sections I and III of Prohibited Transaction
Class Exemption 95-60.
______ The Transferred Certificates are rated in one of the four
highest generic rating categories by one of the Rating
Agencies and an interest in such Certificates is being
acquired by or on behalf of a Plan in reliance on
Prohibited Transaction Exemption 91-14 and such Plan (X) is
an accredited investor as defined in Rule 501(a)(1) of
Regulation D of the Securities Act, (Y) is not sponsored
(within the meaning of Section 3(16)(B) of ERISA) by the
Trustee, the Depositor, any Mortgage Loan Seller, the
Master Servicer, the Special Servicer, any Sub-Servicer,
any Person responsible for servicing the 1166 Avenue of the
G-2-1
Americas Mortgage Loan or any related REO Property or any
Mortgagor with respect to Mortgage Loans constituting more
than 5% of the aggregate unamortized principal balance of
all the Mortgage Loans determined on the date of the
initial issuance of the Certificates, or by any Affiliate
of such Person, and (Z) agrees that it will obtain from
each of its Transferees that are Plans, a written
representation that such Transferee, if a Plan, satisfies
the requirements of the immediately preceding clauses (X)
and (Y), together with a written agreement that such
Transferee will obtain from each of its Transferees that
are Plans a similar written representation regarding
satisfaction of the requirements of the immediately
preceding clauses (X) and (Y).
Very truly yours,
____________________________________
(Transferee)
By: ___________________________________
Name:
Title:
G-2-2
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
REGARDING RESIDUAL INTEREST CERTIFICATES
TRANSFER AFFIDAVIT PURSUANT TO
SECTIONS 860D(A)(6)(A) AND 860E(E)(4) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
Re: LB Commercial Mortgage Trust ______-____, Commercial
Mortgage Pass-Through Certificates, Series ______-____ (the
"Certificates"), issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of _________________, among _____
Structured Asset Securities Corporation II as depositor,
_________________________ as Master Servicer, _____________
as Special Servicer, _________________ as Trustee and
_________________________ as Fiscal Agent
STATE OF )
) ss.: ____________________
COUNTY OF )
I, _________________________, under penalties of perjury,
declare that, to the best of my knowledge and belief, the following
representations are true, correct and complete, and being first sworn, depose
and say that:
1. I am a __________________________ of ____________________
(the "Purchaser"), on behalf of which I have the authority to make this
affidavit.
2. The Purchaser is acquiring [Class R-I] [Class R-II] [Class
R-III] [Class R-LR] Certificates representing ________% of the residual interest
in [each of] the real estate mortgage investment conduit[s] ([each,] a "REMIC")
designated as ["REMIC I"] ["REMIC II"] ["REMIC III"] [a "Loan REMIC"],
[respectively], relating to the Certificates for which an election is to be made
under Section 860D of the Internal Revenue Code of 1986 (the "Code").
3. The Purchaser is not a "Disqualified Organization" (as
defined below), and that the Purchaser is not acquiring the [Class R-I] [Class
R-II] [Class R-III] [Class R-LR] Certificates for the account of, or as agent or
nominee of, or with a view to the transfer of direct or indirect record or
beneficial ownership thereof, to a Disqualified Organization. For the purposes
hereof, a Disqualified Organization is any of the following: (i) the United
States, (ii) any state or political subdivision thereof, (iii) any foreign
government, (iv) any international organization, (v) any agency or
instrumentality of any of the foregoing, (vi) any tax-exempt 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, (vii) any organization described in
Section 1381(a)(2)(C) of the Code, or (viii) any other entity designated as a
"disqualified organization" by relevant legislation amending the REMIC
Provisions and in effect at or proposed to be effective as of the time of
determination. In addition, a corporation will not be treated as an
instrumentality of the United States or of any state or political subdivision
thereof if all of its activities are subject to tax (except for the Federal Home
Loan Mortgage Corporation) and a majority of its board of directors is not
selected by such governmental unit. The terms "United States" and "international
organization" shall have the meanings set forth in Section 7701 of the Code.
H-1-1
4. The Purchaser is not a foreign permanent establishment or a
fixed base (within the meaning of any applicable income tax treaty between the
United States and any foreign jurisdiction) of a United States Tax Person.
5. The Purchaser will not cause the income from the [Class
R-I] [Class R-II] [Class R-III] [Class R-LR] Certificates to be attributable to
a foreign permanent establishment or fixed base (within the meaning of any
applicable income tax treaty between the United States and any foreign
jurisdiction) of a United States Tax Person.
6. The Purchaser acknowledges that Section 860E(e) of the Code
would impose a substantial tax on the transferor or, in certain circumstances,
on an agent for the transferee, with respect to any transfer of any interest in
any [Class R-I] [Class R-II] [Class R-III] [Class R-LR] Certificates to a
Disqualified Organization.
7. No purpose of the acquisition of the [Class R-I] [Class
R-II] [Class R-III] [Class R-LR] Certificates is to impede the assessment or
collection of tax
8. [Check the statement that applies]
o If the Transferor requires the safe harbor under Treasury
regulation section 1.860E-1 to apply:
a) In accordance with Treasury regulation section 1.860E-1,
the Purchaser (i) is an "eligible corporation" as defined in Section
1.860E-1(c)(6)(i) of the Treasury regulations, as to which the income
of [Class R-I] [Class R-II] [Class R-III] [Class R-LR] Certificates
will only be subject to taxation in the United States, (ii) has, and
has had in each of its two preceding fiscal years, gross assets for
financial reporting purposes (excluding any obligation of a person
related to the transferee within the meaning of Section
1.860E-1(c)(6)(ii) of the Treasury regulations or any other assets if a
principal purpose for holding or acquiring such asset is to satisfy
this condition) in excess of $100 million and net assets of $10
million, and (iii) hereby agrees only to transfer the Certificate to
another corporation meeting the criteria set forth in Treasury
regulation section 1.860E-1; .......................................[ ]
or
b) The Purchaser is a United States Person and the
consideration paid to the Purchaser for accepting the [Class R-I]
[Class R-II] [Class R-III] [Class R-LR] Certificates is greater than
the present value of the anticipated net federal income taxes and tax
benefits ("Tax Liability Present Value") associated with owning such
Certificates, with such present value computed using a discount rate
equal to the "Federal short-term rate" prescribed by Section 1274 of
the Code as of the date hereof or, to the extent it is not, if the
Transferee has asserted that it regularly borrows, in the ordinary
course of its trade or business, substantial funds from unrelated third
parties at a lower interest rate than such applicable federal rate and
the consideration paid to the Purchaser is greater than the Tax
Liability Present Value using such lower interest rate as the discount
rate, the transactions with the unrelated third party lenders, the
interest rate or rates, the date or dates of such transactions, and the
maturity dates or, in the case of adjustable rate debt instruments, the
relevant adjustment dates or periods, with respect to such borrowings,
are accurately stated in Exhibit A to this letter ..................[ ]
H-1-2
o If the Transferor does not require the safe harbor under Treasury
regulation section 1.860E-1 to apply:
a) The Purchaser is a "United States person" as defined in
Section 7701(a) of the Code and the regulations promulgated thereunder
(the Purchaser's U.S. taxpayer identification number is __________).
The Purchaser is not classified as a partnership under the Code (or, if
so classified, all of its beneficial owners are United States
persons); ..........................................................[ ]
or
b) The Purchaser is not a United States person. However, the
Purchaser:
(a) conducts a trade or business within the United States
and, for purposes of Treasury regulation section
1.860G-3(a)(3), is subject to tax under Section 882 of the
Code;
(b) understands that, for purposes of Treasury regulation
section 1.860E-1(c)(4)(ii), as a holder of a [Class R-I]
[Class R-II] [Class R-III] [Class R-LR] Certificate for United
States federal income tax purposes, it may incur tax
liabilities in excess of any cash flows generated by such
[Class R-I] [Class R-II] [Class R-III] [Class R-LR]
Certificate;
(c) intends to pay the taxes associated with holding a
[Class R-I] [Class R-II] [Class R-III] [Class R-LR]
Certificate;
(d) is not classified as a partnership under the Code (or,
if so classified, all of its beneficial owners either satisfy
clauses (a), (b) and (c) of this sentence or are United States
persons); and
(e) has furnished the Transferor and the Trustee with an
effective IRS Form W-8ECI or successor form and will update
such form as may be required under the applicable Treasury
regulations ...............................................[ ]
9. The Purchaser historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future
and the Purchaser intends to pay taxes associated with holding the
[Class R-I] [Class R-II] [Class R-III] [Class R-LR] Certificates as
they become due.
10. The Purchaser understands that it may incur tax
liabilities with respect to the [Class R-I] [Class R-II] [Class R-III]
[Class R-LR] Certificates in excess of any cash flows generated by such
Certificates.
11. The Purchaser will not transfer the [Class R-I] [Class
R-II] [Class R-III] [Class R-LR] Certificates to any person or entity
as to which the Purchaser has not received an affidavit substantially
in the form of this affidavit or to any person or entity as to which
the Purchaser has actual knowledge that the requirements set forth in
paragraphs 3, 4, 5, 7 or 9 hereof are not satisfied, or to any person
or entity with respect to which the Purchaser has not (at the time of
such transfer) satisfied the requirements under the Code to conduct a
reasonable investigation of the financial condition of such person or
entity (or its current beneficial owners if such person or entity is
classified as a partnership under the Code).
12. The Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the
prohibition against transferring the [Class R-I] [Class R-II] [Class
R-III] [Class R-LR] Certificates to a Disqualified Organization, an
agent thereof or a person that does not satisfy the requirements of
paragraphs 7 and 9.
H-1-3
13. The Purchaser consents to the designation of the Trustee
as the agent of the Tax Matters Person of [REMIC I] [REMIC II] [REMIC
III] [the Loan REMICs] pursuant to Section 10.01(d) of the Pooling and
Servicing Agreement.
Capitalized terms used but not defined herein have the
meanings assigned thereto in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument
to be duly executed on its behalf by its duly authorized officer this ___ day of
__________________.
By: ___________________________________
Name:
Title:
Personally appeared before me ___________________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be a_______________________ of the Purchaser, and acknowledged
to me that he/she executed the same as his/her free act and deed and as the free
act and deed of the Purchaser.
Subscribed and sworn before
me this ____ day of _______________.
_______________________________________
Notary Public
H-1-4
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE
REGARDING RESIDUAL INTEREST CERTIFICATES
[Date]
-------------------------
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
LB Commercial Mortgage Trust ______-____
Re: LB Commercial Mortgage Trust ______-____, Commercial
Mortgage Pass-Through Certificates, Series ______-____
(the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of [Class R-I] [Class R-II] [Class R-III] [Class R-LR]
Certificates evidencing a ____% Percentage Interest in such Class (the "Residual
Interest Certificates"). The Certificates, including the Residual Interest
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of _________________ (the "Pooling and Servicing Agreement"), among
Structured Asset Securities Corporation II, as depositor, ________________ as
master servicer, _________________________ as special servicer, ____________
_________________________ as trustee and _________________________ as fiscal
agent. All capitalized terms used but not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of
the Residual Interest Certificates by the Transferor to the Transferee
is or will be to impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has
delivered to you a Transfer Affidavit and Agreement in the form
attached to the Pooling and Servicing Agreement as Exhibit H-1. The
Transferor does not know or believe that any representation contained
therein is false.
H-2-1
3. The Transferor has at the time of this transfer
conducted a reasonable investigation of the financial condition of the
Transferee (or the beneficial owners of the Transferee if it is
classified as a partnership under the Code) as contemplated by Treasury
regulation section 1.860E-1(c)(4)(i) and, as a result of that
investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no
significant evidence to indicate that the Transferee will not continue
to pay its debts as they become due in the future. The Transferor
understands that the transfer of the Residual Interest Certificates may
not be respected for United States income tax purposes (and the
Transferor may continue to be liable for United States income taxes
associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
_______________________________________
(Transferee)
By: __________________________________
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF NOTICE AND ACKNOWLEDGEMENT
[Date]
_________________
__________________
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the
Pooling and Servicing Agreement, dated as of _________________ and relating to
LB Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series ______-____ (the "Agreement"). Capitalized terms used but not otherwise
defined herein shall have respective meanings assigned to them in the Agreement.
Notice is hereby given that the Holders of Certificates
evidencing a majority of the Voting Rights allocated to the Controlling Class
have designated ________________ to serve as the Special Servicer under the
Agreement.
The designation of __________________ as Special Servicer will
become final if certain conditions are met and you deliver to _________________,
the trustee under the Agreement (the "Trustee"), written confirmation that if
the person designated to become the Special Servicer were to serve as such, such
event would not result in the qualification, downgrade or withdrawal of the
rating or ratings assigned by you to one or more Classes of the Certificates.
Accordingly, such confirmation is hereby requested as soon as possible.
I-1-1
Please acknowledge receipt of this notice by signing the
enclosed copy of this notice where indicated below and returning it to the
Trustee, in the enclosed stamped self-addressed envelope.
Very truly yours,
__________________________,
as Trustee
By: ___________________________________
Name:
Title:
Receipt acknowledged:
______________________
By: ________________________________
Name:
Title:
Date:
______________________
By: ________________________________
Name:
Title:
Date:
I-1-2
EXHIBIT I-2
FORM OF ACKNOWLEDGEMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[MASTER SERVICER]
[DEPOSITOR]
[FISCAL AGENT]
Re: LB Commercial Mortgage Trust ______-____, Commercial
Mortgage Pass-Through Certificates, Series
Ladies and Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing
Agreement, dated as of _________________, relating to LB Commercial Mortgage
Trust ______-____, Commercial Mortgage Pass-Through Certificates, Series
______-____ (the "Agreement"), the undersigned hereby agrees with all the other
parties to the Agreement that the undersigned shall serve as Special Servicer
under, and as defined in, the Agreement. The undersigned hereby acknowledges
that, as of the date hereof, it is and shall be a party to the Agreement and
bound thereby to the full extent indicated therein in the capacity of Special
Servicer. The undersigned hereby makes, as of the date hereof, the
representations and warranties set forth in Section 3.24 of the Agreement, with
the following corrections with respect to type of entity and jurisdiction of
organization: ____________________.
_______________________________________
By: ___________________________________
Name:
Title:
I-2-1
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
J-1
SCHEDULE 1
----------
This Schedule 1 is attached to and incorporated in a financing
statement pertaining to Structured Asset Securities Corporation II as depositor
(referred to as the "Debtor" for the purpose of this financing statement only),
and _________________________ as trustee for the holders of the LB Commercial
Mortgage Trust ______-____, Commercial Mortgage Pass-Through Certificates,
Series ______-____ (referred to as the "Secured Party" for purposes of this
financing statement only), under that certain Pooling and Servicing Agreement,
dated as of _________________ (the "Pooling and Servicing Agreement"), among the
Debtor as depositor, the Secured Party as trustee (the "Trustee"), _____________
as master servicer (the "Master Servicer"), _________________________ as special
servicer (the "Special Servicer") and _________________________ as fiscal agent,
relating to the issuance of the LB Commercial Mortgage Trust ______-____,
Commercial Mortgage Pass-Through Certificates, Series ______-____ (the "Series
______-____ Certificates"). Capitalized terms used herein and not defined shall
have the respective meanings given to them in the Pooling and Servicing
Agreement.
The attached financing statement covers all of the Debtor's
right (including the power to convey title thereto), title and interest in and
to the Trust Fund created pursuant to the Pooling and Servicing Agreement,
consisting of the following:
(1) the mortgage loans listed on the Mortgage Loan Schedule
attached hereto as Exhibit A (the "Mortgage Loans");
(2) the note or other evidence of indebtedness of the related
borrower under each Mortgage Loan (the "Mortgage Note"), the related mortgage,
deed of trust or other similar instrument securing such Mortgage Note (the
"Mortgage") and each other legal, credit and servicing document related to such
Mortgage Loan (collectively with the related Mortgage Note and Mortgage, the
"Mortgage Loan Documents");
(3) (a) the Custodial Accounts and the Defeasance Deposit
Account required to be maintained by the Master Servicer pursuant to the Pooling
and Servicing Agreement, (b) all funds from time to time on deposit in the
Custodial Accounts and the Defeasance Deposit Account, (c) the investments of
any such funds consisting of securities, instruments or other obligations, and
(d) the general intangibles consisting of the contractual right to payment,
including, without limitation, the right to payments of principal and interest
and the right to enforce the related payment obligations, arising from or under
any such investments;
(4) all REO Property acquired in respect of defaulted Mortgage
Loans;
(5) (a) the REO Accounts required to be maintained by the
Special Servicer pursuant to the Pooling and Servicing Agreement, (b) all funds
from time to time on deposit in the REO Accounts, (c) the investments of any
such funds consisting of securities, instruments or other obligations, and (d)
the general intangibles consisting of the contractual right to payment,
including, without limitation, the right to payments of principal and interest
and the right to enforce the related payment obligations, arising from or under
any such investments;
(6) (a) the Servicing Accounts and the Reserve Accounts
required to be maintained by the Master Servicer and/or the Special Servicer
pursuant to the Pooling and Servicing Agreement, (b) all funds from time to time
on deposit in the Servicing Accounts and the Reserve Accounts, (c) the
investments of any such funds consisting of securities, instruments or other
obligations, and (d) the general intangibles consisting of the contractual right
to payment, including, without limitation, the right to payments of principal
and interest and the right to enforce the related payment obligations, arising
from or under any such investments;
J-2
(7) (a) the Interest Reserve Account required to be maintained
by the Secured Party pursuant to the Pooling and Servicing Agreement, (b) all
funds from time to time on deposit in the Interest Reserve Account, (c) the
investments of any such funds consisting of securities, instruments or other
obligations, and (d) the general intangibles consisting of the contractual right
to payment, including, without limitation, the right to payments of principal
and interest and the right to enforce the related payment obligations, arising
from or under any such investments;
(8) (a) the Collection Account required to be maintained by
the Secured Party pursuant to the Pooling and Servicing Agreement, (b) all funds
from time to time on deposit in the Collection Account, (c) the investments of
any such funds consisting of securities, instruments or other obligations, and
(d) the general intangibles consisting of the contractual right to payment,
including, without limitation, the right to payments of principal and interest
and the right to enforce the related payment obligations, arising from or under
any such investments;
(9) all insurance policies, including the right to payments
thereunder, with respect to the Mortgage Loans required to be maintained
pursuant to the Mortgage Loan Documents and the Pooling and Servicing Agreement,
transferred to the Trust and to be serviced by the Master Servicer or Special
Servicer pursuant to the Pooling and Servicing Agreement;
(10) any and all general intangibles (as defined in the
Uniform Commercial Code) consisting of, arising from or relating to any of the
foregoing; and
(11) any and all income, payments, proceeds and products of
any of the foregoing.
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY THE
POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF ALL THE DEBTOR'S RIGHT,
TITLE AND INTEREST IN, TO AND UNDER THE MORTGAGE LOANS, THE MORTGAGE NOTES, THE
RELATED MORTGAGES AND THE OTHER RELATED MORTGAGE LOAN DOCUMENTS EVIDENCED BY THE
SERIES ______-____ CERTIFICATES, AND THIS FILING SHOULD NOT BE CONSTRUED AS A
CONCLUSION THAT A SALE HAS NOT OCCURRED. THE REFERENCES HEREIN TO MORTGAGE NOTES
SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY MORTGAGE NOTE IS NOT AN
INSTRUMENT WITHIN THE MEANING OF THE UNIFORM COMMERCIAL CODE, AS IN EFFECT IN
ANY APPLICABLE JURISDICTION, OR THAT A FILING IS NECESSARY TO PERFECT THE
OWNERSHIP OR SECURITY INTEREST OF THE SECURED PARTY WITH RESPECT TO THE MORTGAGE
LOANS OR IN ANY MORTGAGE NOTE, MORTGAGE OR OTHER MORTGAGE LOAN DOCUMENT. IN
ADDITION, THE REFERENCES HEREIN TO SECURITIES, INSTRUMENTS AND OTHER OBLIGATIONS
SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY SUCH SECURITY, INSTRUMENT OR
OTHER OBLIGATION IS NOT AN INSTRUMENT, A CERTIFICATED SECURITY OR AN
UNCERTIFICATED SECURITY WITHIN THE MEANING OF THE UNIFORM COMMERCIAL CODE, AS IN
EFFECT IN ANY APPLICABLE JURISDICTION, NOR SHOULD THIS FINANCING STATEMENT BE
CONSTRUED AS A CONCLUSION THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP OR
SECURITY INTEREST OF THE SECURED PARTY IN THE CONTRACTUAL RIGHT TO PAYMENT,
INCLUDING, WITHOUT LIMITATION, THE RIGHT TO PAYMENTS OF PRINCIPAL AND INTEREST
AND THE RIGHT TO ENFORCE THE RELATED PAYMENT OBLIGATIONS, ARISING FROM OR UNDER
ANY SUCH SECURITY, INSTRUMENT OR OTHER OBLIGATION. WITH RESPECT TO THE
FOREGOING, THIS FILING IS MADE ONLY IN THE EVENT OF CONTRARY ASSERTIONS BY THIRD
PARTIES.
J-3
EXHIBIT A TO SCHEDULE 1
(See Mortgage Loan Schedule)
J-4
EXHIBIT K
SUB-SERVICERS IN RESPECT OF WHICH SUB-SERVICING AGREEMENTS ARE IN
EFFECT OR BEING NEGOTIATED AS OF THE CLOSING DATE
K-1
EXHIBIT L-1
FORM OF INFORMATION REQUEST/INVESTOR CERTIFICATION FOR WEBSITE ACCESS
FROM CERTIFICATE [HOLDER] [OWNER]
[Date]
_________________________
Attention: Asset-Backed Securities Trust Services Group--
LB Commercial Mortgage Trust ______-____]
_________________________
Attention: LB Commercial Mortgage Trust ______-____]
Re: LB Commercial Mortgage Trust ______-____, Commercial
Mortgage Pass-Through Certificates, Series
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of _________________ (the "Pooling and Servicing
Agreement"), among Structured Asset Securities Corporation II, as depositor (the
"Depositor"), _________________________ as master servicer, ____________________
_____________ as special servicer, _________________________ as trustee (the
"Trustee") and _________________________ as fiscal agent, with respect to LB
Commercial Mortgage Trust ______-____, Commercial Mortgage Pass-Through
Certificates, Series ______-____ (the "Certificates"), the undersigned hereby
certifies and agrees as follows:
1. The undersigned is a [beneficial owner] [registered holder]
of the Class _____ Certificates.
2. The undersigned is requesting (Please check as applicable):
(i) ____ the information (the "Information") identified on
the schedule attached hereto pursuant to Section 8.14 of the
Pooling and Servicing Agreement; or
(ii) ____ a password pursuant to Section 4.02 of the
Pooling and Servicing Agreement for access to information
(also, the "Information") provided on the [Trustee's] [Master
Servicer's] Internet Website.
3. In consideration of the [Trustee's] [Master Servicer's]
disclosure to the undersigned of the Information, the undersigned will keep the
Information confidential (except from such outside persons as are assisting it
in evaluating its interest in Certificates, from its accountants and attorneys,
and otherwise from such governmental or banking authorities to which the
undersigned is subject), and such Information will not, without the prior
written consent of the [Trustee] [Master Servicer], be disclosed by the
undersigned or by its officers, directors, partners, employees, agents or
representatives (collectively, the "Representatives") in any manner whatsoever,
in whole or in part; provided that the undersigned may provide all or any part
of the Information to any other person or entity that holds or is contemplating
the purchase of any Certificate or interest therein, but
L-1-1
only if such person or entity confirms in writing such ownership interest or
prospective ownership interest and agrees to keep it confidential.
4. The undersigned will not use or disclose the Information in
any manner which could result in a violation of any provision of the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities Exchange Act
of 1934, as amended, or would require registration of any Non-Registered
Certificate pursuant to Section 5 of the Securities Act.
IN WITNESS WHEREOF, the undersigned has caused its name to be
signed hereto by its duly authorized officer, as of the day and year written
above.
[BENEFICIAL OWNER OF A CERTIFICATE]
[REGISTERED HOLDER OF A CERTIFICATE]
By: ___________________________________
Name:
Title:
_______________________________________
By: ___________________________________
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF INFORMATION REQUEST/INVESTOR CERTIFICATION FOR WEBSITE
ACCESS FROM PROSPECTIVE INVESTOR
[Date]
_________________________
Attention: Asset-Backed Securities Trust Services Group--
LB Commercial Mortgage Trust ______-____]
_________________________
Attention: LB Commercial Mortgage Trust ______-____]
Re: LB Commercial Mortgage Trust ______-____, Commercial
Mortgage Pass-Through Certificates, Series
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of _________________ (the "Pooling and Servicing
Agreement"), among Structured Asset Securities Corporation II as depositor (the
"Depositor"), _________________________ as master servicer, ______________ as
special servicer, _________________________ as trustee (the "Trustee") and
_________________________ as fiscal agent, with respect to LB Commercial
Mortgage Trust ______-____, Commercial Mortgage Pass-Through Certificates,
Series ______-____ (the "Certificates"), the undersigned hereby certifies and
agrees as follows:
1. The undersigned is contemplating an investment in the Class
_____ Certificates.
2. The undersigned is requesting (please check as applicable):
(i) ____ information (the "Information") for use in
evaluating the possible investment described above as
identified on the schedule attached hereto pursuant to Section
8.14 of the Pooling and Servicing Agreement; or
(ii) ____ a password pursuant to Section 4.02 of the
Pooling and Servicing Agreement for access to information
(also, the "Information") provided on the [Trustee's] [Master
Servicer's] Internet Website.
3. In consideration of the [Trustee's] [Master Servicer's]
disclosure to the undersigned of the Information, the undersigned will keep the
Information confidential (except from such outside persons as are assisting it
in making the investment decision described in paragraph 1 above, from its
accountants and attorneys, and otherwise from such governmental or banking
authorities and agencies to which the undersigned is subject), and such
Information will not, without the prior written consent of the [Trustee] [Master
Servicer], be disclosed by the undersigned or by its officers, directors,
partners, employees, agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in part.
L-2-1
4. The undersigned will not use or disclose the Information in
any manner which could result in a violation of any provision of the Securities
Act of 1933, as amended ( the "Securities Act"), or the Securities Exchange Act
of 1934, as amended, or would require registration of any Non-Registered
Certificate pursuant to Section 5 of the Securities Act.
IN WITNESS WHEREOF, the undersigned has caused its name to be
signed hereto by its duly authorized officer, as of the day and year written
above.
[PROSPECTIVE PURCHASER OF A CERTIFICATE
OR INTEREST THEREIN]
By: __________________________________
Name:
Title:
By: _________________________________
Name:
Title:
L-2-2
EXHIBIT M
FORM OF DEFEASANCE CERTIFICATION
M-1
FORM OF NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
For loans (a) having a balance of $20,000,000 or less or a
balance of less than 5% of outstanding pool balance,
whichever is less) or (b) that are not then one of the
ten largest (measured by unpaid principal balance) in the mortgage pool
To: _______________________
Attn: Commercial Mortgage Surveillance
From: _____________________________________, in its capacity as master
servicer (the "Master Servicer") under the Pooling and Servicing
Agreement dated as of _________________ (the "Pooling and Servicing
Agreement"), among Structured Asset Securities Corporation II as
depositor, the Master Servicer, _________________________ as special
servicer, _________________________ as trustee (the "Trustee"), and
_________________________ as fiscal agent.
Date: _________, 20___
Re: LB Commercial Mortgage Trust ______-____, 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 [Property] [Properties]
identified on the Mortgage Loan Schedule by the following name[s]: _____________
________________________________________________________________________________
Reference is made to the Pooling and Servicing Agreement described above.
Capitalized terms used but not defined herein have the meanings assigned to such
terms in the Pooling and Servicing Agreement.
As Master 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 unpaid principal balance of
the Mortgage Loan; or
____ a partial defeasance of the payments scheduled to be
due in respect of a portion of the unpaid principal
balance of the Mortgage Loan that represents ___% of
the entire unpaid principal balance of the Mortgage
Loan and, under the Mortgage, has an allocated loan
amount of $____________ or _______% of the entire
unpaid principal balance;
2. Certify as to each of the following, and any additional
explanatory notes set forth on Exhibit A hereto:
M-2
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.
80a-1), (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, provide for a predetermined fixed
dollar amount of principal due at maturity that 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 Master Servicer received an opinion of counsel
(from counsel approved by Master Servicer in accordance with the
Servicing Standard) that the defeasance will not result in an Adverse
REMIC Event.
e. The Master 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 Loan
included in the pool.
____ the related Mortgagor designated a Single-Purpose
Entity (as defined in the S&P Criteria) to own the
defeasance collateral; or
____ the Master 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 Master 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, the Trustee is obligated
to make the scheduled payments on the Mortgage Loan from the proceeds
of the defeasance collateral directly to the Master 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 Master Servicer received from the Mortgagor
written confirmation from a firm of independent certified public
accountants, who were approved by the Master Servicer in
M-3
accordance with the Servicing Standard, 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 or on the date when any open
prepayment period set forth in the related Mortgage Loan documents
commences), (ii) the revenues received in any month from the
defeasance collateral will be applied to make Scheduled Payments
within four (4) months after the date of receipt, and (iii) interest
income from the defeasance collateral to the Defeasance Obligor in any
calendar or fiscal year will not exceed such Defeasance Obligor's
interest expense for the Mortgage Loan (or the allocated portion
thereof in a partial defeasance) for such year.
i. The Master Servicer received opinions from counsel,
who were approved by the Master Servicer in accordance with the
Servicing Standard, 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 unpaid principal balance of the Mortgage
Loan as of the date of defeasance was $___________. Such Mortgage Loan
(a) has a balance of $20,000,000 or less or a balance of less than 5%
of outstanding pool balance or (b) is not then one of the ten largest
(measured by unpaid principal balance) in the mortgage pool, in each
such case, as of the date of the most recent Distribution Date
Statement received by us (the "Current Report").
3. 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 unpaid principal balance of the Mortgage Pool as of the date of
the Current Report.
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 Master Servicer
as part of the Master Servicer's servicing file.
5. Certify and confirm that the determinations and
certifications described above were rendered in accordance with the Servicing
Standard set forth in, and the other applicable terms and conditions of, the
Pooling and Servicing Agreement; and
6. Certify that the individual under whose hand the Master
Servicer has caused this Notice and Certification to be executed did constitute
a Servicing Officer as of the date of the defeasance described above.
M-4
7. Agree to provide copies of all items listed in Exhibit B to
you upon request.
IN WITNESS WHEREOF, the Master Servicer has caused this Notice
and Certification to be executed as of the date captioned above.
[MASTER SERVICER]
By: __________________________________
Name:
Title:
M-5
