EXHIBIT 4
EXECUTION COPY
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STRUCTURED ASSET SECURITIES CORPORATION,
as Depositor
and
GMAC COMMERCIAL MORTGAGE CORPORATION,
as Master Servicer
and
GMAC COMMERCIAL MORTGAGE CORPORATION,
as Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
and
ABN AMRO BANK N.V.,
as Fiscal Agent
-------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of June 11, 2002
-------------------------------
$637,487,900
CDC Commercial Mortgage Trust 2002-FX1
Commercial Mortgage Pass-Through Certificates,
Series 2002-FX1
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
Section 1.01 Defined Terms................................................
Section 1.02 General Interpretive Principles..............................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Creation of Trust; Conveyance of Mortgage Loans..............
Section 2.02 Acceptance of Trust Fund by Trustee..........................
Section 2.03 Repurchase of Mortgage Loans for Document Defects
and Breaches of Representations and Warranties.............
Section 2.04 Representations, Warranties and Covenants of the Depositor...
Section 2.05 Acceptance of Grantor Trust Assets by Trustee;
Issuance of the Class V Certificates.......................
Section 2.06 Execution, Authentication and Delivery of Class R-I
Certificates; Creation of Loan REMIC Regular Interests.....
Section 2.07 Conveyance of Loan REMIC Regular Interests; Acceptance
of the Loan REMICs by Trustee..............................
Section 2.08 Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests........
Section 2.09 Conveyance of REMIC I Regular Interests; Acceptance
of REMIC II by Trustee.....................................
Section 2.10 Execution, Authentication and Delivery of Class R-II
Certificates; Creation of REMIC II Regular Interests.......
Section 2.11 Conveyance of REMIC II Regular Interests; Acceptance
of REMIC III by Trustee....................................
Section 2.12 Execution, Authentication and Delivery of REMIC III
Certificates...............................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Mortgage Loans.........................
Section 3.02 Collection of Loan Payments..................................
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.......................
Section 3.04 Custodial Account, Defeasance Deposit Account,
Collection Account, Interest Reserve Account and Excess
Liquidation Proceeds Account...............................
Section 3.05 Permitted Withdrawals From the Custodial Account, the
Collection Account, the Interest Reserve Account and the
Excess Liquidation Proceeds Account........................
Section 3.06 Investment of Funds in the Servicing Accounts, the Reserve
Accounts, the Defeasance Deposit Account, the Custodial
Accounts and the REO Accounts..............................
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage......................................
Section 3.08 Enforcement of Alienation Clauses............................
Section 3.09 Realization Upon Defaulted Loans; Required Appraisals;
Appraisal Reduction Calculation............................
Section 3.10 Trustee and Custodian to Cooperate; Release of
Mortgage Files.............................................
Section 3.11 Servicing Compensation; Payment of Expenses; Certain
Matters Regarding Servicing Advances.......................
Section 3.12 Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports................................
Section 3.13 Annual Statement as to Compliance............................
Section 3.14 Reports by Independent Public Accountants....................
Section 3.15 Access to Certain Information................................
Section 3.16 Title to REO Property; REO Accounts..........................
Section 3.17 Management of REO Property...................................
Section 3.18 Sale of Mortgage Loans and REO Properties....................
Section 3.19 Additional Obligations of the Master Servicer; the
Special Servicer's Right to Request the Master
Servicer to Make Servicing Advances........................
Section 3.20 Modifications, Waivers, Amendments and Consents;
Other Provisions...........................................
Section 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping...................................
Section 3.22 Sub-Servicing Agreements.....................................
Section 3.23 Representations and Warranties of the Master Servicer........
Section 3.24 Representations and Warranties of the Special Servicer.......
Section 3.25 Application of Default Charges...............................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions................................................
Section 4.02 Statements to Certificateholders; CMSA Loan Periodic
Update File................................................
Section 4.03 P&I Advances.................................................
Section 4.04 Allocation of Realized Losses and Additional Trust
Fund Expenses..............................................
Section 4.05 Calculations.................................................
Section 4.06 Use of Agents................................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................
Section 5.02 Registration of Transfer and Exchange of Certificates........
Section 5.03 Book-Entry Certificates......................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.05 Persons Deemed Owners........................................
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...........................................
Section 6.02 Merger, Consolidation or Conversion of Depositor,
Master Servicer or Special Servicer........................
Section 6.03 Limitation on Liability of Depositor, Master Servicer
and Special Servicer.......................................
Section 6.04 Resignation of Master Servicer and the Special Servicer......
Section 6.05 Rights of Depositor and Trustee in Respect of Master
Servicer and the Special Servicer..........................
Section 6.06 Designation of Special Servicer and Controlling Class
Representative by the Controlling Class....................
Section 6.07 Master Servicer or Special Servicer as Owner of a
Certificate................................................
Section 6.08 Certain Powers of the Controlling Class Representative.......
ARTICLE VII
DEFAULT
Section 7.01 Events of Default............................................
Section 7.02 Trustee to Act; Appointment of Successor.....................
Section 7.03 Notification to Certificateholders...........................
Section 7.04 Waiver of Events of Default..................................
Section 7.05 Additional Remedies of Trustee Upon Event of Default.........
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee............................................
Section 8.02 Certain Matters Affecting Trustee............................
Section 8.03 Trustee and Fiscal Agent Not Liable for Validity
or Sufficiency of Certificates or Loans....................
Section 8.04 Trustee and Fiscal Agent May Own Certificates................
Section 8.05 Fees and Expenses of Trustee; Indemnification of
and by Trustee.............................................
Section 8.06 Eligibility Requirements for Trustee.........................
Section 8.07 Resignation and Removal of Trustee...........................
Section 8.08 Successor Trustee............................................
Section 8.09 Merger or Consolidation of Trustee and Fiscal Agent..........
Section 8.10 Appointment of Co-Trustee or Separate Trustee................
Section 8.11 Appointment of Custodians....................................
Section 8.12 Appointment of Authenticating Agents.........................
Section 8.13 Appointment of Tax Administrators............................
Section 8.14 Access to Certain Information................................
Section 8.15 Reports to the Securities and Exchange Commission
and Related Reports 209
Section 8.16 Representations and Warranties of Trustee....................
Section 8.17 The Fiscal Agent.............................................
Section 8.18 Representations and Warranties of Fiscal Agent...............
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of
All Mortgage Loans.........................................
Section 9.02 Additional Termination Requirements..........................
ARTICLE X
ADDITIONAL TAX PROVISIONS
Section 10.01 REMIC Administration........................................
Section 10.02 Grantor Trust Administration................................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment...................................................
Section 11.02 Recordation of Agreement; Counterparts......................
Section 11.03 Limitation on Rights of Certificateholders..................
Section 11.04 Governing Law...............................................
Section 11.05 Notices.....................................................
Section 11.06 Severability of Provisions..................................
Section 11.07 Grant of a Security Interest................................
Section 11.08 Xxxxxx Act..................................................
Section 11.09 Successors and Assigns; Beneficiaries.......................
Section 11.10 Article and Section Headings................................
Section 11.11 Notices to Rating Agencies and Controlling Class
Representative............................................
Section 11.12 Complete Agreement..........................................
SCHEDULES AND EXHIBITS
Schedule No. Schedule Description
------------ --------------------
I Mortgage Loan Schedule
II Representations and Warranties with Respect to the Mortgage Loans
III Exceptions to the Representations and Warranties
IV Loan REMIC Mortgage Loans (Early Defeasance Loans)
V Reference Rate Schedule
VI Description of Park Tower Additional Interest
Exhibit No. Exhibit Description
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A-1 Form of Class [A-1] [A-2] Certificate
A-2 Form of Class [X-CL] [X-CP] Certificate
A-3 Form of Class [B] [C] [D] [E] Certificate
A-4 Form of Class [F] [G] [H] [J] [K] [L] Certificate
A-5 Form of Class [M] [N] [P] [Q] Certificate
A-6 Form of Class [R-I] [R-II] [R-III] 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 Reserved
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 I of Transferee Certificate for Transfers of Interests in
Book-Entry Non-Registered Certificates
F-2D Form II of Transferee Certificate for Transfers of Interests in
Book-Entry Non-Registered 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
K Form of Notice and Certification Regarding Defeasance of Mortgage
Loans
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 CMSA Servicer Watch List
This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of June 11, 2002, among STRUCTURED ASSET SECURITIES CORPORATION, as
Depositor, GMAC COMMERCIAL MORTGAGE CORPORATION, as Master Servicer, and GMAC
COMMERCIAL MORTGAGE CORPORATION, as Special Servicer, LASALLE BANK NATIONAL
ASSOCIATION, as Trustee, and ABN AMRO BANK N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell 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 (exclusive of Additional Interest on any Loan REMIC Mortgage Loan
that is an ARD Mortgage Loan) as the primary asset of a REMIC for federal income
tax purposes and such REMICs will be designated as the "Loan REMICs" (each a
"Loan REMIC"). The Class R-I Certificates will represent the sole class of
"residual interest" in each of the Loan REMICs for purposes of the REMIC
Provisions under federal income tax law. The Loan REMIC Regular Interests will
relate to the related Loan REMIC Mortgage Loan. The Loan REMIC Regular Interests
will: (i) accrue interest at a 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 the Loan REMIC Regular Interest is
the Distribution Date immediately following the second anniversary of the
maturity 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 also
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 relate to each Mortgage Loan in REMIC I and each Loan REMIC
Regular Interest. Each REMIC I Regular Interest that relates to the related Loan
REMIC Regular Interest shall also relate to the related Loan REMIC Mortgage
Loan. Each such 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 the Cut-off Date
Balance of the related Mortgage Loan. The Legal Final Distribution Date of each
of the REMIC I Regular Interests is the Distribution Date immediately following
the second anniversary of maturity date of the related Mortgage Loan. None of
the REMIC I Regular Interests will be certificated.
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 last Rated Final Distribution Date.
None of the REMIC II Regular Interests will be certificated.
INITIAL
REMIC II UNCERTIFICATED
DESIGNATION REMITTANCE RATE PRINCIPAL BALANCE
----------- --------------- -----------------
A-1-1 Variable (1) $94,956,964
A-1-2 Variable (1) $26,469,512
A-1-3 Variable (1) $34,527,662
A-1-4 Variable (1) $22,045,862
A-2-1 Variable (1) $22,775,801
A-2-2 Variable (1) $30,113,690
A-2-3 Variable (1) $252,007,509
B Variable (1) $25,499,000
C Variable (1) $9,562,000
D Variable (1) $20,719,000
E Variable (1) $7,968,000
F-1 Variable (1) $6,602,865
F-2 Variable (1) $1,366,135
G-1 Variable (1) $2,981,837
G-2 Variable (1) $7,334,638
G-3 Variable (1) $2,433,525
H Variable (1) $9,562,000
J Variable (1) $14,344,000
K Variable (1) $12,749,000
L Variable (1) $6,375,000
M Variable (1) $4,781,000
N Variable (1) $3,985,000
P Variable (1) $3,187,000
Q Variable (1) $15,140,900
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(1) The REMIC II Remittance Rate for each REMIC II Regular Interest shall be a
variable rate calculated in accordance with the definition of "REMIC II
Remittance Rate".
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 initial Class Principal Balance for
each Class of the Regular Interest Certificates. For federal income tax
purposes, each Class of the Regular Interest Certificates (other than the Class
X-CL and Class X-CP Certificates) and each of the twenty four REMIC III
Components of the Class X-CL Certificates and each of the sixteen 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 (or, in the case of the Class X-CL
Certificates, for each of the twenty four REMIC III Components thereof and each
of the sixteen Components of the Class X-CP Certificates) is the last Rated
Final Distribution Date.
CLASS INITIAL CLASS
DESIGNATION PASS-THOUGH RATE PRINCIPAL BALANCE
----------- ---------------- -----------------
Class A-1 5.25200% $178,000,000
Class A-2 5.67600% $304,897,000
Class B 5.85600% $25,499,000
Class C 5.91800% $9,562,000
Class D 6.00500% $20,719,000
Class E 6.18400% $7,968,000
Class F 6.55800% $7,969,000
Class G 6.62500%(1) $12,750,000
Class H 7.02700%(1) $9,562,000
Class J 6.00000% $14,344,000
Class K 6.00000% $12,749,000
Class L 6.00000% $6,375,000
Class M 6.00000% $4,781,000
Class N 6.00000% $3,985,000
Class P 6.00000% $3,187,000
Class Q 6.00000% $15,140,900
Class X-CL 0.67771%(2) (3)
Class X-CP 2.00012%(2) (4)
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(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.
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 $637,487,900. 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 $637,487,900.
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 agree as follows:
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.
"ABN AMRO" shall mean ABN AMRO Bank N.V. or its successor in
interest.
"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 Master Servicer has determined, in its
reasonable judgment, that such insurance is not available at commercially
reasonable rates. Subject to the Servicing Standard, in making the determination
required in the preceding sentence of this definition, the Master Servicer shall
be entitled to rely on the opinion of an insurance consultant at its own
expense. The Master Servicer shall make the determination as to whether an
insurance-related default is an Acceptable Insurance Default. In the event the
Master Servicer determines that an insurance-related default is an Acceptable
Insurance Default, it shall forward, in writing, information regarding the basis
of its determination to the Special Servicer and the Controlling Class
Representative, and thereafter, the Master Servicer shall determine on an annual
basis whether such insurance-related default continues to be an Acceptable
Insurance Default.
"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; and (b) in the case of either 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.
"Accrued Component Interest" shall mean the interest accrued from
time to time with respect to any REMIC III Component of either Class of Interest
Only 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 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, any such Additional Interest added to the principal balance of
such ARD Loan, and/or compounded at the related Mortgage Rate (which interest
shall also constitute Additional Interest; and the payment of which interest
shall, under the terms of such ARD Loan, be deferred until the entire
outstanding principal balance thereof (excluding any portion thereof that
represents Additional Interest that was added to the principal balance of such
Mortgage Loan) has been paid). For purposes of this Agreement, Additional
Interest on an ARD Loan or any successor REO Loan 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, 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 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 experienced
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, with
respect to any Mortgage Loan (or any successor REO Mortgage Loan) that accrues
interest on an Actual/360 Basis, for any Interest Accrual Period, an amount of
interest equal to the product of (x) 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 (y) 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 (z) the Stated Principal Balance of such Mortgage Loan (or
successor REO Mortgage Loan) immediately prior to the Distribution Date that
corresponds to such Interest Accrual Period; provided that if the subject
Interest Accrual Period begins during (i) December of 2002 or December of any
year thereafter that does not immediately precede a leap year or (ii) January of
2003 or January of any year thereafter, then the amount calculated with respect
to such Mortgage Loan (or successor REO Mortgage Loan) for such Interest Accrual
Period without regard to this proviso shall be decreased by the Interest Reserve
Amount, if any, transferred from the Collection Account to the Interest Reserve
Account in the calendar month in which such Interest Accrual Period ends, in
accordance with Section 3.04(c), with respect to such Mortgage Loan (or
successor REO Mortgage Loan); and provided, further, that if the subject
Interest Accrual Period begins during February of 2003 or February of any year
thereafter, then the amount calculated with respect to such Mortgage Loan (or
successor REO Mortgage Loan) for such Interest Accrual Period without regard to
this proviso shall be increased by the Interest Reserve Amount(s), if any,
transferred from the Interest Reserve Account to the Collection Account in the
calendar month in which such Interest Accrual Period ends, in accordance with
Section 3.05(c), with respect to such Mortgage Loan (or successor REO Mortgage
Loan).
"Adjusted REMIC II Remittance Rate" shall mean:
(a) with respect to REMIC II Regular Interest A-1-1, for any
Interest Accrual Period, 5.25200% per annum;
(b) with respect to REMIC II Regular Interest A-1-2, (i) for any
Interest Accrual Period from and including the initial Interest Accrual
Period through and including the Interest Accrual Period relating to the
June 2005 Distribution Date, an annual rate equal to the greater of (A)
5.25200% 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 relating to the June 2005 Distribution Date,
5.25200% per annum;
(c) with respect to REMIC II Regular Interest A-1-3, (i) for any
Interest Accrual Period from and including the initial Interest Accrual
Period through and including the Interest Accrual Period relating to the
June 2006 Distribution Date, an annual rate equal to the greater of (A)
5.25200% 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 relating to the June 2006 Distribution Date,
5.25200% per annum;
(d) with respect to REMIC II Regular Interest A-1-4, (i) for any
Interest Accrual Period from and including the initial Interest Accrual
Period through and including the Interest Accrual Period relating to the
June 2007 Distribution Date, an annual rate equal to the greater of (A)
5.25200% 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 relating to the June 2007 Distribution Date,
5.25200% per annum;
(e) with respect to REMIC II Regular Interest A-2-1, (i) for any
Interest Accrual Period from and including the initial Interest Accrual
Period through and including the Interest Accrual Period relating to the
June 2007 Distribution Date, an annual rate equal to the greater of (A)
5.67600% 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 relating to the June 2007 Distribution Date,
5.67600% per annum;
(f) with respect to REMIC II Regular Interest A-2-2, (i) for any
Interest Accrual Period from and including the initial Interest Accrual
Period through and including the Interest Accrual Period relating to the
June 2008 Distribution Date, an annual rate equal to the greater of (A)
5.67600% 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 relating to the June 2008 Distribution Date,
5.67600% per annum;
(g) with respect to REMIC II Regular Interest A-2-3, (i) for any
Interest Accrual Period from and including the initial Interest Accrual
Period through and including the Interest Accrual Period relating to the
June 2009 Distribution Date, an annual rate equal to the greater of (A)
5.67600% 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 relating to the June 2009 Distribution Date,
5.67600% per annum;
(h) with respect to REMIC II Regular Interest B, (i) for any
Interest Accrual Period from and including the initial Interest Accrual
Period through and including the Interest Accrual Period relating to the
June 2009 Distribution Date, 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) 5.85600% 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 relating to the June 2009
Distribution Date, an annual rate equal to the lesser of (X) 5.85600% per
annum and (Y) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(i) with respect to REMIC II Regular Interest C, (i) for any
Interest Accrual Period from and including the initial Interest Accrual
Period through and including Interest Accrual Period relating to the June
2009 Distribution Date, 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) 5.91800% 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 relating to the June 2009
Distribution Date, an annual rate equal to the lesser of (X) 5.91800% per
annum and (Y) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(j) with respect to REMIC II Regular Interest D, (i) for any
Interest Accrual Period from and including the initial Interest Accrual
Period through and including the Interest Accrual Period relating to the
June 2009 Distribution Date, 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) 6.00500% 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 relating to the June 2009
Distribution Date, an annual rate equal to the lesser of (X) 6.00500% per
annum and (Y) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(k) with respect to REMIC II Regular Interest E, (i) for any
Interest Accrual Period from and including the initial Interest Accrual
Period through and including the Interest Accrual Period relating to the
June 2009 Distribution Date, 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) 6.18400% 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 relating to the June 2009
Distribution Date, an annual rate equal to the lesser of (X) 6.18400% per
annum and (Y) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(l) with respect to REMIC II Regular Interest F-1, (i) for any
Interest Accrual Period from and including the initial Interest Accrual
Period through and including the Interest Accrual Period relating to the
June 2007 Distribution Date, 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) 6.55800% 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 relating to the June 2007
Distribution Date, an annual rate equal to the lesser of (X) 6.55800% per
annum and (Y) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(m) with respect to REMIC II Regular Interest F-2, (i) for any
Interest Accrual Period from and including the initial Interest Accrual
Period through and including the Interest Accrual Period relating to the
June 2008 Distribution Date, 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) 6.55800% 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 relating to the June 2008
Distribution Date, an annual rate equal to the lesser of (X) 6.55800% per
annum and (Y) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(n) with respect to REMIC II Regular Interest G-1, (i) for any
Interest Accrual Period from and including the initial Interest Accrual
Period through and including the Interest Accrual Period relating to the
June 2005 Distribution Date, 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) 6.62500% 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 relating to the June 2005
Distribution Date, an annual rate equal to the lesser of (X) 6.62500% per
annum and (Y) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(o) with respect to REMIC II Regular Interest G-2, (i) for any
Interest Accrual Period from and including the initial Interest Accrual
Period through and including the Interest Accrual Period relating to the
June 2006 Distribution Date, 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) 6.62500% 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 relating to the June 2006
Distribution Date, an annual rate equal to the lesser of (X) 6.62500% per
annum and (Y) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(p) with respect to REMIC II Regular Interest G-3, (i) for any
Interest Accrual Period from and including the initial Interest Accrual
Period through and including the Interest Accrual Period relating to the
June 2007 Distribution Date, 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) 6.62500% 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 relating to the June 2007
Distribution Date, an annual rate equal to the lesser of (X) 6.62500% per
annum and (Y) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(q) with respect to REMIC II Regular Interest H, (i) for any
Interest Accrual Period from and including the initial Interest Accrual
Period through and including the Interest Accrual Period relating to the
June 2005 Distribution Date, 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) 7.02700% 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 relating to the June 2005
Distribution Date, an annual rate equal to the lesser of (X) 7.02700% per
annum and (Y) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(r) with respect to REMIC II Regular Interest J, for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 6.00000% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(s) with respect to REMIC II Regular Interest K, for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 6.00000% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(t) with respect to REMIC II Regular Interest L, for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 6.00000% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(u) with respect to REMIC II Regular Interest M, for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 6.00000% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(v) with respect to REMIC II Regular Interest N, for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 6.00000% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(w) with respect to REMIC II Regular Interest O, for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 6.00000% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(x) with respect to REMIC II Regular Interest P, for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 6.00000% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period; and
(y) with respect to REMIC II Regular Interest Q, for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 6.00000% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period.
"Administrative Cost Rate" shall mean, with respect to each Mortgage
Loan (or successor REO Mortgage Loan), the rate per annum 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, as of any date of determination, the qualification, downgrade or
withdrawal of any rating then assigned to such Class of Certificates by any
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.
"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 as of each Determination Date for
so long as the subject Mortgage Loan (or any successor REO Loan) constitutes a
Required Appraisal Loan, beginning with the Determination Date immediately
following the later of the date on which the subject Mortgage Loan 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 (as may be reduced by the
principal portion of any related Realized Losses) 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 accrued and 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
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, in the case of an REO Loan, the related REO Property)
(in each case, net of any escrow payments, letter of credit or any other amounts
escrowed for such items); over (b) the Required Appraisal Value.
Notwithstanding the foregoing, if (i) any Mortgage Loan 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 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 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 120 days after the event which caused such Mortgage Loan
to become a Required Appraisal Loan (without regard to any applicable cure or
grace periods), 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.
Each Appraisal Reduction Amount shall be reduced to zero as of the
date the related Mortgage Loan becomes a Corrected Loan and no Appraisal
Reduction Amount shall exist as to any Mortgage Loan after it has been paid in
full, liquidated, repurchased or otherwise disposed.
"Appraised Value" shall mean, with respect to each Mortgaged
Property or 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 a Mortgaged Property
with an allocated loan amount of, or securing a Mortgage Loan 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 Mortgage Loan (or successor REO Loan) that
provides that if the unamortized principal balance thereof is not repaid on its
Anticipated Repayment Date, such Mortgage 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 Mortgage 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 Mortgage Loan.
"Assumed Monthly Payment" shall mean: (a) with respect to any
Balloon 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;
and (b) with respect to any REO 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 Loan described in
clause (a) of this definition, the Assumed Monthly Payment) that was due (or
deemed due) in respect of the related Mortgage Loan on the last Due Date prior
to its becoming an REO Loan.
"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 collections on or with respect to
the Mortgage Loans and any REO Properties that 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, (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,
and (iv) to the extent not included in clause (a)(i) of this definition, (A) 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, (B) if such Distribution Date occurs during March of 2003 or March of any
year thereafter, the aggregate of the Interest Reserve Amounts transferred by
the Trustee from the Interest Reserve Account to the Collection Account in
respect of the Interest Reserve Mortgage Loans for distribution on such
Distribution Date and (C) any payments made pursuant to Section 9.01; 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) collected 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), (iii), (iv) and/or (v) of Section 3.05(b),
(iii) Prepayment Premiums, Yield Maintenance Charges, Repayment of Premium
Amounts, Excess Defeasance Deposit Proceeds and/or Additional Interest (iv) if
such Distribution Date occurs during January of 2003 or January of any year
thereafter that is not a leap year or during February of 2003 or February of any
year thereafter, the Interest Reserve Amounts with respect to the Interest
Reserve 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) any amounts
deposited in the Collection Account in error.
"Balloon Loan" shall mean any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the Closing Date
provides for an amortization schedule extending beyond its Stated Maturity Date
and as to which, in accordance with such terms, the Scheduled Payment due on its
Stated Maturity Date is 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 Balloon Loan at maturity.
"Base Interest Rate": shall mean, with respect to each Premium Loan,
the portion of the Mortgage Rate for such Premium Loan equal to the market rate
of interest, derived from subtracting the "excess interest" paid by the
Mortgagor sufficient to "amortize" the Premium over the term of the Premium Loan
or, in the case of an ARD Loan, the loan term through Anticipated Repayment
Date, from the total Mortgage Rate for such Premium Loan, in each case equal to
the corresponding rate set forth on the Mortgage Loan Schedule.
"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 of the Class
X-CL, Class X-CP, Class F, Class G, Class H, Class J, Class K or Class L
Certificates.
"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 CDC Commercial Mortgage
Trust 2002-FX1, Commercial Mortgage Pass-Through Certificates, Series 2002-FX1,
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
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, and the CMSA
Investor Reporting Package (excluding the CMSA Operating Statement Analysis
Report and the CMSA NOI Adjustment Worksheet).
"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 and Class A-2
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.
"Class A Principal Distribution Cross-Over Date" shall mean the
first Distribution Date as of the commencement of which (i) the Class A-1 and
Class A-2 Certificates 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 and Class Q
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-4 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-4 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.
"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-5 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-5 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
each Class of Interest Only Certificates shall equal the then aggregate of the
Component Notional Amounts of all the REMIC III Components of such Class of
Interest Only Certificates; provided that, for reporting purposes, the Class
Notional Amount of the Class X-CP Certificates: (i) following the Closing Date
through and including the Distribution Date in June 2005, 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-2-3, X-CP-B, X-CP-C,
X-CP-D, X-CP-E, X-CP-F-1, X-CP-F-2, X-CP-G-1, X-CP-G-2, X-CP-G-3 and X-CP-H;
(ii) following the Distribution Date in June 2005 through and including the
Distribution Date in June 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-XX-X, X-CP-C, X-CP-D, X-CP-E, X-CP-F-1, X-CP-F-2,
X-CP-G-2 and X-CP-G-3; (iii) following the Distribution Date in June 2006
through and including the Distribution Date in June 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 and X-CP-G-3; (iv) following the Distribution Date in June 2007 through
and including the Distribution Date in June 2008, shall equal the aggregate of
the Component Notional Amounts of REMIC III Component X-CP-A-2-2, X-CP-A-2-3,
X-CP-B, X-CP-C, X-CP-D, X-CP-E and X-CP-F-2; (v) following the Distribution Date
in June 2008 through and including the Distribution Date in June 2009, shall
equal the aggregate of the Component Notional Amounts of REMIC III Component
X-CP-A-2-3, X-CP-B, X-CP-C, X-CP-D and X-CP-E and (vi) following the
Distribution Date in June 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 such
Class of Principal Balance Certificates shall equal the Original Class Principal
Balance thereof. On each Distribution Date, the Class Principal Balance of each
such Class of Principal Balance Certificates shall be permanently reduced by the
amount of any distributions of 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 each of REMIC I and the Loan REMICs 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 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 a portion of each of the applicable
REMIC III Components for the Class X-CL, each of which shall constitute a
separate "regular interest" in REMIC III for purposes of the REMIC Provisions.
"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 each of the applicable
REMIC III Components for the Class X-CP, each of which shall constitute a
separate "regular interest" in REMIC III for purposes of the REMIC Provisions.
"Clearstream" shall mean Clearstream Banking, Societe Anonyme or any
successor.
"Closing Date" shall mean June 27, 2002.
"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 recommended
by the CMSA for commercial mortgage securities transactions generally and,
insofar as it requires the presentation of information in addition to that
called for by the form of the "Bond Level File" available as of the Closing Date
on the CMSA Website, is reasonably acceptable to the Trustee.
"CMSA Collateral Summary File" 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 recommended
by the CMSA for commercial mortgage securities transactions generally and,
insofar as it requires the presentation of information in addition to that
called for by the form of the "Collateral Summary File" available as of the
Closing Date on the CMSA Website, is reasonably acceptable to the Trustee.
"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 recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "CMSA Comparative Financial Status Report" available as of the
Closing Date on the CMSA Website, is reasonably acceptable to the Master
Servicer and the Special Servicer.
"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 recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Delinquent Loan Status
Report" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer and the Special Servicer.
"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 recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Financial File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer and the Special
Servicer. The initial data for this report shall be provided by the Mortgage
Loan Seller.
"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 recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Historical Liquidation Report"
available as of the Closing Date on the CMSA Website, is reasonably acceptable
to the Master Servicer and the Special Servicer.
"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 recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Historical Loan Modification
Report" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer and the Special Servicer.
"CMSA Investor Reporting Package" shall mean, collectively:
(a) the following six electronic files: (i) CMSA Loan Setup File,
(ii) CMSA Loan Periodic Update File, (iii) CMSA Property File, (iv) CMSA
Bond 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, (viii) CMSA NOI Adjustment
Worksheet, (xix) CMSA Special Servicer Defaulted Loan Report (to the
extent such form has been finalized and adopted by the CMSA).
"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 recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Loan Periodic Update File"
available as of the Closing Date on the CMSA Website, is reasonably acceptable
to the Master Servicer and the Special Servicer, as applicable, and the Trustee.
The initial data for this report shall be provided by the Mortgage Loan Seller.
"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 recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Loan 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. This report shall be initially
provided by the Mortgage Loan Seller to the Master Servicer on or before the
Closing Date.
"CMSA NOI Adjustment Worksheet" shall mean a report prepared by the
Master Servicer with respect to all the Mortgage Loans other than Specially
Serviced Mortgage Loans and REO Loans, and by the Special Servicer with respect
to Specially Serviced Mortgage Loans and REO Loans, a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "NOI Adjustment Worksheet" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and,
insofar as it requires the presentation of information in addition to that
called for by the form of the "NOI Adjustment Worksheet" available as of the
Closing Date on the CMSA Website, is acceptable to the Master Servicer and 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 recommended by the CMSA for commercial mortgage-backed
securities transactions generally and, insofar as it requires the presentation
of information in addition to that called for by the form of the "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 recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Property File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer and the Special
Servicer, as applicable. This report shall be initially provided by the Mortgage
Loan Seller to the Master Servicer on or before the Closing Date.
"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 recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "REO Status Report" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer and the Special
Servicer, as applicable.
"CMSA Servicer Watch List": For any Determination Date, a report
substantially in the form of, and containing the information called for in
Exhibit M, or in such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and,
insofar as it requires the presentation of information in addition to that
called for by Exhibit M, is reasonably acceptable to the Master Servicer and
Special Servicer, provided that, until such time as the CMSA adopts a standard
form of "Servicer Watch List", such report shall identify all Mortgage Loans
(other than Specially Serviced Mortgage Loans) that are required by the criteria
set forth on Exhibit M hereto; and provided, further, that, upon adoption by the
CMSA of a standard criteria, such criteria shall be used for this report.
"CMSA Special Servicer Defaulted Loan Report" shall mean, upon and
following the adoption by the CMSA of a standard format, a report substantially
in the form of, and containing the information called for in, the downloadable
form of the "CMSA Special Servicer Defaulted Loan Report" available on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and,
insofar as it requires the presentation of information in addition to that
called for by the form of the "CMSA Special Servicer Defaulted Loan Report"
available on the CMSA Website, is reasonably acceptable to the Master Servicer
or the Special Servicer, as applicable.
"CMSA Website" shall mean the CMSA's Website located at
"xxx.xxxx.xxx" or such other primary website as the CMSA may establish for
dissemination of its report forms.
"Code" 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 "LaSalle Bank National Association [OR NAME OF ANY SUCCESSOR
TRUSTEE], as Trustee, in trust for the registered holders of CDC Commercial
Mortgage Trust 2002-FX1, Commercial Mortgage Pass-Through Certificates, Series
2002-FX1".
"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.
"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 Component's Corresponding REMIC II
Regular Interest.
"Controlling Class" shall mean, as of any date of determination, the
outstanding Class of Principal Balance Certificates that (a) bears the latest
alphabetical Class designation and (b) has a Class Principal Balance which is
equal to or 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 equal to or 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
alphabetical Class designation that has a Certificate Principal Balance greater
than zero; and provided, further, that, for purposes of determining the
Controlling Class, the Class A-1 and Class A-2 Certificates shall be deemed a
single Class of Certificates.
"Controlling Class Certificateholder" shall mean any Holder of a
Certificate of the Controlling Class.
"Controlling Class Representative" shall have the meaning assigned
thereto in Section 6.06.
"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 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Asset Backed Securities
Trust Services Group - CDC Commercial Mortgage Trust 2002-FX1.
"Corrected Loan" shall mean any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has ceased to be such in accordance with
the definition of "Specially Serviced Mortgage Loan" (other than by reason of a
Liquidation Event occurring in respect of such Mortgage Loan or the related
Mortgaged Property's becoming an REO Property).
"Corrected Mortgage Loan" shall mean any Mortgage Loan that is a
Corrected Loan.
"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-1-1, REMIC II Regular Interest A-1-2, REMIC II Regular Interest A-1-3
and REMIC II Regular Interest A-1-4 shall be a Corresponding REMIC II Regular
Interest with respect to the Class A-1 Certificates; 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 F-1 and REMIC II
Regular Interest F-2 shall be a Corresponding REMIC II Regular Interest with
respect to the Class F Certificates; and each of REMIC II Regular Interest G-1,
REMIC II Regular Interest G-2 and REMIC II Regular Interest G-3 shall be a
Corresponding REMIC II Regular Interest with respect to the Class G
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; and (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.
"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 "GMAC Commercial Mortgage Corporation [OR THE NAME OF ANY SUCCESSOR
MASTER SERVICER], as Master Servicer, on behalf of LaSalle Bank National
Association [OR THE NAME OF ANY SUCCESSOR TRUSTEE], as Trustee, in trust for the
registered holders of CDC Commercial Mortgage Trust 2002-FX1, Commercial
Mortgage Pass-Through Certificates, Series 2002-FX1, 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 June 11, 2002.
"Cut-off Date Balance" shall mean, with respect to any Mortgage
Loan, the outstanding principal balance of such Mortgage 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, in respect of any
Mortgage Loan or REO Loan.
"Default Interest" shall mean, with respect to any Mortgage Loan (or
any successor REO Loan), any amounts collected thereon, other than late payment
charges, Prepayment Premiums, Yield Maintenance Charges, Return of Premium
Amounts or Excess Defeasance Deposit Proceeds that represent penalty interest
(arising out of a default) in excess of: (i) interest accrued on the principal
balance of such Mortgage 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.
"Defaulted Mortgage Loan" shall mean a Specially Serviced Mortgage
Loan (i) that is delinquent in an amount equal to at least two Monthly Payments
(not including the Balloon Payment) or is delinquent 30 days or more in respect
of its Balloon Payment unless a commitment for financing is in place, then 60
days, in either case such delinquency to be determined without giving effect to
any grace period permitted by the related Mortgage or Mortgage Note and without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note, or (ii) as to which the Master Servicer or the Special Servicer has, by
written notice to the related Mortgagor, accelerated the maturity of the
indebtedness evidenced by the related Mortgage Note.
"Defaulting Party" shall have the meaning assigned thereto in
Section 7.01(b).
"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 Mortgage 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.
"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 July 2002.
"Directly Operate" shall mean, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale 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, a 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 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 Mortgage Loan in
respect of which any Prepayment Premium, Yield Maintenance Charge, Repayment of
Premium Amount or Excess Defeasance Deposit Proceeds is or are received, a rate
equal to a per annum rate calculated by the linear interpolation of the yields,
as reported in the most recent "Federal Reserve Statistical Release H.15 -
Selected Interest Rates" under the heading U.S. Government Securities/Treasury
constant maturities published prior to the date of the receipt of the relevant
Prepayment Premium, Yield Maintenance Charge, Repayment of Premium Amount or
Excess Defeasance Deposit Proceeds in respect of such Mortgage Loan, of U.S.
Treasury constant maturities with maturity dates (one longer, one shorter) most
nearly approximating the maturity date (or, with respect to ARD Loans, the
Anticipated Repayment Date) of the Mortgage Loan being prepaid or the monthly
equivalent of such rate. If Federal Reserve Statistical Release H.15 - Selected
Interest Rates is no longer published, the Master Servicer, on behalf of the
Trustee, will select a comparable publication to determine the Discount Rate.
"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 Regulations 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.
"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 the product of (i) the Net Aggregate Prepayment Interest
Shortfall for such Distribution Date, multiplied by (ii) a fraction, the
numerator of which is the amount of Accrued Certificate Interest in respect of
such Class of Certificates for the related Interest Accrual Period, and the
denominator of which is the aggregate amount of Accrued Certificate Interest in
respect of all the Classes of Regular Interest Certificates for the related
Interest Accrual Period.
"Distributable Component Interest" shall mean, with respect to any
REMIC III Component of either Class of Interest Only 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.
"Distribution Date" shall mean the date each month, commencing in
July 2002, 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 Mortgage 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 Mortgage Loan is scheduled
to be first due; (ii) with respect to any Mortgage 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 Mortgage 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 Mortgage
Loan had been scheduled to be first due.
"Early Defeasance Mortgage Loan" shall mean a Loan REMIC Mortgage
Loan which provides the related Mortgagor with the option to defease all or a
portion of such Mortgage Loan prior to the second anniversary of the Startup
Day.
"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 Fitch, at least "Aa3" by Moody's and at least "AA-" by S&P (or, if such
depository institution or trust company has short-term unsecured debt
obligations rated at least "A-1" by S&P, at least "A-" by S&P) (or, in the case
of any Rating Agency, such lower rating as will not result in an Adverse Rating
Event with respect to any Class of Certificates, 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 "F-1" by Fitch, at least "P-1" by Moody's and at least "A-1" by S&P
(or, in the case of any Rating Agency, such lower rating as will not result in
an Adverse Rating Event with respect to any Class of Certificates, 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 a federal or state chartered depository institution or
trust company acting in its fiduciary capacity, 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, as confirmed in
writing by each Rating Agency.
"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.
"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 Defeasance Deposit Proceeds" shall mean with respect to a
Loan REMIC Mortgage Loan where the related borrower has exercised its option to
defease such Mortgage Loan prior to the second anniversary of the Startup Day,
the excess of the amount tendered by such Mortgagor to defease such Mortgage
Loan over an amount equal to, with respect to such Mortgage Loan, the aggregate
of the amounts specified in clauses (a) through (d) under the definition of
Purchase Price in this Agreement.
"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 and (iv) any other Additional Trust
Fund Expenses, 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 "LaSalle Bank National
Association [OR THE NAME OF ANY SUCCESSOR TRUSTEE], as Trustee, in trust for the
registered holders of CDC Commercial Mortgage Trust 2002-FX1, Commercial
Mortgage Pass-Through Certificates, Series 2002-FX1".
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"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.
"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 Mortgage Loan or REO Property (other than a
Mortgage Loan that was paid in full, and other than a Mortgage Loan or REO
Property, as the case may be, that was purchased by the Mortgage Loan Seller
pursuant to the Mortgage Loan Purchase Agreement, by a Purchase Option Holder or
its assignee pursuant to Section 3.18, or by the Depositor, the Special
Servicer, a Controlling Class Certificateholder or the Master Servicer pursuant
to Section 9.01 or that was otherwise acquired in exchange for all the
Certificates pursuant to Section 9.01) that there has been a recovery of all
Insurance Proceeds, Liquidation Proceeds and other payments or recoveries that
the Special Servicer has determined, in accordance with the Servicing Standard
(without regard to any obligation of the Master Servicer or the Special Servicer
to make payments from its own funds), will be ultimately recoverable.
"Fiscal Agent" shall mean ABN AMRO, in its capacity as fiscal agent
hereunder, or any successor fiscal agent appointed as herein provided.
"Fitch" shall mean Fitch Ratings or its successor in interest. If
neither such rating agency nor any successor remains in existence, "Fitch" shall
be deemed to refer to such other nationally recognized statistical rating agency
or other comparable Person designated by the Depositor, notice of which
designation shall be given to the Trustee, the Fiscal Agent, the Master Servicer
and the Special Servicer, and specific ratings of Fitch, Inc. herein referenced
shall be deemed to refer to the equivalent ratings of the party so designated.
"GAAP" shall mean generally accepted accounting principles in the
United States of America.
"GMACCM" shall mean GMAC Commercial Mortgage Corporation or its
successor in interest.
"Government Securities" shall mean "Government Securities" as
defined in Section 2(a)(16) of the Investment Company Act of 1940.
"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 any Additional Interest collected
with respect to an ARD Mortgage Loan after its Anticipated Repayment Date.
"Grantor Trust Provisions" shall mean Subpart E of Subchapter J of
the Code, including Treasury Regulations 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 without limitation,
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, urea
formaldehyde and any substances classified as being "in inventory," "usable work
in process" or similar classification which would, if classified as unusable, be
included in the foregoing definition.
"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, 207 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 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 or any Affiliate
thereof, and (iii) is not connected with the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, any Controlling Class
Certificateholder or any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions;
provided, however, that a Person shall not fail to be Independent of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
a Controlling Class Certificateholder 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, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, such Controlling Class Certificateholder 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.
"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
the Loan REMIC Mortgage Loans, the Loan REMICs) within the meaning of Section
856(d)(3) of the Code if REMIC I (or, if applicable, a 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), 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 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, 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 Pool Balance" shall mean the aggregate of the Cut-off Date
Balances of the Mortgage Loans.
"Initial Resolution Period" shall have the meaning assigned thereto
in Section 2.03(a).
"Institutional Accredited Investor" 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.
"Insurance Policy" shall mean, with respect to any Mortgage Loan,
any hazard insurance policy, flood insurance policy, title policy or other
insurance policy that is maintained from time to time in respect of such
Mortgage Loan or the related Mortgaged Property.
"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.
"Interest Accrual Basis" shall mean the basis on which interest
accrues in respect of any Mortgage 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 30/360 Basis; or (ii) an Actual/360 Basis.
"Interest Accrual Period" shall mean, with respect to any Loan REMIC
Regular Interest, 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.
"Interest Only Certificates" shall mean, collectively, the Class
X-CL and Class X-CP Certificates.
"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 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 "LaSalle Bank National
Association [OR THE NAME OF ANY SUCCESSOR TRUSTEE], as Trustee, in trust for the
registered holders of CDC Commercial Mortgage Trust 2002-FX1, Commercial
Mortgage Pass-Through Certificates, Series 2002-FX1".
"Interest Reserve Amount" shall mean, with respect to each Interest
Reserve Mortgage Loan, for any Distribution Date that occurs during February of
2003 or February of any year thereafter or during January of 2003 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 Loan after the related Anticipated Repayment
Date) 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 is received in
respect thereof for such Due Date as of the related Determination Date or a P&I
Advance is made in respect thereof for such Due Date on the related P&I Advance
Date.
"Interest Reserve Mortgage Loan" shall mean any Mortgage Loan (or
successor REO Mortgage Loan) that accrues interest on an Actual/360 Basis.
"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 (inclusive of a rating of "BBB-"
in the case of S&P or Fitch, and "Baa3" in the case of Moody's).
"IRS" shall mean the Internal Revenue Service or any successor
agency.
"LaSalle" shall mean LaSalle Bank National Association or its
successor in interest.
"Late Collections" shall mean: (a) with respect to any Mortgage
Loan, all amounts received thereon during any Collection Period, whether as
payments, Insurance 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
Mortgage Loan (without regard to any acceleration of amounts due thereunder by
reason of default) 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
in connection with the related REO Property during any Collection Period,
whether as Insurance 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 Mortgage Loan, or the principal and/or interest
portions of an Assumed Monthly Payment in respect of such REO Loan (without
regard to any acceleration of amounts due thereunder by reason of default), due
or deemed due on a Due Date in a previous Collection Period and not previously
recovered. Late Collections shall not include any amounts representing Default
Charges.
"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 a Class of Interest Only Certificates, the "latest possible
maturity date" thereof, calculated solely for purposes of satisfying Treasury
Regulations Section 1.860G-1(a)(4)(iii).
"Xxxxxx Brothers" shall mean Xxxxxx Brothers Inc. or its successor
in interest.
"Liquidation Event" shall mean: (a) with respect to any Mortgage
Loan, any of the following events: (i) such Mortgage Loan is paid in full, (ii)
a Final Recovery Determination is made with respect to such Mortgage Loan, (iii)
such Mortgage Loan is repurchased by the Mortgage Loan Seller pursuant to the
Mortgage Loan Purchase Agreement (including the repurchase of a Loan REMIC
Mortgage Loan in connection with the related Mortgagor's exercise of its right
to defease such Mortgage Loan, prior to the second anniversary of the Startup
Day), and in such case, repurchased by the Mortgage Loan Seller or its
affiliate), (iv) such Mortgage Loan is purchased by a Purchase Option Holder or
its assignee pursuant to Section 3.18, or (v) purchased by the Depositor, the
Special Servicer, a Controlling Class Representative or the Master Servicer
pursuant to Section 9.01, or (vi) such Mortgage Loan is acquired in exchange for
all of the Certificates pursuant to Section 9.01; 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, (ii)
such REO Property is purchased by the Depositor, the Special Servicer, a
Controlling Class Representative or the Master Servicer pursuant to Section
9.01, or (iii) such REO Property is acquired in exchange for all of the
Certificates pursuant to Section 9.01.
"Liquidation Expenses" shall mean all customary, reasonable and
necessary "out-of-pocket" costs and expenses due and owing (but not otherwise
covered by Servicing Advances) in connection with the liquidation of any
Specially Serviced Mortgage Loan or REO Property pursuant to Sections 3.09 or
3.18 (including legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee" shall mean, with respect to each Specially
Serviced Mortgage Loan or REO Property (other than any Mortgage Loan or REO
Property that is (i) repurchased by the Mortgage Loan Seller pursuant to the
Mortgage Loan Purchase Agreement within 180 days after notice of Material
Document Defect or Material Breach (paid by the Mortgage Loan Seller), (ii)
purchased by a Purchase Option Holder that is the Certificateholder with the
greatest percentage interest in the Controlling Class, the Special Servicer or,
if the purchase is effected within 60 days of the initial Purchase Option
becoming exercisable by the Mortgage Loan Seller, the Mortgage Loan Seller, or
any affiliate thereof, (iii) purchased by the Depositor, the Special Servicer, a
Controlling Class Certificateholder or the Master Servicer pursuant to Section
9.01, (iv) acquired in exchange for all of the Certificates pursuant to Section
9.01 or (v) if such Mortgage Loan is a Loan REMIC Mortgage Loan, repurchased by
the Mortgage Loan Seller pursuant to the Mortgage Loan Purchase Agreement and
Section 2.03(e) in connection with the related Mortgagor's exercise of its right
to defease such Mortgage Loan prior to the second anniversary of the Startup
Day), the fee designated as such and payable to the Special Servicer pursuant to
Section 3.11(c).
"Liquidation Fee Rate shall mean, with respect to each Specially
Serviced Mortgage Loan or REO Property as to which a Liquidation Fee is payable,
1.0%.
"Liquidation Proceeds" shall mean all cash amounts (other than
Insurance Proceeds and REO Revenues) received by the Master Servicer or the
Special Servicer in connection with: (i) 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; (ii) 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; (iii) the
realization upon any deficiency judgment obtained against a Mortgagor; (iv) the
purchase of a Specially Serviced Mortgage Loan by a Purchase Option Holder or
its assignee pursuant to Section 3.18; (v) the repurchase of a Mortgage Loan by
the Mortgage Loan Seller pursuant to the Mortgage Loan Purchase Agreement
(including the repurchase of a Loan REMIC Mortgage Loan in connection with the
related Mortgagor's exercise of its right to defease such Mortgage Loan prior to
the second anniversary of the Startup Day; and in such case, repurchase by the
Mortgage Loan Seller or its affiliate); (vi) the purchase of a Mortgage Loan or
REO Property by the Depositor, the Special Servicer, a Controlling Class
Representative or the Master Servicer pursuant to Section 9.01; or (vii) the
acquisition of a Mortgage Loan or REO Property in exchange for all the
Certificates pursuant to Section 9.01.
"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.
"Loan REMIC Mortgage Loan" shall mean each of the Mortgage Loans
identified on Schedule IV hereto as the primary asset of a Loan REMIC.
"Loan REMIC Interest" shall mean, with respect to any Loan REMIC,
either of the Loan REMIC Regular Interest or the Loan REMIC Residual Interest
relating to such Loan REMIC.
"Loan REMIC Regular Interest" shall mean, with respect to any Loan
REMIC, the uncertificated "regular interest", within the meaning of Section
860G(a)(1) of the Code, in such Loan REMIC.
"Loan REMIC Remittance Rate" shall mean: (a) with respect to any
Loan REMIC Regular Interest that, as of the Closing Date, corresponds to a Loan
REMIC Mortgage Loan that accrues interest on a 30/360 Basis, a rate per annum
that is, for any Interest Accrual Period, equal to the Net Mortgage Rate in
effect for such Mortgage Loan (or any successor REO Loan) as of the commencement
of such Interest Accrual Period (without regard to any modifications,
extensions, waivers or amendments of such Mortgage Loan subsequent to the
Closing Date); and (c) with respect to any Loan REMIC Regular Interest that, as
of the Closing Date, corresponds to a Mortgage Loan that accrues interest on an
Actual/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 Mortgage Loan (or any successor REO Loan) for such Interest
Accrual Period, and the denominator of which is the Stated Principal Balance of
such Mortgage Loan (or any successor REO Loan) immediately prior to the
Distribution Date that corresponds to such Interest Accrual Period, minus (ii)
the Administrative Cost Rate for such Mortgage Loan (or any successor REO Loan).
"Loan REMIC Residual Interest" shall mean, with respect to any Loan
REMIC, the sole uncertificated "residual interest", within the meaning of
Section 860G(a)(2) of the Code, in such Loan REMIC.
"Lockout Period" shall mean, with respect to any Mortgage 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 GMACCM, 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 Mortgage Loans and
any REO Properties that are on deposit or are required to be on deposit in the
Custodial Account on such Master Servicer Remittance Date, including any such
payments and other collections transferred to the Custodial Account from the 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) collected Monthly Payments that are due on a Due Date following
the end of the related Collection Period, (ii) any payments and other
collections received following the related Collection Period, (iii) any amount
payable or reimbursable to any Person from the Custodial Account pursuant to
clauses (ii) through (xvi) of Section 3.05(a), (iv) any Excess Liquidation
Proceeds and (v) any amounts deposited in the Custodial Account in error.
"Master Servicer Remittance Date" shall mean the date each month,
commencing in July 2002, on which, among other things, the Master Servicer is to
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 Mortgage
Loan and REO Loan, the fee payable to the Master Servicer pursuant to Section
3.11(a).
"Master Servicing Fee Rate" shall mean, with respect to each
Mortgage Loan (or successor REO Mortgage Loan), 0.10% 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).
"Modified Loan" shall mean any Mortgage 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 Mortgage 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, 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 Mortgage Loan or
materially reduces the likelihood of timely payment of amounts due
thereon.
"Monthly Payment" shall mean, with respect to any Mortgage 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 Mortgage 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 Master Servicer or the Special Servicer pursuant to Section
3.20), including any Balloon Payment payable in respect of such Mortgage Loan on
such Due Date; provided that the Monthly Payment due in respect of any Mortgage
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.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or its
successor in interest. If neither such rating agency nor any successor remains
in existence, "Moody's" 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 Xxxxx'x 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 Mortgage 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, with respect to any 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 "LaSalle Bank National Association, as trustee
for the registered holders of CDC Commercial Mortgage Trust 2002-FX1,
Commercial Mortgage Pass-Through Certificates, Series 2002-FX1" or in
blank, and further showing a complete, unbroken chain of endorsement from
the originator (if such originator is other than the 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) an original or copy of the Mortgage, together with originals or
copies of any and all intervening assignments thereof, in each case 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 with evidence of recording indicated thereon;
(iv) an original executed assignment, in recordable form, of (a) the
Mortgage and (b) any related Assignment of Leases (if such item is a
document separate from the Mortgage), in favor of "LaSalle Bank National
Association, in its capacity as trustee for the registered holders of CDC
Commercial Mortgage Trust 2002-FX1, Commercial Mortgage Pass-Through
Certificates, Series 2002-FX1" (or a copy thereof, certified to be the
copy of such assignment submitted for recording);
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan, in favor of "LaSalle Bank National Association, as
trustee for the registered holders of CDC Commercial Mortgage Trust
2002-FX1, Commercial Mortgage Pass-Through Certificates, Series 2002-FX1";
(vi) originals or copies of any written modification agreements in
those instances where the terms or provisions of the Mortgage or Mortgage
Note have been modified, in each case 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) (with the original title insurance to be provided within 180 days
of the Closing Date);
(viii) any 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 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 "LaSalle Bank National Association, in its capacity as trustee
for the registered holders of CDC Commercial Mortgage Trust 2002-FX1,
Commercial Mortgage Pass-Through Certificates, Series 2002-FX1";
(ix) an original or copy of any Ground Lease and Ground Lease
estoppels relating to such Mortgage Loan;
(x) an original or copy of any loan agreement;
(xi) an original of any guaranty of payment under such Mortgage
Loan;
(xii) an original or copy of any lock-box agreement or cash
management agreement relating to such Mortgage Loan;
(xiii) an original or copy of any environmental indemnity from the
related Mortgagor;
(xiv) an original or copy of any related security agreement (if such
item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof;
(xv) an original assignment of any 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 "LaSalle
Bank National Association, in its capacity as trustee for the registered
holders of CDC Commercial Mortgage Trust 2002-FX1, Commercial Mortgage
Pass-Through Certificates, Series 2002-FX1";
(xvi) the original of any existing letters of credit relating to
such Mortgage Loan and amendments thereto which entitle the Trust Fund to
draw thereon;
(xvii) the original or copy of the power of attorney (with evidence
of recording thereon) granted by the Mortgagor if the Mortgage, Note or
other document or instrument referred to above was not signed by the
Mortgagor;
(xviii) copies of any co-lender or intercreditor agreement; and
(xix) the Mortgage File document checklist.
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 (v), (vi) and (ix) through (xvi) 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 including as
evidenced by reference thereof in the Mortgage File document checklist.
"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.
"Mortgage Loan Purchase Agreement" shall mean that certain agreement
dated as of June 11, 2002 among the Mortgage Loan Seller, CDC Financial Products
Inc. and the Depositor, relating to the transfer of all of the Mortgage Loan
Seller's right, title and interest in and to the Mortgage Loans.
"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) the Stated
Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) the Interest Accrual Basis;
(ix) (A) the Administrative Cost Rate and (B) the Master Servicing
Fee Rate;
(x) whether the Mortgage Loan is secured by a Ground Lease;
(xi) whether the related Mortgage Loan is a Defeasance Loan;
(xii) whether such Mortgage Loan is an ARD Mortgage Loan and, if so,
the Anticipated Repayment Date and Additional Interest Rate;
(xiii) whether the Mortgage Loan is a Premium Loan, and if so, the
amount of the Premium; and
(xiv) the Base Interest Rate of each Premium Loan.
"Mortgage Loan Seller" shall mean CDC Mortgage Capital Inc. or its
successor in interest.
"Mortgage Note" shall mean the original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool" shall mean all of the Mortgage Loans and any
successor REO Loans, collectively.
"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
Mortgage Loans as of the end of the related Collection Period, which report
shall contain substantially the categories of information regarding the Mortgage
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 Mortgage Loan (and
any successor REO Loan), the related annualized rate at which interest is
scheduled (in the absence of a default) to accrue on such Mortgage Loan from
time to time in accordance with the related Mortgage Note and applicable law, as
such rate may be modified in accordance with Section 3.20 or in connection with
a bankruptcy, insolvency or similar proceeding involving the related Mortgagor.
In the case of each ARD Loan, the related Mortgage Rate shall increase in
accordance with the related Mortgage Note if the particular Mortgage Loan is not
paid in full on or before its Anticipated Repayment Date.
"Mortgaged Property" shall mean the real property interest (together
with all improvements and fixtures thereon) subject to the lien of a Mortgage.
"Mortgagor" shall mean, individually and collectively, as the
context may require, the obligor or obligors under a Mortgage 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 Mortgage Loan.
"Net Adjusted REMIC II Remittance Rate" shall mean:
(a) with respect to each of REMIC II Regular Interest A-1-2, REMIC
II Regular Interest A-1-3 and REMIC II Regular Interest A-1-4, for any
Interest Accrual Period, an annual rate equal to the lesser of (i)
5.25200% per annum and (ii) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period;
(b) with respect to each of REMIC II Regular Interest A-2-1, REMIC
II Regular Interest A-2-2 and REMIC II Regular Interest A-2-3, for any
Interest Accrual Period, an annual rate equal to the lesser of (i)
5.67600% per annum and (ii) the Weighted Average REMIC I Remittance Rate
for such Interest Accrual Period;
(c) with respect to REMIC II Regular Interest B, for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 5.85600% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(d) with respect to REMIC II Regular Interest C, for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 5.91800% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(e) with respect to REMIC II Regular Interest D, for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 6.00505% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(f) with respect to REMIC II Regular Interest E, for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 6.18400% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(g) with respect to each of REMIC II Regular Interest F-1 and REMIC
II Regular Interest F-2, for any Interest Accrual Period, an annual rate
equal to the lesser of (i) 6.55800% 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 G-1, REMIC II
Regular Interest G-2 and REMIC II Regular Interest G-3, for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 6.62500% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period; and
(i) with respect to each of REMIC II Regular Interest H, for any
Interest Accrual Period, an annual rate equal to the lesser of (i)
7.02700% 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 (including full or partial Balloon Payments made prior to
its due date) 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.
"Net Default Charges" shall have the meaning assigned thereto in
Section 3.25(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 Liquidation Proceeds" shall mean the excess, if any, of all
Liquidation Proceeds received with respect to any Mortgage Loan or REO Property,
over the amount of all Liquidation Expenses incurred with respect thereto.
"Net Mortgage Rate" shall mean, with respect to any Mortgage Loan,
as of any date of determination, a rate per annum equal to the then related
Mortgage Rate minus the sum of the Trustee Fee Rate, the Master Servicing Fee
Rate and, in the case of an ARD Loan after its Anticipated Repayment Date,
without regard to the related Additional Interest Rate.
"Net Prepayment Consideration" shall mean the Prepayment
Consideration received with respect to any Mortgage Loan or REO Loan, net of any
Workout Fee or Liquidation Fee payable therefrom.
"New Lease" shall mean any lease of REO Property entered into at the
direction of the Special Servicer, including any lease renewed, modified or
extended on behalf of the Trustee.
"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 Mortgage 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 or Liquidation Proceeds, or
any other recovery on or in respect of such Mortgage 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 Mortgage Loan or REO
Property by the Master 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
Proceeds, Liquidation Proceeds, or any other recovery on or in respect of such
Mortgage 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 F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class P, Class Q, Class R-I, Class R-II, Class R-III
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 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 either
Class of Interest Only Certificates, the initial Class Notional Amount of each
such Class as of the Closing Date, which shall equal $637,487,900, in the case
of the Class X-CL, and $481,969,036, in the case of the Class X-CP.
"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 Mortgage Loan or REO Loan, any
advance made by the Master Servicer, the Trustee or the Fiscal Agent pursuant to
Section 4.03.
"P&I Advance Date" shall mean the date each month, commencing in
July 2002, on which, among other things, the Master Servicer is required to make
P&I Advances, which date shall be the Business Day immediately preceding each
Distribution Date.
"Pass-Through Rate" shall mean:
(a) with respect to the Class A-1 Certificates for any Interest
Accrual Period, 5.25200% per annum;
(b) with respect to the Class A-2 Certificates for any Interest
Accrual Period, 5.67600% per annum;
(c) with respect to the Class B Certificates for any Interest
Accrual Period, 5.85600% per annum;
(d) with respect to the Class C Certificates for any Interest
Accrual Period, 5.91800% per annum;
(e) with respect to the Class D Certificates for any Interest
Accrual Period, 6.00500% per annum;
(f) with respect to the Class E Certificates for any Interest
Accrual Period, 6.18400% per annum;
(g) with respect to the Class F Certificates for any Interest
Accrual Period, 6.55800% per annum;
(h) with respect to the Class G Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 6.625000% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(i) with respect to the Class H Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 7.02700% per
annum and (ii) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period;
(j) with respect to the Class J Certificates for any Interest
Accrual Period, 6.00000% per annum;
(k) with respect to the Class K Certificates for any Interest
Accrual Period, 6.00000% per annum;
(l) with respect to the Class L Certificates for any Interest
Accrual Period, 6.00000% per annum;
(m) with respect to the Class M Certificates for any Interest
Accrual Period, 6.00000% per annum;
(n) with respect to the Class N Certificates for any Interest
Accrual Period, 6.00000% per annum;
(o) with respect to the Class P Certificates for any Interest
Accrual Period, 6.00000% per annum;
(p) with respect to the Class Q Certificates for any Interest
Accrual Period, 6.00000% per annum;
(q) 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;
(r) 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;
(s) 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
(t) 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 initial Interest
Accrual Period through and including the Interest Accrual Period relating
to the June 2005 Distribution Date, 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-2-3,
X-CP-B, X-CP-C, X-CP-D, X-CP-E, X-CP-F-1, X-CP-F-2, X-CP-G-1, X-CP-G-2,
X-CP-G-3 and X-CP-H; (ii) for each Interest Accrual Period from and
including the Interest Accrual Period relating to the June 2005
Distribution Date through and including the Interest Accrual Period
relating to the June 2006 Distribution Date, 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-XX-X,
X-CP-C, X-CP-D, X-CP-E, X-CP-F-1, X-CP-F-2, X-CP-G-2 and X-CP-G-3; (iii)
for each Interest Accrual Period from and including the Interest Accrual
Period relating to the June 2006 Distribution Date through and including
the Interest Accrual Period relating to the June 2007 Distribution Date,
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, X-XX-X, X-CP-D, X-CP-E, X-CP-F-1, X-CP-F-2 and
X-CP-G-3; (iv) for each Interest Accrual Period from and including the
Interest Accrual Period relating to the June 2007 Distribution Date
through and including the Interest Accrual Period relating to the June
2008 Distribution Date, shall be calculated taking into account only the
respective Pass-Through Rates of REMIC III Component X-CP-A-2-2,
X-CP-A-2-3, X-CP-B, X-CP-C, X-CP-D, X-CP-E and X-CP-F-2; (v) for each
Interest Accrual Period from and including the Interest Accrual Period
relating to the June 2008 Distribution Date through and including the
Interest Accrual Period relating to the June 2009 Distribution Date, shall
be calculated taking into account only the respective Pass-Through Rates
of REMIC III Component X-CP-A-2-3, X-CP-B, X-CP-C, X-CP-D and X-CP-E; and
(vi) for each Interest Accrual Period following the Interest Accrual
Period relating to the June 2009 Distribution Date, 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.
"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;
(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 Fitch, Xxxxx'x and S&P (or, in the case
of any Rating Agency, such lower rating as will not result in an Adverse
Rating Event with respect to any Class of Certificates, 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 Fitch, Xxxxx'x and S&P (or, in the
case of any Rating Agency, such lower rating as will not result in an
Adverse Rating Event with respect to any Class of Certificates, 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
Fitch, Xxxxx'x and S&P (or, in the case of any Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect to any
Class of Certificates, 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;
(v) units of money market funds rated in the highest applicable
rating category of each of Fitch, Xxxxx'x and S&P (or, in the case of any
Rating Agency, such lower rating as will not result in an Adverse Rating
Event with respect to any Class of Certificates, 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" hightlighter 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.
"Premium" shall mean, with respect to each Premium Loan, the amount
by which the original or face principal amount of the related Mortgage Note is
less than the amount advanced to the Borrower.
"Premium Loans": The Mortgage Loans identified as Premium Loans on
the Mortgage Loan Schedule.
"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, Yield
Maintenance Charge, Excess Defeasance Deposit Proceeds, and, in addition, with
respect to a Premium Loan, any Repayment of Premium Amount.
"Prepayment Consideration Entitlement" shall mean, with respect to
(i) any Distribution Date on which any Net Prepayment Consideration (but
excluding any Repayment of Premium Amounts collected in respect of a Premium
Loan during an open prepayment period for such Premium Loan) collected on any
Mortgage Loan (or successor REO Mortgage Loan) is distributable and (ii) any
Class of Principal Balance Certificates entitled to distributions of principal
on such Distribution Date, an amount equal to the product of (a) such Net
Prepayment Consideration (but excluding any Repayment of Premium Amounts
collected in respect of a Premium Loan during an open prepayment period for such
Premium Loan), 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, with respect to any
Mortgage Loan that was subject to a Principal Prepayment or a Balloon Payment
(other than in connection with the foreclosure or liquidation in respect of a
Mortgage Loan) in full or in part made after its Due Date in any Collection
Period, any payment of interest (net of related Master Servicing Fees) actually
collected from the related Mortgagor and intended to cover interest accrued on
such Principal Prepayment or Balloon Payment during the period from and after
such Due Date to the date of such payment (exclusive, however, of any related
Prepayment Premium, Yield Maintenance Charge, Repayment of Premium Amount or
Excess Defeasance Deposit Proceeds that may have been collected and, in the case
of an ARD Loan after its Anticipated Repayment Date, further exclusive of any
Additional Interest).
"Prepayment Interest Shortfall" shall mean, with respect to any
Mortgage Loan that was subject to a Principal Prepayment or a Balloon Payment
(other than in connection with the foreclosure or liquidation in respect of a
Mortgage Loan) in full or in part made prior to its Due Date in any Collection
Period, the amount of interest, to the extent not collected from the related
Mortgagor (without regard to any Prepayment Premium, Yield Maintenance Charge,
Repayment of Premium Amount or Excess Defeasance Deposit Proceeds that may have
been collected), that would have accrued at a rate per annum equal to the
related Mortgage Rate (net of the related Master Servicing Fee Rate and, in the
case of an ARD Loan after its Anticipated Repayment Date, further without regard
to the related Additional Interest Rate) on the amount of such Principal
Prepayment or Balloon Payment during the period from the date to which interest
was paid by the related Mortgagor to, but not including, such Due Date.
Notwithstanding the foregoing, in no event shall "Prepayment Interest Shortfall"
be construed to include a shortfall in a full or partial month's interest on a
mortgage loan that results from a modification, waiver, consent or amendment
agreed to by the Master Servicer or the Special Servicer.
"Prepayment Premium" shall mean any premium, penalty or fee (other
than a Yield Maintenance Charge, Repayment of Premium Amount, Excess Defeasance
Deposit Proceeds or Default Charges) paid or payable, as the context requires,
by a Mortgagor in connection with a Principal Prepayment on, or other early
collection of principal of, a Mortgage Loan (including any payoff of a Mortgage
Loan by a mezzanine lender on behalf of the subject Mortgagor).
"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 in
Pennsylvania, and the Primary Servicing Office of the Special Servicer is
located in California.
"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 with the reasonable consent of the
Controlling Class Representative and the Trustee shall notify the Fiscal Agent,
the Master Servicer and the Special Servicer 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 on the 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 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 Mortgage Loans for their respective Due Dates
occurring during the related Collection Period, that were received prior
to the related Collection Period;
(c) the aggregate of all Principal Prepayments received on the
Mortgage Loans during the related Collection Period;
(d) the aggregate of all Liquidation Proceeds and Insurance Proceeds
received on any 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 for
a prior Distribution Date;
(e) the aggregate of all Liquidation Proceeds, Insurance Proceeds
and REO Revenues received in respect of any 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 for a prior
Distribution Date; and
(f) the aggregate of the principal portions of all P&I Advances made
in respect of the Mortgage Loans and any REO Mortgage Loans with respect
to such Distribution Date.
"Principal Prepayment" shall mean any payment of principal made by
the Mortgagor on a Mortgage Loan that is received 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 collectively,
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 June 17, 2002, as
supplemented by the Prospectus Supplement, relating to the Registered
Certificates.
"Prospectus Supplement" shall mean the prospectus supplement dated
June 21, 2002, relating to the Registered Certificates.
"Purchase Option" shall have the meaning assigned thereto in Section
3.18(b).
"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, (d) all accrued and unpaid interest in respect
of related Advances in accordance with Section 3.11(g) and/or Section 4.03(d),
and (e) in the case of a repurchase by the Mortgage Loan Seller pursuant to the
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), (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, (iii) the Liquidation Fee, solely in the event that such Mortgage
Loan is then a Specially Serviced Mortgage Loan and such repurchase has not
occurred within 180 days of notice to the Mortgage Loan Seller of the subject
Material Document Defect or Material Breach that gives rise to the repurchase
and (iv) a workout fee (consisting of the Workout Fee paid to the Special
Servicer up to the date of repurchase plus the present value (calculated at a
discount rate equal to the applicable Mortgage Rate) of the Workout Fee that
would have been payable to the Special Servicer in respect of such Mortgage Loan
if the Mortgage Loan performed in accordance with its terms to Maturity Date),
solely in the event that such Mortgage Loan is then a Corrected Mortgage Loan
and such repurchase is in connection with a Material Document Defect and such
repurchase has not occurred within 180 days of notice to the Mortgage Loan
Seller of such Material Document Defect (such ; provided that, with respect to
any Premium Loan, Purchase Price shall not include any Repayment of Premium
Amount relating thereto.
"Qualified Institutional Buyer" 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.
"Rated Final Distribution Date" shall mean: (a) with respect to the
Class A-1 and Class A-2, the Distribution Date in May 2019 and November 2030,
respectively; and (b) with respect to the other Classes of Certificates, other
than the Class Q, Class R-I, Class R-II, Class R-III and Class V Certificates,
the Distribution Date in May 2035.
"Rating Agency" shall mean each of Fitch, Xxxxx'x and S&P.
"Realized Loss" shall mean: (1) with respect to each Mortgage 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 Mortgage 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 Mortgage 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 in respect of such Mortgage
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 Mortgage Loan or REO Loan; (2) with respect to each Mortgage 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 Mortgage Loan granted or agreed to by the Special Servicer
pursuant to Section 3.20, 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
Mortgage 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 Mortgage Loan granted or agreed to by the Master Servicer
or the Special Servicer pursuant to Section 3.20, 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).
"Record Date" shall mean, with respect to each Distribution Date,
the last Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"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 V.
"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 B, Class C, Class D and Class E 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 Certificate" shall mean a written certification
substantially in the form set forth in Exhibit F-2D hereto certifying that a
beneficial owner of an interest in a Regulation S Global Certificate is not a
United States Securities Person.
"Regulation S Global Certificates" shall mean the Regulation S
Permanent Global Certificate(s) together with the Regulation S Temporary Global
Certificate(s).
"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.
"Regulation S Permanent Global Certificate" shall mean any single
permanent global Certificate, in definitive, fully registered form without
interest coupons received in exchange for a Regulation S Temporary Global
Certificate.
"Regulation S Temporary Global Certificate" 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, a single temporary global
Certificate, in definitive, fully registered form without interest coupon, which
Certificate bears a Regulation S Legend.
"Reimbursement Rate" shall mean the rate per annum applicable to the
accrual of interest, on Servicing Advances in accordance with Section 3.11(g)
and on P&I Advances in accordance with Section 4.03(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 after the Closing Date (other than scheduled payments of
interest and principal due on or before the Cut-off Date, other than Additional
Interest collected in respect of the ARD Mortgage Loans after their respective
Anticipated Repayment Dates), together with all documents included in the
related Mortgage Files and any related Escrow Payments and Reserve Funds; (ii)
any REO Property acquired in respect of a Mortgage Loan (other than a Loan REMIC
Mortgage Loan); (iii) the Loan REMIC Regular Interests; (iv) such funds or
assets as from time to time are deposited in the Custodial Account, the
Collection Account, the Interest Reserve Account and, if established, the REO
Account, exclusive of any amounts that represent Additional Interest collected
in respect of the ARD Mortgage Loans after their respective Anticipated
Repayment Dates; and (v) the rights of the Depositor under the Mortgage Loan
Purchase Agreement; provided that REMIC I shall not include, any payments or
other collections of principal, interest, Prepayment Premiums, Yield Maintenance
Charges, Repayment of Premium Amount, Excess Defeasance Deposit Proceeds or
other amounts on the Loan REMIC Mortgage Loans, or any REO Property acquired in
respect of a Loan REMIC Mortgage Loan.
"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 any REMIC
I Regular Interest that relates to a Loan REMIC Regular Interest the related
Loan REMIC Remittance Rate; (b) with respect to any other 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 the Net Mortgage Rate in effect for such Mortgage Loan
(or any successor REO Loan) as of the commencement of such Interest Accrual
Period (without regard to any modifications, extensions, waivers or amendments
of such Mortgage Loan subsequent to the Closing Date); 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 an Actual/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 Mortgage Loan (or any
successor REO Loan) for such Interest Accrual Period, and the denominator of
which is the Stated Principal Balance of such Mortgage Loan (or any successor
REO Loan) immediately prior to the Distribution Date that corresponds to such
Interest Accrual Period, minus (ii) the Administrative Cost Rate for such
Mortgage Loan (or any successor REO Loan).
"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 2.09, with respect to
which a separate REMIC election is to be made.
"REMIC II Regular Interest" shall mean any of the twenty four
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 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, with respect to each 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 2.11,
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-CL, Class X-CP, 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 or Class R-III
Certificate.
"REMIC III Component" shall mean:
(a) with respect to the Class X-CL Certificates, any of the
following twenty four components of the Class X-CL Certificates: REMIC III
Component X-CL-A-1-1, REMIC III Component X-CL-A-1-2, REMIC III Component
X-CL-A-1-3, REMIC III Component X-CL-A-1-4, 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-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-G-1,
REMIC III Component X-CL-G-2, REMIC III Component X-CL-G-3, REMIC III
Component X-CL-H, REMIC III Component X-CL-J, 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-O, REMIC III Component X-CL-P
and REMIC III Component X-CL-Q, 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 sixteen components of the Class X-CP Certificates: REMIC III
Component X-CL-A-1-2, REMIC III Component X-CL-A-1-3, REMIC III Component
X-CL-A-1-4, 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-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-G-1, REMIC III Component X-CL-G-2,
REMIC III Component X-CL-G-3 and REMIC III Component X-CL-H, 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.
"REMIC Pool" shall mean any of REMIC I, REMIC II, REMIC III and the
Loan REMICs.
"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 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 "GMAC
Commercial Mortgage Corporation [OR THE NAME OF ANY SUCCESSOR SPECIAL SERVICER],
as Special Servicer, on behalf of LaSalle Bank National Association [OR THE NAME
OF ANY SUCCESSOR TRUSTEE], as Trustee, in trust for the registered holders of
CDC Commercial Mortgage Trust 2002-FX1, Commercial Mortgage Pass-Through
Certificates, Series 2002-FX1, REO Account".
"REO Acquisition" shall mean the acquisition of any REO Property
pursuant to Section 3.09.
"REO Disposition" shall mean the sale or other disposition of any
REO Property pursuant to Section 3.18.
"REO Extension" shall have the meaning assigned thereto in Section
3.16(a).
"REO Loan" shall mean the mortgage loan 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). 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. Collections in
respect of 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 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 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. 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) and 4.03(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 through
foreclosure, acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan.
"REO Revenues" 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).
"Repayment of Premium Amount": shall mean, with respect to any
Premium Loan, the amount the related Mortgagor is required to pay as prepayment
premium to compensate the mortgagee for the unamortized portion of the Premium
upon any voluntary or involuntary prepayment of the Premium Loan (including by
reason of default, casualty or condemnation).
"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.
"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 secures an allocated
loan amount of $2,000,000 or less, in respect of which 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, either (a) a "desktop" value estimate performed by the Special Servicer
or (b) at the option of the Special Servicer with the consent of the Controlling
Class Representative, an appraisal from an Independent Appraiser meeting the
criteria specified above in this definition.
"Required Appraisal Loan" shall mean any Mortgage Loan (i) that
becomes a Modified Loan other than by reason of the extension of the date on
which a Balloon Payment is due for a period of less than six months from the
original due date of such Balloon Payment, (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 for: (A) 30 days, or
(B) if the related Mortgagor shall have represented in writing prior to the date
such Balloon Payment was due that it was seeking a refinancing and in respect of
which the Mortgagor continued to make monthly payments equivalent to Assumed
Monthly Payments, (1) 90 days or (2) if the related Mortgagor delivered a
refinancing commitment acceptable to the Special Servicer, such number of days
ending on the date (not to exceed 120 days after the date on which the Balloon
Payment was first due) on which it was determined that the refinancing could not
be reasonably expected to occur, (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, or (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. Any Required Appraisal Loan (other than a Mortgage Loan that became a
Required Appraisal Loan pursuant to clause (vi) 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 Mortgage Loan at the time the
applicable event(s) described in any of clauses (i) through (vi) 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 (vi) above has
occurred with respect thereto during the preceding three-month period.
Notwithstanding the foregoing, so long as (a) a debt service reserve, (b) letter
of credit or, (c) with Rating Agency confirmation, guaranty or surety bond,
exists with respect to a Mortgage Loan, in each case, (i) sufficient to cover
the outstanding principal balance of such Mortgage Loan and all amounts due
thereon in full and (ii) except with respect to such guaranty or surety bond,
held in an Eligible Account or issued by a depository institution or trust
company qualified to maintain an Eligible Account, such Mortgage Loan shall not
be a Required Appraisal Loan.
"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 (A) any obligations secured by liens on such Mortgaged
Property (or REO Property) that are prior to the lien of the related Required
Appraisal Loan and (B) an estimate (in accordance with the Servicing Standard)
of the Liquidation Expenses to be incurred with respect to such Mortgaged
Property (or REO Property); plus (b) the amount of Escrow Payments and Reserve
Funds held by the Master Servicer in respect of such Required Appraisal Loan
(other than (i) Escrow Payments and Reserve Funds held in respect of any real
estate taxes and assessments, insurance premiums and, if applicable, ground
rents, (ii) Escrow Payments and Reserve Funds that are to be applied or utilized
within the twelve-month period following the date of determination and (iii)
Escrow Payments and Reserve Funds that may not be applied towards the reduction
of the principal balance of such Required Appraisal Loan); plus (c) the amount
of any letter of credit, guaranty or surety bond 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 have the meaning assigned thereto in Section
3.03(d).
"Reserve Funds" shall mean, with respect to any Mortgage 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, for debt
service on such Mortgage Loan or for any other purpose.
"Residual Interest Certificate" shall mean a Class R-I, Class R-II
or Class R-III Certificate.
"Resolution Extension Period" shall mean:
(a) for purposes of remediating a Material Breach with respect to
any Mortgage Loan, the 90-day period following the end of the applicable
Initial Resolution Period;
(b) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is not a Specially Serviced Mortgage
Loan at the commencement of, and does not become a Specially Serviced
Mortgage Loan during, the applicable Initial Resolution Period, the period
commencing at the end of the applicable Initial Resolution Period and
ending on, and including, the earlier of (i) the 90th day following the
end of such Initial Resolution Period and (ii) the 45th day following
receipt by the Mortgage Loan Seller of written notice from the Master
Servicer or the Special Servicer of the occurrence of any Servicing
Transfer Event with respect to such Mortgage Loan subsequent to the end of
such Initial Resolution Period;
(c) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a not a Specially Serviced Mortgage
Loan as of the commencement of the applicable Initial Resolution Period,
but as to which a Servicing Transfer Event occurs during such Initial
Resolution Period, the period commencing at the end of the applicable
Initial Resolution Period and ending on, and including, the 90th day
following the earlier of (i) the end of such Initial Resolution Period and
(ii) receipt by the Mortgage Loan Seller of written notice from the Master
Servicer or the Special Servicer of the occurrence of such Servicing
Transfer Event; and
(d) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Specially Serviced Mortgage Loan as
of the commencement of the applicable Initial Resolution Period, zero
(-0-) days, provided that, if the Mortgage Loan Seller did not receive
written notice from the Master Servicer or the Special Servicer of the
relevant Servicing Transfer Event as of the commencement of the applicable
Initial Resolution Period, then such Servicing Transfer Event shall be
deemed to have occurred during such Initial Resolution Period and clause
(c) of this definition will be deemed to apply.
"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 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.
"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.
"S&P" shall mean Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. or its successor in interest. If neither such
rating agency nor any successor remains in existence, "S&P" shall be deemed to
refer to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, the Fiscal Agent, the 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 or any
successor in interest.
"Scheduled Payment" shall mean, with respect to any Mortgage Loan,
for any Due Date following the Cut-off Date as of which it is outstanding, the
Monthly Payment on such Mortgage Loan that is or would be, as 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 Mortgage Loan granted or agreed to by the Master
Servicer or the Special Servicer pursuant to Section 3.20, 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 X-CL
or Class X-CP Certificate.
"Servicing Account" shall have the meaning assigned thereto in
Section 3.03(a).
"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 Fiscal
Agent or the Trustee in connection with the servicing of a Mortgage 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 (including, with respect to the Mortgage Loan identified as
Portland Office Portfolio, the payment, if necessary, of a security deposit of
$25,000 to the related ground lessor for the right to assign the ground lease
without the ground lessor's consent), (c) obtaining any Insurance 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 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 Mortgage Loan or REO Property
pursuant to any provision of this Agreement.
"Servicing Fees" shall mean, with respect to each Mortgage Loan and
REO Loan, 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 but
including copies of items listed in clauses (i), (ii), (iii), (iv), (v), (vi),
(x), (xi), (xiii), (xiv), (xv), (xvi) and (xix) in the definition of Mortgage
File) relating to the origination and servicing of any Mortgage Loan, including
appraisals, surveys, engineering reports, environmental reports, property
insurance policy (or ACCORD 27 certificates), property inspections, financial
statements, escrow analysis, tax bills, asset summaries, financial information
in respect of the Mortgagor and any related sponsor or guarantor thereof to be
delivered to the Master Servicer or primary servicer in accordance with the
transfer instructions provided by the Master Servicer.
"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 Mortgage 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 Standard" shall mean, with respect to the Master Servicer
or the Special Servicer, as the case may be, to service and administer the
Mortgage Loans and any REO Properties that it is obligated to service and
administer pursuant to this Agreement on behalf of the Trustee and in the best
interests of and for the benefit of the Certificateholders (as determined by the
Master Servicer or the Special Servicer, as the case may be, in its good faith
and reasonable judgment), in accordance with applicable law, the terms of this
Agreement and the terms of the respective Mortgage Loans and, to the extent
consistent with the foregoing, further as follows:
(a) with the same care, skill and diligence as is normal and usual
in its general mortgage servicing and REO property management activities on
behalf of third parties or on behalf of itself, whichever is higher, with
respect to mortgage loans and REO properties that are comparable to those for
which it is responsible hereunder;
(b) with a view to the timely collection of all scheduled payments
of principal and interest under the Mortgage Loans or, if a Mortgage Loan comes
into and continues in default and if, in the good faith and reasonable judgment
of the Special Servicer, no satisfactory arrangements can be made for the
collection of the delinquent payments, the maximization of the recovery on such
Mortgage Loan to the Certificateholders (as a collective whole) on a present
value basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders to be performed at the related Net Mortgage
Rate; and without regard to: (I) any other relationship that the Master Servicer
or the Special Servicer, as the case may be, or any Affiliate thereof may have
with the related Mortgagor; (II) the ownership of any Certificate by the Master
Servicer or the Special Servicer, as the case may be, or any Affiliate thereof;
(III) the Special Servicer's obligation to direct the Master Servicer to make
Servicing Advances; (IV) the Master Servicer's obligation to make Advances; and
(V) the right of the Master Servicer (or any Affiliate thereof) or the Special
Servicer (or any Affiliate thereof), as the case may be, to receive
reimbursement of costs, or the sufficiency of any compensation payable to it,
hereunder or with respect to any particular transaction.
"Servicing Transfer Event" shall mean, with respect to any Mortgage
Loan, the occurrence of any of the events described in clauses (a) through (g)
of the definition of "Specially Serviced Mortgage 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 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 Mortgage
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 GMACCM, 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 Mortgage Loan and each REO Loan, the fee designated as such and payable
to the Special Servicer pursuant to Section 3.11(c).
"Special Servicing Fee Rate" shall mean, with respect to each
Specially Serviced Mortgage Loan and each REO Loan, 0.25% per annum.
"Specially Serviced Mortgage Loan" shall mean any Mortgage Loan as
to which any of the following events has occurred:
(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 defaulted Balloon Loan that is delinquent in
respect of its 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 Master Servicer, the Special
Servicer and the Controlling Class Representative prior to the date the
subject Balloon Payment was due, for 60 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 or the Controlling Class Representative
shall have determined, in its good faith, reasonable judgment, that a
default in the making of a Monthly Payment on such Mortgage Loan,
including a Balloon Payment, is likely to occur within 30 days of its
determination and is likely to remain unremedied (without regard to any
grace period) for at least the applicable periods 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 Mortgaged Property as security for
such Mortgage Loan or otherwise materially adversely affects the interests
of Certificateholders, and (ii) continues unremedied for the applicable
grace period under the terms of such Mortgage Loan (or, if no grace period
is specified and the default is capable of being cured, for 30 days); 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 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 Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan, when a Liquidation Event has occurred with respect to such
Mortgage 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 Mortgage Loan to continue to be
characterized as a Specially Serviced Mortgage 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 Mortgage 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 Mortgage Loan's becoming a Specially Serviced Mortgage Loan.
"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 Mortgage
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 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 Mortgage Loan granted or
agreed to by the Master Servicer or 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, 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. Notwithstanding the foregoing, if a Liquidation Event
occurs in respect of any Mortgage Loan or REO Property, then the "Stated
Principal Balance" of such Mortgage 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.
"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 R-I, Class R-II or Class R-III Certificate.
"Sub-Servicer" shall mean any Person with which the Master Servicer
or the Special Servicer, as applicable, 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
Mortgage Loans as provided in Section 3.22.
"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 Regulations Section 1.860F-4(d) and temporary Treasury
Regulations Section 301.6231(a)(7)-1T, 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 LaSalle, 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 following the prior Distribution Date.
"Trustee Fee Rate" shall mean 0.0038% per annum.
"Trustee Liability" shall have the meaning assigned thereto in
Section 8.05(b).
"UCC" shall mean the Uniform Commercial Code in effect in the
applicable jurisdiction.
"UCC Financing Statement" shall mean a financing statement executed
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 or 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 Loan REMIC Remittance Rate
applicable to such Loan REMIC Regular Interest for such Interest Accrual Period,
multiplied by (ii) the Uncertificated Principal Balance of such Loan REMIC
Regular Interest outstanding immediately prior to the related Distribution Date;
(b) in the case of 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 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 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 an amount equal to any portion of any Net
Aggregate Prepayment Interest Shortfall for such Distribution Date allocable to
the REMIC I Regular Interest related to such Loan REMIC Regular Interest as
described in clause (b) below; (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 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 II 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 II Regular Interests for the related Interest Accrual Period.
"Uncertificated Principal Balance" shall mean the principal balance
of any Loan REMIC Regular Interest, any REMIC I Regular Interest or any 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 each REMIC I Regular Interest shall
equal the Cut-off Date Balance of the related Mortgage Loan, and the
Uncertificated Principal Balance of each REMIC II Regular Interest 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., CDC Securities Inc.,
Xxxxxxx Xxxxx Barney Inc. and Xxxxxxx, Xxxxx & Co. 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 political subdivision
thereof, 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 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, 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 following
files and reports: (i) CMSA Loan Setup File (to the extent received), (ii) CMSA
Loan Periodic Update File, (iii) CMSA Property File; and (iv) CMSA Delinquent
Loan Status Report, (v) CMSA Historical Loan Modification Report, (vi) CMSA
Historical Liquidation Report, (vii) CMSA REO Status Report, and (viii) CMSA
Special Servicer Defaulted Loan Report.
"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 and
Class X-CP 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 such Distribution Date.
"Workout Fee" shall mean, with respect to each Corrected Loan, the
fee designated as such and payable to the Special Servicer 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, 1.0%.
"Yield Maintenance Charge" shall mean the payments paid or payable,
if any, as the context requires, on a Mortgage Loan as the result of a Principal
Prepayment thereon, not otherwise due thereon in respect of principal or
interest, which have been calculated (based on scheduled payments of interest
and/or principal on such Mortgage Loan) to compensate the holder for
reinvestment losses based on the value of an interest rate index at or near the
time of prepayment. 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 Mortgage 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 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 Mortgage 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 in the singular 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.
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 "CDC Commercial
Mortgage Trust 2002-FX1". LaSalle 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 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. 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, and pursuant to the Mortgage Loan Purchase Agreement, the
Mortgage Loan Seller shall 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 to the Master Servicer and the Special Servicer. None of the
Depositor, the Trustee, any Custodian, the Master Servicer or the Special
Servicer shall be liable for any failure by the Mortgage Loan Seller to comply
with the document delivery requirements of the Mortgage Loan Purchase Agreement
and this Section 2.01(b).
After the Mortgage Loan Seller's transfer of the Mortgage Loans to
the Trustee pursuant to this Section 2.01(b), neither the Depositor nor the
Mortgage Loan Seller shall take any action inconsistent with the Trust's
ownership of the Mortgage Loans.
(c) The Mortgage Loan Seller has covenanted in the Mortgage Loan
Purchase Agreement that it shall retain with respect to each Mortgage Loan, an
Independent Person for purposes of promptly (as soon as practicable 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 that Independent Person) recording or filing, as the case may 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 (iv) of the definition
of "Mortgage File" and each related UCC-2 and UCC-3 assignment referred to in
clause (viii) of the definition of "Mortgage File".
Notwithstanding the foregoing, the Mortgage Loan Seller may 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, at the expense of the requesting party, promptly undertake to record or
file any such document upon its receipt thereof.
Pursuant to the Mortgage Loan Purchase Agreement, the Mortgage Loan
Seller shall bear the cost of the recording and filing referred to in the prior
two paragraphs with respect to the Mortgage Loans. Each assignment referred to
in the prior two paragraphs 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 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, the Trustee shall forward to the Master
Servicer a copy of each of the aforementioned assignments following the
Trustee's receipt thereof. If any such document or instrument 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 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.
The Trustee shall upon receipt from the Mortgage Loan Seller cause the same to
be duly recorded or filed, as appropriate.
Pursuant to the Mortgage Loan Purchase Agreement, the Mortgage Loan
Seller shall provide the Trustee, the Master Servicer and the Special Servicer
with a power of attorney to enable the Trustee to record at the expense of the
Mortgage Loan Seller any loan documents that, as contemplated by the foregoing
paragraphs of this Section 2.01(c) and/or the definition of "Mortgage File", are
to be recorded and that the Trustee has been requested to record. Pursuant to
the Mortgage Loan Purchase Agreement, the Mortgage Loan Seller is required to
deliver to the Trustee, on or before the Closing Date, five limited powers of
attorney in favor of the Trustee and the Special Servicer to empower the Trustee
and, in the event of the failure or incapacity of the Trustee, the Special
Servicer, to record, at the expense of the Mortgage Loan Seller, any mortgage
loan documents required to be recorded and any intervening assignments with
evidence of recording thereon that are required to be included in the Mortgage
Files. Pursuant to the Mortgage Loan Purchase Agreement, the Mortgage Loan
Seller has agreed to reasonably cooperate with the Trustee and the Special
Servicer in connection with any additional powers of attorney or revisions
thereto that are requested by such parties. The Trustee and each other party
hereto agrees that no such power of attorney shall be used with respect to any
Mortgage Loan by or under authorization by any party hereto except to the extent
that the absence of a document described in the preceding sentence with respect
to such Mortgage Loan remains unremedied as of the earlier of (i) the date that
is 180 days following the delivery of notice of such absence to the Mortgage
Loan Seller, but in no event earlier than 18 months from the Closing Date, and
(ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced
Mortgage Loan.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, and pursuant to the Mortgage Loan Purchase Agreement, the
Mortgage Loan Seller shall deliver to and deposit with the Master Servicer, in
accordance with the transfer instructions provided by the Master Servicer, all
documents and records in the possession of the Mortgage Loan Seller that relate
to such Mortgage Loan and constitute the Servicing File, together with (i) in
the reasonable judgment of the Master Servicer any other document in the
Mortgage Loan Seller's possession that is reasonably necessary for the servicing
of such Mortgage Loan or otherwise reasonably requested by the Master Servicer
in connection with its duties under this Agreement, (ii) all unapplied Escrow
Payments and Reserve Funds in the possession of the Mortgage Loan Seller that
relate to such Mortgage Loan and (iii) a statement indicating which Escrow
Payments and Reserve Funds are allocable to such Mortgage Loan. The Master
Servicer shall hold all such documents, records and funds on behalf of the
Trustee in trust for the benefit of the Certificateholders. Pursuant to the
Mortgage Loan Purchase Agreement, the Mortgage Loan Seller shall initially
provide the Master Servicer with the CMSA Loan Setup File and the CMSA Property
File on or before the Closing Date.
None of the Depositor, the Trustee, any Custodian, the Master
Servicer or the Special Servicer shall be liable for any failure of the Mortgage
Loan Seller to comply with the obligations imposed on it by the Mortgage Loan
Purchase Agreement as described herein.
(e) Pursuant to the Mortgage Loan Purchase Agreement, the Mortgage
Loan Seller shall deliver to the Trustee with respect to any Mortgage Loan with
an original principal balance of $20,000,000 or greater the opinions of counsel
obtained in connection with the origination of such Mortgage Loan(s) regarding
the non-consolidation of the related Mortgagor(s) in any insolvency proceeding
of any such Mortgagor's general partner or managing member, as applicable, any
affiliated property manager, or any holder of more than a 49% direct ownership
interest in any such Mortgagor. None of the Depositor, the Master Servicer and
the Special Servicer shall have any obligation to review the loan documents
received with respect to any Mortgage Loan to determine whether such opinions
have been delivered.
(f) 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. In connection with the foregoing, the
Trustee hereby certifies to each of the other parties hereto, the Mortgage Loan
Seller and each Underwriter that, as to each Mortgage Loan, (i) the items
contained in clause (i) 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 Mortgage Loan has
been reviewed by it or by such Custodian on its behalf and (A) appears regular
on its face (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 Mortgage 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 every 90 days 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 Mortgage Loan Seller 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 Mortgage 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, the Mortgage Loan Seller and each
Underwriter 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 (i) through (v), (vii),
(viii) (without regard to the second parenthetical in such clause (viii)), (ix),
(xvi) and (xix) 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 Mortgage 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 and any Underwriter on request.
(c) None of the Depositor, 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 Mortgage Loans delivered to it, or to one or more of
them, 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
Depositor, 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 (i) through (v), (vii) through (ix), (xvi) and (xix) 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.
(e) The parties acknowledge that the Mortgage Loan Purchase
Agreement requires the Mortgage Loan Seller, if, after the Closing Date, the
Mortgage Loan Seller comes into possession of any documents or records that
constitute part of the Mortgage File or Servicing File for any Mortgage Loan,
the Mortgage Loan Seller 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
(including by virtue of the applicable document being identified (and such
identification having been confirmed as correct) by the Trustee on any exception
report delivered by the Trustee pursuant to Section 2.02(b)) 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 Mortgage Loan Purchase
Agreement with respect to any Mortgage Loan (a "Breach"), such party shall give
prompt written notice thereof to each of the Rating Agencies, the Mortgage Loan
Seller, the other parties hereto and the Controlling Class Representative (which
notice shall include whether the related Mortgage Loan is a Specially Serviced
Mortgage Loan). If any such Document Defect or Breach materially and adversely
affects the value of any Mortgaged Property or Mortgage Loan or 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. Subject to Section 2.03(e), 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 (and the Special Servicer may) require the Mortgage
Loan Seller to, subject to the conditions provided for in the Mortgage Loan
Purchase Agreement, not later than 90 days from the earlier of the Mortgage Loan
Seller'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 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) (any
such 90-day period, the "Initial Resolution Period"), 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 the Initial
Resolution Period, repurchase the affected Mortgage Loan at the applicable
Purchase Price by wire transfer of immediately available funds to the Custodial
Account; provided, however, that if (i) such Material Document Defect or
Material Breach is capable of being cured but not within the Initial Resolution
Period, (ii) such Material Document Defect or Material Breach is not related to
any Mortgage Loan's not being a "qualified mortgage" within the meaning of the
REMIC Provisions, (iii) the Mortgage Loan Seller has commenced and is diligently
proceeding with the cure of such Material Document Defect or Material Breach
within the Initial Resolution Period, (iv) the related Mortgage Loan is not a
Specially Serviced Mortgage Loan, and (v) the Mortgage Loan Seller is not
pursuing a case of such Material Document Defect or Material Breach pursuant to
Section 2.03(e), then the Mortgage Loan Seller shall have an additional period
equal to the applicable Resolution Extension Period 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 a
Resolution Extension Period, the Mortgage Loan Seller shall 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
Resolution Period and what actions the Mortgage Loan Seller is pursuing in
connection with the cure thereof and stating that the Mortgage Loan Seller
anticipates that such Material Document Defect or Material Breach will be cured
within the Resolution Extension Period). The Master Servicer shall notify the
Mortgage Loan Seller if the related Mortgage Loan becomes a Specially Serviced
Mortgage Loan during the Initial Resolution Period. Any of the following
document defects shall be conclusively presumed to materially and adversely
affect the value of a Mortgaged Property, value of a Mortgage Loan or the
interests of Certificateholders in a Mortgage Loan and be a Material Document
Defect: (a) the absence from the Mortgage File of the original signed Mortgage
Note, unless the Mortgage File contains a signed lost note affidavit that
appears to be regular on its face, (b) the absence from the Mortgage File of the
original signed Mortgage that appears to be regular on its face, unless there is
included in the Mortgage File a certified copy of the Mortgage by the local
authority with which the Mortgage was recorded and a certificate stating that
the original signed Mortgage was sent for recordation, (c) the absence from the
Mortgage File of the original or a copy of the lender's title insurance policy,
together with all endorsements or riders (or copies thereof) that were issued
with or subsequent to the issuance of such policy, or marked up insurance binder
or title commitment which marked as a binding and countersigned by title
company, insuring the priority of the Mortgage as a first lien on the Mortgaged
Property, (d) the absence from the Mortgage File of any intervening assignments
required to create a complete chain of assignment to the Trustee on behalf of
the Trust, unless there is included in the Mortgage File a certified copy of the
intervening assignment and a certificate stating that the original intervening
assignments were sent for recordation, (e) the absence from the Mortgage File of
any ground lease, or (f) in the case of a Mortgage Loan secured by a hospitality
or healthcare property, a filed UCC-1 financing statement.
(b) If the Mortgage Loan Seller disputes that a Material Document
Defect or Material Breach exists with respect to a Mortgage Loan or otherwise
fails (i) to effect a correction or cure of such Material Document Defect or
Material Breach or (ii) to repurchase the affected Mortgage Loan from the Trust,
each in accordance with the Mortgage Loan Purchase Agreement, then provided that
(x) the period of time provided for the Mortgage Loan Seller to correct,
repurchase or cure has expired and (y) the Mortgage Loan is then in default and
is then a Specially Serviced Mortgage Loan, the Special Servicer may, subject to
the Servicing Standard, modify, workout or foreclose, sell or otherwise
liquidate (or permit the liquidation of) the Mortgage Loan pursuant to Section
3.09, Section 3.18 and Section 3.20, as applicable, hereof, while pursuing the
repurchase claim. The Mortgage Loan Seller has acknowledged and agreed under the
Mortgage Loan Purchase Agreement that any modification of the Mortgage Loan
pursuant to a workout shall not constitute a defense to any repurchase claim nor
shall such modification and workout change the Purchase Price due from the
Mortgage Loan Seller for any repurchase claim. In the event of any such
modification and workout, the Mortgage Loan Seller has agreed under the Mortgage
Loan Purchase Agreement to repurchase the Mortgage Loan as modified and that the
Purchase Price shall include any Workout Fee paid to the Special Servicer up to
the date of repurchase plus the present value (calculated at a discount rate
equal to the applicable Mortgage Rate) of the Workout Fee that would have been
payable to the Special Servicer in respect of such Mortgage Loan if the Mortgage
Loan performed in accordance with its terms to its Maturity Date, provided that
no amount shall be paid by the Mortgage Loan Seller in respect of any Workout
Fee if a Liquidation Fee already comprises a portion of the Purchase Price. The
Mortgage Loan Seller shall be notified promptly and in writing by (i) the
Trustee of any notice that it receives that an Purchase Option Holder intends to
exercise its option to purchase the Mortgage Loan in accordance with and as
described in Section 3.18 hereof and (ii) the Special Servicer of any offer that
it receives to purchase the successor REO Property, each in connection with such
liquidation. Upon the receipt of such notice by the Mortgage Loan Seller, the
Mortgage Loan Seller shall then have the right to purchase the related Mortgage
Loan or the successor REO Property, as applicable, from the Trust at a purchase
price equal to, in the case of clause (i) of the immediately preceding sentence,
the option purchase price or, in the case of clause (ii) of the immediately
preceding sentence, the amount of such offer. Notwithstanding anything to the
contrary contained herein or in the Mortgage Loan Purchase Agreement, the right
of any Purchase Option Holder to purchase such Mortgage Loan shall be subject
and subordinate to the Mortgage Loan Seller's right to purchase such Mortgage
Loan as described in the immediately preceding sentence. The Mortgage Loan
Seller shall have five (5) Business Days to notify the Trustee or the Special
Servicer, as applicable, of its intent to so purchase the Mortgage Loan or the
successor REO Property from the date that it was notified of such intention to
exercise such option or of such offer. The Special Servicer shall be obligated
to provide the Mortgage Loan Seller with any appraisal or other third party
reports relating to the Mortgaged Property within its possession to enable the
Mortgage Loan Seller to evaluate the related Mortgage Loan or the successor REO
Property. Any sale of the related Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the successor REO Property, to a Person other than the
Mortgage Loan Seller shall be without (i) recourse of any kind (either expressed
or implied) by such Person against the Mortgage Loan Seller and (ii)
representation or warranty of any kind (either expressed or implied) by the
Mortgage Loan Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the successor REO Property or Mortgage Loan) shall not prejudice any claim
against the Mortgage Loan Seller for repurchase of the REO Mortgage Loan or
successor REO Property. In such an event, the Master Servicer shall notify the
Mortgage Loan Seller of the discovery of the Material Document Defect or
Material Breach and the Mortgage Loan Seller shall have 90 days to correct or
cure such Material Document Defect or Material Breach or purchase the successor
REO Property at the Purchase Price. If the Mortgage Loan Seller fails to correct
or cure the Material Document Defect or Material Breach or purchase the
successor REO Property, then the provisions above regarding notice of offers
related to such REO Property and the Mortgage Loan Seller's right to purchase
such REO Property shall apply. If a court of competent jurisdiction issues a
final order that the Mortgage Loan Seller is or was obligated to repurchase the
related Mortgage Loan or the successor REO Loan or the Mortgage Loan Seller
otherwise accepts liability, then, after the expiration of any applicable appeal
period, but in no event later than the termination of the Trust pursuant to
Section 9.01 hereof, the Mortgage Loan Seller will be obligated to pay to the
Trust the difference between any Liquidation Proceeds received upon such
liquidation (including those arising from any sale to the Mortgage Loan Seller)
and the Purchase Price; provided that the prevailing party in such action shall
be entitled to recover from the other party all costs, fees and expenses
(including reasonable attorneys fees) related thereto.
In connection with any sale or other liquidation of a Mortgage Loan
or a successor REO Property as described in this Section 2.03, the Special
Servicer shall not receive a Liquidation Fee in connection with such sale or
other liquidation until a final determination has been made, as set forth in the
preceding paragraph, as to whether the Mortgage Loan Seller is or was obligated
to repurchase such Mortgage Loan or REO Property. Upon such determination, the
Special Servicer shall be entitled to collect a Liquidation Fee (i) with respect
to a determination that the Mortgage Loan Seller is or was obligated to
repurchase, based upon the full Purchase Price of the related Mortgage Loan,
including all related expenses up to the date the remainder of such Purchase
Price is actually paid, with such Liquidation Fee payable by the Mortgage Loan
Seller or (ii) with respect to a determination that the Mortgage Loan Seller is
not or was not obligated to repurchase (or the Trust decides that it will no
longer pursue a claim against the Mortgage Loan Seller for repurchase), based
upon the Liquidation Proceeds as received upon the actual sale or liquidation of
such Mortgage Loan, with such amount to be paid from amounts in the Collection
Account.
(c) 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 Mortgage
Loan Seller, upon delivery to each of them of a receipt executed by the Mortgage
Loan Seller, all portions of the Mortgage File and other documents pertaining to
such Mortgage Loan possessed by it, and each document that constitutes a part of
the Mortgage File shall be endorsed or assigned to the extent necessary or
appropriate to the Mortgage Loan Seller or its designee in 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 a successor 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.
(d) In the event that the Master Servicer receives notice from the
Mortgagor under any Loan REMIC Mortgage Loan that (i) such Mortgagor intends to
defease such Loan REMIC Mortgage Loan in whole on or before the second
anniversary of the Startup Day and the amount tendered by such Mortgagor to
defease such Loan REMIC Mortgage Loan will be insufficient to prepay the related
Loan REMIC Mortgage Loan in full on the proposed defeasance date or (ii) such
Mortgagor intends to partially defease such Loan REMIC Mortgage Loan on or prior
to 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 such
Mortgage Loan at the Purchase Price applicable to a repurchase pursuant to
Section 2.03(a) (without regard to clause (e)(iii) of the definition of Purchase
Price), upon deposit by the related Mortgagor of cash sufficient to purchase the
Defeasance Collateral contemplated by the related loan documents, no later than
the related defeasance date. Such repurchase obligation of the Mortgage Loan
Seller described in this Section 2.03(d) shall be guaranteed by CDC Financial
Products Inc., an affiliate of the Mortgage Loan Seller. The Trustee and the
Master Servicer are hereby authorized and directed to take any and all actions
necessary or appropriate to enforce the obligations of CDC Financial Products
Inc. under Section 7 of the Mortgage Loan Purchase Agreement.
(e) Notwithstanding anything to the contrary herein, in the case
of a breach of any representation and warranty specified in paragraph (xxviii)
or (xxxvi) of Exhibit B to the Mortgage Loan Purchase Agreement (an
"Expense-Related Breach") relating to payment of costs and expenses relating to
(i) the substitution or release of collateral, (ii) defeasance or (iii)
assumption of a Mortgage Loan by a third party (without regard to any exceptions
relating thereto listed on Schedule I to such Exhibit B, which exceptions shall
be deemed, solely for the purposes of the remedies afforded by this Section
2.03(e), to also constitute a "breach"), the Mortgage Loan Seller shall, within
90 days of its receipt of notice of such breach pay such costs and expenses;
provided that, the Master Servicer or the Special Servicer, as applicable, has
made a reasonable effort consistent with the Servicing Standard to enforce any
and all relevant provisions contained in the related loan documents in the
collection of such costs and expenses from the related Mortgagor, and the Master
Servicer or the Special Servicer, as applicable, has been unsuccessful in the
collection of such costs and expenses from the related Mortgagor; and provided
further that, with respect to any Mortgage Loan the related loan documents of
which provide for a limit on the amount of such costs and expenses payable by
the related Mortgagor, the Mortgage Loan Seller shall be obligated to pay only
an amount equal to the excess of (A) the amount of such costs and expenses over
(B) such amount the related Mortgagor is required to pay under the related loan
documents. If the Master Servicer or the Special Servicer allows the events
described in clauses (i), (ii) or (iii) to occur without the payment of such
related costs and expenses which are required to be paid by the Mortgagor under
the related loan documents, then, the Master Servicer or the Special Servicer,
as applicable, shall pay such costs and expenses (without right of reimbursement
from the Trust), unless the Controlling Class Representative consents to the
waiver of such costs and expenses. The Master Servicer shall deliver or cause to
be delivered to the Mortgage Loan Seller, along with the notice of non-payment,
a statement setting forth in appropriate detail the nature and amount of such
cost or expense, together with a certification from the Master Servicer that the
related Mortgagor has been requested to pay such cost or expense and to date,
has failed to do so. In addition but subject to the preceding three sentences,
if the Mortgage Loan Seller is obligated to pay a cost or expense pursuant to
this Section 2.03(e) but has not yet done so by the date that the Master
Servicer or any other Person is required to make a Servicing Advance hereunder
in respect of such cost or expense, then the Mortgage Loan Seller shall pay to
the advancing Person all accrued and unpaid interest on such Servicing Advance
but only to the extent interest on such Servicing Advance would be payable
hereunder. The remedy described in this Section 2.03(e) shall constitute the
sole remedy available to the Certificateholders, or the Trustee on behalf of the
Certificateholders with respect to an Expense-Related Breach.
(f) In connection with the repurchase of any 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 and Section 9.02 hereof. 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 related Loan REMIC in
accordance with the REMIC Provisions.
(g) The 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 2.04 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, 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.
(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 Agreement, 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 and was the sole owner and holder of each Mortgage Loan), (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 representations, warranties and covenants of the Depositor
set forth in Section 2.04(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 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 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.
Section 2.06 Execution, Authentication and Delivery of Class R-I
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 Interest has 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 (insofar as they related
to the Loan REMICs) evidenced by the Class R-I Certificates, together with the
Loan REMIC Regular Interest, constitute the entire beneficial ownership of the
Loan REMICs. The rights of the Class R-I Certificateholders and REMIC I (as
holder of the REMIC I Regular Interest) to receive distributions from the
proceeds of the Loan REMIC Mortgage Loans (or any successor REO Loans) in
respect of the Class R-I Certificates and the Loan REMIC Regular Interests,
respectively, and all ownership interests evidenced or constituted by the Class
R-I 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-I 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 (insofar as they
relate to REMIC I) 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 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
REMIC III as the holder of the REMIC II Regular Interests.
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.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Mortgage Loans. (a) Each of the
Master Servicer and the Special Servicer shall service and administer the
Mortgage 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, as determined in the good faith and reasonable judgement 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
and the respective Mortgage Loans; and (iii) to the extent consistent with the
foregoing, the Servicing Standard. Without limiting the foregoing, and subject
to Section 3.21, (i) the Master Servicer shall service and administer all
Mortgage Loans that are not Specially Serviced Mortgage Loans and shall render
such services with respect to the Specially Serviced Mortgage Loans as are
specifically provided for herein, and (ii) the Special Servicer shall service
and administer each Specially Serviced Mortgage Loan and REO Property and shall
render such services with respect to the Mortgage Loans that are not Specially
Serviced Mortgage Loans as are specifically provided for herein.
(b) Subject to Section 3.01(a) and Section 6.08 (taking account of
Section 6.08(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 such servicing and administration which 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 Mortgage Loans it is obligated to service hereunder, is hereby
authorized and empowered by the Trustee to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, (i) any and all financing
statements, continuation statements and other documents or instruments necessary
to maintain the lien 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 and
Section 6.08 (taking account of Section 6.08(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 Mortgage 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 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 relationship of each of the Master Servicer and the
Special Servicer to the Trustee under this Agreement is intended by the parties
to be that of an independent contractor and not that of a joint venturer,
partner or agent.
(d) The Master Servicer shall not be obligated to service in a
manner different from any non-Specially Serviced Mortgage Loan any Balloon Loan
that is delinquent in respect of its Balloon Payment but as to which a Servicing
Transfer Event has not occurred; provided that the Master Servicer shall
transfer the servicing of such Mortgage Loan to the Special Servicer upon the
occurrence of a Servicing Transfer Event with respect thereto.
Section 3.02 Collection of Loan Payments. (a) Each of the Master
Servicer and the Special Servicer (with respect to Specially Serviced Mortgage
Loans) shall undertake reasonable efforts to collect all payments required under
the terms and provisions of the Mortgage Loans it is obligated to service
hereunder and shall follow such collection procedures as are consistent with 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 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 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. Consistent with the foregoing, the Special Servicer, with regard to a
Specially Serviced Mortgage Loan, or the Master Servicer, with regard to a
Mortgage Loan that is not a Specially Serviced Mortgage Loan, may waive or defer
any Default Charges in connection with collecting any late payment on a Mortgage
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) Amounts collected in respect of or allocable to any particular
Mortgage Loan in the form of payments from Mortgagors, Liquidation 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 and, if applicable, unpaid Liquidation Expenses; 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 without limitation 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, 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, Yield Maintenance Charge, Repayment of Premium Amount or Excess
Defeasance Deposit Proceeds then due and owing under such Mortgage Loan;
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.
(c) Collections in respect of each REO Property (exclusive of
amounts to be applied to the payment of the costs of operating, managing,
maintaining and disposing of such REO Property) shall be treated: first, as a
recovery of any related unreimbursed Servicing Advances; second, as a recovery
of accrued and unpaid interest on the related REO Loan at the related Mortgage
Rate to but not including the Due Date in the month of receipt; third, as a
recovery of principal of the related REO Loan to the extent of its entire unpaid
principal balance; and fourth, as a recovery of any other amounts deemed to be
due and owing in respect of the related REO Loan.
(d) The applications of amounts received in respect of any
Mortgage Loan or any REO Property pursuant to paragraphs (b) and (c) of this
Section 3.02 shall be determined by the Master Servicer in its good faith and
reasonable judgment in accordance with the Servicing Standard.
(e) With respect to the Mortgage Loan identified as Parkview Tower
on the Mortgage Loan Schedule, from and after the related Anticipated Repayment
Date and for so long as said Mortgage Loan is outstanding, all amounts payable
to the Seller as Additional Interest (as defined in the related Loan Agreement
and generally described on Schedule VI attached hereto, such term being the
"Parkview Tower Additional Interest") shall be subordinated to the prior payment
in full of all unpaid principal and interest on this Mortgage Loan and the
Master Servicer and the Trustee are hereby directed to apply such Parkview Tower
Additional Interest in accordance with such subordination.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts. (a) The Master Servicer shall, as to all
Mortgage Loans, 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 Mortgage Loan or, in the case of clauses (iv) and (v), 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, 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 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 Mortgage Loan 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
Mortgage Loan, 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 Mortgage 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 Mortgage 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, for the Mortgage Loans that require
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 Mortgage Loan (or, if
such Mortgage Loan 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 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, provided that, the Master
Servicer shall make a Servicing Advance for any delinquent tax payments prior to
the earlier of (i) the imposition of a late payment penalty charge or (ii) the
receipt of notice of the interest to create a tax lien on the related Mortgaged
Property.
(c) The Master Servicer shall, as to each and every Mortgage 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), (iii) premiums on Insurance Policies, and (iv)
with respect to the Mortgage Loan identified on the Mortgage Loan Schedule as
Portland Office Portfolio, if necessary, a security deposit of $25,000 to the
related ground lessor for the right to assign the related ground lease without
the related ground lessor's consent, 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 3.02 and Section 3.05(a). 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 Mortgage Loans, notwithstanding that the terms of such
Mortgage 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, establish
and maintain, as applicable, one or more accounts (the "Reserve Accounts"), into
which all 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 (following receipt and review
by the Special Servicer of all relevant information reasonably requested by the
Special Servicer).
Section 3.04 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 "Custodial Account"), in which the amounts
described in clauses (i) through (viii) below shall be deposited and held on
behalf of the Trustee in trust for the benefit of the Certificateholders. 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 by Mortgagors or other collections on
the 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 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 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 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, Prepayment
of Premium Amounts, Excess Defeasance Deposit Proceeds and late payment
charges received in respect of any Mortgage Loan;
(iv) all Insurance Proceeds and Liquidation Proceeds received in
respect of any 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 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 or a master
single interest 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;
(ix) any amounts required to be transferred from the Excess
Liquidation Proceeds Reserve Account; and
(x) any amounts required to be transferred from any debt service
reserve accounts with respect to the Mortgage Loans.
The foregoing requirements for deposit in the 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 that the Master
Servicer or Special Servicer are entitled to as additional servicing
compensation 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 in 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 to which the Special Servicer
is entitled. The 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, 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
shall be deposited by the Special Servicer into the REO Account and thereafter
remitted to the Master Servicer for deposit into the Custodial Account as and to
the extent provided in Section 3.16(c).
If and when any Mortgagor under a Defeasance Loan (other than an
Early Defeasance Mortgage Loan prior to the second anniversary of the Startup
Day) elects to defease all or any part of its 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 to secure payment on the related Defeasance Loan. The Defeasance Deposit
Account shall 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 Mortgage Loan(s).
Notwithstanding the foregoing, in the event that the Master Servicer
receives cash to purchase Defeasance Collateral for an Early Defeasance Loan
that the Mortgage Loan Seller is required to repurchase pursuant to Section
2.03(d), the Master Servicer shall hold such cash on behalf of the Trust Fund
until the Mortgage Loan Seller tenders the full Purchase Price in connection
with such repurchase and thereafter retain such cash in the Defeasance Deposit
Account pending transfer to the Mortgage Loan Seller on the date of such
repurchase.
(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 the Trustee that are required by the terms of
this Agreement to be deposited therein.
In the event that the Master Servicer fails, on any P&I Advance Date
or 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 P&I Advance Date or Master Servicer Remittance Date, as the case
may be, to but not including the related Distribution Date.
On the Master Servicer Remittance Date in March of each year
(commencing in March 2003), 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.
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") to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the Interest
Reserve Account shall 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, an
amount equal to the Interest Reserve Amount, if any, in respect of such Interest
Reserve Mortgage Loan for such Distribution Date.
(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 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. Amounts so remitted with respect to a Loan REMIC Loan shall be
deemed to have been transferred from the related Loan REMIC as a distribution
with respect to the related Loan REMIC Residual Interest and a deposit to REMIC
I in respect of the residual interest in REMIC I.
(e) Funds in the Custodial Account may be invested only in
Permitted Investments in accordance with the provisions of Section 3.06. 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 and the Special Servicer of the location of the
Custodial Account as of the Closing Date and of the new location of the
Custodial Account promptly after 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 Chicago, Illinois.
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 3.05 Permitted Withdrawals From the 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 Custodial Account for any of the following purposes (the
order set forth below not constituting an order of priority for such
withdrawals):
(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 any
Mortgage Loan or 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 P&I Advance (other than
Nonrecoverable Advances, which are reimbursable pursuant to clause (vii)
below) being limited to amounts 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 Loan as to which such P&I Advance was
made;
(iii) to pay to itself earned and unpaid Master Servicing Fees in
respect of each Mortgage Loan and REO Mortgage Loan; the Master Servicer's
right to payment pursuant to this clause (iii) with respect to any
Mortgage Loan or REO Loan being limited to amounts received on or in
respect of such Mortgage Loan (whether in the form of payments,
Liquidation Proceeds or Insurance Proceeds) or such REO Loan (whether in
the form of REO Revenues, Liquidation Proceeds or Insurance Proceeds) that
are allocable as a recovery of interest thereon;
(iv) to pay (A) to the Special Servicer, out of general collections
on the Mortgage Loans and any REO Properties, earned and unpaid Special
Servicing Fees in respect of each Mortgage Loan and REO Mortgage Loan, and
(B) to itself, out of general collections on the Mortgage Loans and REO
Properties, any Master Servicing Fee earned in respect of any Mortgage
Loan or 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
Custodial Account of all amounts received in connection therewith;
(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 Mortgage Loan, Corrected Mortgage Loan and/or REO
Mortgage Loan, as applicable, in the amounts and from the sources
specified in Section 3.11(c);
(vi) to reimburse the Fiscal Agent, the Trustee and itself, in that
order, for any unreimbursed Servicing Advances made thereby with respect
to any Mortgage Loan or REO Property, the Fiscal Agent's, the Trustee's
and the Master Servicer's respective rights to reimbursement pursuant to
this clause (vi) with respect to any Servicing Advance being limited to
payments made by the related Mortgagor that are allocable to such
Servicing Advance, or to Liquidation Proceeds, Insurance Proceeds (net of
Liquidation Fees and Liquidation Expenses payable therefrom), 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 and itself, in that
order, out of general collections on the Mortgage Loans and any REO
Properties, for any unreimbursed Advances 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) and 4.03(d), as applicable, on any Advance made
thereby, 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 permitted to be
satisfied (A) first, out of Default Charges collected on or in respect of
the related Mortgage Loan or REO Mortgage Loan, as the case may be, as to
which the related Advance was made, as and to the extent contemplated by
Section 3.25, and (B) then, to the extent that such Default Charges
described in the immediately preceding clause (A) are insufficient, but
only after such Advance has been reimbursed, out of general collections on
the Mortgage Loans and any REO Properties if such Advance has been
reimbursed on a prior date;
(ix) to pay any unpaid expense that would otherwise become an
Additional Trust Fund 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), such payment to be
made out of Default Charges collected on or in respect of the related
Mortgage Loan or REO Mortgage Loan, as to which such expense was incurred,
and as to the extent contemplated by Section 3.25.
(x) to pay, out of general collections on the Mortgage Loans and any
REO Properties, for costs and expenses incurred by the Trust Fund pursuant
to Section 3.09(c) (including the costs of environmental testing and
remediation);
(xi) 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, (B) Prepayment
Interest Excesses collected on the Mortgage Pool and (C) Net Default
Charges that accrued in respect of Mortgage Loans 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 that accrued in respect of Specially Serviced Mortgage
Loans and REO Mortgage Loans;
(xii) to pay, out of general collections on the Mortgage Loans and
any REO Properties, for the cost of an independent appraiser or other
expert in real estate matters retained pursuant to Section 3.09(a),
3.11(h), 3.18(g) or 4.03(c);
(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
Loans and any REO Properties, any amounts payable to any such Person
pursuant to Section 6.03;
(xiv) to pay, out of general collections on the Mortgage Loans and
any REO Properties, for (A) the cost of the Opinion of Counsel
contemplated by Section 11.02(a) and (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;
(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;
(xvi) to pay, in accordance with Section 3.11(i), out of general
collections on the Mortgage Loans and any REO Properties, any servicing
expenses, that would, if advanced, constitute Nonrecoverable Servicing
Advances;
(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 Custodial Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, in
connection with any withdrawal from the 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 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 pursuant to this Agreement it is otherwise clear
that the Special Servicer, the Trustee or the Fiscal Agent, as the case may be,
is entitled to such amounts, 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 and property-by-property
basis, for the purpose of justifying any request for withdrawal from the
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 and property-by-property basis, for the purpose of
justifying any request for withdrawal from the 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 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 Loans and any REO Properties, any
amounts payable or reimbursable to any such Person pursuant to Section
7.02, Section 8.05 and/or Section 8.08, as applicable;
(iii) to pay, out of general collections on the Mortgage Loans and
any REO Properties, for the cost of the Opinions of Counsel sought by the
Trustee or the Tax Administrator (A) as provided in clause (iv) of the
definition of "Disqualified Organization", (B) as contemplated by Sections
9.02(a)(i), 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 Loans and
any REO Properties, 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 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 Loans and any REO Properties, 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 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.
The Trustee shall be entitled to withdraw amounts from the Collection Account
referred to in clauses (ii) through (vi) above prior to distributing any amounts
to the Certificateholders.
(c) On each Master Servicer Remittance Date in March (commencing
in March 2003), 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
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) (without regard to any amounts payable to the Holders of
Residual Interest Certificates), 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 3.06 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 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). 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 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
either a "certificated security" or an "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 account) 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 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
(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) or 3.05(a), 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 (i) 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 and (ii) is not an affiliate of the Master Servicer or Special
Servicer, as the case may be.
(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.
(c) [Reserved].
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including the calculation
of the Available Distribution Amount and the Master Servicer Remittance Amount,
the amounts so invested shall be deemed to remain on deposit in such Investment
Account.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage. (a) The Master Servicer (with respect to Loans that are
not Specially Serviced Mortgage Loans) and the Special Servicer (with respect to
Specially Serviced Mortgage Loans) shall use reasonable efforts, consistent with
the Servicing Standard, to cause to be maintained for each Mortgaged 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 the Master Servicer shall not permanently waive
any such insurance requirement by reason of such exception); 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 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 xxxxx "X0" from Xxxxx'x and "A" from Fitch and S&P (or, in the
case of any 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 obtain or cause to be maintained for any
such Mortgaged Property any such insurance that the related Mortgagor is
required but fails to maintain, but only to the extent that the Trust has an
insurable interest, and such insurance is available at a commercially reasonable
rate as determined in accordance with the Servicing Standard. In addition, with
respect to coverage for acts of terrorism, the Master Servicer will not be
required to maintain such coverage if the risks and costs associated with
obtaining or maintaining such coverage outweigh the benefits to the Trust of
obtaining or maintaining such coverage, as determined by the Master Servicer in
accordance with the Servicing Standard. Upon request, the Master Servicer shall
provide to the Rating Agencies or the Controlling Class Representative in a
timely manner such information as the Rating Agencies or the Controlling Class
Representative may reasonably request relating to the extent of insurance
coverage maintained for acts of terrorism with respect to each of the Mortgage
Loans. 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. 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 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 as
determined in accordance with the Servicing Standard. In addition, with respect
to coverage for acts of terrorism, the Special Servicer will not be required to
maintain such coverage if the risks and costs associated with obtaining or
maintaining such coverage outweigh the benefits to the Trust of obtaining or
maintaining such coverage, as determined by the Special Servicer in accordance
with the Servicing Standard; 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 xxxxx "X0" from Xxxxx'x and "A" from Fitch and S&P (or, in
the case of any 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 Mortgage 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) in the case of amounts received in respect of a
Mortgage 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) 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 Mortgage Loan or
REO Loan, notwithstanding that the terms of such loan so permit, but shall be
recoverable by the Master 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 Mortgage 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 "A2
from Xxxxx'x and "A" from Fitch and S&P (or, in the case of any 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 Custodial Account from its own
funds the amount not otherwise payable under the blanket policy because of such
deductible clause to the extent that any such deductible exceeds the deductible
limitation that pertained to the related Mortgage Loan (or, in the absence of
any such deductible limitation, the deductible limitation 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 claims under any such blanket
policy in a timely fashion in accordance with the terms of such policy.
If the Master Servicer shall cause any Mortgaged Property or the
Special Servicer shall cause any REO Property to be covered by a master force
placed insurance policy naming the Master Servicer or the Special Servicer, as
applicable, on behalf of the Trustee as the loss payee or insured, as
applicable, then to the extent such policy (i) is obtained from a Qualified
Insurer that possesses (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 xxxxx "X0" from Xxxxx'x and "A" from Fitch and S&P
(or, in the case of any 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 applicable, shall conclusively
be deemed to have satisfied its obligation to cause such insurance to be
maintained on such Mortgaged Property (in the case of the Master Servicer) or
REO Property (in the case of the Special Servicer). If the Master Servicer shall
cause any Mortgaged Property as to which the related Mortgagor has failed to
maintain the required insurance coverage, or the Special Servicer shall cause
any REO Property, to be covered by such master single interest insurance policy,
then the incremental costs of such insurance applicable to such Mortgaged
Property or REO Property (i.e., other than any minimum or standby premium
payable for such policy whether or not any Mortgaged Property or REO Property is
covered thereby) paid by the Master Servicer or the Special Servicer, as
applicable, shall constitute a Servicing Advance. The Master Servicer shall,
consistent with the Servicing Standard and the terms of the related loan
documents, pursue the related Mortgagor for the amount of such incremental
costs. Such master force placed insurance 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 Custodial Account from its own funds the amount not
otherwise payable under the master single interest policy because of such
deductible clause to the extent that any such deductible exceeds the deductible
limitation that pertained to the related Mortgage Loan (or, in the absence of
any such deductible limitation, the deductible limitation 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 Certificateholders, claims under any such master force
placed insurance policy in a timely fashion in accordance with the terms of such
policy.
(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 Mortgage 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 by entities
having) a "claims paying ability" or "financial strength" rating, as applicable,
of at xxxxx "X0" from Xxxxx'x and "A" from Fitch and S&P (or, in the case of any
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 or FHLMC (Xxxxxxx Mac) 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 Mortgage 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 xxxxx "X0" from Xxxxx'x and "A" from Fitch and S&P (or, in the
case of any 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 Xxx or FHLMC (Xxxxxxx Mac) 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 (or,
in the case of the initial Master Servicer and Special Servicer, their
respective direct or indirect parent), are rated at xxxxx "X0" from Xxxxx'x and
"A" from Fitch and S&P (or, in the case of any 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).
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 Mortgage Loan (other than a Specially Serviced Mortgage 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 Mortgage 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 written copy of such
recommendation (which shall include the reason therefor) and the materials upon
which such recommendation is based and the Special Servicer shall provide a
written copy of such recommendation and materials to the Controlling Class
Representative. The Special Servicer shall have the right hereunder, within 10
Business 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) and Section 6.08, grant consent to any
such request for such transfer and/or assumption in accordance with the terms of
the Mortgage Loan and this Agreement, including, without limitation, the
Servicing Standard. If the Special Servicer does not respond within such 10
Business Day period, the Special Servicer's consent shall be deemed granted. The
Controlling Class Representative shall have the right, within five business days
following a response from the Special Servicer or the expiration of the 10
Business Day period, to analyze and approve the recommendation of the Special
Servicer. If the Controlling Class Representative does not respond within such
five business days, the action proposed by the Special Servicer 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 Mortgage 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 Mortgage
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 and each Rating Agency 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 any relevant supporting
documentation. The Master Servicer shall be entitled (as additional servicing
compensation) to 50% of each assumption fee and 100% of each assumption
application fee, for approving a transfer of a Mortgaged Property or an interest
in a Mortgagor collected from a Mortgagor in connection with an assumption or
substitution agreement executed pursuant to this Section 3.08(a) or a transfer
of interest in a Mortgagor approved pursuant to this Section 3.08(a), and the
Special Servicer shall be entitled (as additional special servicing
compensation) to the remaining 50% of each such assumption fee. The Master
Servicer shall not be permitted to waive the payment of any such fee. Further,
subject to the terms of the related loan documents and applicable law, no
assumption of a Mortgage Loan shall be made or transfer of interest in a
Mortgagor approved, unless all costs, including in connection with seeking
Rating Agency confirmation (to the extent required under the related loan
documents or this Agreement), in respect of such assumption or transfer are paid
by the related Mortgagor; provided that, if and to the extent that Rating Agency
confirmation is required by the related loan documents in connection with an
assumption, but the costs associated therewith and any other costs associated
with such assumption are not collected from the related Mortgagor, subject to
the limitations described in Section 2.03(e), such unpaid costs shall be
satisfied by the Mortgage Loan Seller out of its own funds without right of
reimbursement from the Trust Fund.
(b) With respect to a transfer and assumption of a Specially
Serviced Mortgage Loan, if any Mortgage contains restrictions on transfers of
the related Mortgaged Property and/or transfers of interests in the related
Mortgagor, then the Special Servicer, on behalf of the Trust, 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 any relevant
supporting documentation in respect thereof, to the Trustee, and the Controlling
Class Representative; provided that any such waiver of such restrictions shall
be subject to Section 3.08(d) and Section 6.08. If the Master Servicer receives
a request for consent to a transfer and assumption of a Specially Serviced
Mortgage 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) (to the extent not already delivered) 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 Mortgage
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 Mortgage 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 and each Rating Agency of any assumption or substitution agreement
executed pursuant to this Section 3.08(b) and shall forward thereto a copy of
such agreement. The Special Servicer shall be entitled (as additional special
servicing compensation) to 100% of any assumption fee and/or assumption
application fee collected from a Mortgagor in connection with an assumption or
substitution agreement executed pursuant to this Section 3.08(b). The Master
Servicer shall not be permitted to waive the payment of any such fee. Further,
subject to the terms of the related loan documents and applicable law, no
assumption of a Mortgage Loan shall be made unless all costs, including in
connection with seeking Rating Agency confirmation (to the extent required under
the related loan documents or this Agreement), in respect of such assumption or
transfer are paid by the related Mortgagor; provided that, if and to the extent
that Rating Agency confirmation is required by the related loan documents in
connection with an assumption, but the costs associated therewith and any other
costs associated with such assumption or transfer are not collected from the
related Mortgagor, subject to the limitations described in Section 2.03(e), such
unpaid costs shall be satisfied by the Mortgage Loan Seller out of its own funds
without right of reimbursement from the Trust Fund. In addition, the Master
Servicer, in connection with any consent to an assumption shall confirm that all
documents identified in Section 2.03, the absence of which would constitute a
Material Document Defect, are included in the related Mortgage File and that the
related Mortgage Loan is in compliance with all requirements under the related
loan documents, including any financial reporting and reserve requirements.
(c) With respect to all Loans, the Special Servicer on behalf of
the Trustee as the mortgagee of record 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, the Controlling
Class Representative and each Rating Agency); provided that any such waiver of
such restrictions shall be subject to Section 3.08(d) and Section 6.08. Whenever
the Master Servicer becomes aware of a further encumbrance on a Mortgaged
Property, or becomes aware that there is going to be a further encumbrance on 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 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 and retain in full, the
related Mortgagor a fee in connection with any enforcement or waiver
contemplated in this subsection (c).
(d) Notwithstanding anything to the contrary contained in this
Section 3.08, if (i) the then unpaid principal balance of the subject Mortgage
Loan is at least equal to $20,000,000 or (ii) the subject Mortgage Loan is one
of the ten largest Mortgage Loans based on the then outstanding principal
balance, neither the Master Servicer nor the Special Servicer (with respect to
Specially Serviced Mortgage Loans) 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. 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
copy of such documentation and any relevant information in its possession with
respect to such action as such Rating Agency may request. 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 in respect of a
Mortgage Loan with an unpaid principal balance of at least $20,000,000 or on
further encumbrances thereof may be waived by the Master Servicer or the Special
Servicer unless all costs, including in connection with seeking Rating Agency
confirmation (to the extent required under the loan documents or this
Agreement), in respect of a waiver are paid by the related Mortgagor; provided
that, if and to the extent that costs associated with seeking Rating Agency
confirmation and any other costs associated with a waiver of a restriction on
transfers of the related Mortgaged Property, on transfers of interests in the
related Mortgagor and on further encumbrances are not collected from the related
Mortgagor, subject to the limitations described in Section 2.03, such unpaid
costs shall be satisfied by the Mortgage Loan Seller out of its own funds
without right of reimbursement from the Trust Fund.
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) and 6.08, 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 Mortgage 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 is, in the good faith and
reasonable judgment of the Special Servicer, consistent with the Servicing
Standard or (ii) all other amounts due under such ARD 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 request the Master Servicer to
advance all costs and expenses incurred by it in any such proceedings, and the
Master Servicer shall be entitled to reimbursement therefor as provided in
Section 3.05(a). Nothing contained in this Section 3.09 shall be construed so as
to require the Special Servicer, on behalf of the Trust Fund 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 Special Servicer deems it necessary and prudent for
purposes of establishing the fair market value of any Mortgaged Property
securing a defaulted Specially Serviced Mortgage 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. If any Mortgage Loan becomes a Required
Appraisal Loan, then the Special Servicer shall (i) obtain or conduct, as
applicable, a Required Appraisal within 120 days of such Mortgage 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 (or in the case a Mortgage Loan becomes a Required Appraisal
Loan due to the modification of any monetary terms of the related Mortgage Loan,
within the prior 6 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 prior Required Appraisal once every 12
months thereafter for so long as such Mortgage 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, in each such case, promptly
following the Special Servicer's receipt of the subject item, and to the
Controlling Class Representative upon request, and based thereon, the Special
Servicer shall calculate and notify the Trustee, the Master Servicer and the
Controlling Class Representative of any resulting Appraisal Reduction Amount.
Such calculations by the Special Servicer shall be reviewed and confirmed by the
Master Servicer, provided that the Master Servicer may rely on any information
provided by the Special Servicer. The Master 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 Master Servicer as a
Servicing Advance out of the related Custodial Account pursuant to Section
3.05(a). At any time that any 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 (and shall be obligated
to recalculate annually thereafter) 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.
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer as part of the
Trust Fund 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 REO Property that is not
treated as "foreclosure property" and that is held by REMIC I or a Loan REMIC at
any given time constitutes not more than a de minimis amount of the assets of
REMIC I or any Loan REMIC, as the case may be, within the meaning of Treasury
Regulations 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. Subject to the foregoing, however, a Mortgaged Property
may be acquired through a single member limited liability company if the Special
Servicer determines that such an action is appropriate to protect the Trust from
any potential liability.
In addition, the Special Servicer shall not acquire any personal
property pursuant to this Section 3.09 (with the exception of cash or cash
equivalents pledged as collateral for a Mortgage Loan) unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be covered by, and be reimbursable as, a
Servicing Advance made by the Master Servicer) 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, 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, would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law (a
"potentially responsible party"), unless such action is consistent with Section
6.08 and the Special Servicer has previously determined (as evidenced by an
Officer's Certificate to such effect delivered to the Trustee that shall specify
all of the bases for such determination), based on an Environmental Assessment
of such Mortgaged Property performed by an Independent Person, who regularly
conducts Environmental Assessments, within twelve months prior to any such
acquisition of title or other action (a copy of which Environmental Assessment
shall be delivered to the Trustee and the Master Servicer), that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that acquiring such
Mortgaged Property and taking such actions as are necessary to bring the
Mortgaged Property in compliance therewith is reasonably likely to produce
a greater recovery to Certificateholders on a present value basis than not
acquiring such Mortgaged Property and not taking such actions; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could be required, that
acquiring such Mortgaged Property and taking such actions with respect to
such Mortgaged Property is reasonably likely to produce a greater recovery
to Certificateholders on a present value basis than not acquiring such
Mortgaged Property and not taking such actions.
The Special Servicer shall undertake good faith 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
withdrawn and paid from the Custodial Account; 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.
(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 Loan, the Special Servicer shall take
such action as is in accordance with the Servicing Standard (other than
proceeding to acquire title to the Mortgaged Property). At such time as it deems
appropriate, the Special Servicer may, on behalf of the Trust, subject to
Section 6.08, release all or a portion of such Mortgaged Property from the lien
of the related Mortgage; provided that, if such Mortgage 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 Controlling Class Representative, 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, and (ii) the Controlling
Class Representative shall not have objected to such release within 30 days of
such notice and if the Controlling Class Representative shall have objected,
such objection, in the Special Servicer's good faith judgment, was inconsistent
with the Servicing Standard.
(e) The Special Servicer shall report to the Master Servicer and
the Trustee monthly in writing as to any actions taken by the Special Servicer
with respect to any Mortgaged Property that represents security for a Defaulted
Mortgage 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 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 Special Servicer shall, with the reasonable cooperation of
the Master Servicer, prepare and file information returns with respect to the
receipt of mortgage interest received with respect to any Mortgaged Property
required by Section 6050H of the Code and the reports of foreclosures and
abandonments of any Mortgaged Property and the information returns relating to
cancellation of indebtedness income with respect to 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.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Mortgage Loan or REO Property, it shall
promptly notify the Trustee and the Master Servicer. The Special Servicer shall
maintain accurate records, signed 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 and the Master Servicer no later than the tenth 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 Mortgage Loan, or the receipt by the
Master Servicer or the Special Servicer, as applicable, of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Master Servicer or the Special Servicer, as applicable, shall promptly notify
the Trustee 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) 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.
Upon receipt of such certification and request, the Trustee shall release, or
cause any related Custodian to release, the related Mortgage File to the Master
Servicer or Special Servicer, as applicable, 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 Mortgage Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), 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) to the Master Servicer or the Special
Servicer, as the case may be. Upon return of such Mortgage File (or such portion
thereof) to the Trustee or related Custodian, or the delivery to the Trustee of
a certificate of a Servicing Officer of the Special Servicer stating that such
Mortgage 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) have been or will be so
deposited, or that the 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 three Business Days (or within such shorter period as
execution and delivery can reasonably be accomplished if the Special Servicer
notifies the Trustee 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) 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 or REO 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 or the Special Servicer.
Together with such documents or pleadings, the Special Servicer shall deliver to
the Trustee 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) 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 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 Mortgage Loan and REO Loan. As to each Mortgage 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 Mortgage 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
event that a Principal Prepayment in full or other Liquidation Event shall occur
with respect to a Mortgage 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 Mortgage Loan or REO Loan shall cease to
accrue if a 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 Mortgage Loan and REO Revenues allocable as
interest on each REO Loan. The Master Servicer shall be entitled to recover
unpaid Master Servicing Fees in respect of any Mortgage Loan or REO Loan out of
that portion of related Insurance Proceeds or Liquidation Proceeds allocable as
recoveries of interest, to the extent permitted by Section 3.05(a). 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.
(b) 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 Mortgage Loan and
accrued during the time that such Mortgage Loan was not a Specially Serviced
Mortgage Loan, (ii) 100% of each modification fee, extension fee, earn-out fee
or other fee actually paid by a Mortgagor with respect to a modification,
extension, waiver or amendment agreed to by the Master Servicer pursuant to
Section 3.20(c), in connection with any releases of earn-out reserves or related
letters of credit with respect to a Mortgaged Property securing a non-Specially
Serviced Mortgage Loan, or otherwise in connection with the servicing of such
Mortgage Loan (excluding Prepayment Premiums, Yield Maintenance Charges, Return
of Premium Amounts and Excess Defeasance Deposit Proceeds) if the approval or
consent of the Special Servicer was not required in connection therewith, or 50%
of such fees if the approval or consent of the Special Servicer was required in
connection therewith and (iii) 50% of each assumption fee, and 100% of each
assumption application fee, for approving a transfer of a Mortgaged Property or
an interest in a Mortgagor, in each case actually paid by a Mortgagor with
respect to any assumption or substitution agreement entered into by the Master
Servicer on behalf of the Trust 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 are 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; (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).
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and each REO Loan. With respect to each
Specially Serviced Mortgage 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 Stated Principal Balance of such
Specially Serviced Mortgage Loan or REO Loan, as the case may be, outstanding
immediately following the Distribution Date in such calendar month; and (ii) be
calculated on a 30/360 Basis (or, in the event that a Principal Prepayment in
full or other Liquidation Event shall occur with respect to a Specially Serviced
Mortgage 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 to, but not including,
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
Specially Serviced Mortgage 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 on deposit in
the appropriate Custodial Account pursuant to Section 3.05(a).
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 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
Mortgage 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 Mortgage Loan or REO Property (i) by a Purchase Option Holder that is a
Controlling Class Certificateholder, the Special Servicer or if the purchase is
effected within 60 days of the initial Purchase Option becoming exercisable by
the Mortgage Loan Seller, the Mortgage Loan Seller or any affiliate thereof,
pursuant to Section 3.18, (ii) by the Depositor, the Special Servicer, a
Controlling Class Certificateholder or the Master Servicer pursuant to Section
9.01, or (iii) the Mortgage Loan Seller pursuant to the Mortgage Loan Purchase
Agreement (including a repurchase of a Loan REMIC Mortgage Loan in connection
with the related Mortgagor's exercise of its right to defease such Mortgage Loan
prior to the second anniversary of the Startup Day), except in the case of a
repurchase by the Mortgage Loan Seller of a Corrected Mortgage Loan in
connection with a Material Document Defect 180 days after notice of such Defect
(in which case, a workout fee (consisting of the Workout Fee paid to the Special
Servicer up to the date of repurchase plus the present value (calculated at a
discount rate equal to the applicable Mortgage Rate) of the Workout Fee that
would have been payable to the Special Servicer in respect of such Mortgage Loan
if the Mortgage Loan performed in accordance with its terms to Maturity Date),
would be payable by the Mortgage Loan Seller), or (iv) in connection with the
acquisition of any Specially Serviced Mortgage Loan or REO Property in exchange
for all the Certificates pursuant to Section 9.01. The Workout Fee with respect
to any Corrected Loan will cease to be payable if such Corrected Loan again
becomes a Specially Serviced Mortgage 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 Mortgage Loan again becomes a Corrected Loan. If the
Special Servicer is terminated 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 (i) any Mortgage Loan that became a
Corrected Mortgage Loan during the period that it acted as Special Servicer and
were still such at the time of such termination or resignation and (ii) any
Specially Serviced Mortgage Loan for which the Special Servicer has resolved the
circumstances and/or conditions causing any such Mortgage Loan to be a Specially
Serviced Mortgage Loan such that the related Mortgagor has made at least one
timely Monthly Payment as of the date of such termination or resignation and
such Mortgage Loan otherwise meets the requirements of a Corrected Mortgage
Loan, with the Workout Fee with respect to such Mortgage Loan payable only after
such requirements have been met (and any 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 Mortgage Loan and REO Property as to which it receives a
full, partial or discounted payoff and subject to the second proviso of the next
succeeding sentence each Specially Serviced Mortgage Loan and REO Property as to
which it receives Liquidation Proceeds. As to each Specially Serviced Mortgage
Loan or REO Property, the Liquidation Fee shall be payable from, and shall be
calculated by application of the Liquidation Fee Rate to, such full, partial or
discounted payoff and/or Liquidation Proceeds (exclusive of any portion of such
payoff or proceeds that represents Default Interest and/or Additional Interest)
prior to the application of such Liquidation Proceeds to any distribution to the
Certificateholders; provided that no Liquidation Fee shall be payable with
respect to any such Specially Serviced Mortgage Loan that becomes a Corrected
Loan; and provided, further, that no Liquidation Fee shall be payable from, or
based upon the receipt of, Liquidation Proceeds collected in connection with the
purchase of any such Specially Serviced Mortgage Loan or REO Property by (i) a
Purchase Option Holder that is a Controlling Class Certificateholder, the
Special Servicer or if the purchase is effected within 60 days of the initial
Purchase Option becoming exercisable by the Mortgage Loan Seller, the Mortgage
Loan Seller, pursuant to Section 3.18, (ii) by the Depositor, the Special
Servicer, a Controlling Class Certificateholder or the Master Servicer pursuant
to Section 9.01, or (iii) by the Mortgage Loan Seller pursuant to the Mortgage
Loan Purchase Agreement (including a repurchase of a Loan REMIC Mortgage Loan in
connection with the related Mortgagor's exercise of its right to defease such
Mortgage Loan prior to the second anniversary of the Startup Day; but in the
case of a repurchase for a Breach or Defect, only if such purchase is effected
within 180 days of notice of such Breach or Defect).
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 Mortgage Loan.
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 Loans that accrued with
respect to a Specially Serviced Mortgage Loan or an REO Loan and (ii) all
assumption fees (or any other comparable fee relating to the transfer of a
Mortgaged Property or the ownership interest in the Mortgagor, assumption
application fees, other fees payable for approving a transfer of a Mortgaged
Property or an interest in a Mortgagor and modification fees, extension fees,
earn-out fees and other fees (excluding Yield Maintenance Charges, Prepayment
Premiums, Repayment of Premium Amounts and Excess Defeasance Deposit Proceeds)
actually collected on the Specially Serviced Mortgage Loans as additional
servicing compensation pursuant to Section 3.11(b) and 50% of the fees described
in Section 3.11(b)(ii) with respect to non-Specially Serviced Mortgage Loans if
the approval or consent of the Special Servicer was required in connection
therewith, 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).
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 or
master single interest 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 is required under any provision of this
Agreement to make a Servicing Advance, but does not do 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, give written
notice of such failure to the Master Servicer. If such Servicing Advance is not
made by the Master Servicer within one Business Day after such notice is given
to the Master Servicer, 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 Trustee and the Fiscal Agent shall
each be entitled to receive interest at the Reimbursement Rate in effect from
time to time 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 collected in the related
Collection Period on or in respect of the particular Mortgage Loan or REO Loan
as to which such Servicing Advance relates; 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 Custodial Account. The
Master Servicer shall reimburse itself, the Trustee or the Fiscal Agent, as
appropriate and in accordance with Section 3.05(a) 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 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 determination by either the Master
Servicer (or the Special Servicer, if a Specially Serviced Mortgage Loan or an
REO Property is involved) that a Nonrecoverable Servicing Advance has been made
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, setting forth the basis for such
determination, together with (i) a copy of the most current appraisal of the
related Mortgaged Property or REO Property, as the case may be (and if conducted
within the 12-month period preceding such determination, which appraisal shall
have been conducted by an Independent Appraiser in accordance with the standards
of the Appraisal Institute (unless the then outstanding principal balance of the
related Mortgage Loan is less than or equal to $2,000,000 for which the Special
Servicer may conduct an internal valuation)) and (ii) any relevant supporting
documentation. 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 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 Mortgage Loan or an REO Property is involved) pay directly out of the
Custodial Account any servicing expense that, if advanced by the Master Servicer
would constitute a Nonrecoverable Servicing Advance; provided that the Master
Servicer (or the Special Servicer, if a Specially Serviced Mortgage Loan or an
REO Property is involved) has determined in accordance with the Servicing
Standard that making such payment, in the case of withdrawals from the Custodial
Account, is in the best interests of the Certificateholders (as a collective
whole), as evidenced in each case by an Officer's Certificate delivered promptly
to the Trustee and the Depositor 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).
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 as soon
as practicable after the related Mortgage Loan becomes a Specially Serviced
Mortgage Loan, and annually thereafter for so long as the related Mortgage Loan
remains a Specially Serviced Mortgage Loan, the cost of which shall be paid by
the Master 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 at least once per calendar year, the
cost of which shall be paid by the Master Servicer and shall be reimbursable as
a Servicing Advance. Beginning in 2003, in the case of each Mortgaged Property
securing a non-Specially Serviced Mortgage Loan that, as of the Closing Date,
had not been inspected in the 6-month period prior to such Closing Date, and in
2004 with respect to all other Mortgaged Properties securing non-Specially
Serviced Mortgage Loans, the Master Servicer shall at its expense perform or
cause to be performed a physical inspection of each Mortgaged Property securing
such non-Specially Serviced Mortgage Loan: (i) promptly upon the decrease of the
related debt service coverage ratio (computed in accordance with the related
loan documents) to below 1.00x, (ii) promptly upon the related Mortgage Loan
becoming 60 days or more delinquent with respect to any Monthly Payment or
otherwise being in default for more than 60 days, (iii) 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 (iv) at least once every calendar year in
the case of all other such Mortgaged Properties. The Master Servicer and the
Special Servicer shall each promptly prepare or cause to be prepared and deliver
to the Trustee and the Controlling Class Representative 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 upon request, subject to
payment of a reasonable fee.
The Special Servicer, in the case of each Specially Serviced
Mortgage Loan and REO Loan, and the Master Servicer, in the case of all other
Mortgage Loans, shall each, consistent with the Servicing Standard and subject
to the provisions of the related loan documents, 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.
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 to
the Trustee, the Special Servicer and any Controlling Class Certificateholders,
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 or REO Property, the
Master Servicer shall prepare or update and forward to the Trustee a CMSA NOI
Adjustment Worksheet for such Mortgaged Property or REO Property.
The Master Servicer shall prepare and maintain one CMSA Operating
Statement Analysis Report for each Mortgaged Property and REO Property. The CMSA
Operating Statement Analysis Report for each Mortgaged Property and REO Property
is to be updated by the Master Servicer, 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 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 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. In addition, the Master Servicer
shall also update the CMSA Operating Statement Analysis Report based on
quarterly operating statements within 30 days of such receipt.
(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 Mortgage Loans and any REO Properties,
providing the required information as of the end of 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 Mortgage Loans, any REO Properties and, to the extent that
the subject information relates to when they were Specially Serviced Mortgage
Loans, any Corrected Loans: (i) a CMSA Delinquent Loan Status Report; (ii) an
CMSA Historical Liquidation Report; (iii) an CMSA Historical Loan Modification
Report; (iv) an CMSA REO Status Report; and (v) CMSA Special Servicer Defaulted
Loan Report (after implementation thereof by the CMSA).
(c) Not later than the second Business Day prior to each
Distribution Date, the Master Servicer shall deliver or cause to be delivered to
the Trustee: (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 CMSA Special
Servicer Defaulted Loan File (after implementation thereof by the CMSA) (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 Determination Date. The Master Servicer shall include on one
of such reports or in a separate report 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) and/or 4.03(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, and, upon request, the Special Servicer
and 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), and provided that 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 and in the current CMSA format as of the
related Determination Date.
Section 3.13 Annual Statement as to Compliance. Each of the Master
Servicer and the Special Servicer shall deliver to the Trustee, the Depositor
and each other, on or before April 30 of each year, beginning in 2003 (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) 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 31 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 2002. If the Master Servicer and the Special
Servicer are the same entity, such certification may be delivered as a single
certificate.
Section 3.14 Reports by Independent Public Accountants. On or before
April 30 of each year, beginning in 2003 (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 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 by each of the Master Servicer and the Special Servicer during
the following year, shall be delivered on or before March 31 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 2002. If the Master Servicer and the Special
Servicer are the same entity, such report may be delivered as a single report.
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. xvii) Each of the Master
Servicer and the Special Servicer shall afford to the Trustee, the Rating
Agencies, the Depositor, and to the OTS, the FDIC and any other banking or
insurance regulatory authority that may exercise authority over any
Certificateholder and Certificate Owner (identified as such to the reasonable
satisfaction of the Master Servicer or the Special Servicer, as the case may be)
access to any records regarding the Mortgage Loans and the servicing thereof
within its control, except to the extent it is prohibited from doing so by
applicable law or contract or to the extent such information is subject to a
privilege under applicable law to be asserted on behalf of the
Certificateholders. Such access shall be afforded only upon reasonable prior
written request and during normal business hours at the offices of the Master
Servicer or the Special Servicer, as the case may be, designated by it.
In connection with providing or granting any information or access
pursuant to the prior paragraph to any regulatory authority that may exercise
authority over a Certificateholder or a Certificate Owner, the Master Servicer
and the Special Servicer may each require payment from the applicable
Certificateholder or a Certificate Owner 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 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 REO Property is acquired, then, except as provided in the next sentence, the
deed or certificate of sale shall be issued to the Trustee or its nominee on
behalf of the Certificateholders. If, pursuant to Section 3.09(b), the Special
Servicer formed or caused to be formed, at the expense of the Trust, a single
member limited liability company (of which the Trust is the sole member) for the
purpose of taking title to one or more REO Properties pursuant to this
Agreement, the deed or certificate of sale with respect to any such REO Property
shall be issued to such single member limited liability company. The limited
liability company shall be a manager-managed limited liability company, with the
Special Servicer to serve as the initial manager to manage the property of the
limited liability company, including any applicable REO Property, in accordance
with the terms of this Agreement as if such property was held directly in the
name of the Trust or Trustee under this Agreement. The Special Servicer, on
behalf of the Trust Fund, shall sell any REO Property by the end of the third
calendar year following the calendar year in which REMIC I (or, if applicable, a
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 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, a Loan REMIC) of such REO Property
subsequent to the end of such third 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 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, its obtaining the
Opinion of Counsel contemplated by clause (ii) of the second preceding sentence,
or for the creation of and the operating of a single member limited liability
company, shall be covered by, and reimbursable as, a Servicing Advance to be
made by the Master Servicer.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur in
respect of any Mortgaged Property, the Special Servicer shall establish and
maintain one or more accounts (collectively, the "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. The REO
Account shall 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 and Liquidation Proceeds received in respect of any
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, 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 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.
(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.
Section 3.17 Management of REO Property. (a) Prior to the
acquisition of title to a 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 in its good faith and
reasonable judgment, 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 feasible) acquire
such Mortgaged Property as REO Property and so lease or operate such REO
Property; or
(iii) Directly Operating such property as REO Property could
result in income subject to an REO Tax and, in the good faith and
reasonable judgment of the Special Servicer, 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 commercially feasible, estimates of the amount of income from
each such source. Within a reasonable period of time after receipt of such
plan, the Trustee shall consult with the Special Servicer and shall advise
the Special Servicer of the Trust Fund's federal income tax reporting
position with respect to the various sources of income that the Trust Fund
would derive under the Proposed Plan. In addition, the Trustee shall (to
the maximum extent possible) advise the Special Servicer of the estimated
amount of taxes that the Trust Fund would be required to pay with respect
to each such source of income. After receiving the information described
in the two preceding sentences from the Trustee, the Special Servicer
shall either (A) implement the Proposed Plan (after acquiring the
respective Mortgaged Property as REO Property) or (B) manage and operate
such property in a manner that would not result in the imposition of an
REO Tax on the income derived from such property.
The Special Servicer's decision as to how each REO Property shall be
managed and operated shall in any event be based on the good faith and
reasonable judgment of the Special Servicer as to which means would (to the
extent commercially feasible) maximize the net after-tax REO Revenues received
by the Trust Fund with respect to such property without materially and adversely
affecting the Special Servicer's ability to promptly sell the REO Property in
accordance with this Agreement and, to the extent consistent with the foregoing,
in accordance with the Servicing Standard. Both the Special Servicer and the
Trustee may consult with counsel for determinations required under this Section
3.17(a). Neither the Special Servicer nor the Trustee shall be liable to the
Certificateholders, the Trust Fund, the other parties hereto or each other for
errors in judgment made in good faith in the reasonable exercise of their
discretion while performing their respective responsibilities under this Section
3.17(b) below. Nothing in this Section 3.17(a) is intended to prevent the sale
of a Defaulted Mortgage Loan or REO Property pursuant to the terms and subject
to the conditions of Section 3.18 or 3.19.
(b) If title to any REO Property 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: (i) cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) 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 REO Account, to the extent of
amounts on deposit therein with respect to any 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 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, dispose
of, protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the REO Account in respect
of any REO Property are insufficient for the purposes set forth in the preceding
sentence with respect to such REO Property, the Special Servicer shall request
the Master Servicer to 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 Master 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.
(c) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) enter into, renew or extend any New Lease with respect to any
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;
(iii) authorize or permit any construction on any REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Mortgage Loan
occurred or 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 Master 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, a 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, and if required to prevent the REO
Property from failing to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code, shall contract with any Independent Contractor
for the operation and management of any REO Property, 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 if not paid from reserves from the REO
Property) 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 out of related REO Revenues 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.
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.
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 on the
terms and subject to the conditions set forth in this Section 3.18 or as
otherwise expressly provided in or contemplated by Sections 2.03(a) and 9.01 of
this Agreement.
(b) The holder of Certificates evidencing the greatest percentage
interest in the Controlling Class, the Special Servicer and the Mortgage Loan
Seller (in such capacity, together with any assignee, but in any event excluding
the Trustee, the "Purchase Option Holder") shall, in that order, have the right,
at its option (the "Purchase Option"), to purchase a Mortgage Loan from the
Trust at a price equal to the Option Purchase Price (as defined below) upon
receipt of notice from the Special Servicer that such Mortgage Loan has become
at least 60 days delinquent as to any monthly debt service payment (or is
delinquent as to its Balloon Payment). The Purchase Option is exercisable,
subject to Section 2.03, from that date until terminated pursuant to clause (f)
below, and during that period the Purchase Option shall be exercisable in any
month only during the period from the 10th calendar day of such month through
the 25th calendar day, inclusive, of such month. The Trustee on behalf of the
Trust shall be obligated to sell such Mortgage Loan upon the exercise of the
Purchase Option (whether exercised by the original holder thereof or by a holder
that acquired such Purchase Option by assignment), but shall have no authority
to sell such Mortgage Loan other than in connection with the exercise of an
Purchase Option (or in connection with a repurchase of a Mortgage Loan under
Article II, an optional termination pursuant to Section 9.01 or a qualified
liquidation of the REMICs. Any Purchase Option Holder that exercises the
Purchase Option shall be required to purchase the applicable Mortgage Loan on
the 4th Business Day after such exercise. If any Purchase Option Holder desires
to waive its right to exercise the Purchase Option, then it shall so notify the
Trustee in writing, and the Trustee shall promptly notify the next party
eligible to hold the Purchase Option set forth above of its rights hereunder.
Any of the parties eligible to hold the Purchase Option set forth above may at
any time notify the Trustee in writing of its desire to exercise the Purchase
Option, and the Trustee shall promptly notify the current Purchase Option Holder
(and the other parties eligible to hold the Purchase Option) of such party's
desire to exercise the Purchase Option. If the Purchase Option Holder, within 3
Business Days of its receipt of that notice, neither (i) exercises the Purchase
Option nor (ii) surrenders its right to exercise the Purchase Option, then the
Purchase Option Holder's right to exercise the Purchase Option shall lapse, and
the Trustee shall promptly notify the next party eligible to hold the Purchase
Option (and the other parties eligible to hold the Purchase Option) of its
rights thereunder.
(c) The "Option Purchase Price" shall be an amount equal to the
fair value of the related Mortgage Loan, as determined by the Special Servicer.
Prior to the Special Servicer's determination of fair value referred to above,
the fair value of a Mortgage Loan shall be deemed to be an amount equal to the
Purchase Price plus any Prepayment Premium or Yield Maintenance Charge, if any,
then payable upon the prepayment of such Mortgage Loan and the reasonable fees
and expenses of the Special Servicer, the Master Servicer and the Trustee
incurred in connection with the sale of the Mortgage Loan. The Special Servicer
shall determine the fair value of a Mortgage Loan on the later of (A) as soon as
reasonably practical upon the Mortgage Loan becoming 60 days delinquent or upon
the Balloon Payment becoming delinquent and (B) the date that is 75 days after
the Special Servicer's receipt of the Servicing File relating to such Mortgage
Loan, and the Special Servicer shall promptly notify the Purchase Option Holder
(and the Trustee and each of the other parties set forth above that could become
the Purchase Option Holder) of the Purchase Option Purchase Price. The Special
Servicer is required to recalculate the fair value of the Mortgage Loan if there
has been a material change in circumstances or the Special Servicer has received
new information, either of which has a material effect on the fair value,
provided that the Special Servicer shall be required to recalculate the fair
value of the Mortgage Loan if the time between the date of last determination of
the fair value of the Mortgage Loan and the date of the exercise of the Purchase
Option has exceeded 60 days. Upon any recalculation, the Special Servicer shall
be required to promptly notify in writing each Purchase Option Holder (and the
Trustee and each of the other parties set forth above that could become the
Purchase Option Holder) of the revised Option Purchase Price. Any such
recalculation of the fair value of the Mortgage Loan shall be deemed to renew
the Purchase Option in its original priority at the recalculated price with
respect to any party as to which the Purchase Option had previously expired or
been waived, unless the Purchase Option has previously been exercised by an
Purchase Option Holder at a higher Option Purchase Price. In determining fair
value, the Special Servicer shall 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;
any views on fair value expressed by Independent investors in mortgage loans
comparable to the Mortgage Loan (provided that the Special Servicer shall not be
obligated to solicit such views); the period and amount of any delinquency on
the affected Mortgage Loan; whether to the Special Servicer's actual knowledge,
the Mortgage Loan is in default to avoid a prepayment restriction; the physical
condition of the related Mortgaged Property; the state of the local economy; the
expected recoveries from the Mortgage Loan if the Special Servicer were to
pursue a workout or foreclosure strategy instead of the Purchase Option being
exercised; and the Trust's obligation to dispose of any REO Property as soon as
practicable consistent with the objective of maximizing proceeds for all
Certificateholders, but in no event later than the three-year period (or such
extended period) specified in Section 3.16(a).
(d) Any Purchase Option relating to a Mortgage Loan shall be
assignable to a third party (other than another Purchase Option Holder) by the
Purchase Option Holder at its discretion at any time after its receipt of notice
from the Special Servicer that an Purchase Option is exercisable with respect to
a specified Mortgage Loan, and upon such assignment such third party shall have
all of the rights 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, and none
of such parties shall be obligated to recognize any entity as a Purchase Option
Holder absent such notice.
(e) If (i) the Special Servicer, (ii) the holder of Certificates
representing the greatest percentage interest in the Controlling Class (but only
if such holder is also the Special Servicer), (iii) an Affiliate of either of
the parties identified in clauses (i) and (ii) or (iv) an entity which has
purchased for monetary value the Purchase Option from the Special Servicer or
its affiliate, elects to exercise the Purchase Option, the Trustee shall be
required to determine whether the Option Purchase Price constitutes a fair price
for the Mortgage Loan. Upon request of the Special Servicer to make such a
determination, the Trustee will do so within a reasonable period of time (but in
no event more than 15 Business Days). In doing so, the Trustee may rely on the
opinion of an Independent Appraiser or other expert in real estate matters
retained by the Trustee at the expense of the party exercising the Purchase
Option. The Trustee may also rely on the most recent Appraisal of the related
Mortgaged Property that was prepared in accordance with this Agreement. If the
Trustee were to determine that the Option Purchase Price does not constitute a
fair price, then the Special Servicer shall redetermine the fair value taking
into account the objections of the Trustee.
(f) The Purchase Option shall terminate, and shall not be
exercisable as set forth in clause (a) above (or if exercised, but the purchase
of the related Mortgage Loan has not yet occurred, shall terminate and be of no
further force or effect) if the Mortgage Loan to which it relates is no longer
delinquent as set forth above because the Mortgage Loan has (i) become a
Corrected Loan, (ii) been subject to a workout arrangement, (iii) been
foreclosed upon or otherwise resolved (including by a full or discounted
pay-off), (iv) been purchased by the Mortgage Loan Seller pursuant to Section
2.03 or (v) the Special Servicer has accepted a bid at the Option Purchase
Price.
(g) Unless and until a Purchase Option Holder exercises an
Purchase Option, the Special Servicer shall continue to service and administer
the related Mortgage Loan in accordance with the Servicing Standard and this
Agreement, and shall pursue such other resolution or recovery strategies,
including workout or foreclosure, as is consistent with this Agreement and the
Servicing Standard.
(h) The parties hereto may sell or purchase, or permit the sale or
purchase of, an REO Property only on the terms and subject to the conditions set
forth in this Section 3.18.
(i) The Special Servicer shall use reasonable efforts consistent
with the Servicing Standard to solicit bids for each REO Property on behalf of
the Certificateholders in such manner as to maximize recovery with respect to
such REO Property within the time period specified by Section 3.16(a). Subject
to Section 6.08, the Special Servicer shall accept the first (and, if multiple
bids are received contemporaneously the highest of such bids) cash bid received
from any Person that constitutes a fair price for such REO Property. If the
Special Servicer determines, in its good faith and reasonable judgment, that it
will be unable to realize a fair price for any REO Property within the time
constraints imposed by Section 3.16(a), then (subject to Section 6.08), 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. The Liquidation Proceeds (net of related Liquidation Expenses and
Liquidation Fees) for any REO Property purchased hereunder shall be deposited in
the Custodial Account, except that portion of any proceeds constituting Excess
Liquidation Proceeds with respect to the Mortgage Loans shall be deposited in
the Excess Liquidation Proceeds Reserve Account.
(j) The Special Servicer shall give the Trustee and the Master
Servicer not less than five Business Days' prior written notice of its intention
to sell any REO Property. No Interested Person shall be obligated to submit a
bid to purchase any REO Property, and notwithstanding anything to the contrary
contained herein, neither the Trustee, in its individual capacity, nor any of
its Affiliates may bid for or purchase any REO Property pursuant hereto.
(k) Whether any cash bid constitutes a fair price for any REO
Property for purposes of this Section 3.18(h) shall be determined by the Special
Servicer, if the highest bidder is a Person other than an Interested Person, and
by the Trustee, if the highest bidder is an Interested Person; provided,
however, that no bid from an Interested Person shall constitute a fair price
unless (i) it is the highest bid received and (ii) at least two other bids are
received from independent third parties. In determining whether any offer
received from an Interested Person represents a fair price for any such REO
Property, the Trustee shall be supplied with and shall be entitled to rely on
the most recent appraisal or updated Appraisal conducted in accordance with this
Agreement within the preceding 12-month period or, in the absence of any such
appraisal on a narrative appraisal prepared by an Independent Appraiser retained
by the Special Servicer. Subject to the following sentence, such appraiser shall
be selected by the Special Servicer if the Special Servicer is not making an
offer with respect to an REO Property and shall be selected by the Master
Servicer if the Special Servicer is making such an offer. The cost of any such
narrative appraisal shall be covered by, and shall be reimbursable as, a
Servicing Advance. In determining whether any such offer from a Person other
than an Interested Person constitutes a fair price for any such REO Property,
the Special Servicer shall take into account (in addition to the results of any
Appraisal, updated Appraisal or narrative appraisal that it may have obtained
pursuant to this Agreement within the prior 12 months), and in determining
whether an offer from an Interested Person constitutes a fair price for any such
REO Property, any appraiser shall be instructed to take into account, as
applicable, among other factors, the period and amount of any delinquency on the
affected Mortgage Loan, the occupancy level and physical condition of the 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 REO Property shall in all cases be deemed a fair price.
(l) Subject to subsections (h) through (k) above, the Special
Servicer shall act on behalf of the Trust Fund in negotiating and taking any
other action necessary or appropriate in connection with the sale of any REO
Property, and the collection of all amounts payable in connection therewith. In
connection therewith, the Special Servicer may charge prospective offerors, and
may retain, fees that approximate the Special Servicer's actual costs in the
preparation and delivery of information pertaining to such sales or exchanging
offers without obligation to deposit such amounts into the Custodial Account.
Any sale of any REO Property shall be final and without recourse to the Trustee
or the Trust Fund, and if such sale is consummated in accordance with the terms
of this Agreement, none of the Special Servicer, the Master Servicer, the
Depositor or the Trustee shall have any liability to any Certificateholder with
respect to the purchase price therefor accepted by the Special Servicer or the
Trustee.
(m) Any sale of any REO Property shall be for cash only (unless,
as evidenced by an Opinion of Counsel, a sale for other consideration will not
cause an Adverse REMIC Event).
(n) Notwithstanding any of the foregoing paragraphs of this
Section 3.18, the Special Servicer shall not be obligated to accept the highest
cash offer if the Special Servicer determines, in its reasonable and good faith
judgment, that rejection of such offer would be in the best interests of the
Certificateholders, and the Special Servicer may accept a lower cash offer (from
any Person other than itself or an Affiliate) if it determines, in its
reasonable and good faith judgment, that acceptance of such offer would be in
the best interests of the Certificateholders (for example, if the prospective
buyer making the lower offer is more likely to perform its obligations or the
terms offered by the prospective buyer making the lower offer are more
favorable).
Section 3.19 Additional Obligations of the Master Servicer; 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 Mortgage Loans that are not Specially Serviced
Mortgage Loans and have not become REO Loans 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 0.05% per annum with
respect to each and every Mortgage Loan) and (2) the aggregate amount of
Prepayment Interest Excesses received in respect of the entire Mortgage Pool
during such Collection Period.
(b) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor under a Ground Lease, promptly
(and in any event within 45 days) following the Closing Date, notify the related
ground lessor of the transfer of such Mortgage 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) The Special Servicer shall give the Master Servicer and the
Trustee at least five (5) Business Days (or, in an emergency situation or on an
urgent basis, two (2) Business Days) in advance of the date on which such
Servicing Advance is required to be made with respect to a Specially Serviced
Mortgage Loan or an REO Property 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.
The Master Servicer shall be entitled to 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) 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.
Section 3.20 Modifications, Waivers, Amendments and Consents; Other
Provisions. (a) Subject to Sections 3.20(b) through 3.20(f) and 3.20(l) below,
and further subject to Section 6.08, the Special Servicer (or, under the limited
circumstances set forth in Section 3.20(c), the Master Servicer) may, on behalf
of the Trustee, agree to any modification, extension, waiver or amendment of any
term of any Mortgage 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
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
Mortgage 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 Mortgage Loan other than a Specially
Serviced Mortgage 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 non-material 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 Mortgage 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 Mortgage 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 (i) through (v) below 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 Mortgage Loans (other than Specially
Serviced Mortgage 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) Subject to Section 3.08, 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 Mortgage Loan that represents 2% or more of the then aggregate
principal balance of the Mortgage Pool and (E) violate or occur in a
manner inconsistent with any provisions of the related loan documents that
provide specific parameters that allow such transfer to occur;
(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); and
(v) Approving easements or rights of way that do not materially
affect the use or value of a Mortgaged Property or the Mortgagor's ability
to make any payments with respect to the related Mortgage Loan.
Notwithstanding any provision of this Section 3.20, (but subject to Section
3.20(e)), the Master Servicer, with the consent of the Special Servicer
(following the Special Servicer's receipt and review of written recommendation
and rationale for such action and all relevant information reasonably requested
by the Special Servicer) and the Controlling Class Representative, may,
consistent with the Servicing Standard, extend the maturity date of a Mortgage
Loan for up to 180 days from the related Stated Maturity Date; provided that (A)
(1) the related Mortgagor is in monetary default or material non-monetary
default with respect to the Mortgage Loan or, in the reasonable, good faith
judgment of the Master Servicer, such default is reasonably foreseeable, and (2)
such Mortgage Loan is not otherwise required to become a Specially Serviced
Mortgage Loan hereunder, and (B) 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.
The Master Servicer shall not terminate or replace, or consent to
the termination or replacement of, any property manager with respect to any
Mortgaged Property, and the Master Servicer shall not terminate or change or
consent to the termination or change of the franchise for any Mortgaged Property
operated as a hospitality property, in any event without the consent of the
Special Servicer (it being understood and agreed that (A) the Master Servicer
shall promptly provide the Special Servicer with a written recommendation and
rationale for such action and all information that the Special Servicer may
reasonably request and which information is in the possession of the Master
Servicer, in order to withhold or grant any such consent, (B) the Special
Servicer shall decide whether to withhold or grant such consent in accordance
with the Servicing Standard and (C) if any consent has not been expressly denied
within 10 Business Days of the Special Servicer's receipt from the Master
Servicer of all information reasonably requested thereby in order to make an
informed decision, the Special Servicer's consent shall be deemed to have been
granted). The Master Servicer shall have no rights and no role of the nature
described in this paragraph with respect to a Mortgaged Property securing a
Specially Serviced Mortgage Loan.
The Master Servicer shall not consent to any assumption,
modification, waiver or amendment of a Mortgage Loan or release of earnout
reserve amounts unless the Special Servicer shall have been provided with the
Master Servicer's written recommendation and rationale therefore and approved
such assumption or release in writing. This obligation shall be in addition to
any obligation set forth in Section 3.08.
The Master Servicer shall not consent to any (A) waiver relating to
the conditions for release or establishment of a letter of credit or guarantee,
(B) waiver relating to the conditions to be satisfied in such Mortgage Loan
relating to the release, reduction or termination of reserves, (C) waivers
relating to the establishment of reserves, (D) waivers of any requirements
regarding additional collateral, or (E) waivers of any lock-box requirements,
unless the Special Servicer shall have been provided with the Master Servicer's
written recommendation and rationale therefore and approved such waiver in
writing.
The Master Servicer shall not (a) waive any rights thereunder with
respect to any guarantor, or (b) consent to the release or substitution of any
material collateral for such Mortgage Loan not contemplated by the related
Mortgage Loan documents, unless, in either case, the Special Servicer shall have
been provided with the Master Servicer's written recommendation and rationale
therefore, together with supporting documentation and approved such waiver,
release or substitution in writing.
Except as permitted by Section 3.02(a), 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 Mortgage Loan or respond to any Mortgagor
requests for mortgagee consent. Furthermore, neither the Master Servicer nor the
Special Servicer may 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, shall not agree or
consent to any modification, extension, waiver or amendment of any term of any
Mortgage Loan that would:
(i) affect the amount or timing of any scheduled payment of
principal, interest or other amount (including Prepayment Premiums, Yield
Maintenance Charges, Return of Premium Amounts or Excess Defeasance
Deposit Proceeds, 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, Yield Maintenance Charge, Return of Premium Amounts or
Excess Defeasance Deposit Proceeds, 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 Mortgage Loan or reduce
the likelihood of timely payment of amounts due thereon;
(e) Notwithstanding Section 3.20(d)(i) through (iv), but subject
to Section 6.08 and the second paragraph of this Section 3.20(e), the Special
Servicer may (i) reduce the amounts owing under any Specially Serviced Mortgage
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 Mortgage 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 or Mortgage relating to a Specially
Serviced Mortgage Loan, (iv) accept a Principal Prepayment on any Specially
Serviced Mortgage Loan during any Lockout Period other than in connection with
the defeasance of an Early Defeasance Loan prior to the second anniversary of
the Startup Day or (v) extend the maturity of any Mortgage Loan; provided that
(A) the related Mortgagor is in monetary default or material non-monetary
default with respect to the Specially Serviced Mortgage 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 the Mortgage Loan to Certificateholders (as a
collective whole) on a present value basis (the relevant discounting of
anticipated collections that will be distributable to the Certificateholders to
be performed at the related Mortgage Rate), 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.
In no event shall the Special Servicer: (i) extend the maturity date
of a Mortgage Loan beyond the date that is two years prior to the earliest Rated
Final Distribution Date; or (ii) if the Mortgage 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 Mortgage 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.
(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 a Mortgage Loan that has an unpaid principal balance that is at least
equal to the lesser of $20,000,000 and 5% of the then aggregate Stated Principal
Balance of the Mortgage Pool, unless: (1) the mortgagee is not given discretion
under the terms of the related Mortgage Loan to withhold consent thereto; 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 any relevant supporting documentation
to such Rating Agency that such Rating Agency may request, to the extent in the
possession of that party.
(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 Mortgage Loan, notwithstanding that the terms of such
modification, extension, waiver or amendment so permit. The foregoing shall in
no way limit the Special Servicer's ability to charge and collect from the
Mortgagor costs otherwise required to be paid 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 Mortgage Loan and, further, by the terms of this Agreement and
applicable law, require that such Mortgagor pay to it (i) which amount shall be
additional servicing compensation under this Agreement, 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; provided that
the charging of such fee at a time when the Mortgage Loan is not in default or
default with respect thereto is not reasonably foreseeable does not constitute a
"significant modification" of such Mortgage Loan pursuant to Treasury
Regulations Section 1.1001-1(e)(2). Any such fee that is due or partially due to
the Master Servicer and/or 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 actually collected from the related Mortgagor.
(i) The Special Servicer, with respect to a Specially Serviced
Mortgage Loan, and Master Servicer, with respect to any other Mortgage Loan,
shall each notify the other, any related Sub-Servicers and the Trustee in
writing, of any modification, extension, waiver or amendment of any term of any
Mortgage 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 Mortgage 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 had been payable thereto
as Net Default Charges out of such Default Charges immediately prior to such
waiver.
(k) The Master Servicer shall not permit defeasance of any
Mortgage Loan (x) before the earliest date on which defeasance is permitted
under the terms of such Mortgage Loan, or (y) subject in all cases to the terms
of such Mortgage Loan, but excluding a Mortgage Loan that is an Early Defeasance
Mortgage Loan being defeased prior to the second anniversary of the Startup
Date, unless (i) the Defeasance Collateral consists of Government Securities,
(ii) the Master Servicer has determined (and shall be entitled to conclusively
rely, in the absence of bad faith on the part of the Master Servicer, on an
Opinion of Counsel) that the defeasance will not result in an Adverse REMIC
Event in respect of any REMIC Pool or an Adverse Grantor Trust Event with
respect to the Grantor Trust, (iii) the Master Servicer has notified the Rating
Agencies, (iv) the Rating Agencies have confirmed in writing that such
defeasance will not result in an Adverse Rating Event with respect to any Class
of Certificates (provided that the requirement to obtain such confirmation will
be a condition to the defeasance only if the Master Servicer is able under the
related loan documents and applicable law to prevent the defeasance if such
confirmation is not obtained and (i) the subject Mortgage Loan represents at
least 5.0% of the then aggregate Stated Principal Balance of the Mortgage Pool
or (ii) the subject Mortgage Loan is one of the ten largest Mortgage Loans by
the then outstanding principal balance thereof); provided that if a Rating
Agency confirmation is not required pursuant to this clause (iv), the Master
Servicer shall have delivered to each of the Rating Agencies a Notice and
Certification in the form attached hereto as Exhibit K, and (v) the Master
Servicer has requested and received from the related Mortgagor (A) an Opinion of
Counsel generally to the effect that (1) the Trustee will have a perfected,
first priority security interest in such Defeasance Collateral and (2) that such
defeasance would not result in an Adverse REMIC Event with respect to any REMIC
Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust and (B)
written confirmation from a firm of Independent accountants stating that
payments made on such Defeasance Collateral in accordance with the terms thereof
will be sufficient to pay the subject Mortgage Loan in full on or before its
Stated Maturity Date (or, in the case of an ARD Mortgage Loan, on or before its
Anticipated Repayment Date) and to timely pay each Monthly Payment scheduled to
be due prior thereto but after the defeasance; provided that, if, consistent
with the terms of the related loan documents, the related Mortgagor delivers
cash to purchase the Defeasance Collateral rather than the Defeasance Collateral
itself, the Master Servicer shall purchase the Government Securities
contemplated by the related loan documents (except with respect to Early
Defeasance Mortgage Loans that are being defeased prior to the second
anniversary of the Startup Date). Subsequent to the second anniversary of the
Startup Day, to the extent that the Master Servicer can, in accordance with the
related loan documents, require defeasance of any Mortgage Loan in lieu of
accepting a prepayment of principal thereunder, including a prepayment of
principal accompanied by a Prepayment Premium, the Master Servicer shall, to the
extent it is consistent with the Servicing Standard, require such defeasance,
provided that the conditions set forth in clauses (i) through (v) of the
preceding sentence have been satisfied. Any reasonable out-of-pocket expense
incurred by the Master Servicer pursuant to this Section 3.20(k) shall be paid
by the Mortgagor of the defeased Mortgage Loan pursuant to the related Mortgage,
Mortgage Note or other pertinent document, if so allowed by the terms of such
documents, and if the Master Servicer is unable to collect from the Mortgagor
such expenses incurred, the Mortgage Loan Seller shall pay such costs pursuant
to the terms of the Mortgage Loan Purchase Agreement. The Master Servicer and
the Special Servicer each shall, consistent with the Servicing Standard, enforce
the provisions of the Mortgage Loans it is obligated to service hereunder
relating to defeasance and prepayment restrictions; provided that, if at any
time a court with jurisdiction in the matter shall hold that the related
Mortgagor may obtain a release of the subject Mortgaged Property but is not
obligated to deliver the full amount of the Defeasance Collateral contemplated
by the related loan documents (or cash sufficient to purchase such defeasance
collateral), then (i) if consistent with such court holding and the related loan
documents, the Master Servicer shall refuse to allow the defeasance of the
Mortgage Loan or (ii) if the Master Servicer cannot so refuse and if the related
Mortgagor has delivered cash to purchase the defeasance collateral, the Master
Servicer shall either (A) buy such Defeasance Collateral (except with respect to
Early Defeasance Mortgage Loans that are being defeased prior to the second
anniversary of the Startup Date) or (B) apply such cash to prepay the Mortgage
Loan, in either case, in accordance with the Servicing Standard.
(l) In the event that the Master Servicer receives notice from the
Mortgagor under any Early Defeasance Mortgage Loan that such Mortgagor intends
to defease such Early Defeasance Mortgage Loan, in whole or in part, on or
before the second anniversary of the Start-up Day, promptly after receipt of
such notice the Master Servicer shall calculate or cause to be calculated the
amount required to be tendered by such Mortgagor to defease such Early
Defeasance Mortgage Loan. If the defeasance is to be in full and the amount
required to be tendered by the Mortgagor to defease the Early Defeasance
Mortgage Loan is less than an amount equal to the Purchase Price (as calculated
as of the date such purchase is made) or if the defeasance is to be in part, the
Master Servicer shall promptly notify the Mortgage Loan Seller and upon deposit
by the related Mortgagor of cash sufficient to purchase the Defeasance
Collateral contemplated by the related loan documents and pursuant to Section
2.03(d), the Mortgage Loan Seller shall be required to repurchase such Early
Defeasance Mortgage Loan on the proposed date on which such Early Defeasance
Mortgage Loan will be defeased. The Master Servicer shall use reasonable efforts
to require the Mortgage Loan Seller and CDC Financial Products Inc. to make any
such required repurchase described above. If the defeasance is to be in full and
the amount required to be tendered by the Mortgagor to defease the Early
Defeasance Mortgage Loan is equal to or exceeds an amount equal to the Purchase
Price (as calculated as of the date such purchase be made) the Master Servicer
shall, notwithstanding the related loan documents, treat the amount tendered by
such Mortgagor to defease the Mortgage Loan as a prepayment in full of such
Early Defeasance Mortgage Loan on the related Due Date coinciding with or next
succeeding the defeasance date, and any Excess Defeasance Deposit Proceeds shall
be allocated among and paid to the Certificateholders in accordance with Section
4.01, with any Excess Defeasance Deposit Proceeds to be treated in the same
manner as a payment of Prepayment Consideration, xxxx the Mortgage Note
"cancelled" and return it to such Mortgagor and take such other and further
action, including the release of the Mortgage with respect to the related
Mortgaged Property, consistent with the prepayment in full of such Mortgage
Loan. The Master Servicer shall promptly notify the Mortgage Loan Seller of the
foregoing.
(m) With respect to any ARD Mortgage Loan after its Anticipated
Repayment Date, the Master Servicer or the Special Servicer (with respect to
Specially Serviced Mortgage Loans) 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 Mortgage Loan if, prior to the related maturity date, the related
Mortgagor has requested the right to prepay the Mortgage Loan in full together
with all payments required under such ARD Mortgage Loan in connection with such
prepayment (except for all or a portion of such accrued Additional Interest) and
the Master Servicer or the Special Servicer, as applicable, reasonably believes
that it is waiving an amount in excess of the Additional Interest that the
related Mortgagor is likely to pay, and, further, if the Master Servicer or the
Special Servicer, as applicable, had 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) on a present value basis (the
relevant discounting of anticipated collections that will be distributable to
Certificateholders to be performed at the related Mortgage Rate) than a refusal
to waive the right to such Additional Interest. Neither Master Servicer nor the
Special 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.
(n) Neither the Master Servicer nor the Special Servicer shall
have any liability to the Trust Fund, the Certificateholders or any other Person
if its analysis and determination that the modification, waiver, amendment or
other action contemplated by Section 3.20 is reasonably likely to produce a
greater recovery to Certificateholders on a present value basis than would
liquidation, should prove to be wrong or incorrect, so long as the analysis and
determination were made on a reasonable basis in good faith by the Master
Servicer or Special Servicer and the Master Servicer was not negligent in
ascertaining the pertinent facts. The Master Servicer shall not have any
liability to the Trust Fund, the Certificateholders or any other Person with
respect to the Special Servicer's approval, disapproval or delay in reviewing
any assumption.
(o) With respect to the Mortgage Loan identified on the Mortgage
Loan Schedule as Seattle SuperMall, which provides for the investment or deposit
of funds in lender-approved investments or accounts, the Master Servicer shall
require that such investments and deposits be made in Permitted Investments or
in Eligible Accounts.
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 Mortgage 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 Mortgage 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 Mortgage Loan's becoming a Specially Serviced Mortgage 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 Mortgage Loan in accordance with the requirements hereof.
Upon determining that a Specially Serviced Mortgage 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 Mortgage 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 Mortgage Loan, and the Special Servicer's right to receive the
Special Servicing Fee with respect to such Mortgage Loan shall terminate, and
the obligations of the Master Servicer to service and administer such Mortgage
Loan shall resume.
(b) In servicing any Specially Serviced Mortgage Loans, the
Special Servicer shall provide to the Trustee 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 Mortgage Loan information, including correspondence with the related
Mortgagor.
Section 3.22 Sub-Servicing Agreements. (a) The Master Servicer and
the Special Servicer (to the extent (i) GMACCM is the Special Servicer or (ii)
if GMACCM is not the Special Servicer, then (a) with Rating Agency confirmation
or (b) so long as Mortgage Loan being sub-serviced constitutes less than 25% of
the then aggregate mortgage pool balance) 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)
and provides for the termination of the Sub-Servicer for cause without payment
of any penalty or termination fee; (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 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, 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 or the Special Servicer, 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 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 such 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 Mortgage Loan serviced
thereunder, terminate at the time such Mortgage Loan becomes a Specially
Serviced Mortgage Loan (or, alternatively, be subject to the Special Servicer's
rights to service the Mortgage Loan for so long as such Mortgage Loan continues
to be a Specially Serviced Mortgage Loan), and each Sub-Servicing Agreement
entered into by the Special Servicer shall relate only to Specially Serviced
Mortgage Loans and shall terminate with respect to any such Mortgage Loan which
ceases to be a Specially Serviced Mortgage Loan. The Master Servicer and the
Special Servicer each shall deliver to the Trustee and each other copies of all
Sub-Servicing Agreements 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. For so long as they are outstanding, Advances shall accrue interest
in accordance with Sections 3.11(g) and 4.03(d), such interest to be allocable
between the Master Servicer and such Sub-Servicer as they may agree. For
purposes of this Agreement, the Master Servicer 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 and the Controlling Class Certificateholders in writing promptly of
the appointment by it of any Sub-Servicer.
(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)
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, shall (at no expense to the Trustee,
the Certificateholders 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 and reasonable
judgment, would require were it the owner of the subject 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.
(e) Notwithstanding any Sub-Servicing Agreement, the Master
Servicer and the Special Servicer shall remain obligated and liable to the
Trustee and the Certificateholders 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 same terms and conditions as if each
alone were servicing and administering the Mortgage Loans or 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, as of the Closing Date, that:
(i) The Master Servicer is a corporation, duly organized, validly
existing and in good standing under the laws of the State of California,
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' 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.
(vii) No consent, approval, authorization or order, registration or
filing with notice to any governmental agency or court is required under
federal or state law for the execution, delivery and performance of or
compliance by the Master Servicer with this Agreement or the consummation
by the Master Servicer of any transaction contemplated hereby, other than
(1) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and (2)
where the lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Master Servicer under this Agreement.
(viii) The Master Servicer has errors and omissions insurance
coverage which is in full force and effect and complies with the
requirements of Section 3.07(c) of this Agreement.
(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, as of the Closing Date, that:
(i) The Special Servicer is a corporation, duly organized, validly
existing and in good standing under the laws of the State of California,
and the Special Servicer is in compliance with the laws of each state 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, 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) No consent, approval, authorization or order, registration or
filing with notice to, any governmental authority or court is required
under federal or state law, for the execution, delivery and performance of
or compliance by the Special Servicer with this Agreement or the
consummation by the Special Servicer of any transaction contemplated
hereby, other than (1) such consents, approvals, authorizations,
qualifications, registrations, filings or notices as have been obtained or
made and (2) where the lack of such consent, approval, authorization,
qualification, registration, filing or notice would not have a material
adverse effect on the performance by the Special Servicer under this
Agreement.
(viii) The Special Servicer has errors and omissions insurance
coverage which is in full force and effect and complies with the
requirements of 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.
Section 3.25 Application of Default Charges. (a) Any and all Default
Charges that are actually collected with respect to any Mortgage Loan or REO
Mortgage Loan 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 or the Master
Servicer, in that order, any interest due and owing to such party on
outstanding Advances made thereby with respect to the Mortgage Loan or REO
Mortgage Loan, as the case may be, as to which such Default Charges were
collected;
second, to pay any other outstanding expenses (exclusive of Special
Servicing Fees, Liquidation Fees and Workout Fees) incurred with respect
to the Mortgage Loan or REO Mortgage Loan, as the case may be, as to which
such Default Charges were collected and that, if paid from a source other
than Default Charges on such Mortgage Loan or REO Mortgage Loan, as the
case may be, would be an Additional Trust Fund Expense;
third, to reimburse the Trust for any interest on Advances paid to
the Fiscal Agent, the Trustee or the Master Servicer since the Closing
Date with respect to such Mortgage Loan or REO Loan, as the case may be,
as to which the Default Charges were collected, which interest was paid
from a source other than Default Charges on such Mortgage Loan or REO
Mortgage Loan, as the case may be;
fourth, to reimburse the Trust for any other Additional Trust Fund
Expense (exclusive of Special Servicing Fees, Liquidation Fees and Workout
Fees) incurred and paid since the Closing Date with respect to the
Mortgage Loan or REO Mortgage Loan, as the case may be, as to which the
Default Charges were collected, which expense was paid from a source other
than Default Charges on such Mortgage Loan or REO Mortgage Loan, as the
case may be; 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, if they were received in respect of a
Mortgage Loan that is not a Specially Serviced Mortgage Loan, or as
additional special servicing compensation to the Special Servicer, if they
were received in respect of a Specially Serviced Mortgage Loan or an REO
Mortgage Loan, in each case pursuant to Section 3.11.
(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 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).
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 and the Special Servicer, withdraw from the Collection
Account and apply the Available Distribution Amount (including any amounts
transferred from the Excess Liquidation Proceeds Account into the Collection
Account) 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 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, and then, to the Holders of the
Class A-2 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 on any Distribution Date as provided above shall be
made, and deemed to have been made, in respect of the various Components of such
Class of Interest Only Certificates, pro rata in accordance with the respective
amounts of Distributable Component Interest in respect of 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
and the Special Servicer, withdraw from the Collection Account and apply the
Subordinate Available Distribution Amount (including any amounts transferred
from the Excess Liquidation Proceeds Account into the Collection Account) 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 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));
(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 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;
(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));
(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 to the Holders of the Class R-III
Certificates, in 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 Section 4.01(b)(i)
through Section 4.01(b)(xlii) above;
(xliv) 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); and
(xlv) 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 Sections 4.01(b)(i) through Section 4.01(b)(xliv) above.
(c) On each Distribution Date, the Trustee shall withdraw from the
Collection Account any amount received in respect of any Mortgage Loan or REO
Loan during the related Collection Period that represents Net Prepayment
Consideration (but excluding any Repayment of Premium Amounts collected in
respect of a Premium Loan during a period when voluntary prepayment is permitted
without the payment of any prepayment consideration under the related loan
documents) and shall distribute such Net Prepayment Consideration to the Holders
of the respective Classes of Principal Balance Certificates 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.
With respect to any Net Prepayment Consideration (but excluding any
Repayment of Premium Amounts collected in respect of a Premium Loan during an
open prepayment period for such Premium Loan) not otherwise distributed in
respect of the Principal Balance Certificates pursuant to the foregoing
paragraph of this Section 4.01(c), (i) on each Distribution Date up to and
including the Distribution Date in June 2004, 72% of such Net Prepayment
Consideration will be distributed to the holders of the Class X-CL Certificates
and 28% of such Net Prepayment Consideration will be distributed to the holders
of the Class X-CP Certificates, and (ii) on any following Distribution Dates,
100% of such Net Prepayment Consideration will be distributed to the holders of
the Class X-CL Certificates. Any Net Prepayment Consideration distributed in
respect of the Class X-CL and Class X-CP Certificates on any Distribution Date
shall be deemed to have been distributed in respect of the respective Components
of the Class X-CL and Class X-CP Certificates, on a pro rata basis in accordance
with the respective amounts by which the Component Notional Amounts of such
Components were reduced on such Distribution Date by deemed distributions of
principal pursuant to Section 4.01(j).
Any Net Prepayment Consideration representing any Repayment of
Premium Amounts collected in respect of a Premium Loan during an open prepayment
period for such Premium Loan shall be distributed on the related Distribution
Date to the holders of the Class R-I Certificates.
In all paragraphs above, Net Prepayment Considerations will only be
distributed to any particular Class on a Distribution Date (i) if the respective
Certificate Principal Balance or Class Notional Amount of such Class is greater
than zero on the last Business Day of the Interest Accrual Period ending
immediately prior to such Distribution Date (except with respect to
distributions to be made to the Class R-I Certificates) and (ii) if the amount
computed pursuant to the relevant paragraph above is greater than zero for such
Class.
(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 and shall distribute such amounts to
the Holders of the Class V 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 appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent Distribution Dates), or
otherwise by check mailed to 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, but taking into account, in
the case of the Class V Certificates, possible future distributions of
Additional Interest) 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 (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each 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 the 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 in respect of 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 in respect of 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 such Class of Certificates pursuant to Section 4.04(a), but taking
into account, in the case of the Class V Certificates, possible future
distributions of Additional Interest) 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
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 pursuant to this paragraph. If all of the Certificates 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 each Class of Interest
Only Certificates on each Distribution Date pursuant to Section 4.01(a), Section
4.01(c) or Section 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 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-1 Certificates shall have four Corresponding REMIC II
Regular Interests. Class A-2 and Class G Certificates shall, in the case of each
such Class of Certificates, have three Corresponding REMIC II Regular Interests.
The Class F Certificates shall have 2 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-1-1, REMIC II Regular Interest A-1-2, REMIC II Regular Interest A-1-3
and REMIC II Regular Interest A-1-4 shall be allocated among those four 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-1-1, REMIC II Regular Interest A-1-2, REMIC II Regular
Interest A-1-3 and REMIC II Regular Interest A-1-4 shall be allocated first to
REMIC II Regular Interest A-1-1, until its Uncertificated Principal Balance is
reduced to zero, second to REMIC II Regular Interest A-1-2, until its
Uncertificated Principal Balance is reduced to zero, third to REMIC II Regular
Interest A-1-3, until its Uncertificated Principal Balance is reduced to zero
and last to REMIC II Regular Interest A-1-4, 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-1-1,
REMIC II Regular Interest A-1-2, REMIC II Regular Interest A-1-3 and REMIC II
Regular Interest A-1-4 shall be allocated entirely first to REMIC II Regular
Interest A-1-1, for so long as its Uncertificated Principal Balance is greater
than zero, second to REMIC II Regular Interest A-1-2, for so long as its
Uncertificated Principal Balance is greater than zero after the Uncertificated
Principal Balance of REMIC II Regular Interest A-1-1 has been reduced to zero,
third to REMIC II Regular Interest A-1-2, for so long as its Uncertificated
Principal Balance is greater than zero after the Uncertificated Principal
Balance of REMIC II Regular Interest A-1-1 and REMIC II Regular Interest A-1-2
have been reduced to zero, and last to REMIC II Regular Interest A-1-4, for so
long as its Uncertificated Principal Balance is greater than zero after the
Uncertificated Principal Balance of REMIC II Regular Interest A-1-1, REMIC II
Regular Interest A-1-2 and REMIC II Regular Interest A-1-3 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-1-1, REMIC II Regular Interest A-1-2, REMIC II Regular Interest A-1-3 and
REMIC II Regular Interest A-1-4 shall be allocated among those four 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-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 F-1 and REMIC II Regular Interest F-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 F-1 and REMIC II Regular Interest
F-2 shall be allocated first to REMIC II Regular Interest F-1, until its
Uncertificated Principal Balance is reduced to zero, and then to REMIC II
Regular Interest F-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 F-1 and REMIC II Regular
Interest F-2 shall be allocated entirely to REMIC II Regular Interest F-1, for
so long as its Uncertificated Principal Balance is greater than zero, and then
to REMIC II Regular 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. Deemed distributions in
reimbursement of previously allocated Realized Losses and Additional Trust Fund
Expenses made on REMIC II Regular Interest F-1 and REMIC II Regular Interest F-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 G-1, REMIC II Regular Interest G-2 and REMIC II Regular Interest G-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 G-1,
REMIC II Regular Interest G-2 and REMIC II Regular Interest G-3 shall be
allocated first to REMIC II Regular Interest G-1, until its Uncertificated
Principal Balance is reduced to zero, then to REMIC II Regular Interest G-2,
until its Uncertificated Principal Balance is reduced to zero, and last to REMIC
II Regular Interest G-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 G-1, REMIC II
Regular Interest G-2 and REMIC II Regular Interest G-3 shall be allocated
entirely to REMIC II Regular Interest G-1, for so long as its Uncertificated
Principal Balance is greater than zero, 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, and last to REMIC II Regular Interest G-3, for so long as its
Uncertificated Principal Balance is greater than zero after the Uncertificated
Principal Balance of REMIC II Regular Interest G-1 and REMIC II Regular Interest
G-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 G-1, REMIC II Regular Interest G-2 and REMIC II
Regular Interest G-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.
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 in respect of all the REMIC
I Regular Interests, up to an amount equal to, and pro rata in accordance
with, all Uncertificated Distributable Interest in respect of 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 in respect of 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 successor REO Loan); and
(iii) as deemed distributions in respect of 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).
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, Premium Loan, Early
Defeasance Mortgage Loan or REO 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 a Loan REMIC Mortgage Loan (or any successor REO Loan) shall be deemed to
have first been distributed from the Loan REMICs to REMIC I in respect of the
related Loan REMIC 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 in respect of the Loan REMIC
Regular Interest, up to an amount equal to all Uncertificated
Distributable Interest in respect of the 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 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 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 the 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
related Loan REMIC Regular Interest.
(m) Any amounts remaining in the Excess Liquidation Proceeds
Account on the Distribution Date on which all Classes of Certificates have been
paid in full in respect of all amounts due and outstanding in respect thereof
shall be paid to the Special Servicer as additional compensation.
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 File and the CMSA
Collateral Summary File, based on information provided to it by the Master
Servicer and the Special Servicer, setting forth in addition to the CMSA Bond
Level File and the CMSA Collateral Summary File:
(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, Yield Maintenance Charges, Return of Premium Amounts
and Excess Defeasance Deposit Proceeds, 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);
(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) 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 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 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, 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 Accrued Certificate Interest and Distributable 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 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 the 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) and/or Section 4.03(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 (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, Yield
Maintenance Charges, Return of Premium Amounts and Excess Defeasance
Deposit Proceeds 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 and Class R-III 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.
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 the Distribution Date Statement shall be deemed to have
agreed to keep confidential the information therein until such Distribution Date
Statement is filed with the Commission, and the Distribution Date Statement
shall bear a legend to such effect.
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 supplied to it by a Mortgagor, a
Mortgage Loan Seller or third party (subject, in the case of the Master Servicer
and the Special Servicer, to Section 3.22(d)) 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
(subject, in the case of the Master Servicer and the Special Servicer, to
Section 3.22(d)) or each other.
The Trustee shall forward a copy of each Distribution Date Statement
by mail 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 reports, including CMSA NOI Adjustment Worksheets, CMSA
Operating Statement Analysis Reports and CMSA Comparative Financial Status
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.
The Trustee's internet website shall be located at xxx.xxxxxxxx.xxx
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 be located at
"xxx.xxxxxx.xxx" or at such other address as shall be specified by the Master
Servicer. 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 Website 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.
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 provided to Certificateholders pursuant
to clauses (i), (ii), (iii) and (iv) of the description of "Distribution Date
Statement" above 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) on computer diskette to such party (such
computer diskette 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.
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 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
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, (E) the Trustee shall not intentionally disclose any information
regarding the Special Servicer's asset resolution strategy without the prior
consent of the Special Servicer (the Special Servicer's consent to be withheld
or given consistent with the Servicing Standard), and (F) 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 12:00 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 as of the related Determination Date
and a report reconciling amounts held in the Custodial Account.
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. 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 each P&I Advance Date
(and by 2:00 p.m., New York City time, on a reasonable efforts basis, but in any
event, by no later than such P&I Advance 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, first, by transferring to the Trustee for deposit in the
Collection Account amounts then held in the 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 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 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 P&I Advance 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. 000-000-0000 (or such alternative
number provided by the Master Servicer to the Trustee in writing) and by
telephone at telephone no. 000-000-0000, Attention: Master Servicing Manager (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 P&I Advance Date. If after such notice by facsimile, the Trustee
does not receive the full amount of such P&I Advances by 11:00 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 P&I Advance
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 P&I Advances to be made by the Master
Servicer, the Trustee or the Fiscal Agent, as the case may be, pursuant to
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 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 Loans in the Mortgage Pool 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 received as net income from REO Properties) as of the close
of business on the related Determination Date and further, if such amount was
not received by the Master Servicer by the close of business on the Business Day
before the Master Servicer Remittance Date; provided that, if it is determined
that an Appraisal Reduction Amount exists with respect to any such Mortgage Loan
or REO 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 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 interest portion 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 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 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 or that any
proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance,
shall be evidenced by an Officer's Certificate delivered to the Trustee, the
Fiscal Agent and the Depositor on or before the related P&I Advance Date,
setting forth the basis for such determination, together with any other
information that supports such determination, including an appraisal (and if
conducted within the 12-month period preceding such determination, which
appraisal shall have been conducted by an Independent Appraiser (or internal
valuation in the case of a Mortgage Loan with the then outstanding principal
balance of less than $2,000,000) 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 Trustee and the
Fiscal Agent 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; provided, however, that if the Master Servicer has failed to make a P&I
Advance for reasons other than a determination by 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 good faith, 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.
(d) Subject to the next sentence, 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, 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, such interest to be payable: (i) out of
any Default Charges collected on the particular Mortgage Loan or REO Loan as to
which such P&I Advance relates; 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 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 Custodial Account, and in no event shall interest accrue in
accordance with this Section 4.03(d) 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 P&I Advance Date.
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 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 sentence, then the respective Class
Principal Balances of all the outstanding Classes of 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(i), 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 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, REMIC II Regular Interest H, REMIC II
Regular Interest G-1, REMIC II Regular Interest G-2, REMIC II Regular Interest
G-3, REMIC II Regular Interest F-1, REMIC II Regular Interest F-2, 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-1-1, REMIC II Regular Interest A-1-2, REMIC II Regular Interest A-1-3 and
REMIC II Regular Interest A-1-4, as a collective matter, in the order described
in the next sentence, and (B) and 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 second 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-1-1, REMIC II Regular Interest A-1-2, REMIC II Regular Interest A-1-3 and
REMIC II Regular Interest A-1-4 pursuant to the preceding sentence shall be
made: first, to the Uncertificated Principal Balance of REMIC II Regular
Interest A-1-1, until such Uncertificated Principal Balance is reduced to zero;
second, to the Uncertificated Principal Balance of REMIC II Regular Interest
A-1-2, until such Uncertificated Principal Balance is reduced to zero; third, to
the Uncertificated Principal Balance of REMIC II Regular Interest A-1-3, until
such Uncertificated Principal Balance is reduced to zero; and last, to the
Uncertificated Principal Balance of REMIC II Regular Interest A-1-4 until such
Uncertificated Principal Balance 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
second 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. All such reductions in the 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(i) and the Loan REMIC Regular Interests pursuant to Section 4.01(l), the
Uncertificated Principal Balance of the REMIC I Regular Interests and the Loan
REMIC Regular Interests (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 REMIC I Regular Interests and the 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 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 as if the Master Servicer, the Special Servicer or the
Trustee, as the case may be, were alone performing such obligations.
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 Registered Certificates and the Class X-CL, Class
X-CP, Class F, Class G, Class H, Class J, Class K and Class L, 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 B, Class C, Class D and
Class E Certificates, $250,000 in the case of a Class of 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 Certificates, the Class R-II Certificates, the Class
R-III Certificates and the 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 the Closing Date, at 000 Xxxxx XxXxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Asset-Backed Securities Trust Services
Group--CDC Commercial Mortgage Trust, Series 2002-FX1. 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 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 F, Class G, Class H, Class J, Class K or Class L
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 F, Class G, Class H, Class J, Class K or Class
L 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 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 F, Class G, Class H,
Class J, Class K or Class L 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 F, Class G,
Class H. Class J, Class K or Class L 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 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, CDC Securities Inc. or
any of their respective Affiliates or, in the case of the global certificate(s)
representing a 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 Book-Entry Non-Registered Certificate that relates to a Rule 144A
Global Certificate 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) except in the case of a Class R-I, Class R-II, Class R-III or
Class V Certificate, 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, under Sections I and III of Prohibited Transaction
Class Exemption 95-60; or (iii) 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, any 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) 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 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 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 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 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 (c)(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 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 B, Class C, Class D, Class E, Class X-CL, Class X-CP, Class F, Class G,
Class H, Class J, Class K and Class L Certificates shall initially be issued as
one or more Certificates registered in the name of the Depository or its
nominee and, except as provided in Section 5.03(c) and 5.03(d) below, 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) below, 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 F, Class G, Class
H, Class J, Class K and Class L Certificates initially sold in reliance on Rule
144A 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 F, Class G, Class H, Class
J, Class K and Class L 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 Temporary Global Certificate for such Class, which shall be
deposited with the Trustee as custodian for 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 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. In connection with such authentication
and delivery the Depositor shall provide the Certificate Registrar with an
adequate inventory of Definitive Certificates with reasonable promptness
following a request therefor by the Certificate Registrar. 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 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.
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 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 each jurisdiction in which
such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
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 or the
Certificateholders 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 the Special
Servicer against any liability to the Trust Fund or the Certificateholders 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 reckless
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
Custodial Account against any loss, liability or 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 such party 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 breach on the part of the party
seeking indemnification of a representation or warranty made herein; or (iv)
incurred by reason of willful misfeasance, bad faith or negligence on the part
of the party seeking indemnification in the performance of its obligations or
duties hereunder or reckless 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 administrative or legal action,
proceeding, hearings or examination, 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. 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 Custodial Account
as provided in Section 3.05. 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 or by the Depositor, the Trustee or any
Certificateholder, subject to the provisions of Section 8.05(c).
Section 6.04 Resignation of Master Servicer and the Special
Servicer. (a) The Master Servicer and, subject to Section 6.06, 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 6.06 or Section 7.02 hereof. The Master Servicer and,
subject to the rights of the Controlling Class under Section 6.06 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 and 4.06, 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 and/or
the Special Servicing Fee, as applicable, that accrues pursuant hereto from and
after the date of such transfer shall be payable to such successor.
Section 6.05 Rights of Depositor and Trustee in Respect of Master
Servicer and the Special Servicer. Upon reasonable request, the Master Servicer
and the Special Servicer shall each furnish at the expense of the requesting
party the Trustee 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 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 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
(with or without cause) 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 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. 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. Upon its acquisition of
all the Class Q Certificates, GMAC Institutional Advisors LLC will be the
initial Controlling Class Representative, and by its acceptance of such
designation, shall be deemed to have agreed to keep all non-public information
received by it in such capacity pursuant to this Agreement confidential. Such
Holder or Holders shall so designate a Person to serve as replacement Special
Servicer by the delivery to the Trustee, the Master Servicer 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 pursuant to the terms of this Section 6.06. 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, (ii) the
resigning Special Servicer shall be entitled to a portion of certain Workout
Fees thereafter received on 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 Mortgage Loans and REO Properties. The Trustee shall notify the other
parties hereto and the Certificateholders of any termination of the Special
Servicer and appointment of a new Special Servicer in accordance with this
Section 6.06.
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) 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 6.06 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.
Section 6.07 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 6.07, (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 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 6.08 Certain Powers of the Controlling Class Representative.
(a) Subject to Section 6.08(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 6.08(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 and the
Controlling Class Representative has not objected in writing within five
Business Days of having been notified thereof and having been provided 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 5-Business Day period, then the Controlling Class
Representative's approval will be deemed to have been given):
(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 Mortgage 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 Mortgage 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 Mortgage 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 Mortgage
Loan (other than in accordance with the terms of, or upon satisfaction of,
such Mortgage Loan);
(vii) any acceptance of substitute or additional collateral for a
Specially Serviced Mortgage 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 Mortgage Loan;
(ix) any acceptance of an assumption agreement releasing a borrower
from liability under a Mortgage Loan;
(x) any acceptance of a change in the property management company
or, if applicable, hotel franchise for any Mortgaged Property, to the
extent Special Servicer consent is required; and
(xi) any releases of earn-out reserves or related letters of credit
with respect to a Mortgaged Property securing a Specially Serviced
Mortgage Loan;
provided that, in the event that the Special Servicer determines that immediate
action is necessary to protect the interests of the Certificateholders (as a
collective whole), the Special Servicer may take any such action without waiting
for the Controlling Class Representative's response.
In addition, the Controlling Class Representative may direct the
Special Servicer to take, or to refrain from taking, such actions as the
Controlling Class Representative may deem advisable or as to which provision is
otherwise made herein subject to Section 6.08(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.
Each of the Master Servicer and the Special Servicer shall notify
the Controlling Class Representative of any release or substitution of
collateral for a Mortgage Loan even if such release or substitution is in
accordance with such Mortgage Loan.
(b) Notwithstanding anything contained in this Agreement to the
contrary, no advice, direction or objection from or by the Controlling Class
Representative, as contemplated by this Agreement may (and the Special Servicer
and Master Servicer shall ignore and act without regard to any such advice,
direction or objection that the Special Servicer or Master Servicer, as
applicable, has determined, in its reasonable, good faith judgment, would) (A)
require or cause the Master Servicer or the Special Servicer, as applicable, to
violate the terms of any Mortgage Loan then serviced by it, applicable law or
any provision of this Agreement, including the Master Servicer's obligation or
the Special Servicer's obligation to act in accordance with the Servicing
Standard and to maintain the REMIC status of REMIC I, REMIC II or REMIC III or
(B) result in the imposition of a "prohibited transaction" or "prohibited
contribution" tax under the REMIC Provisions, or (C) expose the Master Servicer,
the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the
Trustee, the Fiscal Agent or their officers, directors, employees or agents to
any claim, suit or liability or (D) materially expand the scope of the Special
Servicer's or the Master Servicer's responsibilities under this Agreement. In
any event, if no agreement is reached between the Special Servicer and the
Controlling Class Representative or between the Master Servicer and the
Controlling Class Representative within 60 days with respect to any such advice,
direction or objection from or by the Controlling Class Representative, the
Special Servicer shall proceed in respect of its obligations hereunder in
accordance with its reasonable, good faith judgment and in accordance with the
Servicing Standard.
(c) The Controlling Class Representative will have no liability to
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. 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 and (iv) the Controlling Class Representative may, 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.
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 the 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) 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
(iv) any failure by the Master Servicer to timely make any Servicing
Advance required to be made by it hereunder, which Servicing Advance
remains unremedied for a period ending on the earlier of (A) 15 days
following the date such Servicing Advance was first required to be made,
and (B) either if applicable, (1) in the case of a Servicing Advance
relating to the payment of insurance premiums, the day on which such
insurance coverage terminates if such premiums are not paid or (2) in the
case of a Servicing Advance relating to the payment of real estate taxes,
the date of the commencement of a foreclosure action with respect to the
failure to make such payment; 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 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 the
Trustee or the Depositor or to the Master Servicer or the Special
Servicer, as the case may be (with a copy to each other party hereto), by
the Holders of Certificates entitled to at least 25% of the Voting Rights,
provided, however, that if such covenant or agreement is capable of being
cured and the Master Servicer or the Special Servicer, as applicable, is
diligently pursuing such cure, such 30-day period shall be extended for an
additional 30 days; 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 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 the Trustee or
the Depositor or to the Master Servicer or the Special Servicer, as the
case may be (with a copy to each other party hereto), by the Holders of
Certificates entitled to at least 25% of the Voting Rights, provided,
however, that that if such covenant or agreement is capable of being cured
and the Master Servicer or the Special Servicer, as applicable, is
diligently pursuing such cure, such 30-day period shall be extended for an
additional 30 days; 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
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) a Servicing Officer of the Master Servicer or the Special
Servicer, as the case may be, obtains actual knowledge that Xxxxx'x has
(i) qualified, downgraded or withdrawn its rating or ratings of one or
more Classes of Certificates, or (ii) placed one or more Classes of
Certificates on "watch status" (and such "watch status" placement shall
not have been withdrawn by Xxxxx'x within 60 days of the date the
Servicing Officer of the Master Servicer or the Special Servicer obtained
such actual knowledge), and, in the case of either clauses (i) or (ii),
cited servicing concerns with the Master Servicer or the Special Servicer,
as the case may be, as the sole or material factor in such rating action;
(xi) the Master Servicer or the Special Servicer is removed from
S&P's approved master servicer list or special servicer list, as the case
may be, and the ratings of any of the Certificates by S&P are downgraded,
qualified or withdrawn (including, without limitation, placed on "negative
credit watch") in connection with such removal; or
(xii) the Trustee has received written notice from Fitch that the
continuation of the Master Servicer or the Special Servicer in their
respective capacity would result in the downgrade, qualification or
withdrawal of the then current rating then assigned by Fitch to any Class
of Certificates.
When a single entity acts as the Master Servicer and the Special
Servicer, an Event of Default in one capacity shall not constitute an Event of
Default in the other capacity.
(b) If any Event of Default described in clauses (i) - (ix) 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, 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, 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 Mortgage Loans,
other than its rights, if any, as a Certificateholder hereunder. If any Event of
Default described in clauses (x), (xi) and (xii) 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 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, other than its rights, if any, as a Certificateholder
hereunder, 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 (other than the right to Workout Fees
payable to the Special Servicer) of the Defaulting Party under this Agreement,
whether with respect to the Certificates (other than as a holder of any
Certificate), the Mortgage 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 Mortgage
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 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 Mortgage 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 Mortgage 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 (and Workout Fees after 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 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 described in clauses (i) through (xi) of subsection (a) above 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.
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 6.06 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 Mortgage Loan hereunder. As compensation therefor, the
Trustee shall be entitled to all fees and other compensation (other than Workout
Fees payable to the Special Servicer) 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 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 6.06. 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 Mortgage Loans as it and such successor shall
agree, subject to the terms of this Agreement; 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 6.06, the Trustee
shall give prompt written notice thereof to Certificateholders at their
respective addresses appearing in the Certificate Register.
(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 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 may waive such Event of Default;
provided, however, that an Event of Default under clauses (i), (ii), (iii), (x),
(xi) and (xii) of Section 7.01(a) may be waived only by all of the
Certificateholders of the affected Classes. Upon any such waiver of an Event of
Default, such Event of Default shall cease to exist and shall be deemed to have
been remedied for every purpose hereunder. No such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent thereon
except to the extent expressly so waived. Notwithstanding any other provisions
of this Agreement, for purposes of waiving any Event of Default pursuant to this
Section 7.04, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor shall be entitled to Voting Rights with respect to
the matters described above.
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, to take all actions now or hereafter existing at law, in equity
or by statute to enforce its rights and remedies and to protect the interests,
and enforce the rights and remedies, of the Certificateholders (including the
institution and prosecution of all judicial, administrative and other
proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy, and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
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
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, 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 Mortgage 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
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 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 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-", "Aa3" and "AA-" (and, if the Trustee is rated "AA-" by Fitch, a
short-term rating of at least "F-1+," in the case of Fitch) (or, if a Fiscal
Agent meeting the requirements of Section 8.17(a) is then currently acting in
such capacity with a rating of at least "AA-," "Aa3" and "AA-," (and, if the
Fiscal Agent is rated "AA-" by Fitch, a short-term rating of at least "F-1+," in
the case of Fitch) then the Trustee may have a rating of at xxxxx "X-", "X0" and
"A-") from Fitch, Xxxxx'x and S&P, respectively (or, in the case of any Rating
Agency, such other rating as shall not result in an Adverse Rating Event, as
confirmed in writing by such Rating Agency). 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 and all Certificateholders. 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 and
the Certificateholders 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 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 and the Certificateholders 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 and the
remaining Certificateholders 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 Mortgage Loans
shall be terminated, other than any rights or obligations that accrued prior to
the date of such termination or removal (including the right to receive all
fees, expenses and other amounts (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. The cost of removing and replacing the Trustee will be
paid by the terminated or removed Trustee.
Section 8.08 Successor Trustee. (a) Any successor trustee appointed
as provided in Section 8.07 shall execute, acknowledge and deliver to the
Depositor, the 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 Trust Fund, if the Trustee has been removed in accordance with
Section 8.07(c) without cause, and otherwise at the expense of the predecessor
Trustee) all Mortgage Files and related documents and statements held by it
hereunder (other than any Mortgage Files at the time held on its behalf by a
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.
(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 and the Certificateholders.
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, with the
approval of the Controlling Class Representative, 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.
(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 and with the Controlling Class Representative's consent
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 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.
(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 Mortgage 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
parties to this Agreement, 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 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 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 Mortgage
Loan entered into or consented to by the Master Servicer or 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 6.08(a); (xi) 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; and (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). 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, CMSA NOI Adjustment Worksheets
and CMSA Comparative Financial Status Reports 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.
(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 2002 (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 2002 (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, 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:
(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 2002), 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, 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 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-" (and, if
the Fiscal Agent is rated "AA-" by Fitch, a short-term rating of at least
"F-1+") from Fitch, "Aa3" from Xxxxx'x and "AA-" from S&P (or, in the case of
any 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 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 and
the Certificateholders 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, 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.
(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.
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, the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder 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 or 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), 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), (B)
the exchange by all the Certificateholders of all the Certificates for all the
Mortgage Loans and each REO Property remaining in the Trust Fund in the manner
set forth below in this Section 9.01) and (C) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan or
REO Property remaining in the Trust Fund (whether 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, 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 the Trust Fund (whether in
REMIC I or a Loan REMIC) 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 3% 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 the Trust Fund (in each case, whether in
REMIC I or a Loan REMIC) 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 or the Depositor's purchase of all of the Mortgage Loans and
each REO Property remaining in the Trust Fund (in each case, whether in REMIC I
or a Loan REMIC), the Master Servicer, the Special Servicer, such Controlling
Class Certificateholder 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 Collection Account, an amount in immediately available funds equal to the
above-described purchase price; 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 Custodial Account
pursuant to the first paragraph of Section 3.04(b), together with any other
amounts on deposit in the 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 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 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 or the Depositor (or their respective
designees), as applicable. Any transfer of Mortgage Loans pursuant to this
paragraph shall be on a servicing-released basis. The cost of the transfer of
the Mortgage Loans will be at the expense of the purchasing entity.
Following the date on which the aggregate Certificate Principal
Balance of the Class A-1, Class A-2, Class B, Class C, Class D, Class E
Certificates is reduced to zero, all the Certificateholders, acting together
(each having agreed in writing to so act, a copy of which writing shall be
delivered to the Trustee), shall have the right, with the consent of the Master
Servicer, to exchange all of the Certificates for all of the Mortgage Loans and
each REO Property remaining in the Trust Fund as contemplated by clause (ii)(B)
of the first paragraph of this Section 9.01(a), by giving written notice to all
the parties hereto no later than 60 days prior to the anticipated date of
exchange. In the event that all the Certificateholders elect (as evidenced by a
writing signed by each Certificateholder and delivered to the Trustee) to
exchange all of the Certificates for all of the Mortgage Loans and, subject to
the preceding sentence, each REO Property remaining in the Trust Fund, the
Certificateholders, not later than the fifth Business Day preceding the
Distribution Date on which the final distribution on the Certificates is to
occur, shall deposit in the Custodial Account an amount in immediately available
funds equal to all amounts then due and owing to the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the Fiscal Agent pursuant to
Section 3.05(a) or that may be withdrawn from the Collection Account pursuant to
Section 3.05(b), but only to the extent that such amounts are not already on
deposit in the Custodial Account. In addition, the Master Servicer shall
transfer to the Collection Account all amounts required to be transferred
thereto on the related Master Servicer Remittance Date from the Custodial
Account pursuant to the first paragraph of Section 3.04(b). Upon confirmation
that such final deposits have been made and following the surrender of all the
Certificates on the Final Distribution Date, the Trustee shall release or cause
to be released to the Certificateholders or any designee thereof, the Mortgage
Files for the remaining Mortgage Loans and REO Properties and shall execute all
assignments, endorsements and other instruments furnished to it by the
Certificateholders as shall be necessary to effectuate transfer of the Mortgage
Loans and REO Properties remaining in the Trust Fund. Any exchange of Mortgage
Loans pursuant to this paragraph shall be on a servicing-released basis. The
cost of the transfer of the Mortgage Loans will be at the expense of the
exchanging Certificateholders.
Notice of any termination shall be given promptly by the Trustee by
letter to the Certificateholders mailed (a) if such notice is given in
connection with the Depositor's, the Master Servicer's, the Special Servicer's
or a Controlling Class Certificateholder's purchase of the Mortgage Loans and
each REO Property remaining in the Trust Fund (in each case, whether in REMIC I
or a Loan REMIC) or in connection with an exchange of all the Certificates for
the Mortgage Loans and REO Properties remaining in the Trust Fund, not earlier
than the 15th day and not later than the 25th day of the month next preceding
the month of the final distribution on the Certificates or (b) otherwise during
the month of such final distribution on or before the 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 (vii) of
Section 3.05(b), and further exclusive of any portion thereof that represents
Prepayment Premiums, Yield Maintenance Charges, Return of Premium Amounts 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;
(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;
(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;
(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;
(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 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 clauses (i) through (xlv) above;
(xlvii) 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); and
(xlviii) 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 (xlvii) above.
All distributions of interest made in respect of a Class of Interest
Only Certificates on the final Distribution Date pursuant to clause (i) above,
shall be deemed to have been made in respect of the respective Components of
such Class, pro rata in accordance with the respective amounts of Distributable
Component Interest in respect of such 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, Yield Maintenance Charges, Return of
Premium Amounts and Excess Defeasance Deposit Proceeds 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 Classes of Principal Balance Certificates and the Interest Only
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 amounts remaining in the Excess Liquidation Proceeds Account on
the Final Distribution Date after giving effect to the distributions to the
Classes of Certificates shall be paid to the Special Servicer as additional
compensation. 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 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 the related Loan REMIC to REMIC I on the related Loan REMIC Regular
Interest in accordance with Section 4.01(k), then from REMIC I to REMIC II on
the various REMIC I Regular Interests in accordance with Section 4.01(j) and
then from REMIC II to REMIC III on the various REMIC II Regular Interests in
accordance with Section 4.01(i).
Section 9.02 Additional Termination Requirements. (a) If the
Depositor, any Controlling Class Certificateholder, the Special Servicer or the
Master Servicer purchases, or the Certificateholders exchange all the
Certificates for, all of the Mortgage Loans and each REO Property remaining in
the Trust Fund (whether in REMIC I or a Loan REMIC) 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 Regulations 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 or otherwise transfer all of the assets of REMIC I and the Loan
REMICs to the Master Servicer, the purchasing Controlling Class
Certificateholder, the Special Servicer, the Depositor or the
Certificateholders, as the case may be, in exchange for cash and/or all
the Certificates, as applicable; 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 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.
The foregoing requirements of this Section 9.02 shall apply, mutatis
mutandis, to the repurchase of an Early Defeasance Mortgage Loan and liquidation
of the related Loan REMIC if the defeasance proceeds are less than the unpaid
principal balance of the Early Defeasance Mortgage Loan or the Mortgagor
notifies the Master Servicer of its intent to partially defease the Early
Defeasance Mortgage Loan in the circumstances described in Sections 2.03(d) and
2.03(f).
(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.
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. With respect to
the loan REMIC created in respect of the Mortgage Loan identified on the
Mortgage Loan Schedule as IRG Portfolio, the Tax Administrator shall file all
appropriate federal or state Tax Returns for the taxable year ending December
31, 2002 (at the Trustee's expense).
(b) The Loan REMIC Regular Interests, the REMIC I Regular Interests,
the REMIC II Regular Interests and the Regular Interest Certificates (or, in the
case of each Class of Interest Only Certificates, each of the Components of such
Class) are hereby designated as "regular interests" (within the meaning of
Section 860G(a)(1) of the Code) in the Loan REMICs, REMIC I, REMIC II and REMIC
III, respectively. The Class R-I Certificates will evidence the single class of
"residual interests" (within the meaning of Section 860G(a)(2) of the Code) in
each of REMIC I and the Loan REMICs. 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 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)), respectively.
(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 Regulations 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 a Class of Interest
Only Certificates, each REMIC III Component of 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 of the Loan REMICs and each of REMIC I, REMIC II and REMIC
III and the Loan REMIC (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
Trust Fund from the assets included in REMIC I and the Loan REMICs 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 the 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) 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 Mortgage Loans did not, at the time of their transfer to
the REMIC I or a 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 from the assets included in REMIC
I or, in the case of a Loan REMIC Mortgage Loan, the related Loan REMIC. 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 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 Custodial Account or the 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 Custodial
Account or the REO Account or an interest in a single member limited liability
company, as provided in Section 3.16); 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 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 within its control 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 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.
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: (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, (iii)
to add any other provisions with respect to matters or questions arising
hereunder which shall not be inconsistent with the provisions hereof, (iv) to
relax or eliminate any requirement hereunder imposed by the REMIC Provisions if
the REMIC Provisions are amended or clarified such that any such requirement may
be relaxed or eliminated, (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
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 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.
(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, (ii)
adversely affect in any material respect the interests of the Holders of any
Class of Certificates in a manner other than as described in (i) without the
consent of the Holders of all Certificates of such Class, (iii) modify the
provisions of this Section 11.01, without the consent of the Holders of all
Certificates then outstanding, (iv) modify the provisions of Section 3.20 or the
Servicing Standard, without the consent of the Holders of all Regular Interest
Certificates then outstanding, or (v) 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.
(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 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).
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 Custodial Account pursuant to
Section 3.05(a)) to the effect that such recordation materially and beneficially
affects the interests of the Certificateholders; provided, however, that the
Trustee shall have no obligation or responsibility to determine whether any such
recordation of this Agreement is required.
(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. (a) The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) The Certificateholders (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 from time
to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) The Certificateholders shall not have any right by virtue of
any provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as 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 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. This Agreement and the Certificates
shall be construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in said state, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
Section 11.05 Notices. Any communications provided for or permitted
hereunder shall be in writing and, unless otherwise expressly provided herein,
shall be deemed to have been duly given when delivered to: (i) in the case of
the Depositor, Structured Asset Securities Corporation, 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxx--CDC Commercial Mortgage Trust
2002-FX1, facsimile number: (000) 000-0000; (ii) in the case of the Master
Servicer, GMAC Commercial Mortgage Corporation, 000 Xxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxxx 00000, Attention: Managing Director, Commercial Servicing
Operations; facsimile number: (000) 000-0000, with copies to General Counsel,
facsimile number: (000) 000-0000; (iii) in the case of the Special Servicer,
GMAC Commercial Mortgage Corporation, 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxx Bieber, facsimile number: 415-391-2949, with
a copy to General Counsel, facsimile number: 000-000-0000; (iv) in the case of
the Trustee, LaSalle Bank National Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Asset-Backed Securities Trust Services
Group--CDC Commercial Mortgage Trust 2002-FX1, facsimile number: (000) 000-0000;
(v) in the case of the Fiscal Agent, ABN AMRO Bank N.V., 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Asset-Backed Securities
Trust Services Group--CDC Commercial Mortgage Trust 2002-FX1, facsimile number:
(000) 000-0000; (vi) in the case of the Underwriters, (A) Xxxxxx Brothers, Inc.,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxx-CDC
Commercial Mortgage Trust 2002-FX1, facsimile number: (000) 000-0000, (B) CDC
Securities Inc., 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx XxXxxxxxxx, facsimile number: (000) 000-0000, with a copy to
Xxxxxx Xxxxx, General Counsel, facsimile number: (000) 000-0000, (C) Xxxxxxx,
Sachs & Co., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxx Xxxxxxx, facsimile number: 000-000-0000 and (D) Xxxxxxx Xxxxx Barney Inc.,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx,
facsimile number: (000) 000-0000; (vii) in the case of the Rating Agencies, (A)
Xxxxx'x Investors Services, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: CMBS Monitoring, facsimile number: (000) 000-0000, (B) Standard &
Poor's Rating Services, a division of the XxXxxx-Xxxx Companies, Inc., 00 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: CMBS Surveillance
Department, facsimile number: (000) 000-0000 and (C) Fitch Ratings, Xxx Xxxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Commercial Mortgage
Surveillance Department, facsimile number: (000) 000-0000; (viii) in the case of
the Fiscal Agent, to the Trustee on behalf of the Fiscal Agent; (ix) in the case
of the initial Controlling Class Representative, GMAC Institutional Advisors
LLC, 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxx Xxxx, facsimile number (000) 000-0000; and (x) in the case of
CDC Financial Products Inc., 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxx Xxxx, facsimile number: (000) 000-0000; or, as to each
such Person, such other address as may hereafter be furnished by such Person to
the parties hereto in writing. Any communication required or permitted to be
delivered to a Certificateholder shall be 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 Custodial
Account, the Collection Account, the Interest Reserve Account, the Excess
Liquidation Proceeds Account and, if established, the 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 all appropriate locations in the State of New York promptly
following the initial issuance of the Certificates, and the Trustee shall
prepare, execute and file at each such office, with the reasonable cooperation
of the Depositor, 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 New York 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 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). 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. 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 and Controlling Class
Representative. (a) The Trustee shall promptly provide notice to each Rating
Agency and the Controlling Class Representative 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;
(iv) the repurchase of Mortgage Loans by the Mortgage Loan Seller
pursuant to Section 2.03;
(v) any change in the location of the Collection Account, the
Interest Reserve Account or the Excess Proceeds Liquidation 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 Mortgage Loan such information as the Rating
Agency shall reasonably request and which the Special Servicer can reasonably
provide in accordance with applicable law.
(d) To the extent applicable, the Trustee shall promptly furnish to
each Rating Agency copies of the following items:
(i) each of the annual statements as to compliance described in
Section 3.13;
(ii) each of the annual independent public accountants' servicing
reports described in Section 3.14; and
(iii) any Officer's Certificate delivered to the Trustee pursuant to
Section 3.08(a), 3.11(h), or 4.03(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 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 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.
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
Depositor
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Authorized Signatory
GMAC COMMERCIAL MORTGAGE CORPORATION
Master Servicer
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxx X. Xxxx
Title: SVP and Managing Director
GMAC COMMERCIAL MORTGAGE CORPORATION
Special Servicer
By: /s/ Xxxxx Bieber
-----------------------------------------
Name: Xxxxx Bieber
Title: Senior Vice President
LASALLE BANK NATIONAL ASSOCIATION
Trustee
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
ABN AMRO BANK N.V.
Fiscal Agent
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 20th day of June, 2002, before me, a notary public in and for
said State, personally appeared Xxxxx Xxxxxxxx, known to me to be an Authorized
Signatory of STRUCTURED ASSET SECURITIES CORPORATION, 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.
/s/ Xxxx Xxxxxxx
-------------------------
Notary Public
[Notarial Seal]
STATE OF PENNSYLVANIA )
) ss.:
COUNTY OF XXXXXXXXXX )
On the 26th day of June, 2002, before me, a notary public in and for
said State, personally appeared Xxxxxx X. Xxxx, known to me to be a Senior Vice
President of GMAC COMMERCIAL MORTGAGE CORPORATION, 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.
/s/ Xxxxxxxx X'Xxxxx
-----------------------------
Notary Public
[Notarial Seal]
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On the 25th day of June, 2002, before me, a notary public in and for
said State, personally appeared Xxxxx X. Bieber, known to me to be a Senior Vice
President of GMAC COMMERCIAL MORTGAGE CORPORATION, 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.
/s/ Xxxx X. Xxxxxxxx
-----------------------------
Notary Public
[Notarial Seal]
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On the 25th day of June, 2002, before me, a notary public in and for
said State, personally appeared Xxxxxxx X. Xxxxx, known to me to be a Vice
President of LASALLE BANK NATIONAL ASSOCIATION, 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.
/s/ Xxxxxxx Xxxxxxxxx
------------------------------
Notary Public
[Notarial Seal]
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On the 25th day of June, 2002, before me, a notary public in and for
said State, personally appeared Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxx, known to
me to be a Vice President and Vice President, respectively, of ABN AMRO BANK
N.V., 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.
/s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Notary Public
[Notarial Seal]
MORTGAGE LOAN SCHEDULE SCHEDULE 1
ALL CAPS LETTERS Indicate Loans Secured by Multiple Properties
CUT-OFF DATE ALLOCATED
PRINCIPAL PRINCIPAL
CONTROL BALANCE BALANCE
NO. PROPERTY NAME ($) ($) ADDRESS
------------------------------------------------------------------------------------------------------------------------------------
1 Fontainebleau Hilton $88,697,925 $88,697,925 0000 Xxxxxxx Xxxxxx
2 Seattle SuperMall 62,766,238 62,766,238 0000 00xx Xxxxxx XX
3 FEIGA PARTNERS II PORTFOLIO 40,735,781 VARIOUS
3A Londontown Apartments 14,483,833 0000 Xxxx Xxxxxx Xxxxx
0X Xxxxx Xxxxx Apartments 5,225,168 0000 Xxxxx Xxxxxxx Xxxx
0X Xxxxxxxxxx Apartment 5,057,024 0000 Xxxxxxxxxx Xxx
0X Xxxxx Xxxxx Apartments 4,813,607 00000 Xxxx Xxxxxxxxx
0X Xxxxx Xxxx Apartments 4,801,876 0000 Xxxxx Xxxx Xxxx
0X Xxxxxxxxx Apartments 2,544,642 0000 Xxxxxxxxxx Xxxxxxxxx
0X Xxxxxxxx Xxxxxxxxxx 2,288,516 0000 Xxxxxxxxxx Xxxxxxxxx
0X Xxxxxx Xxxxx Apartments 1,521,115 12710 Xxxxx X. Xxxxx Xxxxxxxxx
0 Xxxxxxx Xxxxxxxxxxx 37,184,296 37,184,296 7600 Xx. Xxxxxxxx Boulevard
5 PARKVIEW TOWER 33,631,531 VARIOUS
5A Parkview Tower 22,240,195 0000 Xxxxx Xxxxxx
0X Xxxxx Xxxxx 11,391,336 0000 Xxxxx Xxxxxx
0 Xxxxxxxx Xxxxxxxx 28,173,627 28,173,627 3635 Express Dr. North
7 Xxxxxxxxxxx Regency 24,411,301 24,411,301 000-000 X. 00xx Xxxxxx
0 Xxxxxxxx Xxxxxx Roll Up (2) 24,023,044 24,023,044 1007 - 0000 Xxxxxxxx Xxxxxx
0X Xxxxxxxx Xxxxxx (2) 23,007,792 23,007,792
8B Flatbush Center (2) 1,015,252 1,015,252
0 Xxxxx Xxxxxx 23,593,484 23,593,484 0000 Xxxxx Xxxxxx
00 Xxxxxxxx Xxxxxx 21,399,039 21,399,039 3648-3740 Xxxx Xxxxxxxx Xxxxxxxxx
00 Xxxxxxxx Xxxxxx 20,588,919 20,588,919 0000 Xxxxxxxx Xxxxxx
00 Xxxxxxxxx Xxxxxxxx Xxxx 19,674,151 19,674,151 000-000 Xxxxxxxxxxx Xxxxxx
& 000-000 Xxxx Xxxxxx
00 XXXXXXXX XXXXXX PORTFOLIO 14,609,095 VARIOUS
13A Yeon Building 6,115,435 000 X.X. Xxxxx Xxxxxx
13B Loyalty & Xxxxxxxx Building 4,756,449 000 X.X. Xxxxx Xxxxxx/
000 X.X. Xxxxx Xxxxxx
00X Xxxxxx Pioneer Building 3,737,210 000 X.X. Xxxxx Xxxxxx
00 Xxxxxx Xxxx 13,554,039 13,554,039 0000 Xxxxxx Xxxxxxx Xxxx
00 Xxxxxxx Towers 13,482,080 13,482,080 0000 Xxxxxxx Xxxx
16 IRG PORTFOLIO 13,209,986 VARIOUS
16A Cabot Distribution Center 5,728,443 0000 Xxxxx Xxxxxx
00X Xxxxxx Xxxxxxxxxx Xxxx 3,950,650 4780 - 0000 Xxxxxxx Xxxxxx
16C Pawcatuck 3,530,893 100 and 00 Xxxxxxxx Xxxxxx
17 Xxxxx Plaza Shopping Center 11,485,204 11,485,204 90 Xxxxx 000
00 Xxxxxxxxx Xxxxx Apartments 11,194,308 11,194,308 000 Xxxxx Xxxxxxx Xxxx Xxxxx
19 Xxxxxxx Shopping Center 10,187,065 10,187,065 0000 Xxxxxxx Xxxx
20 000 Xxxxxxx Xxxxxx 10,135,101 10,135,101 000 Xxxxxxx Xxxxxx
21 Village Marketplace Shopping Center 10,123,019 10,123,019 13100 Xxxxxxxxxx Xxxxxxxx
00 Xxxxx Xxxxxxx - Xxxxxx Xxxx 9,025,221 9,025,221 0000 Xxxxx 00
00 Xxxxxxx Xxxxxx Apartments 8,528,281 8,528,281 0000 Xxxx Xxxxxxxx Xxxxxx
24 Coral Club Apartments 5,446,303 5,446,303 0000 Xxxxx Xxxx
25 Surrey Park Apartments Roll Up (3) 5,344,740 5,344,740 0000 Xxxxxxxx Xxxx
00X Xxxxxx Xxxx Apartments (3) 4,438,895 4,438,895
25B Surrey Park Apartments (3) 905,844 905,844
26 Windsor Manor Apartments 4,567,916 4,567,916 0000 Xxxxxxxx Xxxxx
27 Xxxx-Xxxxxxxxx Foods Building 4,335,403 4,335,000 0000-0000 X Xxxxxx
00 Xxxxxxx Xxxxxx 4,300,326 4,300,326 12062 Xxxxxx Xxxxxx Xxxxx
00 000-000 Xxxx Xxxxxx Xx. 4,159,567 4,159,567 000-000 Xxxx Xxxxxx Xxxx
30 Villas at San Xxxxxxx Apartments 4,049,893 4,049,893 0000 Xxx Xxxxxxx
00 Xxxxxx Xxxxx Xxxxx 4,035,684 4,035,684 0000 X.X. Xxxxxxx 0
00 Xxxxxx Xxxx Apartments 3,853,371 3,853,371 0000 Xxxxxxxx Xxxxxx
33 Forest Garden Apartments 3,793,398 3,793,398 00000 Xxxxx Xxxx
34 Xxxx Xxxx Tower 3,558,834 3,558,834 0000 Xxxxxxxx Xxxxxx
35 Fishers Crossing 2,700,791 2,700,791 Xxxxxxxxxxxx Xxxx & 000xx Xxxxxx
00 Xxxxxxxxx Xxxxxx 2,638,359 2,638,359 0000 Xxxxxxxxx Xxxxxxxxx
37 University Food Center 2,629,087 2,629,087 0000 Xxxx Xxxxxx Xxxxxx
38 Station House Office Building 2,552,857 2,552,857 000 Xxxxxx Xxxxxx
39 Xxxxxx Warehouse 2,509,748 2,509,748 0000 Xxxxx Xxxx
00 Xxxxxxx Villas Apartments 2,477,991 2,477,991 000 Xxxxxxxx Xxxxxxxx
41 English Oaks Apartments 2,351,514 2,351,514 1320 Xxxxxxx
42 Widefield Apartments 2,270,170 2,270,171 000 Xxxxxx Xxxxxx
43 GTH&M Corpus Christi 2,089,684 2,089,684 000 Xxxxx Xxxxxxxxxx
00 Xxxxxxxx Club Apartments 1,920,845 1,920,845 00000 Xxxxx Xxxxxx
45 Xxxxxxxxxxxx Industrial 1,872,216 1,872,216 00000 Xxxx Xxxxx Xx.
00 Xxxxxxx Apartments 1,767,859 1,767,859 0000 Xxxxxxxxxx Xxxxxxxxx
47 Fox Hill Apartments 1,756,450 1,756,450 000-X Xxxxxx Xxxxx Xxxxxxxxx
00 Xxxxxxxxxx Xxxxxx Apartments 1,748,695 1,748,695 0000 Xxxxx Xxxx
49 Bedford Manor 1,555,215 1,555,215 0000 Xxxxxxx Xxxxx
00 Xxxx Xxxxxxx I Apartments 1,502,482 1,502,482 000 Xxxx Xxxxxxx Xxxxx
51 The Xxxxx Apartments 1,353,855 1,353,855 0000 Xxxxx Xxxx Xxxxxxx Xxxxxxx
52 Lake Village II Apartments 1,123,116 1,123,116 000 Xxxx Xxxxxxx Xx.
00 Xxxx Xxxx Apartments 951,423 951,423 0000 0xx Xxxxxx, XX
00 Xxxxxxxxx Xxxxxx Apartments 903,482 903,482 000-000 Xxxxx Xxxxxx XX
55 Whispering Apartments 591,705 591,705 000 Xxxx Xxxx Xxxx
56 Deer Run Apartments 362,190 362,190 000 Xxxxxxxxx Xxxxx
MORTGAGE LOAN SCHEDULE SCHEDULE 1 (continued)
ALL CAPS LETTERS Indicate Loans Secured by Multiple Properties
(CONTINUED)
INTEREST
CONTROL RATE MORTGAGE ACCRUAL AMORTIZATION STEP UP
NO. CITY STATE ZIP TYPE RATE (%) METHOD TYPE RATE (%)
------------------------------------------------------------------------------------------------------------------------------
1 Xxxxx Xxxxx XX 00000 Fixed 9.500% Actual/360 ARD 4.000%
2 Xxxxxx XX 00000 Fixed 7.540 Actual/360 ARD 4.000
3 VARIOUS FL VARIOUS FIXED 7.480 ACTUAL/360 ARD 5.000
3A Xxxxxxxxxxxx XX 00000
3B Xxxxxxx XX 00000
3C Xxxxxxx XX 00000
3D Seminole FL 33772
3E Xxxxxxx XX 00000
3F Jacksonville FL 32216
3G Jacksonville FL 32216
3H Xxxxx XX 00000
4 Xxxxxxx XX 00000 Fixed 7.685 Actual/360 XXX 0.000
0 XXXX XX XXXXXXX XX 00000 FIXED 7.842 ACTUAL/360 XXX 0.000
0X Xxxx xx Xxxxxxx XX 00000
5B King of Prussia PA 19406
6 Xxxxxxxx XX 00000 Fixed 7.990 Actual/360 ARD 5.000
7 Xxxxxxxxxxxx XX 00000 Fixed 8.630 Actual/360 ARD 5.000
8 Xxxxxxxx XX 00000 Fixed 7.447 Actual/360 5.000
8A NY Fixed 7.480 Actual/360 ARD 5.000
8B NY Fixed 6.708 Actual/360 Fully Amortizing
9 Xxxxxxx XX 00000 Fixed 7.360 Actual/360 ARD 5.000
10 Xxxxxxxx XX 00000 Fixed 7.690 Actual/360 ARD 4.000
11 Xxxxxx Xxxxxx XX 00000 Fixed 7.440 Actual/360 ARD 5.000
00 Xxxxx Xxx Xxxxxxxxx XX 00000 Fixed 7.800 Actual/360 ARD 5.000
13 XXXXXXXX XX 00000 FIXED 7.810 ACTUAL/360 ARD 5.000
13A Xxxxxxxx XX 00000
13B Xxxxxxxx XX 00000
13C Xxxxxxxx XX 00000
14 Xxxxxx XX 00000 Fixed 8.100 Actual/360 ARD 5.000
15 Xxxxxxxxx XX 00000 Fixed 8.500 Actual/360 ARD 5.000
16 VARIOUS VARIOUS VARIOUS FIXED 7.822 ACTUAL/360 BALLOON
00X Xxxxxxx XX 00000
16B Xxxxxxx XX 00000
16C Xxxxxxxxx XX 00000
17 Xxxxx Xxx XX 00000 Fixed 8.660 Actual/360 ARD 5.000
00 Xxxx Xxx Xxxxxx XX 00000 Fixed 8.000 Actual/360 ARD 5.000
19 Xxxxxxxxx XX 00000 Fixed 6.780 Actual/360 ARD 5.000
20 Xxxxxxxxxx XX 00000 Fixed 7.438 Actual/360 Balloon
21 Xxxxxxxxxx XX 00000 Fixed 7.590 Actual/360 ARD 5.000
22 Xxxxxx Xxxx XX 00000 Fixed 6.760 Actual/360 ARD 5.000
23 Xxxxxxxx Xxxxx XX 00000 Fixed 7.510 Actual/360 ARD 5.000
24 Xxxxxxxx XX 00000 Fixed 7.200 Actual/360 ARD 5.000
25 Xxx Xxxxx XX 00000 Fixed 7.467 Actual/360 ARD 5.000
25A MI Fixed 7.230 Actual/360 ARD 5.000
25B MI Fixed 8.630 Actual/360 ARD 5.000
26 Xxxxx XX 00000 Fixed 7.160 Actual/360 ARD 5.000
27 Xxxxxxxxx XX 00000 Fixed 6.780 Actual/360 ARD 5.000
28 Xxxxxxxx XX 00000 Fixed 7.050 Actual/360 XXX 0.000
00 Xxxx xx Xxxxxxx XX 00000 Fixed 8.500 Actual/360 ARD 5.000
30 Xxxxxx XX 00000 Fixed 7.110 Actual/360 ARD 5.000
31 Xxxx Xxxxx XX 00000 Fixed 8.310 Actual/360 ARD 5.000
32 Xxxxxx XX 00000 Fixed 7.562 Actual/360 ARD 5.000
33 Xxxxxx XX 00000 Fixed 7.571 Actual/360 ARD 5.000
34 Xxxxxxx XX 00000 Fixed 7.480 Actual/360 ARD 5.000
35 Fishers IN 46038 Fixed 7.600 Actual/360 ARD 5.000
36 Xxxxxxx XX 00000 Fixed 7.590 Actual/360 ARD 5.000
37 Xxxxxxx XX 00000 Fixed 7.270 Actual/360 ARD 5.000
38 Xxxxxxxxxxxx XX 00000 Fixed 7.830 Actual/360 ARD 5.000
39 Xxxxxx XX 00000 Fixed 7.400 Actual/360 ARD 5.000
00 Xxxx Xxxxxxxxx XX 00000 Fixed 8.850 Actual/360 ARD 6.000
41 Xxxxxxx XX 00000 Fixed 7.140 Actual/360 ARD 5.000
42 Xxxxxxxx Xxxxxxx XX 00000 Fixed 8.270 Actual/360 ARD 5.000
00 Xxxxxx Xxxxxxx XX 00000 Fixed 8.500 Actual/360 ARD 5.000
44 Xxxxxxxx XX 00000 Fixed 7.330 Actual/360 ARD 5.000
45 Xxxxxxxxxx XX 00000 Fixed 8.500 Actual/360 ARD 5.000
46 Xxxxxxx XX 00000 Fixed 7.510 Actual/360 ARD 5.000
47 Xxxxxxx XX 00000 Fixed 7.510 Actual/360 ARD 5.000
48 Xxxxxxxxxx XX 00000 Fixed 7.510 Actual/360 ARD 5.000
49 Xxxxxxx Xxxx XX 00000 Fixed 7.550 Actual/360 ARD 5.000
50 Xxxxxxxxxx XX 00000 Fixed 7.510 Actual/360 ARD 5.000
51 Xxxxxxx XX 00000 Fixed 7.500 Actual/360 ARD 5.000
52 Xxxxxxxxxx XX 00000 Fixed 7.510 Actual/360 ARD 5.000
53 Xxx Xxxxxx XX 00000 Fixed 10.360 30/360 ARD 5.000
54 Xxxxxxxxxx XX 00000 Fixed 10.631 00/000 XXX 0.000
00 Xxxxxxx XX 00000 Fixed 10.360 00/000 XXX 0.000
00 Xxxxxx Xxxx XX 00000 Fixed 10.360 30/360 ARD 5.000
MORTGAGE LOAN SCHEDULE SCHEDULE 1 (continued)
ALL CAPS LETTERS Indicate Loans Secured by Multiple Properties
(CONTINUED)
PREPAYMENT
LOCK-OUT PERIOD REMAINING MATURITY OR
CONTROL AND DEFEASANCE ORIGINATION TERM TO TERM TO ANTICIPATED MATURITY/ARD
NO. FLAG (1) DATE MATURITY (MOS.) MATURITY (MOS.) REPAYMENT DATE BALANCE ($)
-----------------------------------------------------------------------------------------------------------------------------
1 Yes 3/31/1998 162 112 10/11/2011 $76,109,538
2 Yes 1/15/1998 204 152 2/11/2015 49,842,197
3 YES 7/30/1998 139 93 3/11/2010 35,962,325
3A
3B
3C
3D
3E
3F
3G
3H
4 Yes 4/6/1998 155 105 3/11/2011 33,695,282
5 YES 3/20/1998 156 106 4/11/2011 30,192,929
5A
5B
6 Yes 9/17/1998 160 116 2/11/2012 22,840,480
7 Yes 12/30/1997 162 109 7/11/2011 21,421,718
8 Yes 155 106 4/11/2011 20,465,784
8A Yes 3/16/1998 156 106 4/11/2011 20,465,784
8B Yes 3/7/2001 121 106 4/11/2011 0
9 Yes 1/30/1998 158 106 4/11/2011 20,928,725
10 Yes 12/31/1998 129 88 10/11/2009 19,426,229
11 Yes 3/16/1998 156 106 4/11/2011 18,297,329
12 Yes 1/15/1998 145 92 2/11/2010 17,832,891
13 YES 3/9/1998 199 148 10/11/2014 11,215,158
13A
13B
13C
14 Yes 8/31/1998 155 110 8/11/2011 12,220,767
15 Yes 3/31/1998 123 73 7/11/2008 12,529,045
16 YES 6/1/2001 120 108 6/11/2011 10,967,127
16A
16B
16C
17 Yes 7/1/1998 123 76 10/11/2008 10,680,303
18 Yes 6/15/1998 180 133 7/11/2013 9,244,946
19 Yes 10/30/1998 182 140 2/11/2014 7,965,398
20 Yes 12/29/2000 120 103 1/11/2011 8,683,949
21 Yes 11/10/1998 177 139 1/11/2014 7,870,311
22 Yes 9/24/1998 123 79 1/11/2009 7,554,629
23 Yes 3/2/1998 147 96 6/11/2010 7,090,678
24 Yes 3/24/1998 147 97 7/11/2010 4,728,985
25 Yes 136 95 5/11/2010 4,720,486
25A Yes 10/1/1998 139 95 5/11/2010 3,902,086
25B Yes 5/23/2000 119 95 5/11/2010 818,399
26 Yes 7/2/1998 148 101 11/11/2010 3,938,347
27 Yes 10/30/1998 182 140 2/11/2014 3,389,908
28 Yes 3/20/1998 135 85 7/11/2009 3,812,483
29 Yes 7/15/1998 123 77 11/11/2008 3,855,211
30 Yes 8/13/1998 123 78 12/11/2008 3,421,377
31 Yes 10/16/1997 123 68 2/11/2008 3,753,802
32 Yes 3/26/1998 111 61 7/11/2007 3,475,141
33 Yes 3/26/1998 111 61 7/11/2007 3,421,542
34 Yes 3/2/1998 147 96 6/11/2010 2,956,669
35 Yes 1/30/1998 147 95 5/11/2010 2,374,753
36 Yes 5/29/1998 183 135 9/11/2013 1,800,133
37 Yes 6/19/1998 123 76 10/11/2008 2,381,536
38 Yes 9/17/1998 135 91 1/11/2010 2,312,720
39 Yes 8/13/1998 123 78 12/11/2008 2,279,993
40 Yes 4/11/1997 120 58 4/11/2007 2,343,415
41 Yes 4/17/1998 129 80 2/11/2009 2,113,201
42 Yes 12/8/1997 207 153 3/11/2015 1,557,273
43 Yes 5/18/1998 120 72 6/11/2008 1,946,969
44 Yes 4/1/1998 120 70 4/11/2008 1,759,714
45 Yes 6/25/1998 123 76 10/11/2008 1,736,522
46 Yes 3/2/1998 147 96 6/11/2010 1,469,854
47 Yes 3/2/1998 147 96 6/11/2010 1,460,367
48 Yes 3/2/1998 147 96 6/11/2010 1,453,919
49 Yes 6/24/1998 141 94 4/11/2010 1,372,659
50 Yes 3/2/1998 147 96 6/11/2010 1,249,210
51 Yes 10/6/1998 123 79 1/11/2009 1,231,315
52 Yes 3/2/1998 147 96 6/11/2010 933,793
53 Yes 12/20/1995 180 103 1/11/2011 821,434
54 Yes 11/7/1994 142 90 12/11/2009 791,741
55 Yes 12/20/1995 157 103 1/11/2011 510,602
56 Yes 12/20/1995 180 103 1/11/2011 312,705
MORTGAGE LOAN SCHEDULE SCHEDULE 1 (continued)
ALL CAPS LETTERS Indicate Loans Secured by Multiple Properties
(CONTINUED)
REMAINING MONTHLY PRINCIPAL BASE INTEREST
CONTROL AMORTIZATION AND INTEREST GROUND LEASE PREMIUM PREMIUM RATE OF
NO. TERM (MOS.) PAYMENT ($) FLAG LOAN FLAG AMOUNT ($) PREMIUM LOANS
-------------------------------------------------------------------------------------------
1 289 $782,240 No Yes 11,811,931 7.430%
2 328 450,860 No
3 313 295,466 XX
0X Xx
0X Xx
0X Xx
3D No
3E No
3F No
3G No
3H No
4 359 264,852 No
5 346 245,468 XX
0X Xx
0X Xx
0 000 000,000 No
7 313 196,158 No
8 334 175,206 No
8A 344 162,415 No
8B 105 12,790 No
9 344 164,646 No
10 328 155,845 No
11 344 144,785 No
12 331 144,428 No
13 304 110,071 PARTIAL LEASEHOLD
13A Leasehold
13B No
13C No
14 350 100,992 No
15 310 106,875 No Yes 656,378 7.450
16 288 101,658 XX
00X Xx
00X Xx
00X Xx
00 000 92,073 No
18 313 84,808 No Yes 679,633 7.160
19 318 68,800 No
20 307 73,812 No
21 300 75,064 No
22 256 66,388 No
23 273 65,074 No
24 310 38,601 No
25 316 38,568 No
25A 316 31,318 No
25B 316 7,251 No
26 313 32,198 No
27 318 29,280 No
28 310 30,058 No
29 314 32,881 No Yes 266,243 7.190
30 255 30,693 No
31 305 31,617 No
32 268 29,721 No
33 268 29,280 No
34 273 27,088 No
35 308 19,855 No
36 252 20,856 No
37 312 18,730 No
38 331 18,838 No
39 315 18,002 No
40 298 20,402 No
41 311 16,531 No
42 270 18,492 No
43 312 16,542 No Yes 132,923 7.170
44 310 13,752 No
45 313 14,807 No Yes 97,968 7.410
46 273 13,489 No
47 273 13,402 No
48 273 13,343 No
49 313 11,352 No
50 273 11,464 No
51 316 9,789 No
52 273 8,570 No
53 283 9,002 No
54 270 8,821 No
55 283 5,600 No
56 283 3,427 No
(1) All of the mortgage loans provide for a period, following or accompanying
the prepayment lock-out period, during which voluntary prepayments are
prohibited but the related borrower may obtain a full or partial release
of the mortgaged real property from the related mortgage lien through
defeasance
(2) The Flatbush Center Loan is comprised of two pari passu notes which are
cross-defaulted and cross-collateralized.
(3) The Surrey Park Apartments is a loan that had two fundings under a single
note.
SCHEDULE II
REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO THE MORTGAGE LOANS
For purposes of these representations and warranties, the phrases
"to the knowledge of the Seller" or "to the Seller's knowledge" shall mean,
except where otherwise expressly set forth below, the actual state of knowledge
of the Seller or any servicer acting on its behalf regarding the matters
referred to, in each case (i) after having conducted such inquiry and due
diligence into such matters as would be customarily performed by prudent
institutional commercial, or multifamily, mortgage lenders, as applicable, and
in all events as required by the Seller's underwriting standards, at the time of
the origination or acquisition of the particular Mortgage Loan and (ii)
subsequent to such origination or acquisition, utilizing the servicing and
monitoring practices customarily utilized by prudent commercial mortgage loan
servicers with respect to securitizable commercial, or multifamily, as
applicable, mortgage loans, and the phrases "to the actual knowledge of the
Seller" or "to the Seller's actual knowledge" shall mean, except where otherwise
expressly set forth below, the actual state of knowledge of the Seller or any
servicer acting on its behalf without any express or implied obligation to make
inquiry. All information contained in documents which are part of, or required
to be part of, a Mortgage File and the information and documents contained in
the servicing file related to each Mortgage Loan which was maintained by CapMark
Services, L.P., as servicer for the CDC Depositor Trust ST I, as supplemented by
the Seller during the period of the Seller's ownership of the Mortgage Loan,
shall be deemed to be within the knowledge and the actual knowledge of the
Seller. Wherever there is a reference to receipt by, or possession of, the
Seller of any information or documents, or to any action taken or not taken by
the Seller or its agents or employees, such reference shall include the receipt
or possession of such information or documents by, or the taking of such action
or the not taking such action by, either of the Seller or any servicer acting on
its behalf.
(a) The Seller hereby represents and warrants that as to each
Mortgage Loan, except as disclosed on Schedules hereto, as of the date specified
below or, if no such date is specified, as of the Closing Date; and
(i) Immediately prior to the sale, transfer and assignment to the
Trust, each related Note and Mortgage was not subject to an assignment
(other than to the Seller) or pledge, and the Seller had good title to,
and was the sole owner of, the Mortgage Loan;
(ii) The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to the Trust constitutes a
legal, valid, binding and, subject to the exceptions set forth in
Paragraph (v) below, enforceable assignment of such Mortgage;
(iii) The Seller is transferring such Mortgage Loan free and clear
of any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan and each Mortgage Note is, or shall be as
of the Closing Date, properly endorsed to the Trust or its designee and
each such endorsement is genuine;
(iv) The information pertaining to such Mortgage Loan set forth in
the Mortgage Loan Schedule was true and correct and complete in all
material respects as of the Cut-off Date;
(v) Each related Note, Mortgage, Assignment of Leases and Rents and
other agreement executed in connection with such Mortgage Loan are legal,
valid and binding obligations of the related Borrower, enforceable in
accordance with their terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
the enforcement of creditors' rights generally, or by general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and there is no right of rescission or
right of set-off or abatement or valid defense or counterclaim available
to the related Borrower with respect to such Note, Mortgage and other
agreements;
(vi) The Mortgage File contains an assignment of leases and rents
(an "Assignment of Leases"), either as a separate instrument or
incorporated into the related Mortgage, which establishes and creates a
valid, subsisting and, subject to the exceptions set forth in Paragraph
(v) above, enforceable first priority lien on and security interest in,
subject to applicable law, the property, rights and interests of the
related Borrower described therein, except that a license may have been
granted to the related Borrower to exercise certain rights and perform
certain obligations of the lessor under the relevant lease or leases,
including, without limitation, the right to operate the related leased
property; and each assignor thereunder has the full right to assign the
same. The related assignment of any Assignment of Leases not included in a
Mortgage, executed and delivered in favor of the Trust is in recordable
form (but for insertion of the name of the assignee and any related
recording information which is not yet available to the Seller), and
constitutes a legal, valid, binding and, subject to the exceptions set
forth in Paragraph (v) above, enforceable assignment of such Assignment of
Leases from the relevant assignor to the Trust. The Assignment of Leases,
subject to applicable law, provides for the appointment of a receiver for
the collection of rents or for the related mortgagee to enter into
possession to collect the rents;
(vii) Except by a written instrument, which is contained in the
related Mortgage File, (a) the terms of the related Mortgage Note, the
related Mortgage(s), any related loan agreement, lock-box agreement and/or
any other related agreement have not been impaired, modified, altered,
satisfied, canceled, subordinated (except for Permitted Encumbrances) or
rescinded in any manner that in each case materially and adversely affects
the value of the Mortgage Loan, the value or use of the related Mortgaged
Property, the interest of the Trust or the interest of any
Certificateholder, (b) the related Mortgaged Property has not been
released from the lien of such Mortgage and (c) the related Borrower has
not been released from its obligations under such Mortgage, in whole or in
part, in each such event in a manner which would materially interfere with
the benefits of the security intended to be provided by such Mortgage. No
waivers, modifications or assumptions of the Mortgage Loans have been
given, made or consented to by or on behalf of the Seller since May 7,
2002 except as set forth on Schedule 1 (vii);
(viii) Each related Mortgage is a valid and enforceable first lien
on the related Mortgaged Property and such Mortgaged Property (subject to
the matters described in clause (xi) below) is free and clear of any
mechanics' and materialmen's liens which are prior to or equal with the
lien of the related Mortgage, except those which are insured against by a
lender's title insurance policy (as described below);
(ix) The Seller has not taken any action that would cause the
representations and warranties made by each related Borrower in the
Mortgage Loan not to be true;
(x) The Seller has no knowledge that the representations and
warranties made by each related Borrower in such Mortgage Loan are not
true in any material respect;
(xi) The lien of each related Mortgage is insured by an ALTA
lender's title insurance policy, or its equivalent as adopted in the
applicable jurisdiction (or if such policy has not yet been issued such
insurance may be evidenced by a "marked up" title insurance pro forma or
commitment marked as binding and countersigned by the title insurer or its
authorized agent) (the "Title Policy"), insuring the Seller, its
successors and assigns or the holder of the related Note (as sole
insured), as a valid and first priority lien of the Mortgage in at least
the original principal amount of such Mortgage Loan or Allocated Loan
Amount of the related Mortgaged Property (as set forth on the Mortgage
Loan Schedule attached as an exhibit to the Pooling and Servicing
Agreement, as such Mortgage Loan Schedule may be amended from time to time
pursuant to the terms of the Pooling and Servicing Agreement), subject
only to (a) the lien of current real property taxes, water charges, sewer
rents and other governmental taxes, charges and assessments not yet due
and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record, none of which
individually or collectively materially interferes with (1) the security
intended to be provided by such Mortgage, (2) the value or marketability
of the Mortgaged Property, (3) the current principal use of the related
Mortgaged Property or (4) the ability of the related Mortgaged Property to
generate income sufficient to service such Mortgage Loan and (c) the
exceptions (general and specific) set forth in such policy, none of which
individually or collectively materially interferes with (1) the security
intended to be provided by such Mortgage, (2) the value or marketability
of the Mortgaged Property, (3) the current principal use of the related
Mortgaged Property or (4) the ability of the related Mortgaged Property to
generate income sufficient to service such Mortgage Loan (the items set
forth in clauses (a), (b) and (c) above collectively referred to as
"Permitted Encumbrances"); none of the Permitted Encumbrances individually
or collectively materially interferes with (1) the security intended to be
provided by such Mortgage, (2) the value or marketability of the Mortgaged
Property, (3) the current principal use of the related Mortgaged Property
or (4) the ability of the related Mortgaged Property to generate income
sufficient to service such Mortgage Loan; the Seller or its successors or
assigns is the sole named insured of such policy; such policy is
assignable to the Trust without the consent of or any notification to the
insurer, and is in full force and effect upon the consummation of the
transactions contemplated by this Agreement; the premium for such policy
has been paid in full; no claims have been made under such policy and the
Seller has not done anything, by act or omission, and the Seller has no
knowledge of any matter, which would impair or diminish the coverage of
such policy; to the extent required by applicable law, at origination the
insurer was qualified to do business in the jurisdiction in which the
related Mortgaged Properties are located and to the Seller's knowledge as
of the Closing Date, the insurer issuing such policy is qualified to do
business in the jurisdiction in which the related Mortgaged Properties are
located; to the Seller's knowledge, all of the material improvements on
the related Mortgaged Property that were considered in determining the
value of the Mortgaged Property at the time of origination of the related
Mortgage Loan lay wholly within the boundaries of such property, except
for encroachments that are insured against by the Title Policy or that do
not materially and adversely affect the value or marketability of such
Mortgaged Property, and no improvements on adjoining properties materially
encroached upon such Mortgaged Property so as to materially and adversely
affect the value or marketability of such Mortgaged Property, except those
encroachments that are insured against by the Title Policy;
(xii) The proceeds of such Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder and the Seller
covenants that it will not make any future advances under the Mortgage
Loan to the related Borrower;
(xiii) Each related Mortgaged Property is free of any material
damage that would affect materially and adversely the value or use of such
Mortgaged Property as security for the Mortgage Loan and is in good repair
and there is no proceeding pending for the total or the partial
condemnation of such Mortgaged Property;
(xiv) Each of the related Borrowers is in possession of all material
licenses, permits and other authorizations necessary and required by all
applicable laws for the conduct of its business and all such licenses,
permits and authorizations are valid and in full force and effect, and if
a related Mortgaged Property is improved by a hotel, the most recent
inspection or review by the franchisor, if any, did not cite such
Mortgaged Property for material violations of the related franchise
agreement which have not been cured;
(xv) Except as set forth on Schedule 1 (xv), the Seller has
inspected or caused to be inspected each related Mortgaged Property within
the past 13 months preceding the Cut-off Date;
(xvi) Except as set forth on Schedule 1 (xvi), such Mortgage Loan
does not have a shared appreciation feature, other contingent interest
feature or negative amortization, unless such Mortgage Loan is an ARD Loan
which may have negative amortization from and after the related
Anticipated Repayment Date, or any equity participation by the Seller;
(xvii) Such Mortgage Loan is a whole loan and no other party holds a
participation interest in the Mortgage Loan;
(xviii) The Mortgage Rate (exclusive of any default interest, late
charges or yield maintenance charge) of such Mortgage Loan complied as of
the date of origination with, or is exempt from, applicable state or
federal laws, regulations and other requirements pertaining to usury; any
and all other requirements of any federal, state or local laws, including,
without limitation, truth-in-lending, real estate settlement procedures,
equal credit opportunity or disclosure laws, applicable to such Mortgage
Loan have been complied with as of the date of origination of such
Mortgage Loan;
(xix) With respect to each Mortgage Loan, no fraudulent acts were
committed by the originator during the origination process of such
Mortgage Loan and the origination, servicing and collection of each
Mortgage Loan is in all respects legal, proper and prudent in accordance
with customary industry standards;
(xx) All taxes and governmental assessments that prior to the
related Closing Date became due and owing in respect of each related
Mortgaged Property have been paid, or an escrow of funds in an amount
sufficient to cover such payments has been established;
(xxi) All escrow deposits and payments required pursuant to the
Mortgage Loans are in the possession, or under the control, of the Seller
or its agent and there are no deficiencies in connection therewith and all
such escrows and deposits are being conveyed to the Depositor by the
Seller and identified as such with appropriate detail;
(xxii) To the extent required under applicable law, as of the
related Cut-off Date, the Seller was authorized to transact and do
business in the jurisdiction in which each related Mortgaged Property is
located at all times when it held the Mortgage Loan;
(xxiii) Each Mortgage Loan requires that all improvements upon each
Mortgaged Property securing a Mortgage Loan be insured under a fire and
extended perils insurance policy included within the classification "All
Risk of Physical Loss" insurance (or the equivalent) policy in an amount
at least equal to 100% of the insurable replacement cost of the
improvements located on the related Mortgaged Property and requires a
"Replacement Cost Endorsement" without a waiver of depreciation, (or
similar language) and if applicable, the related hazard insurance policy
contains appropriate endorsements to avoid the application of
co-insurance. Each Mortgaged Property securing a Mortgage Loan is the
subject of a business interruption or rent loss insurance policy providing
coverage for at least twelve (12) months (or a specified dollar amount
which is reasonably estimated to cover no less than twelve (12) months of
rental income). If, based solely on a flood zone certification or a survey
of the related Mortgaged Property, any portion of the material, permanent
improvements, located on a Mortgaged Property securing any Mortgage Loan
is in an area identified in the Federal Register by the Federal Emergency
Management Agency as a special flood hazard area (Zone A or Zone V) (an
"SFH Area"), then a flood insurance policy meeting the requirements of the
then current guidelines of the Federal Insurance Administration is in
effect in an amount representing coverage not less than the least of (1)
the minimum amount required, under the terms of coverage, to compensate
for any damage or loss on a replacement basis, (2) the outstanding
principal balance of such Mortgage Loan, (3) the allocated loan amount for
such Mortgaged Property as set forth on Schedule 2, and (4) the maximum
amount of insurance available under the applicable National Flood
Insurance Administration Program. Except as set forth on Schedule 1
(xxiii), if any Mortgaged Property is located in the state of California
or in a "seismic zone" 3 or 4, a seismic assessment was conducted and
seismic insurance was obtained to the extent such Mortgaged Property has a
PML of greater than twenty percent (20%) calculated using at least a 450 a
year look back with a 10% probability of exceedance in a 50 year period.
If the Mortgaged Property for any Mortgage Loan is located in any of the
locations (city or county and state) set forth on Schedule 3, then such
Mortgaged Property is insured by windstorm insurance in an amount at least
equal to the lesser of (i) the outstanding principal balance of such
Mortgage Loan, (ii) the allocated loan amount for such Mortgaged Property
as set forth on Schedule 2 and (iii) 100% of the insurable replacement
cost of the improvements located on the related Mortgaged Property. If any
Mortgaged Property is, to the Seller's knowledge, a materially
non-conforming use or structure under applicable zoning laws and
ordinances, then, in the event of a material casualty or destruction, each
Mortgage Loan requires that one or more of the following is true: (i) such
Mortgaged Property may be restored or repaired to materially the same
extent of the use or structure at the time of such casualty; (ii) such
Mortgaged Property is covered by law and ordinance insurance in an amount
customarily required by reasonably prudent commercial mortgage lenders; or
(iii) the amount of hazard insurance currently in place and required by
the related Mortgage Loan Documents would generate proceeds that, together
with the value of the related land, are sufficient to pay of the subject
Mortgage Loan. Each Mortgage Loan requires that all such hazard and flood
insurance policies contain a standard mortgagee clause for the benefit of
the holder of the related Mortgage, its successors and assigns, as
mortgagee, and are not terminable (nor may the amount of coverage provided
thereunder be reduced) without at least ten (10) days' prior written
notice to the mortgagee; all other insurance policies are not terminable
without at least ten (10) days' prior written notice to the mortgagee; and
to Seller's knowledge, no such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Each Mortgaged
Property and all improvements thereon are also covered by comprehensive
general liability insurance in such amounts as are generally required by
reasonably prudent commercial lenders for similar properties, but in no
event less than $1,000,000. Except as set forth on Schedule 1 (xxiii),
each Mortgage Loan requires that the insurer for all of the required
coverages set forth herein has a claims paying ability rating from
Standard & Poor's, Xxxxx'x or Fitch (a) of not less than AA (or the
equivalent) for any Mortgage Loan having a Cut-off Date Principal Balance
equal to or greater than $20,000,000 or (b) of not less than BBB (or the
equivalent) for any Mortgage Loan having a Cut-off Date Principal Balance
less than $20,000,000. With respect to each Mortgage Loan, the related
Mortgage Loan documents require that the related Borrower or a tenant of
such Borrower maintain insurance as described above or permit the
Mortgagee to require insurance as described above at Borrower's expense.
Except under circumstances set forth in the related Mortgage Loan
documents that would be reasonably acceptable to a prudent commercial
mortgage lender or that would not otherwise materially and adversely
affect the security intended to be provided by the related Mortgage, the
Mortgage Loan documents for each Mortgage Loan provide that proceeds paid
under any such casualty insurance policy will (or, at the lender's option,
will) be applied either to the repair or restoration of the related
Mortgaged Property, with the mortgagee having the right to hold and
disburse such proceeds as repair or restoration progresses, or to the
payment of amounts due under such Mortgage Loan; provided that the related
Mortgage Loan documents may entitle the related Borrower to any portion of
such proceeds remaining after the repair or restoration of the related
Mortgaged Property or payment of amounts due under the Mortgage Loan; and
provided, further, that, if the related Borrower holds a leasehold
interest in the related Mortgaged Property, the application of such
proceeds will be subject to the terms of the related Ground Lease (as
defined in Paragraph (xxxii) below). With respect to each of the Mortgage
Loans, neither the related all risk insurance policy nor the business
interruption policy excludes acts of terrorism, or any related damage
claims, from coverage as of the later of (i) the date of origination of
the mortgage loan and (ii) the last date as of which the policy was
renewed or amended except as indicated on Schedule 1 (xxiii). With respect
to each of the Mortgage Loans, the related Mortgage Loan documents do not
by their terms waive or prohibit the mortgagee from requiring coverage for
acts of terrorism or damages related thereto, except to the extent that
any right to require such coverage may be limited by commercially
reasonable availability. To the Seller's actual knowledge, all insurance
policies described above are with an insurance carrier qualified to write
insurance in the relevant jurisdiction. All insurance described above is
in full force and effect;
(xxiv) Other than payments due but not yet 30 days or more
delinquent, there is no material default, breach, violation or event of
acceleration existing under the related Mortgage or the related Note and,
to the Seller's knowledge, no event which, with the passage of time or
with notice and the expiration of any grace or cure period, would and does
constitute a default, breach, violation or event of acceleration;
provided, however, that this representation and warranty does not cover
any default, breach, violation or event of acceleration that specifically
pertains to or arises out of the subject matter otherwise covered by any
other representation or warranty made by the Depositor in paragraph (viii)
relating to mechanics' and materialmen's liens, paragraph (xiii),
paragraph (xx), paragraph (xxi), paragraph (xxiii), the second sentence of
paragraph (xxvi), paragraph (xxvii), paragraph (xxxi) and paragraph (lxi)
of this Exhibit B. Neither the Seller, nor to the Seller's knowledge any
prior holder of the Mortgage Loan, has waived any material default,
breach, violation or event of acceleration existing under the related
Mortgage or Mortgage Note;
(xxv) Such Mortgage Loan has not been 30 days or more delinquent
since origination and as of the related Cut-off Date was not delinquent;
(xxvi) Each related Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the
benefits of the security, including realization by judicial or, if
applicable, non-judicial foreclosure, and there is no exemption available
to the Borrower which would interfere with such right to foreclose. No
Mortgaged Property is the subject of, and no Borrower under a Mortgage
Loan is a debtor in, any state or federal bankruptcy, insolvency or
similar proceeding;
(xxvii) Each Borrower represents and warrants in the related
Mortgage, loan agreement or other loan document, that it has not used,
caused or permitted to exist and will not use, cause or permit to exist on
the related Mortgaged Property any hazardous materials in any manner which
violates federal, state or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production or disposal
of hazardous materials; the related Borrower agrees to indemnify, defend
and hold the mortgagee and its successors and assigns harmless from and
against any and all losses, liabilities, damages, injuries, penalties,
fines, expenses, and claims of any kind whatsoever (including attorneys'
fees and costs) paid, incurred or suffered by, or asserted against, any
such party resulting from a breach of certain representations, warranties
or covenants given by the Borrower in such Mortgage, loan agreement or
other loan document. With respect to each Mortgaged Property, except as
set forth on Schedule 1 (xxvii) (a) an environmental site assessment
meeting the requirements of the American Society for Testing and Materials
(or with respect to multi-family Mortgaged Properties, the Federal
National Mortgage Association) and covering all environmental hazards
typically assessed for similar properties including use, type and tenants
of the Mortgaged Property ("Environmental Report"), was performed by an
independent third-party environmental consultant with respect to each
Mortgaged Property securing a Mortgage Loan within the 18 months preceding
the Cut-off Date, except as set forth on Schedule 1 (xxvii), (b) an
Environmental Report has been delivered to the Trust, and (c) either: (i)
no such Environmental Report, if any, provides that as of the date of the
report there is a material violation of applicable environmental laws with
respect to any known circumstances or conditions relating to the related
Mortgaged Property; or (ii) if any such Environmental Report does reveal
any such circumstances or conditions with respect to the related Mortgaged
Property and the same have not been subsequently remediated in all
material respects, then one or more of the following are true: (A) one or
more parties not related to or including the related Borrower and
collectively having financial resources reasonably estimated to be
adequate to cure the subject violation in all material respects, were
identified as the responsible party or parties for such condition or
circumstance and such condition or circumstance does not materially impair
the value or use of the Mortgaged Property, (B) the related Borrower
provided a "no further action" letter or other evidence which would be
acceptable to a reasonably prudent commercial mortgage lender, that
applicable federal, state or local governmental authorities had no current
intention of taking any action, and are not requiring any action, in
respect of such condition or circumstance, (C) such conditions or
circumstances were investigated further and based upon such additional
investigation, a qualified independent environmental consultant
recommended no further investigation or remediation, or (D) the
expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than the lesser of (i) $50,000 or (ii) 2% of
the outstanding principal balance of the related Mortgage Loan. To the
Seller's actual knowledge and without inquiry beyond such Environmental
Report, there are no significant or material circumstances or conditions
with respect to such Mortgaged Property not revealed in any such
Environmental Report, where obtained, or in any Borrower questionnaire
delivered to Seller at the issue of any related environmental insurance
policy, if applicable, that render such Mortgaged Property in material
violation of any applicable environmental laws;
(xxviii) Each related Mortgage or Loan Agreement for each Mortgage
Loan provides for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without the prior written consent of the
holder of such Mortgage, either the related Mortgaged Property, or any
direct controlling equity interest in the related borrower, is transferred
or sold, other than by reason of family and estate planning transfers,
transfers of less than a controlling interest in the Borrower, transfers
of shares in public companies, issuance of non-controlling new equity
interests, transfers to an affiliate meeting the requirements of the
Mortgage Loan, transfers among existing members, partners or shareholders
in the Borrower, transfers among affiliated Borrowers with respect to
multi-property Mortgage Loans, transfers approved by the rating agencies
or transfers of a similar nature to the foregoing meeting the requirements
of the Mortgage Loan. Except as otherwise set forth on Schedule 1
(xxviii), the related Mortgage Loan documents require the Borrower under
each Mortgage Loan to pay all reasonable fees and expenses associated with
securing the consent or approval of the holder of the related Mortgage for
all actions requiring such consent or approval under the related Mortgage.
Except as otherwise set forth on Schedule 1 (xxviii), each Mortgage Loan
prohibits the Borrower from encumbering the related Mortgaged Property, or
any direct controlling equity interest in the related borrower, by any
mortgage lien or, in the case of a direct controlling equity interest in
the related Borrower, a lien to secure any other debt, without the prior
written consent of the holder of the subject Mortgage Loan or the
satisfaction of debt service coverage or similar criteria specified
therein. To the knowledge of the Seller, no Mortgaged Property securing
the subject Mortgage Loan is encumbered by any other mortgage liens and no
direct controlling equity interest in the related Borrower is encumbered
by as lien to secure any other debt. The related Mortgage Loan Documents
require the Borrower under each Mortgage Loan to pay all reasonable costs
and expenses related to any required consent to an encumbrance;
(xxix) Each Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code and Treasury regulation section
1.860G-2(a) (but without regard to the rule in Treasury regulation section
1.860G-2(f)(2) that treats defective loans as qualified mortgages) and the
related Mortgaged Property, if acquired in connection with the default or
imminent default of such Mortgage Loan, would constitute "foreclosure
property" within the meaning of Section 860G(a)(8). Prepayment Premiums,
Repayment of Premium Amounts and Excess Defeasance Deposit Proceeds
payable with respect to each Mortgage Loan, if any, constitute "customary
prepayment penalties" within the meaning of Treasury Regulation Section
1.860G-1(b)(2);
(xxx) Neither the Seller nor any affiliate thereof has any
obligation or right to make any capital contribution to any Borrower;
(xxxi) Except as set forth on Schedule 1 (xxxi), with respect to any
Mortgage Loan where a portion of the estate of the related Borrower
therein is a leasehold estate and the fee interest of the related ground
lessor is not subject and subordinate to the related Mortgage, the Seller
represents and warrants that:
(A) The ground lease or a memorandum regarding it has been
duly recorded. The ground lease permits the interest of the lessee
to be encumbered by the related Mortgage and does not restrict the
use of the related Mortgaged Property by such lessee, its successors
or assigns in a manner that would adversely affect the security
provided by the related Mortgage. There has been no material change
in the terms of such ground lease since its recordation, except by
written instruments, all of which are included in the related
Mortgage File;
(B) The lessor under such ground lease has agreed in writing
and included in the related Mortgage File that the ground lease may
not be amended, modified, canceled or terminated without the prior
written consent of the mortgagee and that any such action without
such consent is not binding on the mortgagee, its successors or
assigns. The loan agreement prohibits the related Borrower from
amending the ground lease without mortgagee consent;
(C) The ground lease has an original term (or an original term
plus one or more optional renewal terms, which, under all
circumstances, may be exercised and will be enforceable by the
mortgagee) that extends not less than 10 years beyond the stated
maturity of the related Mortgage Loan;
(D) The ground lease is prior to any mortgage or other lien
upon the related fee interest and the landlord has not entered into
an agreement to subordinate the ground lease to future mortgages or
liens on the fee interest;
(E) The ground lease is assignable to the mortgagee and its
assigns without the consent of the lessor thereunder, and assignable
to and by the Trustee without the consent of the lessor thereunder;
(F) (a) The ground lease is in full force and effect and (b)
to the Seller's actual knowledge, as of the Closing Date, no default
has occurred, nor is there any existing condition which, but for the
passage of time or giving of notice, would result in a default under
the terms of the ground lease;
(G) The ground lease or ancillary agreement between the lessor
and the lessee requires the lessor to give notice of any default by
the lessee to the mortgagee and a notice of termination will not be
effective against the mortgagee unless a copy thereof is delivered
to the mortgagee as described in the ground lease;
(H) A mortgagee is permitted a reasonable opportunity to cure
any default under the ground lease which is curable after the
receipt of notice of any default before the lessor may terminate the
ground lease. All rights of the mortgagor under the ground lease and
the related Mortgage (insofar as it relates to the ground lease) may
be exercised by or on behalf of the mortgagee;
(I) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by an
institutional investor. The lessor is not permitted to disturb the
possession, interest or quiet enjoyment of any subtenant of the
lessee in the relevant portion of the Mortgaged Property subject to
the ground lease for any reason, or in any manner, which would
adversely affect the security provided by the related Mortgage;
(J) Any related insurance proceeds or condemnation award
(other than in respect of a total or substantially total loss or
taking) will be applied either to the repair or restoration of all
or part of the related Mortgaged Property, with the mortgagee or a
trustee appointed by it having the right to hold and disburse such
proceeds as repair or restoration progresses, or to the payment of
the outstanding principal balance of the Mortgage Loan, together
with any accrued interest, except that in the case of condemnation
awards, the ground lessor is entitled to an amount of such award
generally based on the value of the unimproved land taken; and
(K) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds, or condemnation award in
respect of a total or substantially total loss or taking of the
related Mortgaged Property will be applied first to the payment of
the outstanding principal balance of the Mortgage Loan, together
with any accrued interest (except as provided by applicable law or
in cases where a different allocation would not be viewed as
commercially unreasonable by any institutional investor, taking into
account the relative duration of the ground lease and the related
Mortgage and the ratio of the market value of the related Mortgaged
Property to the outstanding principal balance of such Mortgage
Loan). Until the principal balance and accrued interest rate are
paid in full, neither the lessee nor the lessor under the ground
lease will have the option to terminate or modify the ground lease
without prior written consent of the mortgagee as a result of any
casualty or partial condemnation, except to provide for an abatement
of the rent;
(L) The ground lease requires the lessor to enter into a new
lease upon the termination of the ground lease for any reason,
including upon rejection of the ground lease in a bankruptcy
proceeding;
(xxxii) If the Mortgage for any Mortgage Loan is a deed of trust,
then (a) a trustee, duly qualified under applicable law to serve as such,
has either been properly designated and currently so serves or may be
substituted in accordance with the Mortgage and applicable law, and (b) no
fees or expenses are payable to such trustee by the Seller, the Depositor
or any transferee thereof except in connection with a trustee's sale after
default by the related Borrower or such customary fee, as may be payable,
in connection with any full or partial release of the related Mortgaged
Property or related security for such Mortgage Loan and all such fees
and/or expenses are payable by the Borrower under the Mortgage;
(xxxiii) With respect to each Mortgaged Property improved by a
hotel, the originator thereof has filed and/or recorded (or sent for
filing and/or recording on the closing date of the related Mortgage Loan)
Uniform Commercial Code financing statements on all furniture, fixtures,
equipment and all other personal property used in the operation of the
hotel. In the case of any Mortgage Loan secured by a hotel, the related
loan documents contain such provisions as are necessary and UCC Financing
Statements have been filed as necessary, in each case, to perfect a valid
first priority security interest in the related revenues with respect to
such Mortgaged Property and the loan documents contain such provisions as
are necessary to perfect a security interest which is a first priority
lien on such personal property, except for certain personal property
subject to purchase money security interests and personal property leases,
provided, the rights of the Borrower under such leases or contracts have
been collaterally assigned to the holder of the Mortgage Loan. An
assignment of each UCC financing statement relating to the Mortgage Loan
has been executed by the Seller in blank which the Depositor or its
designee is authorized to complete and to file in the filing office in
which such financing statement was filed. Notwithstanding the foregoing,
no representation is made as to the perfection of any security interest in
rents or other personal property to the extent that possession or control
of such items or actions other than the filing of UCC financing statements
are required in order to effect such perfection;
(xxxiv) To the Seller's knowledge as of the Closing Date, each
Mortgaged Property is in compliance with all applicable laws, zoning
ordinances, rules, covenants and restrictions affecting the construction,
occupancy, use and operation of such Mortgaged Property. To the Seller's
knowledge as of the Closing Date, all inspections, material licenses and
certificates required, including certificates of occupancy, required by
applicable law for ownership and operation of the related Mortgaged
Property as presently operated by the Borrower, have been obtained and are
in full force and effect;
(xxxv) Each Mortgage Loan requires the related Borrower to be, at
least for so long as the Mortgage Loan is outstanding, and to the Seller's
actual knowledge, the related Borrower is, a Single-Purpose Entity. For
this purpose, "Single-Purpose Entity" means a person, other than an
individual, which is formed or organized solely for the purpose of owning
and operating the related Mortgaged Property or Properties; does not
engage in any business unrelated to such Mortgaged Property or Properties
and the financing thereof; and whose organizational documents provide, or
which entity represented and covenanted in the related Mortgage Loan
Documents, substantially to the effect that such Borrower (i) does not and
will not have any material assets other than those related to its interest
in such Mortgaged Property or Properties or the financing thereof; (ii)
does not and will not have any indebtedness other than as permitted by the
related Mortgage or other related Mortgage Loan Documents; (iii) maintains
its own books, records and accounts, in each case which are separate and
apart from the books, records and accounts of any other person; and (iv)
holds itself out as being a legal entity, separate and apart from any
other person. In addition, each Mortgage Loan with a Cut-off Date
Principal Balance of $20,000,000 or more, the related Borrower's
organizational documents provide substantially to the effect that the
Borrower shall: conduct business in its own name; not guarantee or assume
the debts or obligations of any other person; not commingle its assets or
funds with those of any other person; prepare separate tax returns and
financial statements, or if part of a consolidated group, be shown as a
separate member of such group; transact business with affiliates on an
arm's length basis; hold itself out as being a legal entity, separate and
apart from any other person, and such organizational documents further
provide substantially to the effect that: any dissolution and winding up
or insolvency filing for such entity is prohibited or requires the consent
of an independent director or member or the unanimous consent of all
partners or members, as applicable; such documents may not be amended with
respect to the Single Purpose Entity requirements without approval of the
lender; the Borrower shall have an outside independent director or member.
The Seller has obtained, with respect to each Mortgage Loan having a
Cut-off Date Principal Balance of $20,000,000 or more, in connection with
its origination or acquisition thereof, a counsel's opinion regarding
non-consolidation of the Borrower in any insolvency proceeding involving
any other party. To the Seller's actual knowledge, each Borrower has fully
complied with the requirements of the related Mortgage Note and Mortgage
and the Borrower's organizational documents regarding
Single-Purpose-Entity status. For Mortgage Loans having a Cut-off Date
Principal Balance of $20,000,000 or more, at origination, no borrower of
such loan was a single member limited liability company;
(xxxvi) Except as set forth on Schedule 1 (xxxvi), with respect to
any Mortgage Loan that contains a provision for any defeasance of mortgage
collateral (a "Defeasance Loan"), the related Mortgage Note or Mortgage
provides that the defeasance option is not exercisable prior to a date
that is at least two (2) years following the Closing Date and is otherwise
in compliance with applicable statutes, rules and regulations governing
REMICs; requires prior notice to the holder of the Mortgage Loan of the
exercise of the defeasance option and payment by the Borrower of all
related reasonable fees, costs and expenses as set forth below; in the
case of Mortgage Loans secured by two or more Mortgaged Properties, if the
Borrower would continue to own assets in addition to the defeasance
collateral, requires, or permits the lender to require, the Mortgage Loan
(or the portion thereof being defeased) to be assumed by a successor
entity and requires counsel to provide a legal opinion that the Trust has
a perfected security interest in such collateral prior to any other claim
or interest. In addition, each Mortgage Loan that is a Defeasance Loan
permits defeasance only with substitute collateral constituting U.S.
Treasury Securities or other non-callable "government securities" within
the meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) backed by the full
faith and credit of the United States in an amount sufficient to make all
scheduled payments under the Mortgage Note (or the portion thereof being
defeased) when due, and in the case of ARD Loans, assuming the Anticipated
Repayment Date is the Maturity Date. To the Seller's actual knowledge,
defeasance under the Mortgage Loan is only for the purpose of facilitating
the disposition of a Mortgaged Property and not as part of an arrangement
to collateralize a REMIC offering with obligations that are not real
estate mortgages. With respect to each Defeasance Loan, the related
Mortgage Loan documents provide that the related Borrower shall (a) pay
all costs and expenses associated with defeasance, or (b) provide such
opinions and documents as may be reasonably requested by the lender.
Additionally, for any Mortgage Loan having a Cut-off Date Principal
Balance equal to or greater than $20,000,000, the Mortgage Loan or the
related documents require confirmation from the Rating Agency that
exercise of the defeasance option will not cause a downgrade or withdrawal
of the rating assigned to any securities backed by the Mortgage Loan and
require the Borrower to pay any related costs and expenses;
(xxxvii) Reserved.
(xxxviii) Except as set forth on Schedule 1 (xxxviii), no Borrower
under a Mortgage Loan is an affiliate of a Borrower under any other
Mortgage Loan (as such term is defined under the Pooling and Servicing
Agreement);
(xxxix) Each of the related Borrowers is organized under the laws of
a state or commonwealth of the United States;
(xl) Each Mortgaged Property (i) is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting
ingress and egress, (ii) is served by public utilities, water and sewer
(or septic facilities), (iii) is a separate tax parcel and (iv) except as
set forth on Schedule 1 (xl), has parking as required under applicable
law;
(xli) The Seller has not advanced additional funds for principal and
interest or taxes and insurance (other than holdbacks at the closing for
the related Mortgage Loan from the proceeds of such loan);
(xlii) No Mortgage Loan has been cross-collateralized and
cross-defaulted with either another Mortgage Loan or a mortgage loan not
included in the Trust;
(xliii) Each Mortgage Loan bears interest at a rate that remains
fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate, late charges or yield maintenance
charges;
(xliv) Each Mortgage Loan requires the Borrower, in some cases only
at the request of the holder of the related Mortgage, to provide the owner
or holder of the related Mortgage with at least quarterly and annual
operating statements, rent rolls (if there is more than one tenant) and
related information and annual financial statements, which annual
financial statements with respect to each Mortgage Loan with an original
principal balance greater than $20 million shall be audited (or prepared
and certified) by an independent certified public accountant upon the
request of the holder of the related Mortgage;
(xlv) Reserved.
(xlvi) With respect to each Mortgage Loan that is an ARD Loan:
(A) The minimum rate increase after the Anticipated Repayment
Date is at least 200 basis points above the original interest rate;
(B) Such Mortgage Loan begins amortizing no later than the
11th day of the month following the Cut-off Date; such Mortgage Loan
does not have an interest only period after the Cut-off Date;
(C) The Anticipated Repayment Date is not less than seven
years from the closing date for such Mortgage Loan; and
(D) Except as set forth on Schedule 1 (xlvi), such Mortgage
Loan provides that from the Anticipated Repayment Date through the
maturity date for such Mortgage Loan, all excess cash flow (net of
budgeted and lender approved discretionary capital expenditures)
will be applied to repay principal due under the Mortgage Loan;
(xlvii) The Seller has not advanced funds, directly or indirectly,
to the Borrower for payment of any amounts due under the Note and no funds
have been received from any person other than the Borrower for payments
due under the Note;
(xlviii) To Seller's knowledge, as of the Closing Date there is, no
pending action, suit or proceeding, arbitration or governmental
investigation against the Borrower or the Mortgaged Property an adverse
outcome of which would materially affect such Borrower's performance under
the loan documents or the Certificateholders;
(xlix) Except as set forth on Schedule 1 (xlix)-A, no Mortgage Note
or Mortgage requires the mortgagee to release all or any material portion
of the related Mortgaged Property from the lien of the related Mortgage
except upon: (i) payment in full of all amounts due under the related
Mortgage Loan or (ii) delivery of U.S. Treasury securities or other
noncallable "government securities" within the meaning of Treas. Reg.
Section 1.860G-2(a)(8)(i) backed by the full faith and credit of the
United States in connection with a defeasance of the related Mortgage
Loan; provided that the individual Mortgage Loans secured by multiple
parcels, may require the respective mortgagee(s) to grant releases of
material portions of the related Mortgaged Property or the release of one
or more related Mortgaged Properties upon the satisfaction of certain
legal and underwriting requirements which would be acceptable to a
reasonably prudent commercial mortgage lender and are contained in the
related Mortgage or Mortgage Note including the payment of a release price
(in an amount that is, except as otherwise set forth on Schedule 1
(xlix)-A, at least equal to 125% of the allocated loan amount of the
released property or parcel as set forth on Schedule 2) and prepayment
consideration in connection therewith. Except in connection with a partial
defeasance and except as set forth on Schedule 1 (xlix)-B, no Mortgage
Loan permits the full or partial release of any Mortgaged Property unless
the mortgagee can require the Borrower to deliver an opinion of counsel to
the effect that such release will not constitute a significant
modification of the related Mortgage Loan under Treas. Reg. Section
1.860G-2(b)(2). Notwithstanding the foregoing, any Mortgage Loan may
permit the unconditional release of one or more unimproved parcels of land
to which there was not given any material value in related Appraisal as
set forth on Schedule 1 (xlix)-C;
(l) With respect to each Mortgage Loan, the related loan documents
permit the lender, following a default under such Mortgage Loan, to apply
funds received in respect of such Mortgage Loan to amounts owing
thereunder in the order which the lender deems appropriate;
(li) An appraisal of the related Mortgaged Property was conducted in
connection with the origination of the Mortgage Loan, which appraisal is
signed by an appraiser, who, to the Seller's knowledge, had no interest,
direct or indirect, in the Mortgaged Property or the Borrower or in any
loan made on the security thereof, and whose compensation is not affected
by the approval or disapproval of the Mortgage Loan; in connection with
the origination of the Mortgage Loan, each appraiser has represented in
such appraisal or in a supplemental letter that the appraisal satisfies
the requirements of the "Uniform Standards of Professional Appraisal
Practice" as adopted by the Appraisal Standards Board of the Appraisal
Foundation;
(lii) The servicing and collection practices used with respect to
the Mortgage Loan have complied with applicable law in all material
respects and have met customary industry standards utilized by commercial
lending institutions in the area in which the Mortgaged Property was
located;
(liii) None of the related Mortgage or Mortgage Note provides a
grace period for Monthly Payments;
(liv) Each Mortgage Loan is non-recourse; provided that, the
Borrower is liable for all losses or damages incurred in the event of (i)
fraud or material intentional misrepresentation, (ii) misapplication or
misappropriation of rents, insurance payments, condemnation awards or
tenant security deposits, (iii) violation of applicable environmental laws
or breaches of environmental covenants, or (iv) intentional acts of waste,
physical waste, gross negligence or willful misconduct; and provided,
that, with respect to clause (iii) of the preceding proviso, an
indemnification against losses related to such violations or environmental
insurance shall satisfy such requirement. No waiver of liability for such
non-recourse exceptions has been granted to the Borrower or any such
guarantor or principal by the Seller or anyone acting on behalf of the
Seller that is not contained in the Mortgage File;
(lv) All terms of the related Mortgage pertaining to interest rate
adjustments, payment adjustments and principal balance adjustments are
enforceable and will not affect the priority of the lien of the Mortgage;
(lvi) The related Mortgage Note and Mortgage contain no provision
limiting the right or ability of the Depositor to assign, transfer and
convey such Mortgage Note or Mortgage to any other person or entity;
(lvii) The related Mortgage Note is not secured by any collateral
that is not included in the Trust Fund;
(lviii) Each Mortgage Loan is directly secured by a Mortgage on a
commercial or multifamily property, and either (1) substantially all of
the proceeds of the Mortgage Loan were used to acquire, improve or protect
the portion of the commercial or multifamily property that consists of an
interest in real property (within the meaning of Treasury Regulations
Sections 1.856-3(c) and 1.856-3(d)) and the interest in real property was
the only security for the Mortgage Loan as of the Testing Date (as defined
below), or (2) the fair market value of the interest in real property
which secures the Mortgage Loan was at least equal to 80% of the principal
amount of the Mortgage Loan (a) as of the Testing Date, or (b) as of the
Closing Date. For purposes of the previous sentence, (1) the fair market
value of the referenced interest in real property shall first be reduced
by (a) the amount of any lien on the interest in real property that is
senior to the Mortgage, and (b) a proportionate amount of any lien on the
interest in real property that is on a parity with the Mortgage, and (2)
the "Testing Date" shall be the date on which the referenced Mortgage Loan
was originated unless (a) the Mortgage Loan was modified after the date of
its origination in a manner that would cause "significant modification" of
the Mortgage Loan within the meaning of Treasury Regulations Section
1.1001-3, and (b) the "significant modification" did not occur at a time
when the Mortgage Loan was in default or when default with respect to the
Mortgage Loan was reasonably foreseeable, in which case the "Testing Date"
shall be the date of the last modification;
(lix) The Seller took no action in selecting the Mortgage Loans for
sale, assignment and transfer to the Depositor which, to the Seller's
knowledge, would result in delinquencies and losses on Mortgage Loans
being materially in excess of delinquencies and losses on the Seller's
actual portfolio of commercial mortgage loans;
(lx) One or more engineering assessments were performed by an
engineering consulting firm with respect to each related Mortgaged
Property during the 18-month period preceding the Cut-off Date (or, if
such Mortgage Loan is one of the Mortgage Loans identified on Schedule 1
(lx), more than 18 months), and to the Seller's knowledge, there are no
material and adverse engineering conditions or circumstances affecting
such Mortgaged Property that was not disclosed in such report(s).
(lxi) To the Seller's knowledge, no Mortgaged Property is encumbered
by subordinate financing; however, if the related Mortgaged Property is
listed on Schedule 1 (lxi), then certain equity holders in the related
Borrower are known to the Seller to have incurred debt secured by their
ownership interest in the related Borrower.
SCHEDULE 1
(vii)
With respect to the Mortgage Loan identified on the Mortgage Loan Schedule as
Station House Office Building:
1. First Amendment to Amended and Restated Loan Agreement and Amended,
Restated and Consolidated Promissory Note dated as of May 17, 2002.
2. Second Amendment to Recorded Documents dated as of May 17, 2002.
With respect to the Mortgage Loan identified on the Mortgage Loan Schedule as
Fountainbleau Hilton:
1. First Amendment to Loan Agreement and Amended, Restated and
Consolidated Renewal Note dated as of June 3, 2002.
2. Letter Agreement dated June 7, 2002.
With respect to the Mortgage Loan identified on the Mortgage Loan Schedule as
Grand Avenue:
1. Fourth Amendment to and Ratification of Loan Agreement and First
Amendment to Amended and Restated Consolidated, Amended and Restated Mortgage
Note dated as of May 17, 2002.
With respect to the Mortgage Loan identified on the Mortgage Loan Schedule as
Richmond Avenue:
1. Second Amendment to and Ratification of Loan Agreement and Second
Amendment to Amended and Restated Consolidated, Amended and Restated Mortgage
Note dated as of May 17, 2002.
With respect to the Mortgage Loan identified on the Mortgage Loan Schedule as
Flatbush Center:
1. Third Amendment to and Ratification of Loan Agreement and Second
Amendment to Amended and Restated Consolidated, Amended and Restated Mortgage
Note dated as of May 17, 2002.
With respect to the Mortgage Loan identified on the Mortgage Loan Schedule as
Orlando Marketplace:
1. First Amendment to Amended and Restated Loan Agreement and Second
Amended and Restated Consolidated Renewal Promissory Note dated as of May 17,
2002.
2. Second Amendment to Mortgage, Assignment of Leases and Rents and
Security Agreement dated as of May 17, 2002.
3. Second Amendment to Assignment of Leases and Rents dated as of May 17,
2002.
4. Letter Agreement dated as of May 17, 2002.
5. Consent and Subordination of Manager dated June 24, 2002.
(xv)
The following Mortgaged Properties were not inspected within the past 13 months
preceding the Cut-off Date: Xxx Xxxxx Xxxxxxxxxx, Xxxxxxxxx Xxxxxx Xxxxxxxxxx,
Xxxxxxx Manor Apartments, East Gate Apartments, Dundale Apartments, Churchland
Square Apartments, Lake Village II Apartments, Lake Village I Apartments,
Richmond Club Apartments and Xxxxxxxxxxxx Industrial.
(xvi)
The Mortgage Loan identified as Parkview Tower on the Mortgage Loan Schedule has
a contingent interest feature and a equity participation feature held by the
Seller. The related Borrower is required (i) to make monthly payments (to the
extent of available cash) of contingent interest in an amount equal to 10% of
excess operating cash flow (after payment of debt service, reserve/escrow
payments and payment to its partners of a 12% cumulative return on their
uncovered capital) and (ii) upon a capital event (e.g., sale or refinance), 10%
of the net proceeds received in connection with such capital event (i.e., an
"equity kicker"). However, the Seller has agreed in this Agreement to
subordinate its rights in respect of these payments from and after the
Anticipated Repayment Date to the prior payment in full of all unpaid principal
and interest on this Mortgage Loan.
(xxiii)
With respect to the Mortgage Loan identified as Seattle SuperMall on the
Mortgage Loan Schedule, earthquake insurance was obtained but no PML was
determined. With respect to the Mortgage Loan identified as Chateau Creste on
the Mortgage Loan Schedule, the PML was calculated at 10% using a 200 year look
back, and no probability of exceedance was specified on the report. With respect
to the Mortgage Loan identified as Edgewater Business Park on the Mortgage Loan
Schedule, the PML was calculated at 23% using a 200 year look back, and no
probability of exceedance was specified on the report. With respect to the
Mortgage Loan identified as Xxxx-Xxxxxxxxx Foods Building on the Mortgage Loan
Schedule, no PML was calculated at one of the two buildings securing such
Mortgage Loan.
With respect to the Mortgage Loan identified as Marriott Islandia on the
Mortgage Loan Schedule, which has a principal balance in excess of $20,000,000,
the loan documents require the claim paying ability of the insurer to be rated
at least "A". With respect to the Mortgage Loan identified as Feiga Partners II
Portfolio on the Mortgage Loan Schedule, which has a principal balance in excess
of $20,000,000, the loan documents require the claim paying ability of the
insurer to be rated at least "BBB."
The insurance policies for the following Mortgage Loans identified on the
Mortgage Loan Schedule exclude coverage for terrorism: Feiga Partners II
Portfolio, Marriott Islandia, Xxxxxx Park, Chateau Creste and University Food
Center.
(xxvii)
An Environmental Report with respect to the following Mortgaged Properties was
not performed within the 18 months preceding the Cut-off Date: Feiga Partners II
Portfolio, Orlando Marketplace, Marriott Islandia, Flatbush Center, 177 Meeting
Street, Surrey Park Apartments, Widefield Apartments and Bedford Manor
Apartments.
(xxviii)
The following Mortgage Loans identified on the Mortgage Loan Schedule are silent
with respect to the related Borrower's obligation to pay fees and expenses
associated with securing the consent or approval of a transfer: East Gate
Apartments, Ridgedale Square Apartments, Whispering Apartments and Deer Run
Apartments.
The following Mortgage Loans identified on the Mortgage Loan Schedule have
limitations on Borrower expense obligations with respect to any approved
assumption: Fontainebleau (1% of the unpaid principal balance ("UPB")), Seattle
SuperMall (1% of UPB), Feiga Partners II Portfolio (1% of UPB), Edgewater
Business Park (1% UPB), Portland Office Portfolio (1% UPB), and GTH&M Corpus
Christi (.5% of UPB).
The following Mortgage Loans identified on the Mortgage Loan Schedule do not
restrict the controlling equity interests of the related Borrower from being
pledged to secure indebtedness: Xxxxxxxxx Xxxx, Xxxxxx Xxxxxx Xxxxxxxxxx,
Xxxxxxxx Club, East Gate Apartments, Ridgedale Square Apartments, Whispering
Apartments and Deer Run Apartments.
(xxxi)
(B)
The ground lease with respect to the Mortgaged Property known as the Yeon
building (which is one of the properties securing the Mortgage Loan identified
as the Portland Office Portfolio on the Mortgage Loan Schedule) contains no
requirements for the mortgagee's consent to amend, modify or terminate the
ground lease.
(E)
The ground lease with respect to the Mortgaged Property known as the Yeon
building (which is one of the properties securing the Mortgage Loan identified
as the Portland Office Portfolio on the Mortgage Loan Schedule) is silent with
respect to assignments of the ground lease to the mortgagee, but states that the
lessor's consent to an assignment may not be unreasonably withheld, and also
states that upon delivery to the lessor of a $25,000 security deposit (and so
long as the security deposit remains with the lessor), the lessor's consent to
any assignment is not required.
(H)
The ground lease with respect to the Mortgaged Property known as the Yeon
building (which is one of the properties securing the Mortgage Loan identified
as the Portland Office Portfolio on the Mortgage Loan Schedule) is silent as to
whether the rights of the mortgagor under the ground lease and the related
mortgage may be exercised by or on behalf of the mortgagee.
(I)
The ground lease with respect to the Mortgaged Property known as the Yeon
building (which is one of the properties securing the Mortgage Loan identified
as the Portland Office Portfolio on the Mortgage Loan Schedule) states that
lessor's consent to any sublet may not be unreasonably withheld, but also states
that upon delivery to the lessor of a $25,000 security deposit (and so long as
the security deposit remains with the lessor), the lessor's consent to any
assignment or sublet is not required.
(L)
The ground lease with respect to the Mortgaged Property known as the Yeon
building (which is part of the Mortgage Loan identified as the Portland Office
Portfolio on the Mortgage Loan Schedule) provides for the termination of the
ground lease upon total condemnation.
(xxxvi)
The following Mortgage Loans identified on the Mortgage Loan Schedule permit the
defeasance of the related Mortgage Loan prior to two years following the Closing
Date: Feiga Partners II Portfolio, Franklin Square, Edgewater Business Park,
Xxxxxxx Towers, Signature Place North, Xxxxxxx Shopping Center, Loews Theatre -
Cherry Hill, Harpers Square Apartments, Xxxx-Xxxxxxxxx Foods Building, 215-217
West Church Rd., Indian River Plaza, Xxxx Xxxx Tower, Fishers Crossing,
Berkshire Pointe, Xxxxxx Warehouse, Tuscany Villas Apartments, Widefield
Apartments, Richmond Club Apartments, Xxxxxxxxxxxx Industrial, Dundale
Apartments, Fox Hill Apartments, Churchland Square Apartments, Lake Village I
Apartments, Lake Village II Apartments and 000 Xxxxxxx Xxxxxx.
(xxxviii)
The Borrowers under the following Mortgage Loans are affiliated with Borrowers
under other Mortgage Loans identified on the Mortgage Loan Schedule as set forth
below:
Borrower Affiliate Mortgage Loan
------------------ -------------
Forest City Flatbush Center
Forest City Richmond Avenue
Forest City Grand Avenue
Xxxxxx Xxxxxxxxx and Xxxxx Xxxx Xxxxxxx Shopping Center
Xxxxxx Xxxxxxxxx and Xxxxx Xxxx Xxxx-Xxxxxxxxx Foods Building
O'Neil and Xxxx Xxxxxxx Towers
O'Neil and Xxxx 000-000 Xxxxxx Xxxx
Xxxxxx X. Xxxxx Northwest Park Apartments
Xxxxxx X. Xxxxx Forest Garden Apartments
Xxxxxx X. Xxxxxx Xx. Xxxxxx Square Apartments
Xxxxxx X. Xxxxxx Xx. Dundale Apartments
Xxxxxx X. Xxxxxx Xx. Fox Hill Apartments
Xxxxxx X. Xxxxxx Xx. Lake Village I Apartments
Xxxxxx X. Xxxxxx Xx. Lake Village II Apartments
Xxxx Development Corp &
Xxxxxx X. Xxxxxx Xx (Property Manager) Xxxx Xxxx Tower
Xxxx Development Corp &
Xxxxxx X. Xxxxxx Xx (Property Manager) Churchland Square Apartments
Xxxxx Breirton & Xxxx Xxxxx East Gate Apartments
Xxxxx Breirton & Xxxx Xxxxx Ridgedale Square Apartments
Xxxxx Breirton & Xxxx Xxxxx Whispering Apartments
Xxxxx Breirton & Xxxx Xxxxx Deer Run Apartments
Xxxxxx-Xxxxx Real Estate Opportunity Fund Parkview Tower
Xxxxxx-Xxxxx Real Estate Opportunity Fund Xxxxxxxxxxx Regency
(xl)
The appraisals for the following Mortgaged Properties securing the Mortgage
Loans identified on the Mortgage Loan Schedule indicate that they are legally
non-conforming with respect to parking: Xxxxxxxxx Xxxxxxxxxx, Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx Apartments, Shenandoah Apartments, Edgewater Business Park,
Xxxx Xxxx Tower, Station House Office Building, Fox Hill Apartments, Churchland
Square Apartments, Lake Village I Apartments and Lake Village II Apartments.
The appraisals for the following Mortgaged Properties securing the Mortgage
Loans identified on the Mortgage Loan Schedule indicate that they are legally
non-conforming, but do not state a reason as to their non-conformity which may
or may not be a parking issue: Feiga Partners II Portfolio with respect to
Square Plaza Apartments, Franklin Square, Xxxxxxx Towers, Fishers Crossing and
Dundale Apartments.
(xlvi)
With respect to the Mortgage Loan identified as Parkview Tower on the Mortgage
Loan Schedule, the related Borrower is required (i) to make monthly payments (to
the extent of available cash) of contingent interest in an amount equal to 10%
of excess operating cash flow (after payment of debt service, reserve/escrow
payments and payment to its partners of a 12% cumulative return on their
uncovered capital), which is paid prior to the application of remaining excess
cash flow to the repayment of principal from and after the Anticipated Repayment
Date, and (ii) upon a capital event (e.g., sale or refinance), 10% of the net
proceeds received in connection with such capital event (i.e., an "equity
kicker"), which is paid prior to the application of remaining excess cash flow
to the repayment of principal from and after the Anticipated Repayment Date.
However, the Seller has agreed in this Agreement to subordinate its rights in
respect of these payments from and after the Anticipated Repayment Date to the
prior payment in full of all unpaid principal and interest on this Mortgage
Loan.
(xlix)
(xlix)-A
With respect to the Mortgage Loan identified as IRG Portfolio on the Mortgage
Loan Schedule, the loan documents permit the release, without payment, of an
undeveloped out-parcel, in connection with the sale of such out-parcel, provided
it is subdivided into a separate tax lot and certain other requirements are met,
unless at the time of such release, the DSCR is 1.20:1, in which case the net
proceeds of such sale will be deposited with lender as additional collateral.
With respect to the Mortgage Loan identified as Orlando Marketplace on the
Mortgage Loan Schedule, the loan documents require the mortgagee, subject to
standard release conditions (including no default, conveyance to a third party,
separate tax lot and a reciprocal easement agreement satisfactory to the
mortgagee) to release an identified unimproved, non-income producing portion of
the related Mortgaged Property from the lien of the loan documents, without
payment of a release price. However, in both cases described in this paragraph,
the out-parcels with respect to these Mortgage Loans were not given any material
value in the related Appraisal.
With respect to the Mortgage Loan identified as Fontainebleau Hilton on the
Mortgage Loan Schedule, the loan documents permit the release, subject to
various conditions, of an improved portion of the related Mortgaged Property in
connection with the construction of certain planned additions to that Mortgaged
Property. The conditions precedent to the release include, among others, the
following: (i) the related Borrower must deliver a letter of credit in favor of
the lender with a face amount of $20,000,000 as security for the cost of
construction of the new improvements; (ii) after completion of the new
improvements, there must be sufficient parking to satisfy zoning requirements,
as well as no net diminution in parking spaces; (iii) after giving effect to the
release, sufficient easements for the benefit of the related Mortgaged Property
must be in effect; (iv) the related Borrower entity must not (but an affiliate
thereof may) engage in the development of the released parcel; and (v) the
release must not have a material adverse effect on the physical condition of the
related Mortgaged Property.
With respect to a partial defeasance in connection with the Mortgage Loan
identified as the Portland Office Portfolio on the Mortgage Loan Schedule, the
first Mortgaged Property securing that Mortgage Loan under may be released for
100% of the related Allocated Loan Amount, and each subsequent Mortgaged
Property securing such Mortgage Loan may be released upon the payment of 125% of
the related Allocated Loan Amount.
With respect to a partial defeasance in connection with the Mortgage Loan
identified as IRG Portfolio on the Mortgage Loan Schedule, the Mortgaged
Properties securing that Mortgage Loan may be released with a payment of the
greater of 95% of the net sales proceeds of the related Mortgaged Property being
released or 115% of the Allocated Loan Amount.
(xlix)-B
The following Mortgage Loans identified on the Mortgage Loan Schedule permit the
release of out-parcels without requiring the Borrower to deliver an opinion of
counsel to the effect that such release will not constitute a significant
modification of the related Mortgage Loan under Treas. Reg. Section
1.860-2(b)(2): Fontainebleau Xxxxxx, Xxxxx Partners II Portfolio and Orlando
Marketplace.
(xlix)-C
The out-parcels with respect to the following Mortgage Loans identified on the
Mortgage Loan Schedule were not given any material value in the related
Appraisal: Marketplace Orlando and IRG Portfolio.
(lx)
The engineering assessments performed with respect to the following Mortgaged
Properties was not performed within 18 months preceding the Cut-off Date: 000
Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxxx Park Apartments, Widefield Apartments,
Marriott Islandia and Bedford Manor Apartments.
(lxi)
With respect to the following Mortgage Loans identified on the Mortgage Loan
Schedule, the equity holders in the related Borrower are known to the Seller to
have incurred debt at origination secured by their ownership interest in the
related Borrower: Tuscany Villas Apartments, in the amount of $200,000 and
Indian River Plaza, in the amount of $365,000.
SCHEDULE 2
Allocated Loan Amounts
CUT-OFF DATE ALLOCATED
MORTGAGE LOAN PROPERTY NAME LOAN AMOUNT BALANCE
------------- ------------- ----------------------
Feiga Partners II Portfolio Londontown Apartments $14,483,833
Feiga Partners II Portfolio Cedar Place Apartments $5,225,168
Feiga Partners II Portfolio Shenandoah Apartments $5,057,024
Feiga Partners II Portfolio Buena Vista Apartments $4,813,607
Feiga Partners II Portfolio Grove Park Apartments $4,801,876
Feiga Partners II Portfolio Driftwood Apartments $2,544,642
Feiga Partners II Portfolio Kentwood Apartments $2,288,516
Feiga Partners II Portfolio Square Plaza Apartments $1,521,115
Portland Office Portfolio Yeon Building $6,115,435
Portland Office Portfolio Loyalty & Xxxxxxxx Building $4,756,449
Portland Office Portfolio Oregon Pioneer Building $3,737,210
IRG Portfolio Cabot Distribution Center $5,728,443
IRG Portfolio Midway Industrial Park $3,950,650
IRG Portfolio Pawcatuck $3,530,893
SCHEDULE 3
STATE COUNTIES AND SPECIFIC CITIES
--------------------------------------------------------------------------------
Alabama Xxxxxxx and Mobile
Delaware Sussex
Florida Entire State
Xxxxxxx Xxxxx, Camden, Chatham, Glynn, Liberty, XxXxxxxx
Hawaii Entire State
Louisiana Cameron, Iberia, Jefferson, Lafourche, Orleans, Plaquemines,
St. Xxxxxxx, St. Xxxx, St. Tammany, Terrebonne, Xxxxxxxxxx
Massachusetts Barnstable, Bristol, Dukes, Nantucket, Plymouth
Maryland Xxxxxxx, Dorchester, Somerset, St. Mary's, Wicomico,
Worchester
Mississippi Hancock, Harrison, Xxxxxxx
North Carolina Xxxxxxxx, Xxxxxx, Brunswick, Camden, Carteret, Chowan,
Currituck, Dare, Hyde, New Hanover, Onslow, Pamlico,
Pasquotank, Xxxxxx, Perquimans, Tyrell, Washington
New Jersey Atlantic, Cape May, Cumberland, Monmouth, Ocean
New York Nassau, Suffolk
Puerto Rico All Counties
South Carolina Beaufort, Berkeley, Charleston, Colleton, Georgetown, Xxxxx
Texas Aransas, Brazorla, Calhoun, Cameron, Xxxxxxxx, Galveston,
Town of Baytown, Jackson, Jefferson, Kenedy, Klieberg,
Matagoda, Nucces, Refugio, San Xxxxxxxx, Willacy
Virginia Accomack, Chesapeake City, Gloucester, Hampton City, Isle of
Wight, Lancaster, Xxxxxxx Field City, Little Creek City,
Xxxxxxxx, Middlesex, Newport News City, Norfolk City,
Northampton, Northumberland, Posquoson City, Portsmith City,
Suffolk City, Virginia Beach City, York
SCHEDULE III
EXCEPTIONS TO THE REPRESENTATIONS AND WARRANTIES
(vii)
With respect to the Mortgage Loan identified on the Mortgage Loan Schedule as
Station House Office Building:
1. First Amendment to Amended and Restated Loan Agreement and Amended,
Restated and Consolidated Promissory Note dated as of May 17, 2002.
2. Second Amendment to Recorded Documents dated as of May 17, 2002.
With respect to the Mortgage Loan identified on the Mortgage Loan Schedule as
Fountainbleau Hilton:
1. First Amendment to Loan Agreement and Amended, Restated and
Consolidated Renewal Note dated as of June 3, 2002.
2. Letter Agreement dated June 7, 2002.
With respect to the Mortgage Loan identified on the Mortgage Loan Schedule as
Grand Avenue:
1. Fourth Amendment to and Ratification of Loan Agreement and First
Amendment to Amended and Restated Consolidated, Amended and Restated Mortgage
Note dated as of May 17, 2002.
With respect to the Mortgage Loan identified on the Mortgage Loan Schedule as
Richmond Avenue:
1. Second Amendment to and Ratification of Loan Agreement and Second
Amendment to Amended and Restated Consolidated, Amended and Restated Mortgage
Note dated as of May 17, 2002.
With respect to the Mortgage Loan identified on the Mortgage Loan Schedule as
Flatbush Center:
1. Third Amendment to and Ratification of Loan Agreement and Second
Amendment to Amended and Restated Consolidated, Amended and Restated Mortgage
Note dated as of May 17, 2002.
With respect to the Mortgage Loan identified on the Mortgage Loan Schedule as
Orlando Marketplace:
1. First Amendment to Amended and Restated Loan Agreement and Second
Amended and Restated Consolidated Renewal Promissory Note dated as of May 17,
2002.
2. Second Amendment to Mortgage, Assignment of Leases and Rents and
Security Agreement dated as of May 17, 2002.
3. Second Amendment to Assignment of Leases and Rents dated as of May
17, 2002.
4. Letter Agreement dated as of May 17, 2002.
5. Consent and Subordination of Manager dated June 24, 2002.
(xv)
The following Mortgaged Properties were not inspected within the past 13 months
preceding the Cut-off Date: Xxx Xxxxx Xxxxxxxxxx, Xxxxxxxxx Xxxxxx Xxxxxxxxxx,
Xxxxxxx Manor Apartments, East Gate Apartments, Dundale Apartments, Churchland
Square Apartments, Lake Village II Apartments, Lake Village I Apartments,
Richmond Club Apartments and Xxxxxxxxxxxx Industrial.
(xvi)
The Mortgage Loan identified as Parkview Tower on the Mortgage Loan Schedule has
a contingent interest feature and a equity participation feature held by the
Seller. The related Borrower is required (i) to make monthly payments (to the
extent of available cash) of contingent interest in an amount equal to 10% of
excess operating cash flow (after payment of debt service, reserve/escrow
payments and payment to its partners of a 12% cumulative return on their
uncovered capital) and (ii) upon a capital event (e.g., sale or refinance), 10%
of the net proceeds received in connection with such capital event (i.e., an
"equity kicker"). However, the Seller has agreed in this Agreement to
subordinate its rights in respect of these payments from and after the
Anticipated Repayment Date to the prior payment in full of all unpaid principal
and interest on this Mortgage Loan.
(xxiii)
With respect to the Mortgage Loan identified as Seattle SuperMall on the
Mortgage Loan Schedule, earthquake insurance was obtained but no PML was
determined. With respect to the Mortgage Loan identified as Chateau Creste on
the Mortgage Loan Schedule, the PML was calculated at 10% using a 200 year look
back, and no probability of exceedance was specified on the report. With respect
to the Mortgage Loan identified as Edgewater Business Park on the Mortgage Loan
Schedule, the PML was calculated at 23% using a 200 year look back, and no
probability of exceedance was specified on the report. With respect to the
Mortgage Loan identified as Xxxx-Xxxxxxxxx Foods Building on the Mortgage Loan
Schedule, no PML was calculated at one of the two buildings securing such
Mortgage Loan.
With respect to the Mortgage Loan identified as Marriott Islandia on the
Mortgage Loan Schedule, which has a principal balance in excess of $20,000,000,
the loan documents require the claim paying ability of the insurer to be rated
at least "A". With respect to the Mortgage Loan identified as Feiga Partners II
Portfolio on the Mortgage Loan Schedule, which has a principal balance in excess
of $20,000,000, the loan documents require the claim paying ability of the
insurer to be rated at least "BBB."
The insurance policies for the following Mortgage Loans identified on the
Mortgage Loan Schedule exclude coverage for terrorism: Feiga Partners II
Portfolio, Marriott Islandia, Xxxxxx Park, Chateau Creste and University Food
Center.
(xxvii)
An Environmental Report with respect to the following Mortgaged Properties was
not performed within the 18 months preceding the Cut-off Date: Feiga Partners II
Portfolio, Orlando Marketplace, Marriott Islandia, Flatbush Center, 177 Meeting
Street, Surrey Park Apartments, Widefield Apartments and Bedford Manor
Apartments.
(xxviii)
The following Mortgage Loans identified on the Mortgage Loan Schedule are silent
with respect to the related Borrower's obligation to pay fees and expenses
associated with securing the consent or approval of a transfer: East Gate
Apartments, Ridgedale Square Apartments, Whispering Apartments and Deer Run
Apartments.
The following Mortgage Loans identified on the Mortgage Loan Schedule have
limitations on Borrower expense obligations with respect to any approved
assumption: Fontainebleau (1% of the unpaid principal balance ("UPB")), Seattle
SuperMall (1% of UPB), Feiga Partners II Portfolio (1% of UPB), Edgewater
Business Park (1% UPB), Portland Office Portfolio (1% UPB), and GTH&M Corpus
Christi (.5% of UPB).
The following Mortgage Loans identified on the Mortgage Loan Schedule do not
restrict the controlling equity interests of the related Borrower from being
pledged to secure indebtedness: Xxxxxxxxx Xxxx, Xxxxxx Xxxxxx Xxxxxxxxxx,
Xxxxxxxx Club, East Gate Apartments, Ridgedale Square Apartments, Whispering
Apartments and Deer Run Apartments.
(xxxi)
(B)
The ground lease with respect to the Mortgaged Property known as the Yeon
building (which is one of the properties securing the Mortgage Loan identified
as the Portland Office Portfolio on the Mortgage Loan Schedule) contains no
requirements for the mortgagee's consent to amend, modify or terminate the
ground lease.
(E)
The ground lease with respect to the Mortgaged Property known as the Yeon
building (which is one of the properties securing the Mortgage Loan identified
as the Portland Office Portfolio on the Mortgage Loan Schedule) is silent with
respect to assignments of the ground lease to the mortgagee, but states that the
lessor's consent to an assignment may not be unreasonably withheld, and also
states that upon delivery to the lessor of a $25,000 security deposit (and so
long as the security deposit remains with the lessor), the lessor's consent to
any assignment is not required.
(H)
The ground lease with respect to the Mortgaged Property known as the Yeon
building (which is one of the properties securing the Mortgage Loan identified
as the Portland Office Portfolio on the Mortgage Loan Schedule) is silent as to
whether the rights of the mortgagor under the ground lease and the related
mortgage may be exercised by or on behalf of the mortgagee.
(I)
The ground lease with respect to the Mortgaged Property known as the Yeon
building (which is one of the properties securing the Mortgage Loan identified
as the Portland Office Portfolio on the Mortgage Loan Schedule) states that
lessor's consent to any sublet may not be unreasonably withheld, but also states
that upon delivery to the lessor of a $25,000 security deposit (and so long as
the security deposit remains with the lessor), the lessor's consent to any
assignment or sublet is not required.
(L)
The ground lease with respect to the Mortgaged Property known as the Yeon
building (which is part of the Mortgage Loan identified as the Portland Office
Portfolio on the Mortgage Loan Schedule) provides for the termination of the
ground lease upon total condemnation.
(xxxvi)
The following Mortgage Loans identified on the Mortgage Loan Schedule permit the
defeasance of the related Mortgage Loan prior to two years following the Closing
Date: Feiga Partners II Portfolio, Franklin Square, Edgewater Business Park,
Xxxxxxx Towers, Signature Place North, Xxxxxxx Shopping Center, Loews Theatre -
Cherry Hill, Harpers Square Apartments, Xxxx-Xxxxxxxxx Foods Building, 215-217
West Church Rd., Indian River Plaza, Xxxx Xxxx Tower, Fishers Crossing,
Berkshire Pointe, Xxxxxx Warehouse, Tuscany Villas Apartments, Widefield
Apartments, Richmond Club Apartments, Xxxxxxxxxxxx Industrial, Dundale
Apartments, Fox Hill Apartments, Churchland Square Apartments, Lake Village I
Apartments, Lake Village II Apartments and 000 Xxxxxxx Xxxxxx.
(xxxviii)
The Borrowers under the following Mortgage Loans are affiliated with Borrowers
under other Mortgage Loans identified on the Mortgage Loan Schedule as set forth
below:
Borrower Affiliate Mortgage Loan
------------------ -------------
Forest City Flatbush Center
Forest City Richmond Avenue
Forest City Grand Avenue
Xxxxxx Xxxxxxxxx and Xxxxx Xxxx Xxxxxxx Shopping Center
Xxxxxx Xxxxxxxxx and Xxxxx Xxxx Xxxx-Xxxxxxxxx Foods
Building
O'Neil and Xxxx Xxxxxxx Towers
O'Neil and Xxxx 000-000 Xxxxxx Xxxx
Xxxxxx X. Xxxxx Northwest Park Apartments
Xxxxxx X. Xxxxx Forest Garden Apartments
Xxxxxx X. Xxxxxx Xx. Xxxxxx Square Apartments
Xxxxxx X. Xxxxxx Xx. Dundale Apartments
Xxxxxx X. Xxxxxx Xx. Fox Hill Apartments
Xxxxxx X. Xxxxxx Xx. Lake Village I Apartments
Xxxxxx X. Xxxxxx Xx. Lake Village II Apartments
Xxxx Development Corp &
Xxxxxx X. Xxxxxx Xx (Property Manager) Xxxx Xxxx Tower
Xxxx Development Corp &
Xxxxxx X. Xxxxxx Xx (Property Manager) Churchland Square Apartments
Xxxxx Breirton & Xxxx Xxxxx East Gate Apartments
Xxxxx Breirton & Xxxx Xxxxx Ridgedale Square Apartments
Xxxxx Breirton & Xxxx Xxxxx Whispering Apartments
Xxxxx Breirton & Xxxx Xxxxx Deer Run Apartments
Xxxxxx-Xxxxx Real Estate Opportunity Fund Parkview Tower
Xxxxxx-Xxxxx Real Estate Opportunity Fund Xxxxxxxxxxx Regency
(xl)
The appraisals for the following Mortgaged Properties securing the Mortgage
Loans identified on the Mortgage Loan Schedule indicate that they are legally
non-conforming with respect to parking: Xxxxxxxxx Xxxxxxxxxx, Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx Apartments, Shenandoah Apartments, Edgewater Business Park,
Xxxx Xxxx Tower, Station House Office Building, Fox Hill Apartments, Churchland
Square Apartments, Lake Village I Apartments and Lake Village II Apartments.
The appraisals for the following Mortgaged Properties securing the Mortgage
Loans identified on the Mortgage Loan Schedule indicate that they are legally
non-conforming, but do not state a reason as to their non-conformity which may
or may not be a parking issue: Feiga Partners II Portfolio with respect to
Square Plaza Apartments, Franklin Square, Xxxxxxx Towers, Fishers Crossing and
Dundale Apartments.
(xlvi)
With respect to the Mortgage Loan identified as Parkview Tower on the Mortgage
Loan Schedule, the related Borrower is required (i) to make monthly payments (to
the extent of available cash) of contingent interest in an amount equal to 10%
of excess operating cash flow (after payment of debt service, reserve/escrow
payments and payment to its partners of a 12% cumulative return on their
uncovered capital), which is paid prior to the application of remaining excess
cash flow to the repayment of principal from and after the Anticipated Repayment
Date, and (ii) upon a capital event (e.g., sale or refinance), 10% of the net
proceeds received in connection with such capital event (i.e., an "equity
kicker"), which is paid prior to the application of remaining excess cash flow
to the repayment of principal from and after the Anticipated Repayment Date.
However, the Seller has agreed in this Agreement to subordinate its rights in
respect of these payments from and after the Anticipated Repayment Date to the
prior payment in full of all unpaid principal and interest on this Mortgage
Loan.
(xlix)
(xlix)-A
With respect to the Mortgage Loan identified as IRG Portfolio on the Mortgage
Loan Schedule, the loan documents permit the release, without payment, of an
undeveloped out-parcel, in connection with the sale of such out-parcel, provided
it is subdivided into a separate tax lot and certain other requirements are met,
unless at the time of such release, the DSCR is 1.20:1, in which case the net
proceeds of such sale will be deposited with lender as additional collateral.
With respect to the Mortgage Loan identified as Orlando Marketplace on the
Mortgage Loan Schedule, the loan documents require the mortgagee, subject to
standard release conditions (including no default, conveyance to a third party,
separate tax lot and a reciprocal easement agreement satisfactory to the
mortgagee) to release an identified unimproved, non-income producing portion of
the related Mortgaged Property from the lien of the loan documents, without
payment of a release price. However, in both cases described in this paragraph,
the out-parcels with respect to these Mortgage Loans were not given any material
value in the related Appraisal.
With respect to the Mortgage Loan identified as Fontainebleau Hilton on the
Mortgage Loan Schedule, the loan documents permit the release, subject to
various conditions, of an improved portion of the related Mortgaged Property in
connection with the construction of certain planned additions to that Mortgaged
Property. The conditions precedent to the release include, among others, the
following: (i) the related Borrower must deliver a letter of credit in favor of
the lender with a face amount of $20,000,000 as security for the cost of
construction of the new improvements; (ii) after completion of the new
improvements, there must be sufficient parking to satisfy zoning requirements,
as well as no net diminution in parking spaces; (iii) after giving effect to the
release, sufficient easements for the benefit of the related Mortgaged Property
must be in effect; (iv) the related Borrower entity must not (but an affiliate
thereof may) engage in the development of the released parcel; and (v) the
release must not have a material adverse effect on the physical condition of the
related Mortgaged Property.
With respect to a partial defeasance in connection with the Mortgage Loan
identified as the Portland Office Portfolio on the Mortgage Loan Schedule, the
first Mortgaged Property securing that Mortgage Loan under may be released for
100% of the related Allocated Loan Amount, and each subsequent Mortgaged
Property securing such Mortgage Loan may be released upon the payment of 125% of
the related Allocated Loan Amount.
With respect to a partial defeasance in connection with the Mortgage Loan
identified as IRG Portfolio on the Mortgage Loan Schedule, the Mortgaged
Properties securing that Mortgage Loan may be released with a payment of the
greater of 95% of the net sales proceeds of the related Mortgaged Property being
released or 115% of the Allocated Loan Amount.
(xlix)-B
The following Mortgage Loans identified on the Mortgage Loan Schedule permit the
release of out-parcels without requiring the Borrower to deliver an opinion of
counsel to the effect that such release will not constitute a significant
modification of the related Mortgage Loan under Treas. Reg. Section
1.860-2(b)(2): Fontainebleau Xxxxxx, Xxxxx Partners II Portfolio and Orlando
Marketplace.
(xlix)-C
The out-parcels with respect to the following Mortgage Loans identified on the
Mortgage Loan Schedule were not given any material value in the related
Appraisal: Marketplace Orlando and IRG Portfolio.
(lx)
The engineering assessments performed with respect to the following Mortgaged
Properties was not performed within 18 months preceding the Cut-off Date: 000
Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxxx Park Apartments, Widefield Apartments,
Marriott Islandia and Bedford Manor Apartments.
(lxi)
With respect to the following Mortgage Loans identified on the Mortgage Loan
Schedule, the equity holders in the related Borrower are known to the Seller to
have incurred debt at origination secured by their ownership interest in the
related Borrower: Tuscany Villas Apartments, in the amount of $200,000 and
Indian River Plaza, in the amount of $365,000.
SCHEDULE IV
LOAN REMIC MORTGAGE LOANS (EARLY DEFEASANCE LOANS)
CUT-OFF DATE
PRINCIPAL % OF INITIAL
BALANCE EARLIEST MORTGAGE
MORTGAGE LOAN ($) DEFEASANCE DATE POOL BALANCE
--------------------------------------------------------------------------------
Franklin Square $21,399,039 At any time 3.36%
Edgewater Business Park 19,674,151 At any time 3.09
Xxxxxxx Towers 13,482,080 At any time 2.11
Signature Place North 11,194,308 At any time 1.76
Xxxxxxx Shopping Center 10,187,065 At any time 1.60
Loews Theatre - Cherry Hill 9,025,221 At any time 1.42
Xxxx-Xxxxxxxxx Foods Building 4,335,403 At any time 0.68
000-000 Xxxx Xxxxxx Xx 4,159,567 At any time 0.65
Indian River Plaza 4,035,684 At any time 0.63
Fishers Crossing 2,700,791 At any time 0.42
Berkshire Pointe 2,638,359 At any time 0.41
Xxxxxx Warehouse 2,509,748 At any time 0.39
Tuscany Villas Apartments 2,477,991 At any time 0.39
Widefield Apartments 2,270,170 At any time 0.36
Richmond Club Apartments 1,920,845 At any time 0.30
Xxxxxxxxxxxx Industrial 1,872,216 At any time 0.29
Harpers Square Apartments 8,528,281 3/11/2003 1.34 (1)
Xxxx Xxxx Tower 3,558,834 3/11/2003 0.56 (1)
Dundale Apartments 1,767,859 3/11/2003 0.28 (1)
Fox Hill Apartments 1,756,450 3/11/2003 0.28 (1)
Churchland Square Apartments 1,748,695 3/11/2003 0.27 (1)
Lake Village I Apartments 1,502,482 3/11/2003 0.24 (1)
Lake Village II Apartments 1,123,116 3/11/2003 0.18 (1)
000 Xxxxxxx Xxxxxx 10,135,101 1/11/2004 1.59 (1)
Feiga Partners II Portfolio 40,735,781 3/11/2004 6.39 (1)
Total $184,739,236 28.98%
(1) There is a defeasance issue but for only a portion of the first two (2)
years after the date of initial issuance of the offered certificates.
SCHEDULE V
Reference Rate Schedule
INTEREST REFERENCE
MONTHS ACCRUAL PERIOD RATE (%)
-----------------------------------------------------------
1 Jun-02 7.70642
2 Jul-02 7.97028
3 Aug-02 7.97035
4 Sep-02 7.70661
5 Oct-02 7.97048
6 Nov-02 7.70674
7 Dec-02 7.70679
8 Jan-03 7.70686
9 Feb-03 7.70754
10 Mar-03 7.97079
11 Apr-03 7.70703
12 May-03 7.97092
13 Jun-03 7.70716
14 Jul-03 7.97104
15 Aug-03 7.97112
16 Sep-03 7.70735
17 Oct-03 7.97125
18 Nov-03 7.70748
19 Dec-03 7.97138
20 Jan-04 7.70760
21 Feb-04 7.70790
22 Mar-04 7.97157
23 Apr-04 7.70779
24 May-04 7.97170
25 Jun-04 7.70791
26 Jul-04 7.97183
27 Aug-04 7.97190
28 Sep-04 7.70811
29 Oct-04 7.97204
30 Nov-04 7.70824
31 Dec-04 7.70830
32 Jan-05 7.70837
33 Feb-05 7.70920
34 Mar-05 7.97235
35 Apr-05 7.70854
36 May-05 7.97248
37 Jun-05 7.70867
38 Jul-05 7.97261
39 Aug-05 7.97268
40 Sep-05 7.70887
41 Oct-05 7.97281
42 Nov-05 7.70899
43 Dec-05 7.70905
44 Jan-06 7.70912
45 Feb-06 7.71003
46 Mar-06 7.97312
47 Apr-06 7.70929
48 May-06 7.97326
49 Jun-06 7.70942
50 Jul-06 7.97339
51 Aug-06 7.97346
52 Sep-06 7.70962
53 Oct-06 7.97359
54 Nov-06 7.70974
55 Dec-06 7.70980
56 Jan-07 7.70987
57 Feb-07 7.71088
58 Mar-07 7.97390
59 Apr-07 7.70656
60 May-07 7.97042
61 Jun-07 7.70668
62 Jul-07 7.97532
63 Aug-07 7.97306
64 Sep-07 7.70926
65 Oct-07 7.97519
66 Nov-07 7.71132
67 Dec-07 7.97531
68 Jan-08 7.69946
69 Feb-08 7.69987
70 Mar-08 7.96307
71 Apr-08 7.68697
72 May-08 7.94591
73 Jun-08 7.68873
74 Jul-08 7.96133
75 Aug-08 7.96140
76 Sep-08 7.69801
77 Oct-08 7.94827
78 Nov-08 7.68130
79 Dec-08 7.68900
80 Jan-09 7.70732
81 Feb-09 7.71771
82 Mar-09 7.97447
83 Apr-09 7.71072
00 Xxx-00 0.00000
XXXXXXXX VI
With respect to the Parkview Tower mortgage loan, the borrower is
required (i) to make monthly payments (to the extent of available cash) of
contingent interest in an amount equal to 10% of excess operating cash flow
(after payment of debt service, reserve/escrow payments and payment to its
partners of a 12% cumulative return on their uncovered capital) and (ii) upon a
capital event (e.g., sale or refinance), 10% of the net proceeds received in
connection with such capital event (i.e., an "equity kicker").
EXHIBIT A-1
FORM OF CLASS [A-1] [A-2] CERTIFICATE
CDC COMMERCIAL MORTGAGE TRUST 2002-FX1
CLASS [A-1] [A-2] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2002-FX1
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
Pass-Through Rate: [___%] Initial Certificate Principal
Balance of this Certificate as of
the Closing Date:
$____________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class [A-1] [A-2] Certificates as of
June 11, 2002 the Closing Date:
$____________
Cut-off Date: June 11, 0000 Xxxxxxxxx unpaid principal balance
of the Mortgage Pool as of the
Closing Date: June 27, 2002 Cut-off Date, after deducting
payments of principal due on or
First Distribution Date: July 17, before such date (the "Initial Pool
2002 Balance")
$637,487,900
Master Servicer: GMAC Commercial Trustee: LaSalle Bank National
Mortgage Corporation Association
Special Servicer: GMAC Commercial Fiscal Agent: ABN AMRO Bank N.V.
Mortgage Corporation
Certificate No. [A-1] [A-2] -___ CUSIP No.: _____________
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, GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE BANK
NATIONAL ASSOCIATION, ABN AMRO BANK N.V., 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 as depositor (the "Depositor", which
term includes any successor entity under the Agreement), GMAC Commercial
Mortgage Corporation as master servicer (the "Master Servicer", which term
includes any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement), LaSalle Bank National Association as
trustee (the "Trustee", which term includes any successor entity under the
Agreement) and ABN AMRO Bank N.V. 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 4th Business Day following the 11th calendar day of each month (or, if
such 11th calendar day is not a Business Day, then the 5th Business Day
following such 11th 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 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, (ii) the exchange by all
the Certificateholders of all the Certificates for all the Mortgage Loans and
each REO Property remaining in the Trust Fund in the manner set forth in the
Agreement, and (iii) 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, 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.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1] [A-2] Certificates referred to in the
within-mentioned Agreement.
Dated:_____________________, 2002
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:_____________________________________
Authorized Officer
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.
EXHIBIT A-2
FORM OF CLASS [X-CL] [X-CP] CERTIFICATE
CDC COMMERCIAL MORTGAGE TRUST 2002-FX1
CLASS [X-CL] [X-CP] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-FX1
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
Pass-Through Rate: [Variable] Initial Certificate Notional Amount
of this Certificate as of the
Closing Date:
$____________
Date of Pooling and Servicing Class Notional Amount of all the
Agreement: Class [X-CL] [X-CP] Certificates as
June 11, 2002 of the Closing Date: $_____________
Cut-off Date: June 11, 0000 Xxxxxxxxx unpaid principal balance
of the Mortgage Pool as of the
Closing Date: June 27, 2002 Cut-off Date, after deducting
payments of principal due on or
First Distribution Date: July 17, before such date (the "Initial Pool
2002 Balance"):
$637,487,900
Master Servicer: GMAC Commercial Trustee: LaSalle Bank National
Mortgage Corporation Association
Special Servicer: GMAC Commercial Fiscal Agent: ABN AMRO Bank N.V.
Mortgage Corporation
Certificate No. [X-CL] [X-CP]-___ CUSIP No.: _____________
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, GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE BANK
NATIONAL ASSOCIATION, ABN AMRO BANK N.V., 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 OF THE
CERTIFICATES AND (B) JUNE 27, 2002, 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
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Closing Date by the aggregate notional 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 as depositor (the "Depositor",
which term includes any successor entity under the Agreement), GMAC Commercial
Mortgage Corporation as master servicer (the "Master Servicer", which term
includes any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement), LaSalle Bank National Association as
trustee (the "Trustee", which term includes any successor entity under the
Agreement) and ABN AMRO Bank N.V. 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 4th Business Day following the 11th calendar day of each month (or, if
such 11th calendar day is not a Business Day, then the 5th Business Day
following such 11th 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.
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 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., CDC Securities 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., CDC Securities 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 this Section 5.02(b), (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, after the Release Date, 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, the Underwriters, 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., CDC Securities 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 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 liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, (ii) the exchange by all
the Certificateholders of all the Certificates for all the Mortgage Loans and
each REO Property remaining in the Trust Fund in the manner set forth in the
Agreement, and (iii) 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, 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.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [X-CL] [X-CP] Certificates referred to in
the within-mentioned Agreement.
Dated:_____________________, 2002
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:_____________________________________
Authorized Officer
Schedule A
Certificate Balance of
Individual Certificates or
Regulation S Global
Certificate exchanged or
transferred for, or issued Remaining
in exchange for or upon Notional Amount
transfer of, an interest in of this Rule
this Rule 144A Global 144A Global
Date Certificate Certificate Notation Made By
---- ----------- ----------- ----------------
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____________ ___________________________ _______________ ________________
____________ ___________________________ _______________ ________________
____________ ___________________________ _______________ ________________
____________ ___________________________ _______________ ________________
____________ ___________________________ _______________ ________________
____________ ___________________________ _______________ ________________
____________ ___________________________ _______________ ________________
____________ ___________________________ _______________ ________________
____________ ___________________________ _______________ ________________
____________ ___________________________ _______________ ________________
____________ ___________________________ _______________ ________________
____________ ___________________________ _______________ ________________
____________ ___________________________ _______________ ________________
____________ ___________________________ _______________ ________________
____________ ___________________________ _______________ ________________
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.
EXHIBIT A-3
FORM OF CLASS [B] [C] [D] [E] CERTIFICATE
CDC COMMERCIAL MORTGAGE TRUST 2002-FX1
CLASS [B] [C] [D] [E] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-FX1
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
Pass-Through Rate: [____%] Initial Certificate Principal
Balance of this Certificate as of
the Closing Date:
$____________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: June 11, 2002 Class [B] [C] [D] [E] Certificates
as of the Closing Date:
$____________
Cut-off Date: June 11, 0000 Xxxxxxxxx unpaid principal balance
of the Mortgage Pool as of the
Closing Date: June 27, 2002 Cut-off Date, after deducting
payments of principal due on or
First Distribution Date: July 17, before such date (the "Initial Pool
2002 Balance"):
$637,487,900
Master Servicer: GMAC Commercial Trustee: LaSalle Bank National
Mortgage Corporation Association
Special Servicer: GMAC Commercial Fiscal Agent: ABN AMRO Bank N.V.
Mortgage Corporation
Certificate No. [B] [C] [D] [E]-___ CUSIP No.: _____________
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, GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE BANK
NATIONAL ASSOCIATION, ABN AMRO BANK N.V., 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 as depositor (the "Depositor", which
term includes any successor entity under the Agreement), GMAC Commercial
Mortgage Corporation as master servicer (the "Master Servicer", which term
includes any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement), LaSalle Bank National Association as
trustee (the "Trustee", which term includes any successor entity under the
Agreement) and ABN AMRO Bank N.V. 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 4th Business Day following the 11th calendar day of each month (or, if
such 11th calendar day is not a Business Day, then the 5th Business Day
following such 11th 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 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, (ii) the exchange by all
the Certificateholders of all the Certificates for all the Mortgage Loans and
each REO Property remaining in the Trust Fund in the manner set forth in the
Agreement, and (iii) 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, 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.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B] [C] [D] [E] Certificates referred to in
the within-mentioned Agreement.
Dated:_____________________, 2002
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:_____________________________________
Authorized Officer
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.
EXHIBIT A-4
FORM OF CLASS [F] [G] [H] [J] [K] [L] CERTIFICATE
CDC COMMERCIAL MORTGAGE TRUST 2002-FX1
CLASS [F] [G] [H] [J] [K] [L] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-FX1
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
Pass-Through Rate: [____%] [Variable] Initial Certificate Principal
Balance of this Certificate as of
the Closing Date:
$____________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class [F] [G] [H] [J] [K] [L]
June 11, 2002 Certificates as of the Closing Date:
$________________
Cut-off Date: June 11, 0000 Xxxxxxxxx unpaid principal balance
of the Mortgage Pool as of the
Closing Date: June 27, 2002 Cut-off Date, after deducting
payments of principal due on or
First Distribution Date: July 17, before such date (the "Initial Pool
2002 Balance"):
$637,487,900
Master Servicer: GMAC Commercial Trustee: LaSalle Bank National
Mortgage Corporation Association
Special Servicer: GMAC Commercial Fiscal Agent: ABN AMRO Bank N.V.
Mortgage Corporation
Certificate No. [F] [G] [H] [J] [K] CUSIP No.: _____________
[L]-___
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, GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE BANK
NATIONAL ASSOCIATION, ABN AMRO BANK N.V., 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 OF THE
CERTIFICATES AND (B) JUNE 27, 2002, 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 as depositor (the "Depositor", which
term includes any successor entity under the Agreement), GMAC Commercial
Mortgage Corporation as master servicer (the "Master Servicer", which term
includes any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement), LaSalle Bank National Association as
trustee (the "Trustee", which term includes any successor entity under the
Agreement) and ABN AMRO Bank N.V. 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 4th Business Day following the 11th calendar day of each month (or, if
such 11th calendar day is not a Business Day, then the 5th Business Day
following such 11th 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 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 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., CDC Securities 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 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., CDC Securities 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 this Section 5.02(b), (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, after the Release Date, 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, the Underwriters, 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., CDC Securities 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 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 liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, (ii) the exchange by all
the Certificateholders of all the Certificates for all the Mortgage Loans and
each REO Property remaining in the Trust Fund in the manner set forth in the
Agreement, and (iii) 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, 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.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [F] [G] [H] [J] [K] [L] Certificates
referred to in the within-mentioned Agreement.
Dated:_____________________, 2002
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:_____________________________________
Authorized Officer
Schedule A
Certificate Balance of
Individual Certificates or
Regulation S Global
Certificate exchanged or Remaining
transferred for, or issued Principal
in exchange for or upon Amount of this
transfer of, an interest in Rule 144A
this Rule 144A Global Global
Date Certificate Certificate Notation Made By
---- ----------- ----------- ----------------
____________ ___________________________ _______________ ________________
____________ ___________________________ _______________ ________________
____________ ___________________________ _______________ ________________
____________ ___________________________ _______________ ________________
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____________ ___________________________ _______________ ________________
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____________ ___________________________ _______________ ________________
____________ ___________________________ _______________ ________________
____________ ___________________________ _______________ ________________
____________ ___________________________ _______________ ________________
____________ ___________________________ _______________ ________________
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.
EXHIBIT A-5
FORM OF CLASS [M] [N] [P] [Q] CERTIFICATE
CDC COMMERCIAL MORTGAGE TRUST 2002-FX1
CLASS [M] [N] [P] [Q] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-FX1
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
Pass-Through Rate: [____%] Initial Certificate Principal
Balance of this Certificate as of
the Closing Date:
$____________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class [M] [N] [P] [Q] Certificates
June 11, 2002 as of the Closing Date:
$____________
Cut-off Date: June 11, 0000 Xxxxxxxxx unpaid principal balance
of the Mortgage Pool as of the
Closing Date: June 27, 2002 Cut-off Date, after deducting
payments of principal due on or
First Distribution Date: July 17, before such date (the "Initial Pool
2002 Balance"):
$637,487,900
Master Servicer: GMAC Commercial Trustee: LaSalle Bank National
Mortgage Corporation Association
Special Servicer: GMAC Commercial Fiscal Agent: ABN AMRO Bank N.V.
Mortgage Corporation
Certificate No. [M] [N] [P] [Q]-___ CUSIP No.: _____________
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, GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE BANK
NATIONAL ASSOCIATION, ABN AMRO BANK N.V., 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 as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), GMAC Commercial Mortgage Corporation as master servicer (the "Master
Servicer", which term includes any successor entity under the Agreement), GMAC
Commercial Mortgage Corporation as special servicer (the "Special Servicer",
which term includes any successor entity under the Agreement), LaSalle Bank
National Association as trustee (the "Trustee", which term includes any
successor entity under the Agreement) and ABN AMRO Bank N.V. 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 4th Business Day following the 11th calendar day of each month (or, if
such 11th calendar day is not a Business Day, then the 5th Business Day
following such 11th 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 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., CDC Securities 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, the Underwriters, 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., CDC Securities 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, 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 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 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, (ii) the exchange by all
the Certificateholders of all the Certificates for all the Mortgage Loans and
each REO Property remaining in the Trust Fund in the manner set forth in the
Agreement, and (iii) 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, 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.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [M] [N] [P] [Q] Certificates referred to in
the within-mentioned Agreement.
Dated:_____________________, 2002
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:_____________________________________
Authorized Officer
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.
EXHIBIT A-6
FORM OF CLASS [R-I] [R-II] [R-III] CERTIFICATE
CDC COMMERCIAL MORTGAGE TRUST 2002-FX1
CLASS [R-I] [R-II] [R-III] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-FX1
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
Date of Pooling and Servicing Percentage Interest evidenced by
Agreement: this Certificate in the related
June 11, 2002 Class: ___%
Cut-off Date: June 11, 0000 Xxxxxxxxx unpaid principal balance
of the Mortgage Pool as of the
Closing Date: June 27, 2002 Cut-off Date, after deducting
payments of principal due on or
First Distribution Date: July 17, before such date (the "Initial Pool
2002 Balance"):
$637,487,900
Master Servicer: GMAC Commercial Trustee: LaSalle Bank National
Mortgage Corporation Association
Special Servicer: GMAC Commercial Fiscal Agent: ABN AMRO Bank N.V.
Mortgage Corporation
Certificate No. [R-I] [R-II]
[R-III]-___
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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION, GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE BANK
NATIONAL ASSOCIATION, ABN AMRO BANK N.V., 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 "RESIDUAL
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"). 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 as depositor (the "Depositor", which
term includes any successor entity under the Agreement), GMAC Commercial
Mortgage Corporation as master servicer (the "Master Servicer", which term
includes any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement), LaSalle Bank National Association as
trustee (the "Trustee", which term includes any successor entity under the
Agreement) and ABN AMRO Bank N.V. 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 4th Business Day following the 11th calendar day of each month (or, if
such 11th calendar day is not a Business Day, then the 5th Business Day
following such 11th 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.
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., CDC Securities 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, the Underwriters, 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. 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., CDC
Securities 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 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. 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 as required by
the preceding sentence, then such Transferee shall be deemed to have represented
and warranted that 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.
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 "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 or (iv) a Disqualified Partnership.
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 or (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, 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 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, (ii) the exchange by all
the Certificateholders of all the Certificates for all the Mortgage Loans and
each REO Property remaining in the Trust Fund in the manner set forth in the
Agreement, and (iii) 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, 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.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R-I] [R-II] [R-III] Certificates referred
to in the within-mentioned Agreement.
Dated:_____________________, 2002
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:_____________________________________
Authorized Officer
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.
EXHIBIT A-7
FORM OF CLASS V CERTIFICATE
CDC COMMERCIAL MORTGAGE TRUST 2002-FX1
CLASS V COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-FX1
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
Date of Pooling and Servicing Percentage Interest evidenced by
Agreement: this Certificate in the related
June 11, 2002 Class: ___%
Cut-off Date: June 11, 0000 Xxxxxxxxx unpaid principal balance
of the Mortgage Pool as of the
Closing Date: June 27, 2002 Cut-off Date, after deducting
payments of principal due on or
First Distribution Date: July 17, before such date (the "Initial Pool
2002 Balance"):
$637,487,900
Master Servicer: GMAC Commercial Trustee: LaSalle Bank National
Mortgage Corporation Association
Special Servicer: GMAC Commercial Fiscal Agent: ABN AMRO Bank N.V.
Mortgage Corporation
Certificate No. V-___
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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION, GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE BANK
NATIONAL ASSOCIATION, ABN AMRO BANK N.V., 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
as depositor (the "Depositor", which term includes any successor entity under
the Agreement), GMAC Commercial Mortgage Corporation as master servicer (the
"Master Servicer", which term includes any successor entity under the
Agreement), GMAC Commercial Mortgage Corporation as special servicer (the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association as trustee (the "Trustee", which
term includes any successor entity under the Agreement) and ABN AMRO Bank N.V.
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 4th Business Day following the 11th calendar day of each month (or, if
such 11th calendar day is not a Business Day, then the 5th Business Day
following such 11th 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 V Certificates. 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., CDC Securities 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.
No transfer of this Certificate or any interest herein shall be made
except to a Qualified Institutional Buyer or an Institutional Accredited
Investor. The Certificate Registrar shall refuse to register the transfer of
this Certificate unless it has received from the prospective Transferee a
certification to the effect that such prospective Transferee is a Qualified
Institutional Buyer or an Institutional Accredited Investor.
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., CDC Securities Inc., 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., CDC Securities 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 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, (ii) the exchange by all
the Certificateholders of all the Certificates for all the Mortgage Loans and
each REO Property remaining in the Trust Fund in the manner set forth in the
Agreement, and (iii) 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, 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.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class V Certificates referred to in the
within-mentioned Agreement.
Dated:_____________________, 2002
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:_____________________________________
Authorized Officer
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.
EXHIBIT B
FORM OF DISTRIBUTION DATE STATEMENT
[LOGO] ABN AMRO Statement Date: 06/26/2002
LaSalle Bank N.A. Payment Date:
Prior Payment:
000 X. XxXxxxx Xxxxxx Xxxxx 0000 Next Payment:
Xxxxxxx, XX 00000-0000 Record Date:
USA
CDC COMMERCIAL MORTGAGE TRUST 2002-FX1
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-FX1
ABN AMRO ACCT:
REPORTING PACKAGE TABLE OF CONTENTS
Administrator: Analyst:
Xxxxxxx Xxxxxx 000-000-0000
xxxxxxx.xxxxxx@xxxxxxx.xxx
Issue Id: CDC02FX1 Closing Date:
Monthly Data First Payment Date:
File Name: CDC02FX1_200207_3.ZIP Assumed Final Payment:
Page(s)
-------
Statements to Certificateholders Page 2
Cash Reconciliation Summary Page 3
Bond Interest Reconciliation Page 4
Asset-Backed Facts ~ 15 Month Loan Status Summary Page 5
Asset-Backed Facts ~ 15 Month Payoff/Loss Summary Page 6
Delinquent Loan Detail Page 7
Historical Collateral Prepayment Page 8
Loan Level Detail Page 9
Specially Serviced (Part I) ~ Loan Detail Page 10
Specially Serviced Loan Detail (Part II) ~ Servicer Comments Page 11
Modified Loan Detail Page 12
Realized Loss Detail Page 13
Appraisal Reduction Detail Page 14
PARTIES TO THE TRANSACTION
--------------------------
Depositor: Structured Asset Securities Corporation
Underwriter: Xxxxxx Brothers Inc.
Master Servicer: GMAC Commercial Mortgage Corporation
Special Servicer: GMAC Commercial Mortgage Corporation
Rating Agency: Fitch Ratings/
Xxxxx'x Investors Service, Inc./
Standard & Poor's Rating Services
INFORMATION IS AVAILABLE FOR THIS ISSUE FROM THE FOLLOWING SOURCES
------------------------------------------------------------------
LaSalle Web Site xxx.xxxxxxxx.xxx
Servicer Web Site xxx.xxxxxx.xxx
LaSalle Factor Line (000) 000-0000
PAGE 1 OF 14
CDC COMMERCIAL MORTGAGE TRUST 2002-FX1
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-FX1
[LOGO] ABN AMRO Statement Date: 06/26/2002
LaSalle Bank N.A. Payment Date:
Prior Payment:
Next Payment:
Record Date:
ABN AMRO ACCT:
ORIGINAL OPENING PRINCIPAL PRINCIPAL NEGATIVE CLOSING INTEREST INTEREST PASS-THROUGH
CLASS FACE VALUE (1) BALANCE PAYMENT ADJ. OR LOSS AMORTIZATION BALANCE PAYMENT (2) ADJUSTMENT RATE
----- -------------- ------- --------- ------------ ------------ ------- ----------- ---------- ------------
CUSIP Next Rate(3)
Total
Total P&I Payment
Notes:
(1) N denotes notional balance not included in total
(2) Accrued Interest Plus/Minus Interest Adjustment Minus Deferred Interest
equals Interest Payment
(3) Estimated.
* Denotes Controlling Class
PAGE 2 OF 14
CDC COMMERCIAL MORTGAGE TRUST 2002-FX1
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-FX1
[LOGO] ABN AMRO Statement Date: 06/26/2002
LaSalle Bank N.A. Payment Date:
Prior Payment:
Next Payment:
Record Date:
ABN AMRO ACCT:
CASH RECONCILIATION SUMMARY
INTEREST SUMMARY
--------------------------------------------------------------------------------
Current Scheduled Interest
Less Deferred Interest
Plus Advance Interest
Plus Unscheduled Interest
PPIS Reducing Scheduled Interest
Less Total Fees Paid To Servicer
Plus Fees Advanced for PPIS
Less Fee Strips Paid by Servicer
Less Misc. Fees & Expenses
Less Non Recoverable Advances
--------------------------------------------------------------------------------
Interest Due Trust
--------------------------------------------------------------------------------
Less Trustee Fee
Less Fee Strips Paid by Trust
Less Misc. Fees Paid by Trust
Less Interest Reserve Withholding
Plus Interest Reserve Deposit
--------------------------------------------------------------------------------
Remittance Interest
--------------------------------------------------------------------------------
SERVICING FEE SUMMARY
--------------------------------------------------------------------------------
Current Servicing Fees
Plus Fees Advanced for PPIS
Less Reduction for PPIS
Plus Delinquent Servicing Fees
--------------------------------------------------------------------------------
Total Servicing Fees
--------------------------------------------------------------------------------
PPIS SUMMARY
--------------------------------------------------------------------------------
Gross PPIS
Reduced by PPIE
Reduced by Shortfalls in Fees
Reduced by Other Amounts
--------------------------------------------------------------------------------
Net PPIS
--------------------------------------------------------------------------------
PPIS Reducing Servicing Fee
--------------------------------------------------------------------------------
PPIS Allocated to Certificates
--------------------------------------------------------------------------------
POOL BALANCE SUMMARY
--------------------------------------------------------------------------------
Balance/Amount Count
--------------------------------------------------------------------------------
Beginning Pool
Scheduled Principal Distribution
Unscheduled Principal Distribution
Deferred Interest
Liquidations
Repurchases
Ending Pool
PRINCIPAL SUMMARY
--------------------------------------------------------------------------------
SCHEDULED:
Current Scheduled Principal
Advanced Scheduled Principal
--------------------------------------------------------------------------------
Scheduled Principal Distribution
--------------------------------------------------------------------------------
UNSCHEDULED:
Curtailments
Prepayments in Full
Liquidation Proceeds
Repurchase Proceeds
Other Principal Proceeds
--------------------------------------------------------------------------------
Unscheduled Principal Distribution
--------------------------------------------------------------------------------
Remittance Principal
--------------------------------------------------------------------------------
Servicer Wire Amount
--------------------------------------------------------------------------------
ADVANCES
--------------------------------------------------------------------------------
PRIOR OUTSTANDING CURRENT PERIOD RECOVERED ENDING OUTSTANDING
Principal Interest Principal Interest Principal Interest Principal Interest
--------------------------------------------------------------------------------
PAGE 3 OF 14
CDC COMMERCIAL MORTGAGE TRUST 2002-FX1
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-FX1
[LOGO] ABN AMRO Statement Date: 06/26/2002
LaSalle Bank N.A. Payment Date:
Prior Payment:
Next Payment:
Record Date:
ABN AMRO ACCT:
BOND INTEREST RECONCILIATION
Deductions
------------------------------------------------
Accrual Pass Accrued Add. Deferred &
---------------- Thru Certificate Allocable Trust Accretion Interest
Class Method Days Rate Interest PPIS Expense (1) Interest Losses
----- ------ ---- ---- ----------- --------- ----------- ---------- --------
Additions
-------------------------------------- Remaining
Prior Prepay- Other Distributable Interest Outstanding Credit Support
Int. Short- ment Interest Certificate Payment Interest ---------------------
Class falls Due Penalties Proceeds (2) Interest Amount Shortfalls Original Current(3)
----- ----------- --------- ------------ ------------- -------- ----------- -------- ----------
(1) Additional Trust Expenses are fees allocated directly to the bond
resulting in a deduction to accrued interest.
(2) Other Interest Proceeds include default interest, PPIE, interest due on
outstanding losses, interest due on outstanding shortfalls and recoveries
of interest.
(3) Determined as follows: (A) the ending balance of all the classes less (B)
the sum of (i) the ending balance of the class and (ii) the ending balance
of all classes which are not subordinate to the class divided by (A).
PAGE 4 OF 14
CDC COMMERCIAL MORTGAGE TRUST 2002-FX1
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-FX1
[LOGO] ABN AMRO Statement Date: 06/26/2002
LaSalle Bank N.A. Payment Date:
Prior Payment:
Next Payment:
Record Date:
ABN AMRO ACCT:
ASSET-BACKED FACTS ~ 15 MONTH HISTORICAL LOAN STATUS SUMMARY
Delinquency Aging Categories
------------------------------------------------------------------------------------------
Distribution Delinq 1 Month Delinq 2 Months Delinq 3+ Months Foreclosure REO
Date # Balance # Balance # Balance # Balance # Balance
------------ -------------- --------------- ---------------- ---------------- ----------------
Special Event Categories (1)
--------------------------------------------------------
Distribution Modifications Specially Serviced Bankruptcy
Date # Balance # Balance # Balance
------------ ---------------- ------------------ ----------------
(1) Note: Modification, Specially Serviced & Bankruptcy Totals are Included in
the Appropriate Delinquency Aging Category
PAGE 5 OF 14
CDC COMMERCIAL MORTGAGE TRUST 2002-FX1
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-FX1
[LOGO] ABN AMRO Statement Date: 06/26/2002
LaSalle Bank N.A. Payment Date:
Prior Payment:
Next Payment:
Record Date:
ABN AMRO ACCT:
ASSET-BACKED FACTS ~ 15 MONTH HISTORICAL PAYOFF/LOSS SUMMARY
Distribution Ending Pool (1) Payoffs(2) Penalties Appraisal Reduct. (2)
Date # Balance # Balance # Amount # Balance
------------ --------------- -------------- ------------ ---------------------
Distribution Liquidations (2) Realized Losses (2) Remaining Term Curr Weighted Avg.
Date # Balance # Amount Life Coupon Remit
------------ ---------------- ------------------- -------------- ------------------
(1) Percentage based on pool as of cutoff.
(2) Percentage based on pool as of beginning of period.
PAGE 6 OF 14
CDC COMMERCIAL MORTGAGE TRUST 2002-FX1
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-FX1
[LOGO] ABN AMRO Statement Date: 06/26/2002
LaSalle Bank N.A. Payment Date:
Prior Payment:
Next Payment:
Record Date:
ABN AMRO ACCT:
DELINQUENT LOAN DETAIL
Paid Outstanding Out. Property Special
Disclosure Thru Current P&I P&I Protection Advance Servicer Foreclosure Bankruptcy REO
Control # Date Advance Advances** Advances Description (1) Transfer Date Date Date Date
--------- ---- ----------- ----------- ------------- --------------- ------------- ----------- ---------- ----
TOTAL
A. P&I ADVANCE - LOAN IN GRACE PERIOD
B. P&I ADVANCE - LATE PAYMENT BUT < 1 MONTH DELINQ.
1. P&I ADVANCE - LOAN DELINQ. 1 MONTH
2. P&I ADVANCE - LOAN DELINQ. 2 MONTHS
3. P&I ADVANCE - LOAN DELINQUENT 3 + MONTHS
4. MATURED BALLOON/ASSUMED SCHED. PAYMENT
7. X &X XXXXXXX (XXXXXXXXXXX)
0. X&X ADVANCE (REO)
** Outstanding P&I Advances include the current period P&I Advance PAGE 7 OF 14
CDC COMMERCIAL MORTGAGE TRUST 2002-FX1
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-FX1
[LOGO] ABN AMRO Statement Date: 06/26/2002
LaSalle Bank N.A. Payment Date:
Prior Payment:
Next Payment:
Record Date:
ABN AMRO ACCT:
HISTORICAL COLLATERAL LEVEL PREPAYMENT REPORT
Disclosure Payoff Initial Payoff Penalty Prepayment Maturity Property Geographic
Control # Period Balance Type Amount Amount Date Date Type Location
--------- ------ ------- ---- ------ ------- ---------- -------- -------- ----------
CURRENT 0
CUMULATIVE
PAGE 8 OF 14
CDC COMMERCIAL MORTGAGE TRUST 2002-FX1
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-FX1
[LOGO] ABN AMRO Statement Date: 06/26/2002
LaSalle Bank N.A. Payment Date:
Prior Payment:
Next Payment:
Record Date:
ABN AMRO ACCT:
LOAN LEVEL DETAIL
Operating Ending Loan
Disclosure Property Maturity PFY Statement Geo. Principal Note Scheduled Prepayment Prepayment Status
Control # Group Type Date DSCR Date Location Balance Rate P&I Amount Date Code (1)
--------- ----- -------- -------- ---- --------- -------- --------- ---- --------- ---------- ---------- --------
* NOI and DSCR, if available and reportable under the terms of the trust
agreement, are based on information obtained from the related borrower,
and no other party to the agreement shall be held liable for the accuracy
or methodology used to determine such figures.
(1) Legend:
A. P&I Adv - in Grace Period
B. P&I Adv - < one month delinq
1. P&I Adv - delinquent 1 month
2. P&I Adv - delinquent 2 months
3. P&I Adv - delinquent 3+ months
4. Mat. Balloon/Assumed P&I
7. Foreclosure
9. REO
PAGE 9 OF 14
CDC COMMERCIAL MORTGAGE TRUST 2002-FX1
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-FX1
[LOGO] ABN AMRO Statement Date: 06/26/2002
LaSalle Bank N.A. Payment Date:
Prior Payment:
Next Payment:
Record Date:
ABN AMRO ACCT:
SPECIALLY SERVICED (PART I) ~ LOAN DETAIL
Balance Remaining
Disclosure Servicing ----------------- Note Maturity --------- Property Geo. NOI
Control # Xfer Date Schedule Actual Rate Date Life Type Location NOI DSCR Date
--------- --------- -------- ------ ---- ---- ---- --- -------- -------- --- ---- ----
PAGE 10 OF 14
CDC COMMERCIAL MORTGAGE TRUST 2002-FX1
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-FX1
[LOGO] ABN AMRO Statement Date: 06/26/2002
LaSalle Bank N.A. Payment Date:
Prior Payment:
Next Payment:
Record Date:
ABN AMRO ACCT:
SPECIALLY SERVICED LOAN DETAIL (PART II) ~ SERVICER COMMENTS
Disclosure Resolution
Control # Strategy Comments
--------- ---------- -----------------------------------------------------
PAGE 11 OF 14
CDC COMMERCIAL MORTGAGE TRUST 2002-FX1
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-FX1
[LOGO] ABN AMRO Statement Date: 06/26/2002
LaSalle Bank N.A. Payment Date:
Prior Payment:
Next Payment:
Record Date:
ABN AMRO ACCT:
MODIFIED LOAN DETAIL
Cutoff Modified
Disclosure Modification Maturity Maturity Modification
Control # Date Date Date Description
--------- ------------ -------- -------- ------------------------------
PAGE 12 OF 14
CDC COMMERCIAL MORTGAGE TRUST 2002-FX1
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-FX1
[LOGO] ABN AMRO Statement Date: 06/26/2002
LaSalle Bank N.A. Payment Date:
Prior Payment:
Next Payment:
Record Date:
ABN AMRO ACCT:
REALIZED LOSS DETAIL
Beginning Gross Proceeds Aggregate Net Net Proceeds
Disclosure Appraisal Appraisal Scheduled Gross as a % of Liquidation Liquidation as a % of Realized
Period Control # Date Value Balance Proceeds Sched. Balance Expenses * Proceeds Sched. Balance Loss
------ ---------- --------- --------- --------- -------- -------------- ----------- ----------- -------------- --------
CURRENT
TOTAL
CUMULATIVE
* Aggregate liquidation expenses also include outstanding P&I advances and
unpaid servicing fees, unpaid trustee fees, etc..
PAGE 13 OF 14
CDC COMMERCIAL MORTGAGE TRUST 2002-FX1
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-FX1
[LOGO] ABN AMRO Statement Date: 06/26/2002
LaSalle Bank N.A. Payment Date:
Prior Payment:
Next Payment:
Record Date:
ABN AMRO ACCT:
APPRAISAL REDUCTION DETAIL
Remaining Term Appraisal
Disclosure Appraisal Scheduled ARA Current P&I Note Maturity -------------- Property Geographic -----------
Control# Red. Date Balance Amount Advance ASER Rate Date Life Type Location DSCR Value Date
-------- --------- --------- ------ ----------- ---- ---- -------- ---- ---- -------- ---------- ---- ----- ----
PAGE 14 OF 14
EXHIBIT C
FORM OF CUSTODIAL CERTIFICATION
To the parties listed on the attached Schedule A
Re: CDC Commercial Mortgage Trust 2002-FX1 Commercial Mortgage
Pass Through Certificates, Series 2002-FX1 (the "Certificates")
---------------------------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement
dated as of June 11, 2002, relating to the above-referenced Certificates (the
"Agreement"), LaSalle Bank National Association, 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 (i) through (v), (vii), (viii)
(without regard to the second parenthetical in such clause (viii)) (ix), (xvi)
and (xix) 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
Mortgage 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.
Capitalized terms used herein and not otherwise defined shall have
the respective meanings assigned to them in the Agreement.
Respectfully,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:_____________________________________
Name:
Title:
SCHEDULE A
GMAC Commercial Mortgage Corporation
000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attn: Managing Director, Commercial Servicing Operations
GMAC Commercial Mortgage Corporation
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Bieber - CDC Commercial Mortgage Trust 2002-FX1
Structured Asset Securities Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxx - CDC Commercial Mortgage Trust 2002-FX1
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx - CDC Commercial Mortgage Trust 2002-FX1
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxx - CDC Commercial Mortgage Trust 2002-FX1
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxx - CDC Commercial Mortgage Trust 2002-FX1
CDC Securities Inc.
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: [ ] - CDC Commercial Mortgage Trust 2002-FX1
[MORTGAGE LOAN SELLERS]
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
-----------
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services
Group-CDC Commercial Mortgage Trust 2002-FX1
Re: CDC Commercial Mortgage Trust 2002-FX1, Commercial Mortgage
Pass-Through Certificates, Series 2002-FX1
-------------------------------------------------------------
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 June 11, 2002 (the "Pooling and Servicing Agreement"), by
and among Structured Asset Securities Corporation as depositor, the undersigned
as master servicer (the "Master Servicer"), GMAC Commercial Mortgage Corporation
as special servicer (the "Special Servicer"), you as trustee (the "Trustee") and
ABN AMRO Bank N.V. 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.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
GMAC COMMERCIAL MORTGAGE CORPORATION
By:_____________________________________
Name:
Title:
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
-----------
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services
Group-CDC Commercial Mortgage Trust 2002-FX1
Re: CDC Commercial Mortgage Trust 2002-FX1, Commercial Mortgage
Pass-Through Certificates, Series 2002-FX1
-----------------------------------------------------------
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 June 11, 2002 (the "Pooling and Servicing Agreement"), by
and among Structured Asset Securities Corporation as depositor, GMAC Commercial
Mortgage Corporation as master servicer (the "Master Servicer"), the undersigned
as special servicer (the "Special Servicer"), you as trustee (the "Trustee") and
ABN AMRO Bank N.V. 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, in which case the Mortgage File
(or such portion thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
GMAC COMMERCIAL MORTGAGE CORPORATION
By:_____________________________________
Name:
Title:
EXHIBIT E
RESERVED
EXHIBIT F-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
CDC Commercial Mortgage Trust 2002-FX1
Re: CDC Commercial Mortgage Trust 2002-FX1, Commercial Mortgage
Pass-Through Certificates, Series 2002-FX1, Class _____,
[having an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of June 27, 2002 (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 June 11, 2002, between Structured Asset
Securities Corporation, as Depositor, GMAC Commercial Mortgage Corporation, as
Master Servicer and as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., 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:
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
CDC Commercial Mortgage Trust 2002-FX1
Re: CDC Commercial Mortgage Trust 2002-FX1, Commercial Mortgage
Pass-Through Certificates, Series 2002-FX1, Class _____,
[having an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of June 27, 2002 (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 June 11, 2002, among Structured Asset
Securities Corporation, as Depositor, GMAC Commercial Mortgage Corporation, as
Master Servicer and as Special Servicer, LaSalle Bank National Association, as
Trustee, and ABN AMRO Bank N.V., 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.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgment below.
Very truly yours,
________________________________________
(Transferee)
By:_____________________________________
Name:
Title:
NOMINEE ACKNOWLEDGMENT
----------------------
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:
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.
--------------------------
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.
_____ 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.
_____ 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.
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 Transferred
Yes No 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:
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 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 Transferred
Yes No 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: _________________________________
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
CDC Commercial Mortgage Trust 2002-FX1
Re: CDC Commercial Mortgage Trust 2002-FX1, Commercial Mortgage
Pass-Through Certificates, Series 2002-FX1, Class _____,
[having an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of June 27, 2002 (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 June 11, 2002, between Structured Asset
Securities Corporation, as Depositor, GMAC Commercial Mortgage Corporation, as
Master Servicer, GMAC Commercial Mortgage Corporation, as Special Servicer,
LaSalle Bank National Association, as Trustee, and ABN AMRO Bank N.V., 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.
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 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.
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.
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:
EXHIBIT F-2C
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN BOOK-ENTRY NON-REGISTERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: CDC Commercial Mortgage Trust 2002-FX1, Commercial Mortgage
Pass-Through Certificates, Series 2002-FX1, Class _____,
having an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of June 27, 2002 (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 June 11, 2002, between Structured Asset Securities
Corporation, as Depositor, GMAC Commercial Mortgage Corporation, as Master
Servicer and as Special Servicer, LaSalle Bank National Association, as Trustee,
and ABN AMRO Bank N.V., 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.
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 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.
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:
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
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
$______________________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.
-------------
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.
_____ 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.
_____ 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.
___ ___ Will the Transferee be acquiring interests in 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 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:
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
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.
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 in 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 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:
EXHIBIT F-2D
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN BOOK -ENTRY NON-REGISTERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: CDC Commercial Mortgage Trust 2002-FX1, Commercial Mortgage
Pass-Through Certificates, Series 2002-FX1, Class _____,
[having an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of June 27, 2002 (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 June 11, 2002, between Structured Asset Securities
Corporation, as Depositor, GMAC Commercial Mortgage Corporation, as Master
Servicer and as Special Servicer, LaSalle Bank National Association, as Trustee,
and ABN AMRO Bank N.V., 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; 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: __________, _____
Very truly yours,
By:
-------------------------------------
As, or agent for, the beneficial
owner(s) of the Certificates to which
this certificate relates.
EXHIBIT G-1
FORM I OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA (DEFINITIVE NON-REGISTERED CERTIFICATES)
______________, 20__
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
CDC Commercial Mortgage Trust 2002-FX1
Re: CDC Commercial Mortgage Trust 2002-FX1, Commercial Mortgage
Pass-Through Certificates, Series 2002-FX1 (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 June 27, 2002 (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 June 11, 2002, among Structured
Asset Securities Corporation as depositor, GMAC Commercial Mortgage Corporation
as master servicer and as special servicer, LaSalle Bank National Association as
trustee and ABN AMRO Bank N.V. 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, provided, that Transferees of Class R Certificates may only check the
first 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
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:
EXHIBIT G-2
FORM II OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA
(BOOK-ENTRY NON-REGISTERED CERTIFICATES)
[Date]
[TRANSFEROR]
Re: CDC Commercial Mortgage Trust 2002-FX1, Commercial Mortgage
Pass-Through Certificates, Series 2002-FX1, (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 June 27, 2002 (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 June 11, 2002 (the "Pooling and Servicing Agreement"), among Structured
Asset Securities Corporation, as depositor, GMAC Commercial Mortgage Corporation
as master servicer and as special servicer, LaSalle Bank National Association as
trustee and ABN AMRO Bank N.V. 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 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:
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: CDC Commercial Mortgage Trust 2002-FX1, Commercial Mortgage
Pass-Through Certificates, Series 2002-FX1 (the
"Certificates"), issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of
June 11, 2002, among Structured Asset Securities Corporation
as Depositor, GMAC Commercial Mortgage Corporation as Master
Servicer and as Special Servicer, LaSalle Bank National
Association as Trustee and ABN AMRO Bank N.V. 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]
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"], [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] 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.
4. 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] Certificates to a Disqualified
Organization.
5. No purpose of the acquisition of the [Class R-I] [Class R-II]
[Class R-III] Certificates is to impede the assessment or collection of tax
6. [Check the statement that applies]
o If the Transferor requires the safe harbor under Revenue Procedure
2001-12, I.R.B. 2001-2 (December 8, 2000) to apply:
a) In accordance with Revenue Procedure 2001-12, I.R.B. 2001-2
(December 8, 2000), the Purchaser (i) is an "eligible corporation" as
defined in Section 860L(a)(2) of the Code, as to which the income of
[Class R-I] [Class R-II] [Class R-III] 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 860L(g) of the Code) 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 Revenue Procedure 2001-12; ................................|_|
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] 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 "applicable federal rate" prescribed by
Section 1274 of the Code as of the date hereof (with all applicable
computations done in accordance with Revenue Procedure 2001-12) 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................................................|_|
o If the Transferor does not require the safe harbor under Revenue
Procedure 2001-12 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] 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]
Certificate;
(c) intends to pay the taxes associated with holding a
[Class R-I] [Class R-II] [Class R-III] Certificate; and
(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)..................................................|_|
7. 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] Certificates as they become due.
8. The Purchaser understands that it may incur tax liabilities with
respect to the [Class R-I] [Class R-II] [Class R-III] Certificates in excess of
any cash flows generated by such Certificates.
9. The Purchaser will not transfer the [Class R-I] [Class R-II]
[Class R-III] 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, 5 or 7 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).
10. 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] Certificates to
a Disqualified Organization, an agent thereof or a person that does not satisfy
the requirements of paragraphs 5 and 7.
11. The Purchaser consents to the designation of the Trustee as the
agent of the Tax Matters Person of [REMIC I] [REMIC II] [REMIC III] 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
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE
REGARDING RESIDUAL INTEREST CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services
Group-CDC Commercial Mortgage Trust 2002-FX1
Re: CDC Commercial Mortgage Trust 2002-FX1, Commercial Mortgage
Pass-Through Certificates, Series 2002-FX1 (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] 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 June 11, 2002 (the "Pooling
and Servicing Agreement"), among Structured Asset Securities Corporation, as
depositor, GMAC Commercial Mortgage Corporation as master servicer and as
special servicer, LaSalle Bank National Association as trustee and ABN AMRO Bank
N.V. 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.
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:
EXHIBIT I-1
FORM OF NOTICE AND ACKNOWLEDGMENT
[Date]
Standard & Poor's Ratings Services
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: CMBS Surveillance Department
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: CMBS Monitoring
Fitch Ratings
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Commercial Mortgage Surveillance Department
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the
Pooling and Servicing Agreement, dated as of June 11, 2002 and relating to CDC
Commercial Mortgage Trust 2002-FX1, Commercial Mortgage Pass-Through
Certificates, Series 2002-FX1 (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.
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,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:_____________________________________
Name:
Title:
Receipt acknowledged:
STANDARD & POOR'S RATINGS SERVICES
By:_______________________________
Name:
Title:
XXXXX'X INVESTORS SERVICE, INC.
By:_______________________________
Name:
Title:
FITCH RATINGS
By:_______________________________
Name:
Title:
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[MASTER SERVICER]
[DEPOSITOR]
[FISCAL AGENT]
Re: CDC Commercial Mortgage Trust 2002-FX1, Commercial Mortgage
Pass-Through Certificates, Series 2002-FX1
-----------------------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement,
dated as of June 11, 2002, relating to CDC Commercial Mortgage Trust 2002-FX1,
Commercial Mortgage Pass-Through Certificates, Series 2002-FX1 (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:
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
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UCC FINANCING STATEMENT
FOLLOW INSTRUCTIONS (front and back) CAREFULLY
=========================================================================
||A. NAME & PHONE OF CONTACT AT FILER [optional] ||
|| ||
||---------------------------------------------------------------------||
||B. SEND ACKNOWLEDGMENT TO: (Name and Address) ||
|| _ _ ||
|| | | ||
|| ||
|| ||
|| ||
|| ||
|| ||
|| ||
|| |_ _| || THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY
====================================================================================================================================
1. DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (1a or 1b) - do not abbreviate or combine names
--------------------------------------------------------------------------------------------------------------------------------
|1a. ORGANIZATION'S NAME
|
| Structured Asset Securities Corporation
OR |-------------------------------------------------------------------------------------------------------------------------------
|1b. INDIVIDUAL'S LAST NAME |FIRST NAME |MIDDLE NAME |SUFFIX
| | | |
| | | |
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1c. MAILING ADDRESS |CITY |STATE |POSTAL CODE |COUNTRY
| | | |
000 Xxxx Xxxxxx, 0xx Xxxxx x Xxx Xxxx | NY | 10022 | USA
------------------------------------------------------------------------------------------------------------------------------------
1d. TAX ID #: SSN OR EIN |ADD'L INFO RE |1e. TYPE OF ORGANIZATION |1f. JURISDICTION OF ORGANIZATION |1g. ORGANIZATIONAL ID #, if any
|ORGANIZATION | | |
|DEBTOR | Corporation | Delaware | [X] NONE
====================================================================================================================================
2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (2a or 2b) - do not abbreviate or combine names
--------------------------------------------------------------------------------------------------------------------------------
|2a. ORGANIZATION'S NAME
|
|
OR |-------------------------------------------------------------------------------------------------------------------------------
|2b. INDIVIDUAL'S LAST NAME |FIRST NAME |MIDDLE NAME |SUFFIX
| | | |
| | | |
------------------------------------------------------------------------------------------------------------------------------------
2c. MAILING ADDRESS |CITY |STATE |POSTAL CODE |COUNTRY
| | | |
| | | |
------------------------------------------------------------------------------------------------------------------------------------
2d. TAX ID #: SSN OR EIN |ADD'L INFO RE |2e. TYPE OF ORGANIZATION |2f. JURISDICTION OF ORGANIZATION |2g. ORGANIZATIONAL ID #, if any
|ORGANIZATION | | |
|DEBTOR | | | [ ] NONE
====================================================================================================================================
3. SECURED PARTY'S NAME (or NAME of TOTAL ASSIGNEE of ASSIGNOR S/P) - insert only one secured party name (3a or 3b)
--------------------------------------------------------------------------------------------------------------------------------
|3a. ORGANIZATION'S NAME
| LaSalle Bank National Association, as trustee for the registered holders of
| CDC Commercial Mortgage Trust 2002-FX1, Commercial Mortgage Pass-Through Certificates, Series 2002 FX-1
OR |-------------------------------------------------------------------------------------------------------------------------------
|3b. INDIVIDUAL'S LAST NAME FIRST NAME |FIRST NAME |MIDDLE NAME |SUFFIX
| | | |
| | | |
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3c. MAILING ADDRESS |CITY |STATE |POSTAL CODE |COUNTRY
| | | |
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000 | Chicago | IL | 60603 | USA
====================================================================================================================================
4. This FINANCING STATEMENT covers the following collateral: Any additional collateral description can be typed on the
Addendum Form.
See attached Schedule I.
====================================================================================================================================
5. ALTERNATIVE DESIGNATION [if applicable]:
[ ] LESSEE/LESSOR [ ] CONSIGNEE/CONSIGNOR [ ] BAILEE/XXXXXX [ ] SELLER/BUYER [ ] AG. LIEN [ ]NON-UCC FILING
====================================================================================================================================
6. [ ] This FINANCING STATEMENT is to be filed [for record] (or recorded) |7. Check to REQUEST SEARCH REPORT(S) on Debtor(s)
in the REAL ESTATE RECORDS. Attach Addendum [if applicable] | [ADDITIONAL FEE] [optional]
| [ ] All Debtors [ ] Debtor 1 [ ]Debtor 2
====================================================================================================================================
8. OPTIONAL FILER REFERENCE DATA
File with the Secretary of State of State of Delaware
====================================================================================================================================
FILING OFFICE COPY -- NATIONAL UCC FINANCING STATEMENT (FORM UCC1) (REV. 07/29/98)
NATUCC1 - 5/4/01 C T System Online
SCHEDULE 1
----------
This Schedule 1 is attached to and incorporated in a financing
statement pertaining to Structured Asset Securities Corporation as depositor
(referred to as the "Debtor" for the purpose of this financing statement only),
and LaSalle Bank National Association as trustee for the holders of the CDC
Commercial Mortgage Trust 2002-FX1, Commercial Mortgage Pass-Through
Certificates, Series 2002-FX1 (referred to as the "Secured Party" for purposes
of this financing statement only), under that certain Pooling and Servicing
Agreement, dated as of June 11, 2002 (the "Pooling and Servicing Agreement"),
among the Debtor as depositor, the Secured Party as trustee (the "Trustee"),
GMAC Commercial Mortgage Corporation as master servicer (the "Master Servicer")
and as special servicer (the "Special Servicer"), and ABN AMRO Bank N.V. as
fiscal agent, relating to the issuance of the CDC Commercial Mortgage Trust
2002-FX1, Commercial Mortgage Pass-Through Certificates, Series 2002-FX1 (the
"Series 2002-FX1 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;
(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 2002-FX1 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.
EXHIBIT A TO SCHEDULE 1
(See attached Mortgage Loan Schedule)
EXHIBIT K
FORM OF NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOANS
For loans having balance of (a) $5,000,000 or less, or (b) less than 1% of
outstanding pool balance, whichever is less
To: Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: CMBS Surveillance Department
From: _____________________________________, in its capacity as master servicer
(the "Master Servicer") under the Pooling and Servicing Agreement dated as
of June 11, 2002 (the "Pooling and Servicing Agreement"), among Structured
Asset Securities Corporation as Depositor, the Master Servicer, GMAC
Commercial Mortgage Corporation as special servicer, LaSalle Bank National
Association as trustee (the "Trustee"), and ABN AMRO Bank N.V. as fiscal
agent.
Date: _________, 20___
Re: CDC Commercial Mortgage Trust 2002-FX1, Commercial Mortgage
Pass-Through Certificates Series 2002-FX1
-----------------------------------------------------------
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:
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 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), (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 $___________ [$5,000,000 or less or less than
one percent of pool balance, whichever is less] which is less than 1% of
the aggregate unpaid principal balance of the Mortgage Pool 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.
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:
EXHIBIT L-1
FORM OF INFORMATION REQUEST/INVESTOR CERTIFICATION FOR WEBSITE ACCESS
FROM CERTIFICATE [HOLDER][OWNER]
[Date]
[LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services
Group-CDC Commercial Mortgage Trust 2002-FX1]
[GMAC Commercial Mortgage Corporation
000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attn: Managing Director, Commercial Servicing Operations]
Re: CDC Commercial Mortgage Trust 2002-FX1, Commercial Mortgage
Pass-Through Certificates, Series 2002-FX1
-----------------------------------------------------------
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of June 11, 2002 (the "Pooling and Servicing Agreement"),
among Structured Asset Securities Corporation, as depositor (the "Depositor"),
GMAC Commercial Mortgage Corporation as master servicer and as special servicer,
LaSalle Bank National Association as trustee (the "Trustee") and ABN AMRO Bank
N.V. as fiscal agent, with respect to CDC Commercial Mortgage Trust 2002-FX1,
Commercial Mortgage Pass-Through Certificates, Series 2002-FX1 (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 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:
EXHIBIT L-2
FORM OF INFORMATION REQUEST/INVESTOR CERTIFICATION FOR WEBSITE
ACCESS FROM PROSPECTIVE INVESTOR
[Date]
[LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services
Group-CDC Commercial Mortgage Trust 2002-FX1]
[GMAC Commercial Mortgage Corporation
000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attn: Managing Director, Commercial Servicing Operations]
Re: CDC Commercial Mortgage Trust 2002-FX1, Commercial Mortgage
Pass-Through Certificates, Series 2002-FX1
-----------------------------------------------------------
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of June 11, 2002 (the "Pooling and Servicing Agreement"),
among Structured Asset Securities Corporation, as depositor (the "Depositor"),
GMAC Commercial Mortgage Corporation as master servicer and as special servicer,
LaSalle Bank National Association as trustee (the "Trustee") and ABN AMRO Bank
N.V. as fiscal agent, with respect to CDC Commercial Mortgage Trust 2002-FX1,
Commercial Mortgage Pass-Through Certificates, Series 2002-FX1 (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
(iii) ____ 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.
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]
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
EXHIBIT M
FORM OF CMSA SERVICER WATCH LIST
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CATEGORY CODE REMOVAL FROM THE WATCH LIST
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DSCR/NOI 2
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A mortgage loan that has a then current debt service coverage ratio that is less 2A Debt service coverage ratio is greater
than 1.10x, other than a CTL loan. than 1.10x for two consecutive calendar
quarters.
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Mortgage loan for which NOI for the most recent 12 month period has fallen 25% 2B NOI greater than underwritten NOI.
or more below underwritten NOI.
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OCCUPANCY 4
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Except for hotel properties, the occupancy rate or the effective gross income 4A Occupancy, EGI or Rev Par, as
("EGI") of the related mortgaged property over a trailing 12-month period (or applicable, over a 12-month period are
trailing two calendar quarter during the first year after origination) is 15% greater than 85% of the underwritten
less than underwritten EGI or occupancy (multiplicative basis). In the case of a occupancy, EGI or Rev Par.
hotel property, the average daily occupancy rate or the Rev Par over a trailing
12-month period is 15% less than underwritten occupancy.
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Any of the three largest tenants leases, representing 25% or more of the 4B The tenant space(s) represented by the
aggregate net rentable area ("NRA") or leases representing 20% or more of the any of the three largest tenants,
total revenue from the related property in the current year have expired, been representing 25% or more of the NRA or
terminated, are in default, are dark, will expire in the next three months leases representing 20% or more of the
(without being replaced by one or more comparable tenants and leases), are the total revenue from the related property
subject of bankruptcy or similar proceedings or the servicer has received have been renewed and the tenant(s) are
written notice of the tenant's intent to vacate the mortgaged property. in place, open for business and paying
rent.
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DELINQUENCY/DEFAULT 1
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Mortgage loan is 30 days or more delinquent. 1A Mortgage loan is no longer delinquent.
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Mortgage loan is late (30 days or more) in making its scheduled monthly payment 1B Mortgagor has made three consecutive
three or more times in the preceding twelve months. payments.
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Borrower is delinquent in the payment of taxes, and servicer has made an advance 1D Taxes are paid in full.
of such amounts pursuant to the pooling agreement.
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PROPERTY 5
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Servicer has knowledge of material deferred maintenance, material damage or 5A Cure deferred maintenance, damage or
waste at the related mortgaged property (other than as have been escrowed at waste.
closing)
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Mortgage loan as to which any required inspection of the related mortgaged 5B Cure problem indicated by the servicer.
property conducted by or on behalf of the servicer indicates a problem that the
servicer determines can reasonably be expected to materially and adversely
affect the cash flow generated by such mortgaged property.
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Material non-completion of repairs within specified time frames as required at 5C Completion of repair
the time of the origination of the mortgage loan for mortgage loans with escrows
of at least the lesser of (i) 5% of the loan balance or (ii) $100,000.
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BORROWER 6
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Mortgagor does not allow access to the applicable property for its required site 6B Site inspection is completed.
inspection.
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Ground Lease 3
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Ground lease default has occurred or ground lease expiration will occur within 3A Cure ground lease default or exercise
six months to the extent the Master Servicer has knowledge of any such default option/sign new ground lease.
or expiration.
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RESERVES
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Servicer has made an unplanned draw on any letter of credit securing such 7A Mortgagor has made three consecutive
mortgage loan to pay debt service on such mortgage loan, unless such loan is an payments.
Additional Collateral Loan. Watch list explanation will include a brief
description of the circumstances that in the servicer's good faith judgment
entitled servicer to make such draw.
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The establishment of a reserve, letter of credit or a lockbox for a mortgage 7B Cure of the event that required action
loan after the closing date, other than anticipated escrows pursuant to the under the mortgage loan documents,
mortgage loan documents. satisfying such mortgage loan
provisions, or after six consecutive
monthly payments
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The Servicer shall identify which trigger(s) has/have been satisfied and the
date the loan was added to the watch list.
A file format will also be provided at a later date for the reporting of watch
list items.
