EXHIBIT 4
Greenwich Capital Commercial Funding Corp.,
as Depositor
and
Wachovia Bank, National Association,
as Master Servicer
and
Lennar Partners, Inc.,
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 December 23, 2003
------------------------------------------------
$1,735,826,840
Commercial Mortgage Trust 2003-C2,
Commercial Mortgage Pass-Through Certificates,
Series 2003-C2
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
Section 1.01 Defined Terms................................................
Section 1.02 General Interpretive Principles..............................
Section 1.03 Certain Adjustments to the Principal Distributions on the
Certificates................................................
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 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests........................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the 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 Pool Custodial Account, Defeasance Deposit Account,
Distribution Account, Interest Reserve Account and
Excess Liquidation Proceeds Account.........................
Section 3.04A. Loan Pair Custodial Account.................................
Section 3.05 Permitted Withdrawals From the Pool Custodial Account,
the Distribution Account, the Interest Reserve Account
and the Excess Liquidation Proceeds Account.................
Section 3.05A. Permitted Withdrawals From the Loan Pair Custodial
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; Environmental Insurance..............
Section 3.08 Enforcement of Due-on-Sale and Due on Encumbrance
Provisions..................................................
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..................
Section 3.12 Certain Matters Regarding Servicing Advances.................
Section 3.13 Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports.................................
Section 3.13A. Delivery of Certain Reports to the Companion Loan
Noteholders.................................................
Section 3.13B. Statements to the Companion Loan Noteholders................
Section 3.14 Annual Statement as to Compliance............................
Section 3.15 Reports by Independent Public Accountants....................
Section 3.16 Access to Certain Information................................
Section 3.17 Title to REO Property; REO Accounts..........................
Section 3.18 Management of REO Property...................................
Section 3.19 Sale of Mortgage Loans and REO Properties....................
Section 3.20 Additional Obligations of the Master Servicer;
Obligations to Notify Ground Lessors; the Special
Servicer's Right to Request the Master Servicer to Make
Servicing Advances..........................................
Section 3.21 Modifications, Waivers, Amendments and Consents;
Defeasance..................................................
Section 3.22 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping....................................
Section 3.23 Sub-Servicing Agreements.....................................
Section 3.24 Representations and Warranties of the Master Servicer........
Section 3.25 Representations and Warranties of the Special Servicer.......
Section 3.26 Certain Matters Regarding the Purchase of the Trust
Mortgage Loans..............................................
Section 3.27 Application of Default Charges...............................
Section 3.28 Limitations on and Authorizations of the Master Servicer
and Special Servicer with Respect to Specific Mortgage
Loans.......................................................
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.................................................
Xxxxxxx 0.00X. X&X Advances on the Split Mortgage and U.S. Bank Tower
Pari Passu Companion Loan, 1801 K Street Pari Passu
Companion Loan, 237 Park Avenue Pari Passu Companion
Loan and Xxxxx Fargo Tower Pari Passu Companion Loan........
Section 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses....................................................
Section 4.05 Various Reinstatement Amounts................................
Section 4.06 Calculations.................................................
Section 4.07 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 DIRECTING
HOLDER
Section 6.01 Liability of Depositor, Master Servicer and Special
Servicer....................................................
Section 6.02 Continued Qualification and Compliance of Master
Servicer; 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, Trustee and the Companion Loan
Noteholders in Respect of the Master Servicer and the
Special Servicer............................................
Section 6.06 Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee......................................
Section 6.07 Depositor, Special Servicer and Trustee to Cooperate with
Master Servicer.............................................
Section 6.08 Depositor, Master Servicer and Trustee to Cooperate with
Special Servicer............................................
Section 6.09 Designation of Special Servicer by the Directing Holder......
Section 6.10 Master Servicer or Special Servicer as Owner of a
Certificate.................................................
Section 6.11 Certain Powers of the Directing Holder.......................
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.............................................
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.........................................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment....................................................
Section 11.02 Recordation of Agreement; Counterparts.......................
Section 11.03 Limitation on Rights of Certificateholders and the
Companion Loan Noteholders..................................
Section 11.04 Governing Law; Consent to Jurisdiction.......................
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...................................
Section 11.12 Global Opinions..............................................
Section 11.13 Complete Agreement...........................................
SCHEDULES AND EXHIBITS
Schedule No Schedule Description
I Mortgage Loan Schedule
II Schedule of Exceptions to Mortgage File Delivery
III Environmentally Insured Mortgage Loans
IV Class XP Reference Rate Schedule
V Schedule of Initial Directing Holder For Each Loan Pair
VI Supplemental Servicer Schedule
Exhibit No. Exhibit Description
A-1 Form of Class [A-1] [A-2] [A-3] [A-4] Certificate
A-2 Form of Class [XP] [XC] Certificate
A-3 Form of Class [B] [C] Certificate
A-4 Form of Class [D] [E] [F] [G] [H] Certificate
A-5 Form of Class [J] [K] [L] [M] [N] [O] [P] Certificate
A-6 Form of Class [R-I] [R-II] Certificate
B Form of Distribution Date Statement
C Form of Custodial Certification
D-1 Form of Master Servicer Request for Release
D-2 Form of Special Servicer Request for Release
E Form of Loan Payoff Notification Report
F-1 Form of Transferor Certificate for Transfers of Definitive Non-Registered
Certificates
F-2A Form I of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2B Form II of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2C Form of Transferee Certificate for Transfers of Interests in Rule 144A
Global Certificates
F-2D Form of Transferee Certificate for Transfers of Interests in Regulation S
Global Certificates
G Form I of Transferee Certificate in Connection with ERISA (Definitive
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 Reserved
K Sub-Servicers in respect of which Sub-Servicing Agreements are in effect
or being negotiated as of the Closing Date
L Form of Defeasance Certification
M Form of Backup Certification to be provided to the Depositor
This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of December 23, 2003, among GREENWICH CAPITAL COMMERCIAL FUNDING
CORP, as Depositor, WACHOVIA BANK, NATIONAL ASSOCIATION, as Master Servicer,
LENNAR PARTNERS, INC., 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.
CERTIFICATES
Initial
Class Pass-Through Rate Original Class Original Rating
Designation (per annum) Principal Balance S&P/Xxxxx'x(1)
------------- ----------------- ----------------- ---------------
Class A-1 3.312% $118,761,000 AAA/Aaa
Class A-2 4.022% $269,542,000 AAA/Aaa
Class A-3 4.533% $460,942,000 AAA/Aaa
Class A-4 4.915% $565,453,000 AAA/Aaa
Class B 5.034% $52,075,000 AA/Aa2
Class C 5.074% $21,697,000 AA-/Aa3
Class D 5.134% $43,396,000 A/A2
Class E 5.223% $15,189,000 A-/A3
Class F 5.419% $23,867,000 BBB+/Baa1
Class G 5.567% $26,038,000 BBB/Baa2
Class H 5.911% $26,037,000 BBB-/Baa3
Class J 5.234% $23,868,000 BB+/Ba1
Class K 5.234% $17,358,000 BB/Ba2
Class L 5.234% $10,849,000 BB-/Ba3
Class M 5.234% $10,849,000 B+/B1
Class N 5.234% $10,848,000 B/B2
Class O 5.234% $6,510,000 B-/B3
Class P 5.234% $32,547,840 NR/NR
Class XP 1.337%(2) $1,664,420,000(3) AAA/Aaa
Class XC 0.091%(2) $1,735,826,840(3) AAA/Aaa
Class R-I None(4) None(4) NR/NR
Class R-II None(4) None(4) NR/NR
------------
(1) "NR" indicates that the Class of Certificates has not been rated by the
applicable Rating Agency.
(2) The Pass-Through Rates for the Class XP and Class XC Certificates will be
a variable rate per annum as set forth herein.
(3) The Class XP and Class XC Certificates will not have a Class Principal
Balance and will not entitle their Holders to receive distributions of
principal. The Class XP and Class XC Certificates will have a Notional
Amount as set forth herein.
(4) The Class R-I Certificates and Class R-II Certificates do not have a Class
Principal Balance or Notional Amount, do not bear interest and will not be
entitled to distributions of Net Prepayment Consideration. Any Available
Distribution Amount remaining in the Lower-Tier Distribution Account after
distributing the Lower-Tier Distribution Amount and Net Prepayment
Consideration shall be distributed to the Holders of the Class R-I
Certificates (but only to the extent of the Available Distribution Amount
for such Distribution Date, if any, remaining in the Lower-Tier
Distribution Account). Any Available Distribution Amount remaining in the
Upper-Tier Distribution Account after all required distributions under
this Agreement have been made to each other Class of Certificates, will be
distributed to the Holders of the Class R-II Certificates.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of all of the Mortgage Loans and certain other related
assets subject to this Agreement as a REMIC for federal income tax purposes, and
such segregated pool of assets will be designated as the "Lower-Tier REMIC." The
Class R-I Certificates will represent the sole class of "residual interests" in
the Lower-Tier REMIC for purposes of the REMIC Provisions under federal income
tax law.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Uncertificated Lower-Tier Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets will be
designated as the "the Upper-Tier REMIC." The Class R-II Certificates will
evidence the sole class of "residual interests" in the Upper-Tier REMIC for
purposes of the REMIC Provisions under federal income tax law. For federal
income tax purposes, each Class of the Regular Interest Certificates will be
designated as a separate "regular interest" in the Upper-Tier REMIC for purposes
of the REMIC Provisions under federal income tax law.
The following table sets forth the Class or Component designation,
the corresponding Uncertificated Lower-Tier Interest (the "Corresponding
Uncertificated Lower-Tier Interest"), the corresponding components of the Class
X Certificates (the "Corresponding Components"), if any, and the Original Class
Principal Balance for each Class of Principal Balance Certificates (the
"Corresponding Certificates").
Corresponding Original Corresponding
Original Class Uncertificated Uncertificated Components of
Corresponding Principal Lower-Tier Principal Class X
Certificates Balance Interests(1) Balance Certificates(1)
-------------- ----------- -------------- -------------- ---------------
Class A-1 $118,761,000
LA-1-1 $10,652,000 X-A-1-1
LA-1-2 $75,765,000 X-A-1-2
LA-1-3 $32,344,000 X-A-1-3
Class A-2 $269,542,000
LA-2-1 $46,485,000 X-A-2-1
LA-2-2 $75,955,000 X-A-2-2
LA-2-3 $147,102,000 X-A-2-3
Class A-3 $460,942,000
LA-3-1 $93,304,000 X-A-3-1
LA-3-2 $59,310,000 X-A-3-2
LA-3-3 $308,328,000 X-A-3-3
Class A-4 $565,453,000
LA-4-1 $5,596,000 X-A-4-1
LA-4-2 $559,857,000 X-A-4-2
Class B $52,075,000
LB $52,075,000 X-B
Class C $21,697,000
LC $21,697,000 X-C
Class D $43,396,000
LD $43,396,000 X-D
Class E $15,189,000
LE $15,189,000 X-E
Class F $23,867,000
LF-1 $8,933,000 X-F-1
LF-2 $14,934,000 X-F-2
Class G $26,038,000
LG-1 $13,731,000 X-G-1
LG-2 $12,307,000 X-G-2
Class H $26,037,000
LH-1 $15,783,000 X-H-1
LH-2 $10,254,000 X-H-2
Class J $23,868,000
LJ-1 $10,298,000 X-J-1
LJ-2 $13,570,000 X-J-2
Class K $17,358,000
LK $17,358,000 X-K
Class L $10,849,000
LL-1 $6,756,000 X-L-1
LL-2 $4,093,000 X-L-2
Class M $10,849,000
LM $10,849,000 X-M
Class N $10,848,000
LN $10,848,000 X-N
Class O $6,510,000
LO $6,510,000 X-O
Class P $32,547,840
LP $32,547,840 X-P
--------------
(1) The Uncertificated Lower-Tier Interest and the Components of the Class X
Certificates that correspond to any particular Class of Principal Balance
Certificates also correspond to each other and, accordingly, constitute
the "Corresponding Uncertificated Lower-Tier Interest" and the
"Corresponding Components," respectively, with respect to each other.
The Initial Trust Balance will be $1,735,826,840. The initial
aggregate principal balance of the Uncertificated Lower-Tier Interests will be
$1,735,826,840.
There are seven Mortgage Loans included in the Trust Fund (as
identified in the table below), with an aggregate unpaid principal amount of
approximately $535,822,042 that are each part of a split loan structure, and are
each secured by the same Mortgage that also secures another mortgage loan or
loans in that split loan structure.
Each split loan structure, including all of the related notes that
are secured by the same Mortgage, is referred to herein as a "Loan Pair." Each
Loan Pair consists of (1) a "Trust Mortgage Loan," which is the portion of the
Loan Pair that is included as an asset of the Trust Fund and (2) one or more
"Companion Loans," which is the portion of the Loan Pair that is not included as
an asset of the Trust Fund. Each Companion Loan may be classified as either (1)
a "Pari Passu Companion Loan," which is a Companion Loan that is pari passu in
right of payment with the related Trust Mortgage Loan in the same Loan Pair or
(2) a "Subordinate Companion Loan," which is a Companion Loan that is
subordinate in right of payment to the Trust Mortgage Loan in the same Loan
Pair. A Loan Pair may contain both Pari Passu Companion Loans and Subordinate
Companion Loans. The term "Mortgage Loan" as used in this Agreement will include
the Trust Mortgage Loans.
The following table identifies the Loan Pairs and their related
Trust Mortgage Loans and Companion Loans:
Aggregate Non
Trust Trust Mortgage Subordinate Non Trust Pari
Mortgage Loan Loan Companion Companion Loan Passu Loan
Loan Pair Balance Loan Balance Balance (B Notes) Balance
------------------------- --------------- --------------- ----------------- ------------------
U.S. Bank Tower $120,240,000.00 $139,760,000.00 $10,020,000.00 $129,740,000.00(1)
000 Xxxx Xxxxxx $119,333,334.00 $178,666,666.00 NA $178,666,666.00(1)
0000 X Xxxxxx $117,115,625.00 $12,371,875.00 NA $12,371,875.00
Independent Square $55,000,000.00 $14,000,000.00 $14,000,000.00 NA
Windsor Capital Portfolio $54,630,244.44 $69,527,577.31 $14,897,332.87 $54,630,244.44
Xxxxx Fargo Tower $38,812,500.00 $211,187,500.00 NA $211,187,500.00(2)
Xxxxxx Business $30,690,338.52 $5,445,060.06 $5,445,060.06 NA
Campus
---------------
(1) Comprised of 2 separate Pari Passu Companion Loans.
(2) Comprised of multiple separate Pari Passu Companion Loans.
U.S. Bank Tower. The Loan Pair secured by a Mortgage on the property
known as U.S. Bank Tower (the "U.S. Bank Tower Loan Pair"), consists of four
Loans:
o one Trust Mortgage Loan in the outstanding principal amount of
$120,240,000 as of the date hereof (the "U.S. Bank Tower Trust
Loan");
o two Pari Passu Companion Loans in the aggregate outstanding
principal amount of $129,740,000 as of the date hereof (the
"U.S. Bank Tower Pari Passu Companion Loan," and, together
with the U.S. Bank Tower Trust Loan, the "U.S. Bank Tower
Senior Loans"); and
o one Subordinate Companion Loan in the outstanding principal
amount of $10,020,000 as of the date hereof (the "U.S. Bank
Tower Junior Companion Loan").
The U.S. Bank Tower Trust Loan and the U.S. Bank Tower Junior
Companion Loan are in the aggregate, pari passu with the U.S. Bank Tower Pari
Passu Companion Loan. However, as between the U.S. Bank Tower Trust Loan and
the U.S. Bank Tower Junior Companion Loan, the U.S. Bank Tower Junior Loan is
subordinate to the U.S. Bank Tower Trust Loan.
000 Xxxx Xxxxxx. The Loan Pair secured by a Mortgage on the property
known as 000 Xxxx Xxxxxx (the "237 Park Avenue Loan Pair"), consists of three
Loans:
o one Trust Mortgage Loan in the outstanding principal amount of
$119,333,334 as of the date hereof (the "237 Park Avenue Trust
Loan"); and
o two separate Pari Passu Companion Loans in the aggregate
outstanding principal amount of $178,666,666 as of the date
hereof (the "237 Park Avenue Pari Passu Companion Loans").
1801 K Street. The Loan Pair secured by a Mortgage on the property
known as 1801 K Street (the "1801 K Street Loan Pair"), consists of two Loans:
o one Trust Mortgage Loan in the outstanding principal amount of
$117,115,625 as of the date hereof (the "1801 K Street Trust
Loan"); and
o one Pari Passu Companion Loan in the outstanding principal
amount of $12,371,875 as of the date hereof (the "1801 K
Street Pari Passu Companion Loan").
Independent Square. The Loan Pair secured by a Mortgage on the
property known as Independent Square (the "Independent Square Loan Pair"),
consists of two Loans:
o one Trust Mortgage Loan in the outstanding principal amount of
$55,000,000 as of the date hereof (the "Independent Square
Trust Loan"); and
o one Subordinate Companion Loan in the outstanding principal
amount of $14,000,000 as of the date hereof (the "Independent
Square Subordinate Companion Loan").
Windsor Capital Portfolio. The Loan Pair secured by a Mortgage on
the property known as Windsor Capital Portfolio (the "Windsor Capital Portfolio
Loan Pair"), consists of three Loans:
o one Trust Mortgage Loan in the outstanding principal amount of
$54,630,244.44 as of the date hereof (the "Windsor Capital
Portfolio Trust Loan");
o one Pari Passu Companion Loan in the outstanding principal
amount of $54,630,244.44 as of the date hereof (the "Windsor
Capital Portfolio Pari Passu Companion Loan," and, together
with the Windsor Capital Portfolio Trust Loan, the "Windsor
Capital Portfolio Senior Loans"); and
o one Subordinate Companion Loan in the outstanding principal
amount of $14,897,332.87 as of the date hereof (the "Windsor
Capital Portfolio Junior Companion Loan").
Xxxxx Fargo Tower. The Loan Pair secured by a Mortgage on the
property known as Xxxxx Fargo Tower (the "Xxxxx Fargo Tower Loan Pair"),
consists of multiple Loans:
o two Trust Mortgage Loans in the aggregate outstanding
principal amount of $38,812,500 as of the date hereof (the
"Xxxxx Fargo Tower Trust Loan"); and
o multiple Pari Passu Companion Loans in the aggregate
outstanding principal amount of $211,187,500 as of the date
hereof (the "Xxxxx Fargo Tower Pari Passu Companion Loans").
Xxxxxx Business Campus. The Loan Pair secured by a Mortgage on the
property known as Xxxxxx Business Campus (the "Xxxxxx Business Campus Loan
Pair"), consists of two Loans:
o one Trust Mortgage Loan in the outstanding principal amount of
$30,690,338.52 as of the date hereof (the "Xxxxxx Business
Campus Trust Loan"); and
o one Subordinate Companion Loan in the outstanding principal
amount of $5,445,060.06 as of the date hereof (the "Xxxxxx
Business Campus Subordinate Companion Loan").
The relative rights of each holder of a Trust Mortgage Loan and the
related Companion Loans are set forth in a co-lender agreement (each a
"Co-Lender Agreement") between the holders of each of the Loans in the Loan
Pair. Pursuant to each Co-Lender Agreement, the Loan Pairs are to be serviced
and administered in accordance with this Agreement, other than the Windsor
Capital Portfolio Loan Pair, by the Master Servicer and the Special Servicer
hereunder. The Windsor Capital Portfolio Loan Pair, including the Windsor
Capital Portfolio Trust Loan, will be serviced and administered in accordance
with the Pooling and Servicing Agreement (the "2003-C1 PSA") dated June 30,
2003, by and among Greenwich Capital Commercial Funding Corp., as depositor (the
"2003-C1 Depositor"), Wachovia Bank, National Association, as master servicer
(the "2003-C1 Master Servicer"), GMAC Commercial Mortgage Corporation, as
special servicer (the "2003-C1 Special Servicer"), LaSalle Bank National
Association, as trustee (the "2003-C1 Trustee"), and ABN AMRO Bank N.V., as
fiscal agent (the "2003-C1 Fiscal Agent"), pursuant to which the Commercial
Mortgage Pass Through Certificates, Series 2003-C1 were issued.
Capitalized terms used but not otherwise defined in this Preliminary
Statement have the respective meanings assigned thereto in Section 1.01 of this
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent hereby agree, in each case, as follows:
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:
"1801 K Street Loan Pair" shall have the meaning assigned thereto in
the Preliminary Statement.
"1801 K Street Pari Passu Companion Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"1801 K Street Trust Loan" shall have the meaning assigned thereto
in the Preliminary Statement.
"237 Park Avenue Loan Pair" shall have the meaning assigned
thereto in the Preliminary Statement.
"237 Park Avenue Pari Passu Companion Loans" shall have the
meaning assigned thereto in the Preliminary Statement.
"237 Park Avenue Trust Loan" shall have the meaning assigned thereto
in the Preliminary Statement.
"2003-C1 Depositor" shall have the meaning assigned thereto in the
Preliminary Statement.
"2003-C1 Fiscal Agent" shall have the meaning assigned thereto in
the Preliminary Statement.
"2003-C1 Master Servicer" shall have the meaning assigned thereto in
the Preliminary Statement.
"2003-C1 PSA" shall have the meaning assigned thereto in the
Preliminary Statement.
"2003-C1 Special Servicer" shall have the meaning assigned thereto
in the Preliminary Statement.
"2003-C1 Trustee" shall have the meaning assigned thereto in the
Preliminary Statement.
"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 (other than the Windsor Capital Portfolio Trust Loan, which is
being serviced under the 2003-C1 PSA), any default under the related loan
documents resulting from (a) the exclusion of acts of terrorism from coverage
under the related all risk casualty insurance policy maintained on the subject
Mortgaged Property and (b) the related Mortgagor's failure to obtain insurance
that specifically covers acts of terrorism, but only if the Special Servicer has
determined, in its reasonable judgment, that (i) such insurance is not available
at commercially reasonable rates and the subject hazards are not commonly
insured against by prudent owners of similar real properties in similar locales
(but only by reference to such insurance that has been obtained by such owners
at current market rates), or (ii) such insurance is not available at any rate.
Subject to the Servicing Standard, in making any of the determinations required
in subclause (i) or (ii) of this definition, the Special Servicer shall be
entitled to rely on the opinion of an insurance consultant.
"Accrued Certificate Interest" shall mean the interest accrued from
time to time with respect to any Class of Regular Interest Certificates, the
amount of which interest shall equal: (a) in the case of any Class of Principal
Balance Certificates for any Interest Accrual Period, one-twelfth of the product
of (i) the Pass-Through Rate applicable to such Class of Certificates for such
Interest Accrual Period, multiplied by (ii) the Class Principal Balance of such
Class of Certificates outstanding immediately prior to the related Distribution
Date; and (b) in the case of each Class of the Class X Certificates for any
Interest Accrual Period, the sum of the Accrued Component Interest for all of
the Components of such Class for such Distribution Date.
"Accrued Component Interest" shall mean, with respect to each
Component of the Class XP and Class XC Certificates for any Distribution Date,
one twelfth of the product of (i) the Class XP Strip Rate or Class XC Strip Rate
applicable to such Component for such Distribution Date, and (ii) the Component
Notional Amount of such Component outstanding immediately prior to such
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 Designated Servicing Information" shall have the meaning
assigned thereto in Section 8.15(a).
"Additional Information" shall have the meaning assigned thereto in
Section 4.02(a).
"Additional Principal Distribution Amount" shall mean, with respect
to any Distribution Date, the aggregate of the Recovered Amounts included in,
and added to the Principal Distribution Amount for such Distribution Date for
purposes of calculating, the Adjusted Principal Distribution Amount for such
Distribution Date, pursuant to Section 1.03(c).
"Additional Trust Fund Expense" shall mean any expense incurred with
respect to the Trust Fund and not otherwise included in the calculation of a
Realized Loss that would result in the Holders of Regular Interest Certificates
receiving less than the full amount of principal and/or Distributable
Certificate Interest to which they are entitled on any Distribution Date.
"Adjusted Principal Distribution Amount" shall mean, for any
Distribution Date, an amount equal to the Principal Distribution Amount for such
Distribution Date, plus all amounts added to such Principal Distribution Amount
pursuant to Section 1.03(c) for such Distribution Date, minus all amounts
subtracted from such Principal Distribution Amount pursuant to Section 1.03(b)
for such Distribution Date.
"Administered REO Property" shall mean any REO Property that is, as
contemplated by Section 3.01, to be administered by the Special Servicer
hereunder.
"Administrative Cost Rate" shall mean, with respect to each Mortgage
Loan (or any successor REO Mortgage Loan with respect thereto), the rate per
annum specified as the "Administrative Cost Rate" on the Mortgage Loan Schedule,
which, for each such other Mortgage Loan (or successor REO Mortgage Loan) is
equal to the sum of the related Master Servicing Fee Rate and the Trustee Fee
Rate.
"Advance" shall mean any P&I Advance or Servicing Advance.
"Adverse 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 either
Rating Agency.
"Adverse REMIC Event" shall have the meaning assigned thereto in
Section 10.01(i).
"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 3.15.
"Annual Performance Certification" shall have the meaning assigned
thereto in Section 3.14.
"Appraisal" shall mean an appraisal or update thereof prepared by an
Independent Appraiser.
"Appraisal Reduction Amount" shall mean, with respect to any
Required Appraisal Loan, an amount (calculated initially as of the Determination
Date immediately following the later of the date on which the subject Mortgage
Loan or Loan Pair became a Required Appraisal Loan and the date on which the
applicable Required Appraisal was obtained) equal to the excess, if any, of: (a)
the sum of, without duplication, (i) the Stated Principal Balance of such
Required Appraisal Loan, (ii) to the extent not previously advanced by or on
behalf of the Master Servicer, the Trustee or the Fiscal Agent, all unpaid
interest on such Required Appraisal Loan through the most recent Due Date prior
to the date of calculation (exclusive of any portion thereof that represents
Default Interest), (iii) all accrued and unpaid Special Servicing Fees,
Liquidation Fees and Workout Fees in respect of such Required Appraisal Loan,
(iv) all related unreimbursed Advances made by or on behalf of (plus all accrued
interest on such Advances payable to) the Master Servicer, the Special Servicer,
the Trustee and/or the Fiscal Agent with respect to such Required Appraisal
Loan, (v) any other unpaid Additional Trust Fund Expenses in respect of such
Required Appraisal Loan, and (vi) all currently due and unpaid real estate taxes
and assessments, insurance premiums and, if applicable, ground rents, and any
unfunded improvement or other applicable reserves, in respect of the related
Mortgaged Property or REO Property, as the case may be (in each case, net of any
amounts escrowed with the Master Servicer or the Special Servicer for such
items); over (b) the Required Appraisal Value. Notwithstanding the foregoing, if
(i) any Mortgage Loan or Loan Pair becomes a Required Appraisal Loan, (ii)
either (A) no Required Appraisal or update thereof has been obtained or
conducted, as applicable, in accordance with Section 3.09(a), with respect to
the related Mortgaged Property during the 12-month period prior to the date such
Mortgage Loan or Loan Pair became a Required Appraisal Loan or (B) there shall
have occurred since the date of the most recent Required Appraisal or update
thereof a material change in the circumstances surrounding the related Mortgaged
Property that would, in the Special Servicer's reasonable judgment, materially
affect the value of the related Mortgaged Property, and (iii) no new Required
Appraisal is obtained or conducted, as applicable, in accordance with Section
3.09(a), within 60 days after such Mortgage Loan or Loan Pair became a Required
Appraisal Loan, then (x) until such new Required Appraisal is obtained or
conducted, as applicable, in accordance with Section 3.09(a), the Appraisal
Reduction Amount shall equal 25% of the Stated Principal Balance of such
Required Appraisal Loan, and (y) upon receipt or performance, as applicable, in
accordance with Section 3.09(a), of such Required Appraisal or update thereof by
the Special Servicer, the Appraisal Reduction Amount for such Required Appraisal
Loan shall be recalculated in accordance with the preceding sentence of this
definition. For purposes of this definition, each Required Appraisal Loan that
is part of a Cross-Collateralized Group shall be treated separately for the
purposes of calculating any Appraisal Reduction Amount.
"Appraised Value" shall mean, with respect to each Mortgaged
Property or Administered REO Property, the appraised value thereof based upon
the most recent appraisal or update thereof prepared by an Independent Appraiser
that is contained in the related Servicing File or, in the case of any such
property with or that had, as the case may be, an allocated loan amount of, or
securing a Loan or relating to an REO Loan, as the case may be, with a Stated
Principal Balance of, less than $2,000,000, either (a) the most recent appraisal
or update thereof that is contained in the related Servicing File or (b) the
most recent "desktop" value estimate performed by the Special Servicer that is
contained in the related Servicing File.
"Assignment of Leases" shall mean, with respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar document or
instrument executed by the Mortgagor in connection with the origination of the
related Loan.
"Assumed Monthly Payment" shall mean: (a) with respect to any
Balloon Mortgage Loan (or the U.S. Bank Tower Pari Passu Companion Loan, 1801 K
Street Pari Passu Companion Loan, 237 Park Avenue Pari Passu Companion Loans or
Xxxxx Fargo Tower Pari Passu Companion Loans) 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, or, in the case of the U.S. Bank Tower Pari Passu Companion Loan,
1801 K Street Pari Passu Companion Loan, 237 Park Avenue Pari Passu Companion
Loans or Xxxxx Fargo Tower Pari Passu Companion Loans, the related Mortgage
Loans remain part of the Trust Fund (provided that such 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 Loan on such Due Date equal to the amount that would have been
due in respect thereof on such Due Date if such Loan had been required to
continue to accrue interest (other than Default Interest) in accordance with its
terms, and to pay principal in accordance with the amortization schedule (if
any) in effect immediately prior to, and without regard to the occurrence of,
the related Stated Maturity Date; (b) with respect to any REO Loan, for any Due
Date as of which the related REO Property remains part of the Trust Fund, or 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 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 the
following amounts (i) the aggregate amount of all payments and other collections
on or with respect to the Mortgage Loans and any REO Properties (including, with
respect to the Windsor Capital Portfolio Trust Loan, payment remitted by, or
advances made by, the 2003-C1 Master Servicer) that (A) were Received as of the
end of the related Collection Period (or, in the case of the Windsor Capital
Portfolio Trust Loan, as of 12:00 noon (New York City time) on the Master
Servicer Remittance Date) and (B) are on deposit in the Distribution 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 or the
Fiscal Agent for distribution on the Certificates on such Distribution Date
pursuant to Section 4.03 and Section 4.03A, (iii) the aggregate amount deposited
by the Master Servicer in the Distribution Account for such Distribution Date
pursuant to Section 3.20(a) in connection with Prepayment Interest Shortfalls,
(iv) to the extent not included in clause (a)(i) of this definition, the
aggregate amount transferred from the Excess Liquidation Proceeds Account to the
Distribution Account pursuant to Section 3.05(d) in respect of such Distribution
Date and (v) to the extent not included in the amount described in clause (a)(i)
of this definition, if such Distribution Date occurs during March of 2004 or any
year thereafter, the aggregate of the Interest Reserve Amounts transferred from
the Interest Reserve Account to the Distribution Account in respect of the
Interest Reserve Mortgage Loans and any Interest Reserve REO Mortgage Loans for
distribution on such Distribution Date; net of (b) the portion of the aggregate
amount described in clause (a) of this definition that represents one or more of
the following: (i) Monthly Payments that are due on a Due Date following the end
of the related Collection Period, (ii) any amounts payable or reimbursable to
any Person from the Distribution Account pursuant to clauses (ii) through (vii)
of Section 3.05(b), (iii) Prepayment Premiums and/or Yield Maintenance Charges,
(iv) if such Distribution Date occurs during January of 2005 or of any year
thereafter that is not a leap year or during February of 2004 or any year
thereafter, the Interest Reserve Amounts with respect to the Interest Reserve
Mortgage Loans and any Interest Reserve REO Mortgage Loans to be withdrawn from
the Distribution Account and deposited into the Interest Reserve Account in
respect of such Distribution Date and held for future distribution, all pursuant
to Section 3.04(c), and (v) amounts deposited in the Distribution Account in
error; provided that clauses (b)(i) and (b)(iv) of this definition shall not
apply on the Final Distribution Date.
"Balloon Loan" shall mean any Loan that by its original terms or by
virtue of any modification entered into as of the Closing Date provides for an
amortization schedule extending beyond its Stated Maturity Date and as to which,
in accordance with such terms, the Scheduled Payment due on its Stated Maturity
Date is significantly larger than the Scheduled Payment due on the Due Date next
preceding its Stated Maturity Date.
"Balloon Mortgage Loan" shall mean any Mortgage Loan that is a
Balloon Loan.
"Balloon Payment" shall mean, with respect to any Balloon Loan as of
any date of determination, the payment, other than any regularly scheduled
monthly payment, due with respect to such Loan at maturity.
"Bid Allocation" shall mean, with respect to the Master Servicer or
any Sub-Servicer and the proceeds of any bid pursuant to Section 7.01(c), the
amount of such proceeds (net of any expenses incurred in connection with such
bid and the transfer of servicing), multiplied by a fraction equal to (a) the
Servicer Fee Amount for the Master Servicer or such Sub-Servicer, as the case
may be, as of such date of determination, over (b) the aggregate of the Servicer
Fee Amounts for the Master Servicer and all of the Sub-Servicers as of such date
of determination.
"Book-Entry Certificate" shall mean any Certificate registered in
the name of the Depository or its nominee.
"Book-Entry Non-Registered Certificate" shall mean any
Non-Registered Certificate that constitutes a Book-Entry Certificate.
"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.
"Certificates" shall mean any of the Class A-1, Class A-2, Class
A-3, Class A-4, Class XP, Class XC, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P,
Class R-I or Class R-II Certificates, as applicable.
"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 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 initial Notional Amount, as the case may be,
of such Class of Regular Interest Certificates.
"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, the Loan
Payoff Notification Report and the CMSA Investor Reporting Package.
"Certification Parties" shall have the meaning assigned to such term
in Section 8.15(d).
"Certifying Person" shall have the meaning assigned to such term in
Section 8.15(d).
"Class" shall mean, collectively, all of the Certificates bearing
the same alphabetical and, if applicable, numerical class designation.
"Class A Certificates" shall mean the Class A-1, Class A-2, Class
A-3, and Class A-4 Certificates.
"Class A-1 Certificate" shall mean any one of the Certificates with
a "Class A-1" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC 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 the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-3 Certificate" shall mean any one of the Certificates with
a "Class A-3" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-4 Certificate" shall mean any one of the Certificates with
a "Class A-4" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"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 the Upper-Tier REMIC 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 the Upper-Tier REMIC 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-4 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC 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-4 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC 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 the Upper-Tier REMIC 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 the Upper-Tier REMIC 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 the Upper-Tier REMIC 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-5 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC 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-5 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC 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-5 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC 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 the Upper-Tier REMIC 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 the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class O Certificate" shall mean any of the Certificates with a
"Class O" 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 the Upper-Tier REMIC for purposes of the REMIC Provisions.
"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 the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class Principal Balance" shall mean the aggregate principal balance
of any Class of Principal Balance Certificates outstanding as of any date of
determination. As of the Closing Date, the Class Principal Balance of each Class
of Principal Balance Certificates shall equal the Original Class Principal
Balance thereof. On each Distribution Date, the Class Principal Balance of each
Class of Principal Balance Certificates shall be permanently reduced by the
amount of any distributions of principal made thereon on such Distribution Date
pursuant to Section 4.01 or 9.01, as applicable, and shall be further
permanently reduced (subject to Section 4.05) 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). On each Distribution Date, the
Class Principal Balance of each Class of Principal Balance Certificates shall be
increased by the related Class Principal Reinstatement Amount, if any, for such
Distribution Date.
"Class Principal Reinstatement Amount" shall have the meaning
assigned thereto in Section 4.05(a).
"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 the Lower-Tier REMIC 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 the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class X Certificates" shall mean the Class XP Certificates and the
Class XC Certificates.
"Class XC Certificate" shall mean any one of the Certificates with a
"Class XC" designation on the face thereof, substantially in the form of Exhibit
A-2 attached hereto, and evidencing the Components and a portion of a class of
"regular interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class XC Notional Amount" shall mean, with respect to the Class XC
Certificates and any date of determination, the sum of the then Component
Notional Amounts of all of the Components.
"Class XC Strip Rate" shall mean, with respect to (A) any Class of
Components (other than the Class XP Components) for any Distribution Date, a
rate per annum equal to (i) the Weighted Average Net Mortgage Rate for such
Distribution Date, minus (ii) the Pass-Through Rate for the Corresponding
Certificates and (B) the Class XP Components (i) for any Distribution Date
occurring on or before the related Class XP Component Crossover Date, (x) the
Weighted Average Net Mortgage Rate for such Distribution Date minus (y) the sum
of the Pass-Through Rate for the Corresponding Certificates for such
Distribution Date and the Class XP Strip Rate for such Component for such
Distribution Date, and (ii) for any Distribution Date occurring after the
related Class XP Component Crossover Date, a rate per annum equal to (x) the
Weighted Average Net Mortgage Rate for such Distribution Date, minus (y) the
Pass-Through Rate for the Corresponding Certificates. In no event shall any
Class XC Strip Rate be less than zero.
"Class XP Certificate" shall mean any one of the Certificates with a
"Class XP" designation on the face thereof, substantially in the form of Exhibit
A-2 attached hereto, and evidencing the Class XP Components and a portion of a
class of "regular interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class XP Component Crossover Date" shall mean (i) with respect to
Component X-A-1-2, the Distribution Date occurring in December 2004, (ii) with
respect to Component X-A-1-3, Component X-A-2-1 and Component X-L-1, the
Distribution Date occurring in December 2005, (iii) with respect to Component
X-A-2-2, Component X-J-1, Component X-K and Component X- L-2, the Distribution
Date occurring in December 2006, (iv) with respect to Component X-A-2-3,
Component X-A-3-1, Component X-H-1 and Component X-J-2, the Distribution Date
occurring in December 2007, (v) with respect to Component X-A-3-2, Component
X-G-1 and Component X-H-2, the Distribution Date occurring in December 2008,
(vi) with respect to Component X-A-3-3, Component X-A-4-1, Component X-F-1 and
Component X-G-2, the Distribution Date occurring in December 2009, and (vii)
with respect to Component X-A-4-2, Component X-B, Component X-C, Component X-D,
Component X-E and Component X-F-2, the Distribution Date in December 2010.
"Class XP Components" shall mean each of Component X-A-1-2,
Component X-A-1-3, Component X-A-2-1, Component X-A-2-2, Component X-A-2-3,
Component X-A-3-1, Component X-A-3-2, Component X-A-3-3, Component X-A-4-1,
Component X-A-4-2, Component X-B, Component X-C, Component X-D, Component X-E,
Component X-F-1, Component X-F-2, Component X-G-1, Component X-G-2, Component
X-H-1, Component X-H-2, Component X-J-1, Component X-J-2, Component X-K,
Component X-L-1 and Component X-L-2.
"Class XP Notional Amount" shall mean, as of any date of
determination, the sum of the then Component Notional Amounts of the Class XP
Components.
"Class XP Reference Rate" shall mean, for any Distribution Date, the
rate per annum corresponding to such Distribution Date on Schedule IV.
"Class XP Strip Rate" shall mean, with respect to each of the Class
XP Components for any Distribution Date, a rate per annum equal to (i) for any
Distribution Date occurring on or before the related Class XP Component
Crossover Date, (x) the lesser of (I) the Weighted Average Net Mortgage Rate for
such Distribution Date and (II) the Class XP Reference Rate for such
Distribution Date minus (y) the Pass-Through Rate for the Corresponding
Certificates (provided that in no event shall any Class XP Strip Rate be less
than zero) and (ii) for any Distribution Date occurring after the related Class
XP Component Crossover Date, 0% per annum.
"Clearstream" shall mean Clearstream Banking, Societe Anonyme or any
successor.
"Closing Date" shall mean December 23, 2003.
"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 Directing Holder.
"CMSA Bond Level File" shall mean the monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Bond Level File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Bond Level File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Trustee.
"CMSA Collateral Summary File" shall mean the report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Collateral Summary File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Collateral Summary File" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Trustee.
"CMSA Comparative Financial Status Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Comparative Financial Status Report" available as
of the Closing Date on the CMSA Website, or such other form for the presentation
of such information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "CMSA Comparative Financial Status Report" available as of the
Closing Date on the CMSA Website, is reasonably acceptable to the Master
Servicer or the Special Servicer, as applicable.
"CMSA Delinquent Loan Status Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Delinquent Loan Status Report" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Delinquent Loan Status
Report" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Financial File" shall mean a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Financial File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable. The initial data for this report shall be provided by
the 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 approved by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Historical Liquidation Report"
available as of the Closing Date on the CMSA Website, is reasonably acceptable
to the Master Servicer or the Special Servicer, as applicable.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
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 and Corrected Mortgage Loan Report" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be approved by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Historical Loan Modification and
Corrected Mortgage Loan Report" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"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 nine supplemental reports: (i) CMSA Delinquent
Loan Status Report, (ii) CMSA Historical Loan Modification and Corrected
Mortgage Loan 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 Loan Level Reserve/LOC Report and (ix) CMSA NOI Adjustment
Worksheet.
"CMSA Loan Level Reserve/LOC Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Level Reserve/LOC Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Loan Level Reserve/LOC Report"
available as of the Closing Date on the CMSA Website, is reasonably acceptable
to the Master Servicer or the Special Servicer, as applicable.
"CMSA Loan Periodic Update File" shall mean the monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Periodic Update File" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be approved by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Loan Periodic Update File"
available as of the Closing Date on the CMSA Website, is reasonably acceptable
to the Master Servicer or the Special Servicer, as applicable, and the Trustee.
The initial data for this report shall be provided by the 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 approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Loan Setup File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable, and the Trustee.
"CMSA NOI Adjustment Worksheet" shall mean a report prepared by the
Master Servicer with respect to all the Performing Serviced Loans, and by the
Special Servicer with respect to Specially Serviced Loans and REO Loans, which
report shall be substantially in the form of, and contain the information called
for in, the downloadable form of the "NOI Adjustment Worksheet" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "NOI Adjustment Worksheet"
available as of the Closing Date on the CMSA Website, is acceptable to the
Master Servicer or the Special Servicer, as applicable.
"CMSA Operating Statement Analysis Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Operating Statement Analysis Report" available as
of the Closing Date on the CMSA Website or in such other form for the
presentation of such information and containing such additional information as
may from time to time be approved by the CMSA for commercial mortgage-backed
securities transactions generally and, insofar as it requires the presentation
of information in addition to that called for by the form of the "CMSA Operating
Statement Analysis Report" available as of the Closing Date on the CMSA Website,
is reasonably acceptable to the Master Servicer.
"CMSA Property File" shall mean a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Property File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Property File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA REO Status Report" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "REO Status Report" available as of the Closing Date on the CMSA Website, or
in such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "REO Status Report" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA Servicer Watch List" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Servicer Watch List" available as of the Closing Date on the CMSA Website,
or in such other form for the presentation of such information and containing
such additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Servicer Watch List" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or Special Servicer, as
applicable, and in any event, identifying as of the Determination Date
immediately preceding the delivery of such report each Performing Serviced Loan
(i) with a debt service coverage ratio of less than 1.05x, (ii) that has a
Stated Maturity Date occurring in the next 60 days, (iii) that is delinquent in
respect of its real estate taxes, (iv) for which any outstanding Advances exist,
(v) that has been a Specially Serviced Loan in the past 90 days, (vi) for which
the debt service coverage ratio has decreased by more than 10% in the prior 12
months, (vii) for which any lease relating to more than 25% of the related
Mortgaged Property has expired, been terminated, is in default or will expire
within the next three months (with no replacement tenant having occupied or
reasonably expected, within the next 45 days, to occupy the space on comparable
terms), (viii) that has been late in making its Monthly Payment three or more
times in the preceding twelve months, (ix) with an expired material deferred
maintenance at the related Mortgaged Property, (x) that is 30 or more days
delinquent, (xi) to the extent the Master Servicer has actual knowledge thereof,
with respect to which a tenant or tenants occupying 25% of the related Mortgaged
Property are involved in bankruptcy or insolvency proceedings, or (xii) in
respect of which an inspection carried out pursuant to Section 3.13(a) revealed
a problem reasonably expected to materially and adversely affect the cash flow
of the related Mortgaged Property.
"CMSA Website" shall mean the CMSA's Website located at
"xxx.xxxx.xxx" or such other primary website as the CMSA may establish for
dissemination of its report forms.
"Co-Lender Agreement" shall have the meaning assigned thereto in the
Preliminary Statement.
"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 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.
"Companion Loan" shall have the meaning assigned thereto in the
Preliminary Statement.
"Companion Loan Noteholder" shall mean, with respect to any Loan
Pair, the Holder of the Mortgage Note for the related Companion Loan.
"Companion Loan Securities" means the securities issued in
connection with the inclusion of a Companion Loan into a trust as part of a
securitization of one or more mortgage loans.
"Components" shall mean each of Component X-A-1-1, Component
X-A-1-2, Component X-A-1-3, Component X-A-2-1, Component X-A-2-2, Component
X-A-2-3, Component X-A-3-1, Component X-A-3-2, Component X-A-3-3, Component
X-A-4-1, Component X-A-4-2, Component X-B, Component X-C, Component X-D,
Component X-E, Component X-F-1, Component X-F-2, Component X-G-1, Component
X-G-2, Component X-H-1, Component X-H-2, Component X-J-1, Component X-J-2,
Component X-K, Component X-L-1, Component X-L-2, Component X-M, Component X-N,
Component X-O and Component X-P.
"Component X-A-1-1" shall mean one of 30 components of the Class XC
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
Uncertificated Lower-Tier Interest LA-1-1.
"Component X-A-1-2" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LA-1-2.
"Component X-A-1-3" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LA-1-3.
"Component X-A-2-1" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LA-2-1.
"Component X-A-2-2" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LA-2-2.
"Component X-A-2-3" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LA-2-3.
"Component X-A-3-1" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LA-3-1.
"Component X-A-3-2" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LA-3-2.
"Component X-A-3-3" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LA-3-3.
"Component X-A-4-1" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LA-4-1.
"Component X-A-4-2" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LA-4-2.
"Component X-B" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LB.
"Component X-C" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LC.
"Component X-D" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LD.
"Component X-E" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LE.
"Component X-F-1" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LF-1.
"Component X-F-2" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LF-2.
"Component X-G-1" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LG-1.
"Component X-G-2" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LG-2.
"Component X-H-1" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LH-1.
"Component X-H-2" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LH-2.
"Component X-J-1" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LJ-1.
"Component X-J-2" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LJ-2.
"Component X-K" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LK.
"Component X-L-1" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LL-1.
"Component X-L-2" shall mean one of 30 components of the Class XC
Certificates and one of the 25 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LL-2.
"Component X-M" shall mean one of 30 components of the Class XC
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
Uncertificated Lower-Tier Interest LM.
"Component X-N" shall mean one of 30 components of the Class XC
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
Uncertificated Lower-Tier Interest LN.
"Component X-O" shall mean one of 30 components of the Class XC
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
Uncertificated Lower-Tier Interest LO.
"Component X-P" shall mean one of 30 components of the Class XC
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
Uncertificated Lower-Tier Interest LP.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then current Uncertificated
Principal Balance of its Corresponding Uncertificated Lower-Tier Interest.
"Condemnation Proceeds" shall mean all cash amounts Received in
connection with the taking of all or a part of a Mortgaged Property or REO
Property by exercise of the power of eminent domain or condemnation, subject,
however, to the rights of any tenants and ground lessors, as the case may be,
and the terms of the related Mortgage.
"Control Appraisal Event" shall exist with respect to any Loan Pair
(other than the Windsor Capital Portfolio Loan Pair, which is serviced under the
2003-C1 PSA) that contains a Subordinate Companion Loan, if and for so long as:
(a) (1) the initial balance of the related Subordinate Companion
Loan minus (2) the sum of (x) any principal payments, allocated to, and
received on, the related Subordinate Companion Loan, (y) any Appraisal
Reduction Amounts for the Mortgage Loan and (without duplication) (z)
Realized Losses,
is less than
(b) 25% of an amount equal to the initial balance of such
Subordinate Companion Loan minus principal payments allocated to and
received on such Subordinate Companion Loan.
"Controlling Class" shall mean the Class of Certificates (other than
the Residual Interest Certificates) with the latest alphabetical Class
designation that has a then-aggregate Class Principal Balance that is not less
than (a) 25% of the Original Class Principal Balance of such Class and (b) 1% of
the Original Class Principal Balance of the Principal Balance Certificates;
provided that if no Class of Principal Balance Certificates has, as of such date
of determination, a Class Principal Balance that meets the requirements of
clause (a) and (b) herein, then the Controlling Class shall be the then
outstanding Class of Principal Balance Certificates bearing the latest
alphabetic Class designation that has a Class Principal Balance greater than
zero; and provided, further, that, for purposes of determining the Controlling
Class, the Class A-1, Class A-2, Class A-3 and Class A-4 Certificates shall be
deemed a single Class of Certificates. As of the Closing Date, the Controlling
Class will be the Class P Certificates. If the Controlling Class consists of
Book-Entry Certificates, then the rights of the Holders of the Controlling Class
set forth in this Agreement 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.
"Controlling Class Certificateholder" shall mean any Holder of a
Certificate of the Controlling Class.
"Controlling Class Directing Holder" shall mean the Holder or
Holders of greater than 50% of the Voting Rights assigned to the Controlling
Class; provided that no Holder of Voting Rights allocated to the Controlling
Class may exercise any rights of such Class with respect to any Loan as to which
such Holder is a Mortgagor Affiliate Holder.
"Corporate Trust Office" shall mean the principal corporate trust
office of the Trustee at which at any particular time its asset-backed
securities 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 - Greenwich Capital Commercial
Funding Corp. Commercial Mortgage Trust Series 2003-C2.
"Corrected Loan" shall mean any Mortgage Loan that had been a
Specially Serviced Loan but has ceased to be such in accordance with the
definition of "Specially Serviced Loan" (other than by reason of a Liquidation
Event occurring in respect of such Loan or the related Mortgaged Property's
becoming an REO Property).
"Corresponding Certificate" shall have the meaning assigned thereto
in the Preliminary Statement with respect to any Corresponding Component or any
Corresponding Uncertificated Lower-Tier Interest.
"Corresponding Component" shall have the meaning assigned thereto in
the Preliminary Statement with respect to any Corresponding Certificate or any
Corresponding Uncertificated Lower-Tier Interest.
"Corresponding Uncertificated Lower-Tier Interest" shall have the
meaning assigned thereto in the Preliminary Statement with respect to any
Corresponding Certificate or any Corresponding Component.
"Cross-Collateralized Group" shall mean any group of
Cross-Collateralized Mortgage Loans.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage Loan
that is cross-defaulted and cross-collateralized with any other Mortgage Loan.
"Cross-Over Date" shall mean the Distribution Date on which (i) the
Class A-1, Class A-2, Class A-3 and Class A-4 Certificates, or any two or more
of such Classes, remain outstanding and (ii) the aggregate of the Class
Principal Balances of the Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O and Class P
Certificates are reduced to zero as a result of the allocation of Realized
Losses and Additional Trust Fund Expenses pursuant to Section 4.04(a).
"Custodial Account" shall mean either of the Pool Custodial Account
or any Loan Pair 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, the Mortgage Loan Seller or an
Affiliate of the Depositor or the 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 December 1, 2003.
"Cut-off Date Balance" shall mean, with respect to any Loan (other
than the Mortgage Loans identified on the Mortgage Loan Schedule as 000 Xxxxxxx
Xxxxxx Xxxxxxx, Xxxxxx Xxxxxx-Xxxxx and Columbia Commons, with respect to each
of which the Cut off Date Balance shall mean the outstanding principal balance
of such Loan as of the respective date of its origination), the outstanding
principal balance of such Loan as of the Cut-off Date, net of all unpaid
payments of principal due in respect thereof on or before such date.
"Default Charges" shall mean Default Interest and/or late payment
charges that are paid or payable, as the context may require, to the Trust in
respect of any Serviced Loan or any successor REO Loan with respect thereto.
"Default Interest" shall mean, with respect to any Serviced Loan or
any successor REO Loan with respect thereto, any amounts Received thereon (other
than late payment charges, Prepayment Premiums or Yield Maintenance Charges)
that represent penalty interest (arising out of a default) in excess of interest
accrued on the principal balance of such Loan (or successor REO Loan), at the
related Mortgage Rate.
"Defaulting Party" shall have the meaning assigned thereto in
Section 7.01(b).
"Defeasance Certificate" shall have the meaning assigned thereto in
Section 3.21(k).
"Defeasance Collateral" shall mean, with respect to any Defeasance
Loan, the Government Securities required or permitted to be pledged in lieu of
prepayment pursuant to the terms thereof in order to obtain a release of the
related Mortgaged Property.
"Defeasance Deposit Account" shall have the meaning assigned thereto
in Section 3.04(a).
"Defeasance Loan" shall mean any Loan which requires the related
Mortgagor 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 Greenwich Capital Commercial Funding Corp.
"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 first calendar day of each month
(or, if such first day is not a Business Day, the Business Day immediately
following such first day), commencing in January 2004.
"Directing Holder" shall mean with respect to any Loan Pair (other
than the Windsor Capital Portfolio Loan Pair), the person selected by the
related Loan Pair Directing Holder, and with respect to any other Mortgage Loan,
the person selected by the Controlling Class Directing Holder; provided,
however, that (i) absent such selection, or (ii) until a Directing Holder is so
selected or (iii) upon receipt of a notice from the Controlling Class Directing
Holder or Loan Pair Directing Holder, as applicable, that a Directing Holder is
no longer designated, the Controlling Class Directing Holder and/or the Loan
Pair Directing Holder, as applicable, will be the Directing Holder; provided,
further, that, in the case of a Directing Holder selected by the Controlling
Class Directing Holder, in order for the Trustee to certify the status of such
Directing Holder, the Directing Holder must provide notice and certification to
the Trustee as to its status as Directing Holder, and the Trustee shall provide
written notice to the Controlling Class Certificateholders as to the designation
of such Directing Holder. No Mortgagor Affiliate Holder may be a Directing
Holder. The Trustee acknowledges and agrees that with respect to each Loan Pair
the Person set forth on Schedule V shall be designated as the initial Directing
Holder with respect to the related Loan Pair, and that no further notice of such
selection is required. In addition, the parties to this Agreement hereby
acknowledge that a Loan Pair Directing Holder may appoint itself (or any of its
affiliates) to act as Directing Holder. In the event that a Loan Pair Directing
Holder appoints a third party (including any affiliate) to act as Directing
Holder, none of the parties to this Agreement shall be obligated to recognize
such appointment unless such Loan Pair Directing Holder shall have delivered to
each party to this Agreement a certification regarding such appointment. Any
Loan Pair Directing Holder that is a Directing Holder may, in its capacity as
Directing Holder, only control, direct, prohibit or be consulted with respect to
the enforcement of the related Mortgage or the servicing and administration of
the related Loan Pair to the extent set forth in this Agreement. The Directing
Holder 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.
In the case of the Windsor Capital Portfolio Loan Pair, which will
be serviced pursuant to the 0000-X0 XXX, the directing holder representative
will be appointed by the (i) the holder or holders of the Windsor Capital
Portfolio Junior Companion Loan or (ii) if such holder or holders is no longer
the directing holder under the term of the related Co-Lender Agreement, the
Controlling Class Directing Holder.
"Directly Operate" shall mean, with respect to any Administered REO
Property, the furnishing or rendering of services to the tenants thereof, the
management or operation of such REO Property, the holding of such REO Property
primarily for sale or lease, the performance of any construction work thereon or
any use of such REO Property in a trade or business conducted by the Lower-Tier
REMIC other than through an Independent Contractor; provided, however, that the
Trustee (or the Special Servicer or any Sub-Servicer on behalf of the Trustee)
shall not be considered to Directly Operate an Administered REO Property solely
because the Trustee (or the Special Servicer or any Sub-Servicer on behalf of
the Trustee) establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance, or makes decisions as to repairs or
capital expenditures with respect to such REO Property.
"Discount Rate" shall mean, with respect to any prepaid Mortgage
Loan or REO Mortgage Loan, for purposes of allocating any Prepayment Premium or
Yield Maintenance Charge Received with respect thereto among the Class X-0,
Xxxxx X-0, Class A-3, Class A-4, Class B, Class C, Class D, Class E, Class F,
Class G and Class H Certificates, a rate equal to the yield (when compounded
monthly) on the U.S. Treasury issue (primary issue) with a maturity date closest
to the maturity date, as published in Federal Reserve Statistical Release H.15
(519) published by the Federal Reserve Board; provided that if there are two
such U.S. Treasury issues (a) with the same coupon, the issue with the lower
yield shall apply, and (b) with maturity dates equally close to the maturity
date for such prepaid Mortgage Loan or REO Mortgage Loan, the issue with the
earliest maturity date shall apply.
"Disqualified Non-United States Tax Person" shall mean, with respect
to any Residual Interest Certificate, any Non-United States Tax Person or agent
thereof other than: (1) a Non-United States Tax Person that (a) holds such
Residual Interest Certificate and, for purposes of Treasury 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 Regulations 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, subject to
Section 4.05(b), an amount of interest equal to the amount of Accrued
Certificate Interest in respect of such Class of Certificates for the related
Interest Accrual Period, reduced (to not less than zero) by that portion, if
any, of the Net Aggregate Prepayment Interest Shortfall for such Distribution
Date allocated to such Class of Certificates as provided below. The Net
Aggregate Prepayment Interest Shortfall, if any, for each Distribution Date
shall be allocated among the respective Classes of Regular Interest Certificates
on a pro rata basis in accordance with, the respective amounts of Accrued
Certificate Interest for each such Class of Certificates for the related
Interest Accrual Period.
"Distribution 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, as Trustee, in trust for the
registered holders of Greenwich Capital Commercial Funding Corp., Commercial
Mortgage Trust 2003-C2, Commercial Mortgage Pass-Through Certificates, Series
2003-C2" which account shall be deemed to consist of, collectively, the
Lower-Tier Distribution Account, the Upper-Tier Distribution Account and the
Interest Reserve Account.
"Distribution Date" shall mean the date each month, commencing in
January 2004, on which, among other things, the Trustee is to make distributions
on the Certificates, which date shall be the fifth day of the month, or if such
fifth day is not a Business Day, then the Business Day immediately following
such fifth day, provided that the Distribution Date will be at least four
Business Days following the related Determination Date.
"Distribution Date Statement" shall have the meaning assigned
thereto in Section 4.02(a).
"Document Defect" shall have the meaning assigned thereto in Section
2.03(a).
"Due Date" shall mean: (i) with respect to any Loan on or prior to
its Stated Maturity Date, the day of the month set forth in the related Mortgage
Note on which each Monthly Payment on such Loan is scheduled to be first due;
(ii) with respect to any Loan after its Stated Maturity Date, the day of the
month set forth in the related Mortgage Note on which each Monthly Payment on
such Loan had been scheduled to be first due; and (iii) with respect to any REO
Loan, the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on the related Loan had been scheduled to be first due.
"XXXXX" shall mean the Commission's Electronic Data Gathering,
Analysis and Retrieval system.
"Eligible Account" shall mean any of: (i) an account maintained with
a federal or state chartered depository institution or trust company, the
long-term deposit or unsecured debt obligations of which are rated at least Aa3
by Moody's and at least "AA-" (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 "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 the trust department of a
federal or state chartered depository institution or trust company acting in its
fiduciary capacity (which may be the Trustee), which has a combined capital and
surplus of at least $50,000,000, is subject to supervision or examination by
federal or state authority and, in the case of a state chartered depository
institution or trust company, is subject to regulations regarding fiduciary
funds on deposit therein substantially similar to 12 CFR ss. 9.10(b); or (iii)
any other account, the use of which would not, in and of itself, cause an
Adverse Rating Event with respect to any Class of Certificates, as evidenced 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.
"Environmental Insurance Policy" shall mean, with respect to any
Mortgaged Property or REO Property, any insurance policy covering pollution
conditions and/or other environmental conditions that is maintained from time to
time in respect of such Mortgaged Property or REO Property, as the case may be,
for the benefit of, among others, the Trustee on behalf of the
Certificateholders.
"Environmentally Insured Mortgage Loans" shall mean the Mortgage
Loans identified on Schedule III hereto.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Escrow Payment" shall mean any payment received by the Master
Servicer or the Special Servicer for the account of any Mortgagor for
application toward the payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and other items for which an escrow has
been created in respect of the related Mortgaged Property.
"Euroclear" shall mean The Euroclear System or any successor.
"Event of Default" shall have the meaning assigned thereto in
Section 7.01(a).
"Excess Liquidation Proceeds" shall mean the excess, if any, of (a)
the Net Liquidation Proceeds from the sale or liquidation of a Specially
Serviced Mortgage Loan or Administered REO Property, net of (i) interest on any
related Advances, (ii) any related Servicing Advances and (iii) any Liquidation
Fee payable from such Net Liquidation Proceeds, over (b) the amount needed to
pay off the Mortgage Loan or related REO Loan in full.
"Excess Liquidation Proceeds Account" shall mean the segregated
account created and maintained by the Trustee pursuant to Section 3.04(d) in
trust for the Certificateholders, which shall be entitled "LaSalle Bank National
Association, as Trustee, in trust for the registered Holders of Greenwich
Capital Commercial Funding Corp., Commercial Mortgage Trust 2003-C2, Commercial
Mortgage Pass-Through Certificates, Series 0000-X0".
"Xxxxxxxx Xxx" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Act Reports" shall have the meaning assigned thereto in
Section 8.15(a).
"Exemption-Favored Party" shall mean any of (i) Greenwich Capital
Markets, (ii) any Person directly or indirectly, through one or more
intermediaries, controlling, controlled by or under common control with
Greenwich Capital Markets, 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 Specially Serviced Loan or Administered REO
Property that there has been a recovery of all Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds and other payments or recoveries that the Special
Servicer has determined, in accordance with the Servicing Standard, will be
ultimately recoverable (or in the case of the Windsor Capital Portfolio Loan
Pair, a "Final Recovery Determination" as defined in the 2003-C1 PSA with
respect to such loan); provided that the term Final Recovery Determination shall
not apply to: (i) a Loan that was paid in full; or (ii) a Loan or REO Property,
as the case may be, that was purchased by (A) the Mortgage Loan Seller pursuant
to Section 2.03(a) and the Mortgage Loan Purchase Agreement, (B) a Purchase
Option Holder or its assignee pursuant to Section 3.18, (C) the Depositor, the
Mortgage Loan Seller, the Special Servicer, a Controlling Class
Certificateholder or the Master Servicer pursuant to Section 9.01, (D) the
holder of a related mezzanine loan in connection with a Loan default, as set
forth in the related intercreditor agreement, or (E) in the case of the Trust
Mortgage Loans, the related Companion Loan Noteholder or its designee pursuant
to the Co-Lender Agreement.
"Fiscal Agent" shall mean ABN AMRO, in its capacity as fiscal agent
hereunder, or any successor fiscal agent appointed as herein provided.
"Fitch Ratings" shall mean Fitch, Inc. or its successor in interest.
If neither such rating agency nor any successor remains in existence, "Fitch
Ratings" 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.
"FV Bid" shall have the meaning assigned thereto in Section 3.19(d).
"FV Price" shall have the meaning assigned thereto in Section
3.19(c).
"GAAP" shall mean generally accepted accounting principles in the
United States of America.
"Global Certificate" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates, either the related Rule 144A Global
Certificate or the Regulation S Global Certificate.
"Global Opinion" shall have the meaning assigned thereto in Section
11.12.
"Government Securities" shall mean "Government Securities" as
defined in Section 2(a)(16) of the Investment Company Act of 1940, excluding any
such securities that are not acceptable to either Rating Agency as Defeasance
Collateral.
"Greenwich Capital Markets" shall mean Greenwich Capital Markets,
Inc. or its successor in interest.
"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) (including any lease agreement with respect to
a master space lease) creating such leasehold interest.
"Hazardous Materials" shall mean any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including those so identified
pursuant to CERCLA or any other federal, state or local environmental related
laws and regulations now existing or hereafter enacted, and specifically
including asbestos and asbestos-containing materials, polychlorinated biphenyls,
radon gas, petroleum and petroleum products and urea formaldehyde.
"Holder" shall mean a Certificateholder.
"HUD-Approved Servicer" shall mean a servicer that is a mortgagee
approved by the Secretary of Housing and Urban Development pursuant to Sections
203 and 211 of the National Housing Act.
"Independent" shall mean, when used with respect to any specified
Person, any such Person who (i) is in fact independent of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, any Controlling
Class Certificateholder, any Companion Loan Noteholder and any and all
Affiliates thereof, (ii) does not have any direct financial interest in or any
material indirect financial interest in any of the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, any Controlling Class
Certificateholder, any Companion Loan Noteholder 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, any
Companion Loan Noteholder or any Affiliate thereof as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions; provided, however, that a Person shall not fail to be Independent of
the Depositor, the Mortgage Loan Seller, the Master Servicer, the Special
Servicer, any Controlling Class Certificateholder, any Companion Loan Noteholder
or any Affiliate thereof merely because such Person is the beneficial owner of
1% or less of any class of securities issued by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, such Controlling Class
Certificateholder, such Companion Loan Noteholder or any Affiliate thereof, as
the case may be, provided that such ownership constitutes less than 1% of the
total assets owned by such Person.
"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 the Lower-Tier REMIC within the meaning
of Section 856(d)(3) of the Code if the Lower-Tier REMIC were a real estate
investment trust (except that the ownership test set forth in that Section shall
be considered to be met by any Person that owns, directly or indirectly, 35
percent or more of any Class of Certificates, or such other interest in any
Class of Certificates as is set forth in an Opinion of Counsel, which shall be
at no expense to the Master Servicer, the Special Servicer, the Trustee or the
Trust Fund, delivered to the Trustee (and, if any of the Loan Pairs are
affected, to the Companion Loan Noteholder), provided that (i) such REMIC Pool
does not receive or derive any income from such Person and (ii) the relationship
between such Person and such REMIC Pool is at arm's length, all within the
meaning of Treasury Regulations Section 1.856-4(b)(5); or (b) any other Person
upon receipt by the Trustee (and, if any of the Loan Pairs are affected, by the
related Companion Loan Noteholder) of an Opinion of Counsel, which shall be at
no expense to the Master Servicer, the Special Servicer, the Trustee or the
Trust Fund, to the effect that the taking of any action in respect of any REO
Property by such Person, subject to any conditions therein specified, that is
otherwise herein contemplated to be taken by an Independent Contractor, will not
cause such REO Property to cease to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the
Code, or cause any income realized in respect of such REO Property to fail to
qualify as Rents from Real Property, due to such Person's failure to be treated
as an Independent Contractor.
"Independent Square Subordinate Companion Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"Independent Square Trust Loan" shall have the meaning assigned
thereto in the Preliminary Statement.
"Initial Bidder" shall have the meaning assigned thereto in Section
3.19(d).
"Initial Deposit" shall mean an aggregate amount of $16,165.03,
consisting of $2,127.67, $11,919.44 and $2,117.91 with respect to the Mortgage
Loans, identified on the Mortgage Loan Schedule as 000 Xxxxxxx Xxxxxx Xxxxxxx,
Xxxxxx Xxxxxx-Xxxxx and Columbia Commons, respectively, which in each case
represents the aggregate amount of interest that would have accrued at the
related Mortgage Rate on the Cut-off Date Balance of such Mortgage Loan had such
Mortgage Loan been originated on the Cut-off Date, for the period from and
including the Cut-off Date to but excluding January 1, 2004.
"Initial Trust Balance" shall be as set forth in the Preliminary
Statement hereto and shall equal the aggregate Cut-off Date Balances of the
Mortgage Loans.
"Institutional Accredited Investor" or "IAI" shall mean an
"accredited investor" as defined in any of paragraphs (1), (2), (3) and (7) of
Rule 501(a) under the Securities Act or any entity in which all of the equity
owners come within such paragraphs.
"Insurance Policy" shall mean, with respect to any Loan, any hazard
insurance policy, flood insurance policy, title policy, Environmental Insurance
Policy or other insurance policy that is maintained from time to time in respect
of such Loan or the related Mortgaged Property.
"Insurance Proceeds" shall mean the proceeds paid under any
Insurance Policy, to the extent such proceeds are not applied to the restoration
of the related Mortgaged Property, released to the Mortgagor, or any tenants or
ground lessors, as the case may be, pursuant to the terms of the related
Mortgage or lease, in accordance with the Servicing Standard.
"Insured Environmental Event" shall have the meaning assigned
thereto in Section 3.07(d).
"Interest Accrual Basis" shall mean the basis on which interest
accrues in respect of any Loan, any Uncertificated Lower-Tier Interests or any
Class of Regular Interest Certificates, in each case consisting of one of the
following: (i) a 360-day year consisting of twelve 30-day months; (ii) actual
number of days elapsed in a 360-day year; (iii) actual number of days elapsed in
a 365-day year; or (iv) actual number of days elapsed in an actual calendar year
(taking account of leap year).
"Interest Accrual Period" shall mean with respect to any Class of
Regular Interest Certificates or Uncertificated Lower-Tier Interests and any
Distribution Date, the period beginning on the first day of the calendar month
preceding the calendar month in which the related Distribution Date occurs and
ending on the last day of the calendar month preceding the calendar month in
which such Distribution Date occurs, calculated assuming that each month has 30
days and each year has 360 days.
"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 sub-account of the
Distribution Account, which is created and maintained by the Trustee pursuant to
Section 3.04(c) in trust for Certificateholders, which shall be entitled
"LaSalle Bank National Association, as Trustee, in trust for the registered
holders of Greenwich Capital Commercial Funding Corp., Commercial Mortgage Trust
2003-C2, Commercial Mortgage Pass-Through Certificates, Series 2003-C2".
"Interest Reserve Amount" shall mean, with respect to each Interest
Reserve Mortgage Loan and Interest Reserve REO Mortgage Loan, for any
Distribution Date that occurs during February of 2004 or February of any year
thereafter or during January of 2005 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 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 under this Agreement in respect thereof for such
Due Date by such Distribution Date.
"Interest Reserve Mortgage Loan" shall mean any Mortgage Loan that
accrues interest on an Actual/360 Basis.
"Interest Reserve REO Mortgage Loan" shall mean any REO Mortgage
Loan that relates to a predecessor Interest Reserve Mortgage Loan.
"Investment Account" shall have the meaning assigned thereto in
Section 3.06(a).
"Investment Grade Certificate" shall mean, as of any date of
determination, a Certificate, other than a Residual Interest Certificate, that
is rated in one of the four highest generic rating categories by at least one
Rating Agency.
"IRS" shall mean the Internal Revenue Service or any successor
agency.
"Late Collections" shall mean: (a) with respect to any Loan, all
amounts Received in connection therewith during any Collection Period, whether
as payments, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or
otherwise, which represent late collections of the principal and/or interest
portions of a Monthly Payment (other than a Balloon Payment) or an Assumed
Monthly Payment in respect of such Loan due or deemed due on a Due Date in a
previous Collection Period, or on a Due Date coinciding with or preceding the
Cut-off Date, and not previously recovered; and (b) with respect to any REO
Loan, all amounts Received in connection with the related REO Property during
any Collection Period, whether as Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, REO Revenues or otherwise, which represent late
collections of the principal and/or interest portions of a Monthly Payment
(other than a Balloon Payment) or an Assumed Monthly Payment in respect of the
predecessor Loan, or the principal and/or interest portions of an Assumed
Monthly Payment in respect of such REO Loan, due or deemed due on a Due Date in
a previous Collection Period and not previously recovered.
"Liquidation Event" shall mean: (a) with respect to any Loan, any of
the following events--(i) such Loan is paid in full, (ii) a Final Recovery
Determination is made with respect to such Loan, (iii) such Loan is repurchased
by the Mortgage Loan Seller pursuant to Section 2.03(a) and the Mortgage Loan
Purchase Agreement, (iv) such Loan is purchased by a Purchase Option Holder or
its assignee pursuant to Section 3.19, (v) such Loan is purchased by the
Depositor, the Special Servicer, the Mortgage Loan Seller, a Controlling Class
Certificateholder or the Master Servicer pursuant to Section 9.01, (vi) such
Loan is purchased by the holder of a related mezzanine loan on behalf of the
related Mortgagor in connection with a Loan default, as set forth in the related
intercreditor agreement, or (vii) in the case of any of the Trust Mortgage
Loans, such Loan is purchased by the related Companion Loan Noteholder or its
designee pursuant to the Co-Lender Agreement; and (b) with respect to any REO
Property (and the related REO Loan), any of the following events--(i) a Final
Recovery Determination is made with respect to such REO Property, or (ii) such
REO Property is purchased by the Depositor, the Special Servicer, the Mortgage
Loan Seller, a Controlling Class Certificateholder or the Master Servicer
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 Loan or REO Property pursuant to Sections 3.09 or 3.19
(including legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee" shall mean the fee designated as such in, and
payable to the Special Servicer in connection with certain specified events in
respect of a Specially Serviced Loan or an Administered REO Property pursuant
to, Section 3.11(b).
"Liquidation Fee Rate" shall mean, with respect to each Specially
Serviced Loan or Administered 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 in connection with: (i) the full
or partial liquidation of a Mortgaged Property or other collateral constituting
security for a defaulted Loan, through trustee's sale, foreclosure sale, REO
Disposition or otherwise, exclusive of any portion thereof required to be
released to the related Mortgagor in accordance with applicable law and the
terms and conditions of the related Mortgage Note and Mortgage; (ii) the
realization upon any deficiency judgment obtained against a Mortgagor; (iii) the
purchase of a Specially Serviced Mortgage Loan by a Purchase Option Holder or
its assignee pursuant to Section 3.19; (iv) the repurchase of a Mortgage Loan by
the Mortgage Loan Seller pursuant to Section 2.03(a) and the Mortgage Loan
Purchase Agreement; (v) the purchase of a Mortgage Loan or REO Property by the
Depositor, the Mortgage Loan Seller, the Special Servicer, a Controlling Class
Certificateholder or the Master Servicer pursuant to Section 9.01; (vi) the
purchase of a Loan by the holder of a related mezzanine loan on behalf of the
related Mortgagor in connection with a Loan default, as set forth in the related
intercreditor agreement; or (vii) in the case of any of the Trust Mortgage
Loans, the purchase of such Mortgage Loan by the related Subordinate Companion
Loan Noteholder or its designee pursuant to the Co-Lender Agreement.
"Loan" shall mean any Mortgage Loan or Companion Loan.
"Loan Pair" shall have the meaning assigned thereto in the
Preliminary Statement (and shall include any successor REO Loans).
"Loan Pair Custodial Account" shall mean, with respect to any Loan
Pair, the segregated account or sub-accounts created and maintained by the
Master Servicer pursuant to Section 3.04A on behalf of the Holders of such Loan
Pair, which shall be entitled "Wachovia Bank, National Association, as Master
Servicer, in trust for LaSalle Bank National Association, as Trustee, for the
registered holders of Greenwich Capital Commercial Funding Corp., Commercial
Mortgage Trust 2003-C2, Commercial Mortgage Pass-Through Certificates, Series
2003-C2, and COMPANION LOAN NOTEHOLDERS, as their interests may appear."
"Loan Pair Directing Holder" with respect to any Loan Pair (other
than the Windsor Capital Portfolio Loan Pair, which is serviced under the
2003-C1 PSA), will be as follows:
o with respect to a Loan Pair that has a Subordinate Companion
Loan (i.e., the U.S. Bank Tower Loan Pair, Independent Square
Loan Pair and Xxxxxx Business Campus Loan Pair), for so long
as a Control Appraisal Event does not exist and the holders of
more than 50% of the related Subordinate Companion Loan are
not Mortgagor Affiliate Holders, the holder of such
Subordinate Companion Loan, and while a Control Appraisal
Event does exist or if the holders of more than 50% of the
related Subordinate Companion Loan are Mortgagor Affiliate
Holders, the Controlling Class Directing Holder
o with respect to the 1801 K Street Loan Pair, the Controlling
Class Directing Holder
o with respect to the 000 Xxxx Xxxxxx Loan Pair, the holders of
a majority of the interests in all three mortgage loans in
that Loan Pair (which, with respect to the Trust Mortgage Loan
will be exercised by Controlling Class Directing Holder and,
with respect to the Pari Passu Companion Loans, will be
exercised by the holders of such Pari Passu Companion Loans
or, if such Pari Passu Companion Loans are put into
securitizations, the controlling class of such
securitizations); and
o with respect to the Xxxxx Fargo Tower Loan Pair, the holder of
the Pari Passu Companion Loan designated as Note A-1B.
For purposes of this definition, in calculating the holders of more
than 50% of a Subordinate Companion Loan, the unpaid principal amount of such
Subordinate Companion Loan held by a Mortgagor Affiliate Holder shall be deemed
to be zero, except with respect to determining whether holders of more 50% of
such Subordinate Companion Loan are not Mortgagor Affiliate Holders.
"Loan Pair Mortgaged Property" shall mean any of the properties
securing a Loan Pair.
"Loan Pair Noteholders" shall mean, with respect to each Loan Pair,
the Trustee, as holder of the Mortgage Note or Mortgage Notes for the related
Trust Mortgage Loan and the related Companion Loan Noteholder.
"Loan Pair Remittance Amount" shall mean, with respect to any Master
Servicer Remittance Date and each Loan Pair (other than the Windsor Capital
Portfolio Loan Pair, which is being serviced under the 2003-C1 PSA), an amount
equal to: (a) the aggregate amount of (i) all payments and other collections on
or with respect to the applicable Loan Pair and the related Mortgaged Property
(if it becomes an REO Property) that (A) were received as of the close of
business on the immediately preceding Determination Date and (B) are on deposit
or are required to be on deposit in the related Loan Pair Custodial Account as
of 12:00 noon (New York City time) on such Master Servicer Remittance Date,
including any such payments and other collections transferred to the related
Loan Pair Custodial Account from the related Loan Pair REO Account (if
established), and (ii) any and all P&I Advances made with respect to the Trust
Mortgage Loan in such Loan Pair and the related Pari Passu Companion Loan(s);
net of (b) the portion of the aggregate amount described in clause (a) of this
definition that represents one or more of the following--(i) Monthly Payments
that are due on a Due Date following the end of the related Collection Period,
(ii) any amount payable or reimbursable to any Person from the related Loan Pair
Custodial Account pursuant to clauses (ii) through (xv) of Section 3.05A, and
(iii) any amounts deposited in the related Loan Pair Custodial Account in error.
"Loan Pair Remittance Date" shall mean, with respect to each
Companion Loan and each month, (1) if such Companion Loan is not as asset of a
securitization, the Master Servicer Remittance Date and (2) if such Companion
Loan is an asset of a securitization, the later of (A) the Master Servicer
Remittance Date and (B) the Business Day prior to the date that is the
equivalent to the "Master Servicer Remittance Date" in such securitization.
"Loan Pair REO Account" shall mean, with respect to each Loan Pair
(other than the Windsor Capital Portfolio Loan Pair, which is being serviced
under the 2003-C1 PSA) the segregated account or accounts created and maintained
by the Special Servicer pursuant to Section 3.17 on behalf of the
Certificateholders and the related Companion Noteholders, which shall be
entitled "Lennar Partners, Inc., as Special Servicer, in trust for LaSalle Bank
National Association, as Trustee, for the registered holders of Greenwich
Capital Commercial Funding Corp., Commercial Mortgage Trust 2003-C2, Commercial
Mortgage Pass-Through Certificates, Series 2003-C2, and for [NAMES OF COMPANION
LOAN NOTEHOLDERS], as their interests may appear."
"Loan Pair REO Property" shall mean the Loan Pair Mortgaged
Property, if such Mortgaged Property becomes an REO Property hereunder.
"Loan Pair Servicing Reports" shall mean, with respect to any Loan
Pair (other than the Windsor Capital Portfolio Loan Pair, which is being
serviced under the 2003-C1 PSA), each of the CMSA Delinquent Loan Status Report,
CMSA Historical Loan Modification and Corrected Mortgage Loan Report, CMSA
Historical Liquidation Report, CMSA REO Status Report, Loan Payoff Notification
Report, CMSA Loan Periodic Update File, CMSA Property File, CMSA Loan Level
Reserve/LOC Report, CMSA Financial File, CMSA Loan Setup File, CMSA Servicer
Watch List, CMSA Operating Statement Analysis, CMSA NOI Adjustment Worksheet and
CMSA Comparative Financial Status Report, each as may be modified to reflect the
fact that a single Mortgaged Property or REO Property, as the case may be, is
the subject of such report.
"Loan Payoff Notification Report" shall mean a report containing
substantially the information described in Exhibit E attached hereto, and
setting forth for each Serviced Loan as to which written notice of anticipated
payoff has been received by the Master Servicer as of the Determination Date
preceding the delivery of such report, among other things, the mortgage loan
number, the property name, the ending scheduled loan balance for the Collection
Period ending on such Determination Date, the expected date of payment, the
expected related Distribution Date and the estimated amount of the Yield
Maintenance Charge or Prepayment Premium due (if any).
"Lockout Period" shall mean, with respect to any Loan that prohibits
the Mortgagor from prepaying such loan until a date specified in the related
Mortgage Note or other loan document, the period from the Closing Date until
such specified date.
"Loss Reimbursement Amount" shall mean:
(a) with respect to any Class of Principal Balance Certificates, for
any Distribution Date, the total amount of all Unfunded Principal Balance
Reductions, if any, incurred by (but not reimbursed to) the Holders of
such Class of Certificates on all prior Distribution Dates, if any; and
(b) with respect to any Lower-Tier Regular Interest, for any
Distribution Date, the total amount of all Unfunded Principal Balance
Reductions, if any, incurred by (but not reimbursed to) the Lower-Tier
REMIC with respect to such Lower-Tier Regular Interest on all prior
Distribution Dates, if any.
For purposes of this definition: (x) any increase in the Class
Principal Balance of any Class of Principal Balance Certificates pursuant to
Section 4.05(a) shall constitute a reimbursement to the Holders of such Class of
Principal Balance Certificates of any related Unfunded Principal Balance
Reductions; and (y) any increase in the Lower-Tier Interest Principal Balance of
any Lower-Tier Regular Interest pursuant to Section 4.05(c) shall constitute a
reimbursement to the Lower-Tier REMIC with respect to any related Unfunded
Principal Balance Reductions relating to such Lower-Tier Regular Interest.
"Lower-Tier Distribution Account" shall mean the sub-account deemed
to be a part of the Distribution Account and maintained by the Trustee pursuant
to Section 3.04(b).
"Lower-Tier Distribution Amount" shall mean the aggregate of amounts
distributable to the Uncertificated Lower-Tier Interests pursuant to Section
4.01(i).
"Lower-Tier Interest Principal Reinstatement Amount" shall have the
meaning assigned thereto pursuant to Section 4.05(c).
"Lower-Tier REMIC" 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 as from time to time are subject to this Agreement
and all payments under and proceeds of such Mortgage Loans received by the Trust
after the Closing Date, together with all documents included in the related
Mortgage Files; (ii) any REO Properties as from time to time are subject to this
Agreement and all income and proceeds therefrom (to the extent not allocable to
a Companion Loan); and (iii) such funds or assets as from time to time are
deposited in the Pool Custodial Account each Loan Pair Custodial Account (to the
extent related to the Mortgage Loans), the Lower-Tier Distribution Account, the
Interest Reserve Account and, if established, the Pool REO Account and each Loan
Pair REO Account (to the extent related to the Mortgage Loans).
"Master Servicer" shall mean Wachovia Bank, National Association, in
its capacity as master servicer hereunder, or any successor master servicer
appointed as herein provided.
"Master Servicer Remittance Amount" shall mean, with respect to any
Master Servicer Remittance Date, an amount equal to: (a) the aggregate amount of
all payments and other collections on or with respect to the Serviced Mortgage
Loans and the Windsor Capital Portfolio Trust Loan and any related REO
Properties (including (1) with respect to the Windsor Capital Portfolio Trust
Loan, all payments remitted by, or advances made by, the 2003-C1 Master Servicer
and (2) with respect to the initial Master Servicer Remittance Date, the Initial
Deposit) that (A) were Received as of the close of business on the immediately
preceding Determination Date (or in the case of the Windsor Capital Portfolio
Trust Loan, as of 12:00 noon (New York City time) on the Master Servicer
Remittance Date) and (B) are on deposit or are required to be on deposit in the
Pool Custodial Account as of 12:00 noon (New York City time) on such Master
Servicer Remittance Date, including any such payments and other collections
transferred to the Pool Custodial Account from the Pool REO Account (if
established); net of (b) the portion of the aggregate amount described in clause
(a) of this definition that represents one or more of the following--(i) Monthly
Payments that are due on a Due Date following the end of the related Collection
Period, (ii) any amount payable or reimbursable to any Person from the Pool
Custodial Account pursuant to clauses (ii) through (xvii) of Section 3.05(a),
(iii) any Excess Liquidation Proceeds and (iv) any amounts deposited in the Pool
Custodial Account in error.
"Master Servicer Remittance Date" shall mean the date each month,
commencing in January 2004, on which, among other things, the Master Servicer is
required to (i) make P&I Advances and (ii) transfer the Master Servicer
Remittance Amount and any Excess Liquidation Proceeds to the Trustee, which date
shall be the Business Day immediately preceding each Distribution Date.
"Master Servicing Fee" shall mean, with respect to each Serviced
Loan and the Windsor Capital Portfolio Trust Loan (and, in each case, any
successor REO Loan with respect thereto), the fee designated as such and payable
to the Master Servicer pursuant to Section 3.11(a). The Master Servicing Fee
includes any servicing fee rate payable to any third-party servicers that
sub-service or primary service the loans on behalf of the Master Servicer.
"Master Servicing Fee Rate" shall mean, with respect to each
Serviced Loan and the Windsor Capital Portfolio Trust Loan and any successor REO
Loan, the rate per annum specified as such on the Mortgage Loan Schedule. With
respect to each Loan Pair the Master Servicing Fee Rate for the related Mortgage
Loan may be different than the Master Servicing Fee Rate for the related
Companion Loan, as more particularly set forth on the Mortgage Loan Schedule.
"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 Serviced Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the Special
Servicer pursuant to Section 3.21 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing Monthly
Payments current with respect to such Loan);
(b) except as expressly contemplated by the related loan documents,
results in a release of the lien of the related Mortgage on any material
portion of the related Mortgaged Property without a corresponding
Principal Prepayment in an amount, or the delivery of substitute real
property collateral with a fair market value (as is), that is not less
than the fair market value (as is) of the property to be released, as
determined by an appraisal delivered to the Special Servicer (at the
expense of the related Mortgagor and upon which the Special Servicer may
conclusively rely); or
(c) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impairs the security for such Loan or materially
reduces the likelihood of timely payment of amounts due thereon.
"Monthly Payment" shall mean, with respect to any Loan, as of any
Due Date, the scheduled monthly debt service payment on such Loan that is
actually payable by the related Mortgagor from time to time under the terms of
the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or by reason of a modification, extension, waiver or amendment granted
or agreed to by the Special Servicer pursuant to Section 3.21, including any
Balloon Payment payable in respect of such Loan on such Due Date; provided that
the Monthly Payment due in respect of any Loan shall not include Default
Interest.
"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.
"Xxxxxx Business Campus Subordinate Companion Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"Xxxxxx Business Campus Trust Loan" shall have the meaning assigned
thereto in the Preliminary Statement.
"Mortgage" shall mean, with respect to any Loan, the mortgage, deed
of trust, deed to secure debt or similar instrument that secures the related
Mortgage Note and creates a lien on the related Mortgaged Property.
"Mortgage File" shall mean:
(a) with respect to any Mortgage Loan and, in the case of any Loan
Pair, any Companion Loan, the following documents collectively (which, in
the case of a Loan Pair, except for the Mortgage Note referred to in
clause (i) and clause (vi) of this definition, relates to an entire Loan
Pair):
(i) (A) the original executed Mortgage Note for such Mortgage
Loan, endorsed (without recourse, representation or warranty,
express or implied) to the order of "LaSalle Bank National
Association, as trustee for the registered holders of Greenwich
Capital Commercial Funding Corp., Commercial Mortgage Trust 2003-C2,
Commercial Mortgage Pass-Through Certificates, Series 2003-C2" or in
blank, and further showing a complete, unbroken chain of endorsement
from the originator (if such originator is not 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), and (B) in the case of a Loan Pair, a copy of
the executed Mortgage Note for the related Companion Loan;
(ii) an original or copy of the Mortgage, together with
originals or copies of any and all intervening assignments thereof,
in each case (unless the particular item has not been returned from
the applicable recording office) with evidence of recording
indicated thereon;
(iii) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage), together
with originals or copies of any and all intervening assignments
thereof, in each case (unless the particular item has not been
returned from the applicable recording office) with evidence of
recording indicated thereon;
(iv) an original executed assignment, in recordable form
(except for recording information not yet available if the
instrument being assigned has not been returned from the applicable
recording office), of (A) the Mortgage and (B) any related
Assignment of Leases (if such item is a document separate from the
Mortgage), in favor of "LaSalle Bank National Association, in its
capacity as trustee for the registered holders of Greenwich Capital
Commercial Funding Corp., Commercial Mortgage Trust 2003-C2,
Commercial Mortgage Pass-Through Certificates, Series 2003-C2" (or,
in each case, a copy thereof, certified to be the copy of such
assignment submitted for recording);
(v) an original or copy of the assignment of all unrecorded
documents relating to the Mortgage Loan, in favor of "LaSalle Bank
National Association, as trustee for the registered holders of
Greenwich Capital Commercial Funding Corp., Commercial Mortgage
Trust 2003-C2, Commercial Mortgage Pass-Through Certificates, Series
2003-C2";
(vi) originals or copies of final written modification
agreements in those instances where the terms or provisions of the
Mortgage Note for such Mortgage Loan (or, if applicable, either
Mortgage Note of a Loan Pair) or the related Mortgage have been
modified as to a monetary term or other material term thereof, in
each case (unless the particular item has not been returned from the
applicable recording office) with evidence of recording indicated
thereon if the instrument being modified is a recordable document;
(vii) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with such Mortgage
Loan (or, if such policy has not been issued, a "marked-up" pro
forma title policy marked as binding and countersigned by the title
insurer or its authorized agent, or an irrevocable, binding
commitment to issue such title insurance policy);
(viii) with respect to Mortgage Loans secured by hospitality
properties only, filed copies (with evidence of filing) of any prior
effective UCC Financing Statements in favor of the originator of
such Mortgage Loan or in favor of any assignee prior to the Trustee
(but only to the extent the 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 Greenwich
Capital Commercial Funding Corp., Commercial Mortgage Trust 2003-C2,
Commercial Mortgage Pass-Through Certificates, Series 2003-C2";
(ix) an original or copy of the related Ground Lease relating
to such Mortgage Loan, if any;
(x) an original or copy of the related loan agreement, if any;
(xi) an original of the related guaranty of payment under, or
a copy of the original letter of credit in connection with, such
Mortgage Loan, if any;
(xii) an original or copy of the lock-box agreement or cash
management agreement relating to such Mortgage Loan, if any;
(xiii) an original or copy of the environmental indemnity from
the related Mortgagor, if any;
(xiv) an original or copy of the related security agreement
(if such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening assignments
thereof;
(xv) an original assignment of the related security agreement
(if such item is a document separate from the Mortgage and if such
item is not included in the assignment described in clause (v)), in
favor of "LaSalle Bank National Association, in its capacity as
trustee for the registered holders of Greenwich Capital Commercial
Funding Corp., Commercial Mortgage Trust 2003-C2, Commercial
Mortgage Pass-Through Certificates, Series 2003-C2";
(xvi) in the case of a Loan Pair, a copy of the related
Co-Lender Agreement;
(xvii) in the case of any Loan as to which there exists a
related mezzanine loan, the original or a copy of the related
intercreditor agreement;
(xviii) an original or copy of any related Environmental
Insurance Policy; and
(xix) with respect to hospitality properties, a signed copy of
the franchise agreement (if any), franchisor comfort letter (if any)
and transfer documents for such comfort letter;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or a Custodian on its behalf for documents
described in clauses (a)(vi) and (a)(ix) through (a)(xviii) of this definition,
shall be deemed to include such documents only to the extent the Trustee or a
Custodian on its behalf has actual knowledge of their existence; provided
further, with respect to the Windsor Capital Portfolio Trust Loan, the preceding
delivery requirements will be satisfied by delivery of the original Mortgage
Note (and all intervening endorsements).
"Mortgage Loan" shall mean each of the mortgage loans listed on the
Mortgage Loan Schedule and from time to time held in the Trust Fund. As used
herein, the term "Mortgage Loan" includes the related Mortgage Note, Mortgage
and other security documents contained in the related Mortgage File or otherwise
held on behalf of the Trust. The term "Mortgage Loan" includes the "Trust
Mortgage Loan" portion of each Loan Pair, but does not include any Companion
Loans.
"Mortgage Loan Purchase Agreement" shall mean the Mortgage Loan
Purchase Agreement dated as of December 23, 2003 and entered into by and between
the Depositor and the Mortgage Loan Seller.
"Mortgage Loan Schedule" shall mean the list of Mortgage Loans
transferred on the Closing Date to the Trustee as part of the Trust Fund,
attached hereto as Schedule I (and also delivered to the Trustee and the Master
Servicer in a computer readable format). Such list shall set forth the following
information with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code)
and name of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Monthly Payment due on the first Due
Date following the Closing Date;
(v) the original Mortgage Rate;
(vi) the (A) remaining term to stated maturity and (B) Stated
Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) the Interest Accrual Basis;
(ix) the (A) Administrative Cost Rate, and (B) Master
Servicing Fee Rate (separately identifying any primary servicing fee
rate or subservicing fee rate included in the Master Servicing Fee
Rate, and in the case of each Loan Pair, separately identifying the
Master Servicing Fee Rate applicable to each Loan in such Loan
Pair);
(x) whether the Mortgage Loan is secured by a Ground Lease;
(xi) the Mortgage Loan Seller;
(xii) whether the related Mortgage Loan is a Defeasance Loan;
(xiii) whether the Mortgage Loan is a Cross-Collateralized
Mortgage Loan and the Cross-Collateralized Group to which it
belongs; and
(xiv) whether such Mortgage Loan is part of a Loan Pair, in
which case the information required by clauses (iii), (iv), (v),
(vi), (vii), (viii) and (ix)(B) shall also be set forth for the
Companion Loan in such Loan Pair.
"Mortgage Loan Seller" Greenwich Capital Financial Products, Inc.
"Mortgage Note" shall mean the original executed note evidencing the
indebtedness of a Mortgagor under a Loan, together with any rider, addendum or
amendment thereto, or any renewal, substitution or replacement of such note.
"Mortgage Pool" shall mean all of the Mortgage Loans and any
successor REO Mortgage Loans, collectively. The Mortgage Pool does not include
any Companion Loan or any related REO Loan.
"Mortgage Pool Data Update Report" shall mean, with respect to any
Distribution Date, a report (which may be included as part of the Distribution
Date Statement), prepared by the Trustee, containing information regarding the
Loans as of the end of the related Collection Period, which report shall contain
substantially the categories of information regarding the Loans set forth on
Annex A 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 annex and shall also include a loan-by-loan listing (in
descending balance order) showing loan number, property type, location, unpaid
principal balance, Mortgage Rate, paid-through date, maturity date, gross
interest portion of the Monthly Payment, principal portion of the Monthly
Payment, and any Prepayment Premium or Yield Maintenance Charge received.
"Mortgage Rate" shall mean, with respect to each Loan (and any
successor REO Loan with respect thereto), the related annualized rate at which
interest is scheduled (in the absence of a default) to accrue on such Loan from
time to time in accordance with the related Mortgage Note and applicable law, as
such rate may be modified in accordance with Section 3.21 or in connection with
a bankruptcy, insolvency or similar proceeding involving the related Mortgagor.
Notwithstanding the foregoing, if any Mortgage Loan does not accrue interest on
the basis of a 360 day year consisting of twelve 30-day months, then, solely for
purposes of calculating Pass-Through Rates, the Mortgage Rate of such Mortgage
Loan for any one-month period preceding a related Due Date will be the
annualized rate at which interest would have to accrue in respect of such
Mortgage Loan on the basis of a 360-day year consisting of twelve 30-day months
in order to produce the aggregate amount of interest actually accrued (exclusive
of Default Interest) in respect of such Mortgage Loan during such one-month
period at the related Mortgage Rate; provided, however, that with respect to any
Mortgage Loan accruing interest based on a 360-day year and the actual number of
days elapsed, the Mortgage Rate for the one month period (A) preceding the Due
Dates that occur in January and February in any year which is not a leap year or
preceding the Due Date that occurs in February in any year which is a leap year
will be determined exclusive of the Interest Reserve Amount withheld from that
month, and (B) preceding the Due Date in March will be determined inclusive of
the amounts withheld from the immediately preceding February and, if applicable,
January.
"Mortgaged Property" shall mean the real property subject to the
lien of a Mortgage.
"Mortgagor" shall mean, individually and collectively, as the
context may require, the obligor or obligors under a Loan, including any Person
that has not signed the related Mortgage Note but owns an interest in the
related Mortgaged Property, which interest has been encumbered to secure such
Loan.
"Mortgagor Affiliate Holder" any Companion Loan Noteholder or
Certificateholder that is a Mortgagor or an Affiliate of the Mortgagor
(including any Companion Loan Noteholder, its Affiliate, a Certificateholder or
its Affiliate, in each case, that was a lender of the Mortgagor and has
foreclosed on the equity interests in the Mortgagor or any Companion Loan
Noteholder or Certificateholder that acquires, directly or through an Affiliate,
a direct equity interest in the Mortgaged Property).
"Net Aggregate Prepayment Interest Shortfall" shall mean, with
respect to any Distribution Date, the amount, if any, by which (a) the aggregate
of all Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments and/or, insofar as they result from the application of
Insurance Proceeds and/or Condemnation Proceeds, other early recoveries of
principal Received 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 Distribution Account for such
Distribution Date pursuant to Section 3.20(a) in connection with such Prepayment
Interest Shortfalls.
"Net Default Charges" shall have the meaning assigned thereto in
Section 3.26(a).
"Net Investment Earnings" shall mean, with respect to any Investment
Account for any Collection Period, the amount, if any, by which the aggregate of
all interest and other income realized during such Collection Period on funds
held in such Investment Account (exclusive, in the case of a Servicing Account,
a Reserve Account or the Defeasance Deposit Account, of any portion of such
interest or other income payable to a Mortgagor in accordance with the related
loan documents and applicable law), exceeds the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of such
funds in accordance with Section 3.06 (exclusive, in the case of a Servicing
Account, a Reserve Account or the Defeasance Deposit Account, of any portion of
such losses that were incurred in connection with investments made for the
benefit of a Mortgagor).
"Net Investment Loss" shall mean, with respect to any Investment
Account for any Collection Period, the amount by which the aggregate of all
losses, if any, incurred during such Collection Period in connection with the
investment of funds held in such Investment Account in accordance with Section
3.06 (exclusive, in the case of a Servicing Account, a Reserve Account or the
Defeasance Deposit Account, of any portion of such losses that were incurred in
connection with investments made for the benefit of a Mortgagor), exceeds the
aggregate of all interest and other income realized during such Collection
Period on such funds (exclusive, in the case of a Servicing Account, a Reserve
Account or the Defeasance Deposit Account, of any portion of such interest or
other income payable to a Mortgagor in accordance with the related loan
documents and applicable law).
"Net Liquidation Proceeds" shall mean the excess, if any, of all
Liquidation Proceeds received with respect to any Specially Serviced 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 or
REO Loan, as of any date of determination, a rate per annum equal to the related
Mortgage Rate then in effect, minus the Administrative Cost Rate; provided,
however, that for purposes of calculating Pass-Through Rates, the Net Mortgage
Rate for any Mortgage Loan will be determined without regard to any
modification, waiver or amendment of the terms of such Mortgage Loan, whether
agreed to by the Master Servicer or Special Servicer or resulting from a
bankruptcy, insolvency or similar proceeding involving the Mortgagor.
"Net Prepayment Consideration" shall mean the Prepayment
Consideration Received with respect to any Mortgage Loan or REO Mortgage Loan,
net of any Workout Fee or Liquidation Fee payable therefrom.
"New Lease" shall mean any lease of Administered REO Property
entered into at the direction of the Special Servicer, including any lease
renewed, modified or extended on behalf of the Trustee and, in the case of any
Loan Pair, the related Companion Loan Noteholder.
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I Advance
or Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance" shall mean with respect to any Mortgage
Loan or any Pari Passu Companion Loan, any P&I Advance previously made or
proposed to be made in respect of such Loan or a related REO Loan by the Master
Servicer, the Trustee or the Fiscal Agent, or in the case of the Windsor Capital
Portfolio Trust Loan, made by the 2003-C1 Master Servicer, the Master Servicer,
the Trustee or the Fiscal Agent, which P&I Advance such party has determined in
its reasonable, good faith judgment, will not be ultimately recoverable from
late payments, Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds, or any other recovery on or in respect of such Mortgage Loan, Loan
Pair or REO Loan, as the case may be.
"Nonrecoverable Servicing Advance" shall mean any Servicing Advance
previously made or proposed to be made in respect of a Loan or REO Property by
the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent, or
in the case of the Windsor Capital Portfolio Loan Pair, made by the 2003-C1
Master Servicer, the 2003-C1 Trustee or the 2003-C1 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, Condemnation Proceeds, Liquidation Proceeds, or any other recovery on
or in respect of such Loan or REO Property, as the case may be. Any Servicing
Advance that is not required to be repaid by the related Mortgagor under the
terms of the related Mortgage Loan documents shall be deemed to be a
Nonrecoverable Advance for purposes of the Master Servicer's, the Special
Servicer's, the Trustee's or the Fiscal Agent's entitlement to reimbursement for
such Advance.
"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 XP, Class XC, Class D, Class E, Class F, Class H, Class J, Class
K, Class L, Class M, Class N, Class O, Class P, Class R-I and Class R-II
Certificates are Non-Registered Certificates.
"Non-United States Tax Person" shall mean any Person other than a
United States Tax Person.
"Notional Amount" means, as of any date of determination: (i) with
respect to all of the Class XP or Class XC Certificates as a Class, Class XP
Notional Amount or Class XC Notional Amount, as applicable, as of such date of
determination; and (ii) with respect to any Class XP or Class XC Certificate,
the product of the Percentage Interest evidenced by such Certificate and the
Class XP Notional Amount or Class XC Notional Amount, as applicable, as of such
date of determination.
"Officer's Certificate" shall mean a certificate signed by a
Servicing Officer of the Master Servicer or the Special Servicer, as the case
may be or by a Responsible Officer of the Trustee or the Fiscal Agent, as the
case may be, and shall mean with respect to any other Person, a certificate
signed by any of the Chairman of the Board, the Vice Chairman of the Board, the
President, any Vice President or Managing Director, an Assistant Vice President
or any other authorized officer (however denominated) or another officer
customarily performing functions similar to those performed by any of the above
designated officers or, with respect to a particular matter, any other officer
to whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Opinion of Counsel" shall mean a written opinion of counsel, who
may, without limitation, be salaried counsel for the Depositor, the Master
Servicer or the Special Servicer, acceptable in form and delivered to the
Trustee or any other specified Person, as the case may be, except that any
opinion of counsel relating to (a) the qualification of the Lower-Tier REMIC or
the Upper-Tier REMIC as a REMIC, (b) compliance with the REMIC Provisions, (c)
whether any act or event would cause an Adverse REMIC Event, or (e) the
resignation of the Master Servicer or the Special Servicer pursuant to this
Agreement, must be a written opinion of Independent counsel acceptable to and
delivered to the Trustee or any other specified Person, as the case may be.
"Original Class 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 Pari Passu
Companion Loan or a related REO Loan, any advance made by the Master Servicer,
the Trustee or the Fiscal Agent pursuant to Section 4.03 or Section 4.03A, as
applicable.
"Pari Passu Companion Loan" shall have the meaning assigned thereto
in the Preliminary Statement.
"Pass-Through Rate" shall mean:
(a) with respect to the Class A-1 Certificates for any
Interest Accrual Period, 3.312% per annum;
(b) with respect to the Class A-2 Certificates for any
Interest Accrual Period, 4.022% per annum;
(c) with respect to the Class A-3 Certificates for any
Interest Accrual Period, 4.533% per annum;
(d) with respect to the Class A-4 Certificates for any
Interest Accrual Period, 4.915% per annum;
(e) with respect to the Class B Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 5.034% per
annum and (ii) the Weighted Average Net Mortgage Rate for such
Interest Accrual Period;
(f) with respect to the Class C Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 5.074% per
annum and (ii) the Weighted Average Net Mortgage Rate for such
Interest Accrual Period;
(g) with respect to the Class D Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 5.134% per
annum and (ii) the Weighted Average Net Mortgage Rate for such
Interest Accrual Period;
(h) with respect to the Class E Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 5.223% per
annum and (ii) the Weighted Average Net Mortgage Rate for such
Interest Accrual Period;
(i) with respect to the Class F Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 5.419% per
annum and (ii) the Weighted Average Net Mortgage Rate for such
Interest Accrual Period;
(j) with respect to the Class G Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 5.567% per
annum and (ii) the Weighted Average Net Mortgage Rate for such
Interest Accrual Period;
(k) with respect to the Class H Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 5.911% per
annum and (ii) the Weighted Average Net Mortgage Rate for such
Interest Accrual Period;
(l) with respect to each of the Class J, Class K, Class L,
Class M, Class N, Class O and Class P Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 5.234% per
annum and (ii) the Weighted Average Net Mortgage Rate for such
Interest Accrual Period;
(m) with respect to the Class XC Certificates, for the initial
Distribution Date, 0.091464545% per annum, and for any subsequent
Distribution Date, the weighted average of the Class XC Strip Rates
for the Components for such Distribution Date (weighted on the basis
of the respective Component Notional Amounts of such Components
outstanding immediately prior to such Distribution Date); and
(n) with respect to the Class XP Certificates for the initial
Distribution Date, 1.33737088% per annum, and for any subsequent
Distribution Date, the weighted average of the Class XP Strip Rates
for the respective Class XP Components for such Distribution Date
(weighted on the basis of the respective Component Notional Amounts
of such Components outstanding immediately prior to such
Distribution Date).
"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 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 initial Notional
Amount, as the case may be, of the relevant Class; and (b) with respect to
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.
"Performance Certification" shall have the meaning assigned to such
term in Section 8.15(d).
"Performing Party" shall have the meaning assigned to such term in
Section 8.15(d).
"Performing Serviced Loan" shall mean any Corrected Loan and any
Serviced Loan as to which a Servicing Transfer Event has never occurred.
"Performing Serviced Mortgage Loan" shall mean any Serviced Mortgage
Loan that is a Performing Serviced Loan.
"Permitted Encumbrances" shall have the meaning assigned thereto in
Section 2.04(b)(viii).
"Permitted Investments" shall mean any one or more of the following
obligations or securities (including obligations or securities of the Trustee if
otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States or
any agency or instrumentality thereof (having original maturities of
not more than 365 days), provided that such obligations are backed
by the full faith and credit of the United States. Such obligations
must be limited to those instruments that have a predetermined fixed
dollar amount of principal due at maturity that cannot vary or
change. Interest may either be fixed or variable. If such interest
is variable, interest must be tied to a single interest rate index
plus a single fixed spread (if any), and move proportionately with
that index;
(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 S&P
and Xxxxx'x (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 S&P and Xxxxx'x (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 S&P and Xxxxx'x (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 S&P and Xxxxx'x (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" highlighter or other comparable
qualifier attached to its rating.
"Permitted Transferee" shall mean any Transferee of a Residual
Interest Certificate other than (a) a Disqualified Organization, (b) any Person
as to whom, as determined by the Trustee (based upon an Opinion of Counsel,
obtained at the request of the Trustee at the expense of such Person or the
Person seeking to Transfer a Residual Interest Certificate, supporting such
determination), the Transfer of a Residual Interest Certificate may cause either
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, (d) a Disqualified
Partnership, or (e) a United States Tax Person with respect to whom interest is
attributable to a foreign permanent establishment or fixed base (within the
meaning of any applicable income tax treaty between the United States and any
foreign jurisdiction) of such Person or any other United States Tax Person.
"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 each REMIC Pool, the Holder of Certificates entitled to the
largest percentage of the Voting Rights allocated to the related Class of
Residual Interest Certificates.
"Pool Custodial Account" shall mean the segregated account or
accounts created and maintained by the Master Servicer pursuant to Section
3.04(a) on behalf of the Trustee in trust for the Certificateholders, which
shall be entitled "Wachovia Bank, National Association, as Master Servicer, on
behalf of LaSalle Bank National Association, as Trustee, in trust for the
registered holders of Greenwich Capital Commercial Funding Corp., Commercial
Mortgage Trust 2003-C2, Commercial Mortgage Pass-Through Certificates, Series
2003-C2."
"Pool REO Account" shall mean the segregated account or accounts
created and maintained by the Special Servicer pursuant to Section 3.17 on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "Lennar Partners, Inc., as Special Servicer, on behalf of LaSalle Bank
National Association, as Trustee, in trust for the registered holders of
Greenwich Capital Commercial Funding Corp., Commercial Mortgage Trust 2003-C2,
Commercial Mortgage Pass-Through Certificates, Series 2003-C2."
"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.
"Prepayment Consideration" shall mean any Prepayment Premium or
Yield Maintenance Charge.
"Prepayment Consideration Entitlement" shall mean, with respect to
(i) any Distribution Date on which any Net Prepayment Consideration Received on
any Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) is
distributable and (ii) each of the Class A-1, Class A-2, Class A-3, Class A-4,
Class B, Class C, Class D, Class E, Class F, Class G and Class H Certificates
entitled to distributions of principal on such Distribution Date, an amount
equal to the product of (a) such Net Prepayment Consideration, multiplied by (b)
a fraction (not greater than 1.0 or less than 0.0), the numerator of which is
equal to the excess, if any, of the Pass-Through Rate for such Class of
Principal Balance Certificates over the relevant Discount Rate, and the
denominator of which is equal to the excess, if any, of the Mortgage Rate for
such Mortgage Loan (or REO Mortgage Loan) over the relevant Discount Rate, and
further multiplied by (c) a fraction, the numerator of which is equal to the
amount of principal to be distributed on such Class of Principal Balance
Certificates on such Distribution Date pursuant to Section 4.01(a) or 9.01, as
applicable, and the denominator of which is equal to the Principal Distribution
Amount for such Distribution Date.
"Prepayment Interest Excess" shall mean with respect to any Serviced
Loan and the Windsor Capital Portfolio Trust Loan that was subject to a
Principal Prepayment in full or in part made (or, if resulting from the
application of Insurance Proceeds or Condemnation Proceeds, any other early
recovery of principal received) after its Due Date in any Collection Period, any
payment of interest (net of related Master Servicing Fees) actually collected
from the related Mortgagor or otherwise and intended to cover interest accrued
on such Principal Prepayment during the period from and after such Due Date
(exclusive, however, of any related Prepayment Premium or Yield Maintenance
Charge that may have been collected).
"Prepayment Interest Shortfall" shall mean with respect to any
Serviced Loan and the Windsor Capital Portfolio Trust Loan that was subject to a
Principal Prepayment in full or in part made (or, if resulting from the
application of Insurance Proceeds or Condemnation Proceeds, any other early
recovery of principal received) prior to its Due Date in any Collection Period,
the amount of interest, to the extent not collected from the related Mortgagor
or otherwise (without regard to any Prepayment Premium or Yield Maintenance
Charge that may have been collected), that would have accrued at a rate per
annum equal to the related Mortgage Rate (net of the rate at which the related
Master Servicing Fees that are payable on such Loan accrue) on the amount of
such Principal Prepayment during the period from the date to which interest was
paid by the related Mortgagor to, but not including, such Due Date.
"Prepayment Premium" shall mean any premium, penalty or fee (other
than a Yield Maintenance Charge) paid or payable, as the context requires, as a
result of a Principal Prepayment on, or other early collection of principal of,
a Loan.
"Primary Servicing Office" shall mean the offices of the Master
Servicer or the Special Servicer, as the context may require, that are primarily
responsible for such party's servicing obligations hereunder. As of the Closing
Date, the Primary Servicing Office of the Master Servicer is located at NC 1075,
0000 Xxxxxxxx Xxxxx, XXX-0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, and the
Primary Servicing Office of the Special Servicer is located at 000 X.X. 000xx
Xxxxxx, Xxxxx, Xxxxxxx 00000.
"Prime Rate" shall mean the "prime rate" published in the "Money
Rates" section of The Wall Street Journal, as such "prime rate" may change from
time to time. If The Wall Street Journal ceases to publish the "prime rate,"
then the Trustee shall select an equivalent publication that publishes such
"prime rate"; and if such "prime rate" is no longer generally published or is
limited, regulated or administered by a governmental or quasi-governmental body,
then the Trustee shall select a comparable interest rate index. In either case,
such selection shall be made by the Trustee in its sole discretion and the
Trustee shall notify the Fiscal Agent, the Master Servicer, the Special Servicer
and all Companion Loan Noteholders in writing of its selection.
"Principal Balance Certificate" shall mean any Regular Interest
Certificate (other than the Class X Certificates).
"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 with respect to the Serviced Mortgage Loans during
the related Collection Period, in each case exclusive of any portion of
the particular payment that represents a Late Collection of principal for
which a P&I Advance was previously made under this Agreement for a prior
Distribution Date or that represents the principal portion of a Monthly
Payment due on or before the Cut-off Date or on a Due Date subsequent to
the related Collection Period;
(b) the aggregate of the principal portions of all Monthly Payments
due in respect of the Serviced Mortgage Loans for their respective Due
Dates occurring during the related Collection Period, that were Received
prior to the related Collection Period;
(c) the aggregate of all Principal Prepayments Received on the
Serviced Mortgage Loans during the related Collection Period;
(d) the aggregate of all Liquidation Proceeds, Condemnation Proceeds
and Insurance Proceeds Received with respect to any Serviced Mortgage
Loans during the related Collection Period that were identified and
applied by the Master Servicer as recoveries of principal of such Mortgage
Loans, in each case exclusive of any portion of such proceeds that
represents a Late Collection of principal due on or before the Cut-off
Date or for which a P&I Advance was previously made under this Agreement
for a prior Distribution Date;
(e) the aggregate of all Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds and REO Revenues Received with respect to any
Administered REO Properties during the related Collection Period that were
identified and applied by the Master Servicer as recoveries of principal
of the related REO Mortgage Loans, in each case exclusive of any portion
of such proceeds and/or revenues that represents a Late Collection of
principal due on or before the Cut-off Date or for which a P&I Advance was
previously made under this Agreement for a prior Distribution Date;
(f) the aggregate of the principal portions of all P&I Advances made
under this Agreement with respect to the Mortgage Loans and any REO
Mortgage Loans for such Distribution Date; and
(g) all amounts received by the Master Servicer on or prior to 12:00
noon (New York City time) on the Master Servicer Remittance Date from the
2003-C1 Master Servicer in respect of principal for the Windsor Capital
Portfolio Trust Loan (which shall include the principal portion of any P&I
Advance made by the 2003-C1 Master Servicer);
provided that none of the amounts set forth in clauses (a) to (g) above shall
represent amounts received, due or advanced on or in respect of any Companion
Loan or any successor REO Loan thereto.
"Principal Prepayment" shall mean any voluntary payment of principal
made by the Mortgagor on a 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 Prohibited Transaction
Exemption 90-59 granted to Greenwich Capital Markets 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
3.18(a)(iii).
"Prospectus" shall mean the prospectus dated November 26, 2003, as
supplemented by the Prospectus Supplement, relating to the Registered
Certificates.
"Prospectus Supplement" shall mean the prospectus supplement dated
December 9, 2003, relating to the Registered Certificates.
"Purchase Option Holders" shall have the meaning assigned thereto in
Section 3.19(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), (c) all related unreimbursed
Servicing Advances, if any (including any Servicing Advances that were
reimbursed out of general collections of the Mortgage Pool and not reimbursed
by, or on behalf of the related Mortgagor), (d) all accrued and unpaid interest,
if any, in respect of related Advances in accordance with, as applicable,
Section 3.12(b), Section 4.03(d) and/or Section 4.03A(d), and (e) in the case of
a repurchase by the Mortgage Loan Seller pursuant to Section 2.03(a) and 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), including any Liquidation Fee payable because
the subject repurchase occurred more than 180 days beyond the earlier of notice
to or discovery by the party effecting the repurchase of the subject Material
Document Defect or Material Breach that gave rise to the repurchase, and (ii) to
the extent not otherwise included in the amount described in clause (c) of this
definition, any costs and expenses incurred by the Master Servicer, the Special
Servicer or the Trustee (on behalf of the Trust) in enforcing the obligation of
such Person to purchase such Mortgage Loan; provided, that, in the case of an
REO Property that relates to any Loan Pair, the Purchase Price for the Trust
Fund's interest in such REO Property shall instead equal the aggregate of the
amounts described in clauses (a), (b), (c), (d) and, if applicable, (e) above
with respect to the REO Mortgage Loan in such Loan Pair.
"Qualified Bidder" shall have the meaning assigned thereto in
Section 7.01(c).
"Qualified Institutional Buyer" or "QIB" shall mean a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act.
"Qualified Insurer" shall mean an insurance company or security or
bonding company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Rated Final Distribution Date" shall mean the Distribution Date
in January 2036.
"Rating Agency" shall mean each of S&P and Xxxxx'x.
"Realized Loss" shall mean: (1) with respect to each Loan as to
which a Final Recovery Determination has been made, or with respect to any
successor REO Loan as to which a Final Recovery Determination has been made as
to the related REO Property, an amount (not less than zero) equal to the excess,
if any, of (a) the sum of (i) the unpaid principal balance of such Loan or REO
Loan, as the case may be, as of the commencement of the Collection Period in
which the Final Recovery Determination was made, plus (ii) without taking into
account the amount described in subclause (1)(b) of this definition, all accrued
but unpaid interest on such Loan or such REO Loan, as the case may be, to but
not including the Due Date in the Collection Period in which the Final Recovery
Determination was made (exclusive, however, of any portion of such accrued but
unpaid interest that represents Default Interest), over (b) all payments and
proceeds, if any, Received in respect of such Loan or, to the extent allocable
to such REO Loan, the related REO Property, as the case may be, during the
Collection Period in which such Final Recovery Determination was made, insofar
as such payments and proceeds are allocable to interest (other than Default
Interest) on or principal of such Loan or REO Loan; (2) with respect to each
Loan as to which any portion of the principal or previously accrued interest
payable thereunder was canceled in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or a modification, extension, waiver
or amendment of such Loan granted or agreed to by the Special Servicer pursuant
to Section 3.21, the amount of such principal and/or interest (other than
Default Interest) so canceled; and (3) with respect to each Loan as to which the
Mortgage Rate thereon has been permanently reduced and not recaptured for any
period in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, extension, waiver or amendment of such Loan
granted or agreed to by the Special Servicer pursuant to Section 3.21, 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); provided,
however, that any Loan Pair shall be deemed to be a single Loan for purposes of
this definition.
"Received" shall mean in the case of any Loan or REO Property,
received by the Master Servicer or any of its Sub-Servicers, the Special
Servicer or any of its Sub-Servicers or the Trustee, as the case may be, in any
event on behalf of the Trust and/or the Companion Loan Noteholders.
"Record Date" shall mean: with respect to the initial Distribution
Date, the Closing Date; and, with respect to any other Distribution Date, the
last Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Recording/Filing Agent" shall have the meaning assigned thereto in
Section 2.01(c).
"Recovered Amount" shall have the meaning assigned thereto in
Section 1.03(c).
"Reference Rate" shall mean, with respect to any Interest Accrual
Period, the rate per annum set forth on the Reference Rate Schedule.
"Registered Certificate" shall mean any Certificate that has been
the subject of registration under the Securities Act. As of the Closing Date,
the Class A-1, Class A-2, Class A-3, Class A-4, Class B and Class C Certificates
are Registered Certificates.
"Regular Interest Certificate" shall mean any Certificate other than
a Class R-I Certificate or Class R-II Certificate.
"Regulation S" shall mean Regulation S under the Securities Act.
"Regulation S Global Certificates" shall mean, with respect to any
Class of Book-Entry Non-Registered Certificates offered and sold outside of the
United States in reliance on Regulation S, one or more global Certificates,
collectively, in definitive, fully registered form without interest coupons,
each of which Certificates bears a Regulation S Legend.
"Regulation S Legend" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside the United
States in reliance on Regulation S, a legend generally to the effect that such
Certificates may not be offered, sold, pledged or otherwise transferred in the
United States or to a United States Securities Person prior to the date that is
40 days after the later of (a) the commencement of the offering to Persons other
than distributors in reliance on Regulation S, and (b) the date of closing of
the offering, except pursuant to an exemption from the registration requirements
of the Securities Act.
"Regulation S Restricted Certificate": Any Certificate that is
not rated in one of the four highest generic ratings categories by a Rating
Agency.
"Reimbursement Rate" shall mean the rate per annum applicable to the
accrual of interest, compounded monthly, on Servicing Advances in accordance
with Section 3.12(b) and on P&I Advances in accordance with, as applicable,
Section 4.03(d) or Section 4.03A(d), which rate per annum is equal to the Prime
Rate.
"Release Date" shall have the meaning assigned thereto in Section
5.02(b).
"REMIC" shall mean a "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
"REMIC Pool" shall mean either of the Lower-Tier REMIC and/or the
Upper-Tier REMIC, as applicable.
"REMIC Provisions" shall mean the provisions of the federal income
tax law relating to REMICs, which appear at Sections 860A through 860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and proposed,
temporary and final Treasury regulations and any published rulings, notices and
announcements promulgated thereunder, as the foregoing may be in effect from
time to time.
"Rents from Real Property" shall mean, with respect to any REO
Property, gross income of the character described in Section 856(d) of the Code.
"REO Account" shall mean either of the Pool REO Account or the
applicable Loan Pair 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 3.19.
"REO Extension" shall have the meaning assigned thereto in Section
3.17(a).
"REO Loan" shall mean the mortgage loan (or, if any Loan Pair is
involved, any of the mortgage loans comprising such Loan Pair) deemed for
purposes hereof to be outstanding with respect to each REO Property. Each REO
Loan shall be deemed to provide for monthly payments of principal and/or
interest equal to its Assumed Monthly Payment and otherwise to have the same
terms and conditions as its predecessor Loan (such terms and conditions to be
applied without regard to the default on such predecessor Loan and the
acquisition of the related REO Property as part of the Trust Fund). Each REO
Loan shall be deemed to have an initial unpaid principal balance and Stated
Principal Balance equal to the unpaid principal balance and Stated Principal
Balance, respectively, of its predecessor Loan as of the date of the related REO
Acquisition. All Monthly Payments (other than a Balloon Payment), Assumed
Monthly Payments (in the case of a Balloon Loan delinquent in respect of its
Balloon Payment) and other amounts due and owing, or deemed to be due and owing,
in respect of the predecessor Loan as of the date of the related REO
Acquisition, shall be deemed to continue to be due and owing in respect of an
REO Loan. Amounts Received with respect to each REO Loan (after provision for
amounts to be applied to the payment of, or to be reimbursed (1) to the Master
Servicer or the Special Servicer for the payment of, the costs of operating,
managing and maintaining the related REO Property and (2) to the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent for the
reimbursement of any outstanding unreimbursed Advances on such REO Loan (and
predecessor Loan) and interest thereon) shall be treated: first, as a recovery
of any amounts withdrawn from general principal collections on the Mortgage Pool
in order to reimburse any Nonrecoverable Advance with respect to such Loan and
interest on such Advance; second, 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; third, as a recovery of principal of such
REO Loan to the extent of its entire unpaid principal balance; and fourth, 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;
provided that if the Loans comprising a Loan Pair become REO Loans, amounts
Received with respect to such REO Loans shall be applied to amounts due and
owing in respect of such REO Loans as provided in Section 4 of the related
Co-Lender Agreement. Notwithstanding the foregoing, all amounts payable or
reimbursable to the Master Servicer, the Special Servicer, the Trustee or the
Fiscal Agent in respect of the predecessor Loan as of the date of the related
REO Acquisition, including any unpaid Servicing Fees and any unreimbursed
Servicing Advances and P&I Advances, together with any interest accrued and
payable to the Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent in respect of such Servicing Advances and P&I Advances in accordance with
Sections 3.12(b), 4.03(d) and 4.03A(d), respectively, shall continue to be
payable or reimbursable to the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent, as the case may be, in respect of an REO Loan.
"REO Mortgage Loan" shall mean any REO Loan that relates to a
predecessor Mortgage Loan.
"REO Property" shall mean a Mortgaged Property acquired on behalf
and in the name of the Trustee for the benefit of the Certificateholders (or, in
the case of the Loan Pair Mortgaged Properties (other than the Windsor Capital
Portfolio Loan Pair, which is being serviced under the 2003-C1 PSA), for the
benefit of the Certificateholders and the Companion Loan Noteholders, as their
interests may appear), through foreclosure, acceptance of a deed-in-lieu of
foreclosure or otherwise in accordance with applicable law in connection with
the default or imminent default of a Loan.
"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
3.18(a).
"Request for Release" shall mean a request signed by a Servicing
Officer of, as applicable, the Master Servicer in the form of Exhibit D-1
attached hereto or the Special Servicer in the form of Exhibit D-2 attached
hereto.
"Required Appraisal" shall mean, with respect to each Required
Appraisal Loan, an appraisal of the related Mortgaged Property from an
Independent Appraiser selected by the party required or authorized to obtain
such appraisal hereunder, which appraisal shall be prepared in accordance with
12 CFR ss. 225.62 and conducted in accordance with the standards of the
Appraisal Institute or, in the case of a Required Appraisal Loan having a Stated
Principal Balance of, or in the case of a Mortgaged Property that has an
allocated loan amount of, less than $2,000,000, if no satisfactory (as
determined by the Special Servicer pursuant to Section 3.09(a)) appraisal
meeting the foregoing criteria was obtained or conducted within the prior 12
months, a "desktop" value estimate performed by the Special Servicer.
"Required Appraisal Loan" shall mean any Mortgage Loan or Loan Pair
(other than the Windsor Capital Portfolio Loan Pair, which is being serviced
under the 2003-C1 PSA) (i) that becomes a Modified Loan, (ii) that is 60 days or
more delinquent in respect of any Monthly Payment, except for a Balloon Payment,
(iii) that is delinquent in respect of its Balloon Payment, if any, for (A) 20
days, or (B) if the related Mortgagor shall have delivered a refinancing
commitment acceptable to the Special Servicer prior to the date the subject
Balloon Payment was due, 30 days, (iv) with respect to which the related
Mortgaged Property has become an REO Property, (v) with respect to which a
receiver or similar official is appointed and continues for 60 days in such
capacity in respect of the related Mortgaged Property, (vi) with respect to
which the related Mortgagor is subject to a bankruptcy, insolvency or similar
proceedings, which, in the case of an involuntary bankruptcy, insolvency or
similar proceeding, has not been dismissed within 60 days of the commencement
thereof, or (vii) that remains outstanding five (5) years following any
extension of its maturity date pursuant to Section 3.21. Any Required Appraisal
Loan (other than a Mortgage Loan that became a Required Appraisal Loan pursuant
to clause (vii) above) shall cease to be such at such time as it has become a
Corrected Loan (except if such Required Appraisal Loan had not become a
Specially Serviced Loan at the time the applicable event(s) described in any of
clauses (i) through (vii) above ceased to exist), it has remained current for at
least three (3) consecutive Monthly Payments, and no other event described in
clauses (i) through (vii) above has occurred with respect thereto during the
preceding three-month period; provided that the term "Required Appraisal Loan"
shall include any successor REO Loan(s); and provided, further, that any Loan
Pair shall, upon the occurrence of any of the events described in clauses (i)
through (vii) of this definition in respect of either such Loan, be deemed to be
a single "Required Appraisal Loan."
"Required Appraisal Value" shall mean, with respect to any Mortgaged
Property securing (or REO Property relating to) a Required Appraisal Loan, an
amount equal to the sum of: (a) the excess, if any, of (i) 90% of the Appraised
Value of such Mortgaged Property (or REO Property) as determined by the most
recent Required Appraisal or any letter update of such Required Appraisal, over
(ii) the amount of any obligations secured by liens on such Mortgaged Property
(or REO Property) that are prior to the lien of the related Required Appraisal
Loan; plus (b) the amount of Escrow Payments and Reserve Funds held by the
Master Servicer in respect of such Required Appraisal Loan that (i) are not
being held in respect of any real estate taxes and assessments, insurance
premiums or, if applicable, ground rents, (ii) are not otherwise scheduled to be
applied or utilized (except to pay debt service on such Required Appraisal Loan)
within the twelve-month period following the date of determination and (iii) may
be applied towards the reduction of the principal balance of such Required
Appraisal Loan; plus (c) the amount of any letter of credit constituting
additional security for such Required Appraisal Loan and that may be applied
towards the reduction of the principal balance of such Required Appraisal Loan.
"Reserve Account" shall mean any account established by the Master
Servicer, pursuant to Section 3.03(d), as to which Reserve Funds shall be
deposited.
"Reserve Funds" shall mean, with respect to any Loan (other than the
Windsor Capital Portfolio Loan Pair, which is serviced under the 2003-C1 PSA),
any amounts delivered by the related Mortgagor to be held by or on behalf of the
mortgagee representing reserves for repairs, capital improvements and/or
environmental remediation in respect of the related Mortgaged Property or debt
service on such Loan.
"Residual Interest Certificate" shall mean a Class R-I or Class R-II
Certificate.
"Responsible Officer" shall mean: (a) when used with respect to the
Trustee, any Vice President, any Assistant Vice President, any Trust Officer,
any Assistant Secretary or any other officer of the Trustee's Asset-Backed
Services Trust Group customarily performing functions similar to those performed
by any of the above designated officers and having direct responsibility for the
administration of this Agreement; and (b) when used with respect to the Fiscal
Agent, any officer thereof.
"Review Package" shall mean a package of documents consisting of a
memorandum outlining the analysis and recommendation (in accordance with the
Servicing Standard) of the Master Servicer or the Special Servicer, as the case
may be, with respect to the matters that are the subject thereof, and copies of
all relevant documentation.
"Rule 144A Global Certificate" shall mean, with respect to any Class
of Book-Entry Non-Registered Certificates, one or collectively more global
certificates representing such Class registered in the name of the Depository or
its nominee, in definitive, fully registered form without interest coupons, none
of which certificates bears a Regulation S Legend, and each of which
certificates has a Rule 144A CUSIP number.
"Xxxxxxxx-Xxxxx Certification" shall have the meaning assigned to
such term in Section 8.15(d).
"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.
"Scheduled Payment" shall mean, with respect to any Loan, for any
Due Date following the Cut-off Date as of which it is outstanding, the Monthly
Payment on such Loan that is or would be, as the case may be, payable by the
related Mortgagor on such Due Date under the terms of the related Mortgage Note
as in effect on the Closing Date, without regard to any subsequent change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, extension, waiver or
amendment of such Loan granted or agreed to by the Special Servicer pursuant to
Section 3.21, 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.
"Serviced Loan" shall mean any Loan (including a Specially Serviced
Loan, but excluding an REO Loan) that is, as contemplated by Section 3.01, to be
serviced and administered by the Master Servicer and/or the Special Servicer
hereunder, which includes the Mortgage Loans (other than the Windsor Capital
Portfolio Trust Loan) and the Companion Loans (other than the Windsor Capital
Portfolio Companion Loans).
"Serviced Mortgage Loan" shall mean any Mortgage Loan that is a
Serviced Loan.
"Servicer Fee Amount" shall mean: (a) with respect to each
Sub-Servicer, as of any date of determination, the aggregate of the products
obtained by multiplying, for each Serviced Loan primary serviced by such
Sub-Servicer, (i) the principal balance of such Loan as of the end of the
immediately preceding Collection Period and (ii) the sub-servicing fee rate
specified in the related Sub-Servicing Agreement for such Loan; and (b) with
respect to the Master Servicer, as of any date of determination, the aggregate
of the products obtained by multiplying, for each Serviced Loan and the Windsor
Capital Portfolio Trust Loan, (i) the principal balance of such Loan or the
Windsor Capital Portfolio Trust Loan, as applicable, as of the end of the
immediately preceding Collection Period and (ii) the excess, if any, of the
Master Servicing Fee Rate for such Loan or the Windsor Capital Portfolio Trust
Loan, as applicable, over the sub-servicing fee rate (if any) applicable to such
Loan, as specified in any Sub-Servicing Agreement related to such Loan.
"Servicer Reports" shall mean each of the files and reports
comprising the CMSA Investor Reporting Package (excluding the CMSA Bond Level
File, the CMSA Collateral Summary File) and the Supplemental Report.
"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
Special Servicer, the Fiscal Agent or the Trustee in connection with the
servicing and administration of a Serviced Loan, if a default is imminent
thereunder or a default, delinquency or other unanticipated event has occurred
with respect thereto, or in connection with the administration of any REO
Property, including, but not limited to, the cost of (a) compliance with the
obligations of the Master Servicer, the Special Servicer, the Fiscal Agent or
the Trustee, if any, set forth in Section 3.03(c), (b) the preservation,
insurance, restoration, protection and management of a Mortgaged Property, (c)
obtaining any Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds,
(d) any enforcement or judicial proceedings with respect to a Mortgaged
Property, including foreclosures, (e) any Required Appraisal or any other
appraisal or update thereof expressly permitted or required to be obtained
hereunder, (f) the operation, management, maintenance and liquidation of any REO
Property, and (g) obtaining any related ratings confirmation; provided that,
notwithstanding anything to the contrary, "Servicing Advances" shall not include
allocable overhead of the Master Servicer, the Special Servicer or the Trustee,
such as costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses and similar internal costs and expenses,
or costs and expenses incurred by any such party in connection with its purchase
of any Loan or REO Property pursuant to any provision of this Agreement, or the
applicable Co-Lender Agreement.
"Servicing Fees" shall mean with respect to each Serviced Loan and
the Windsor Capital Portfolio Trust Loan (and any successor REO Loan with
respect thereto), the Master Servicing Fee and the Special Servicing Fee.
"Servicing File" shall mean, collectively, any and all documents
(other than documents required to be part of the related Mortgage File) in the
possession of the Master Servicer or the Special Servicer and relating to the
origination and servicing of any Serviced Loan, including any original letter of
credit (together with any transfer or assignment documents related thereto), any
franchise agreement and any franchise comfort letter (together with any transfer
or assignment documents relating thereto), appraisals, surveys, engineering
reports, environmental reports, opinion letters of counsel to a related
Mortgagor, escrow agreements, property management agreements and franchise
agreements.
"Servicing Officer" shall mean any officer or employee of the Master
Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Serviced Loans, whose name and specimen
signature appear on a list of servicing officers furnished by such party to the
Trustee and the Depositor on the Closing Date, as such list may be amended from
time to time.
"Servicing-Released Bid" shall have the meaning assigned thereto in
Section 7.01(c).
"Servicing-Retained Bid" shall have the meaning assigned thereto in
Section 7.01(c).
"Servicing Standard" shall mean, with respect to the Master Servicer
or the Special Servicer, to service and administer the Serviced Loans and any
Administered REO Properties that such party is obligated to service and
administer pursuant to this Agreement: (i) in accordance with the higher of the
following standards of care: (A) the same manner in which, and with the same
care, skill, prudence and diligence with which, the Master Servicer or the
Special Servicer, as the case may be, services and administers comparable
mortgage loans with similar borrowers and comparable REO properties for other
third-party portfolios (giving due consideration to the customary and usual
standards of practice of prudent institutional commercial mortgage lenders
servicing their own mortgage loans and REO properties), and (B) the same manner
in which, and with the same care, skill, prudence and diligence with which, the
Master Servicer or Special Servicer, as the case may be, services and
administers comparable mortgage loans owned by the Master Servicer or Special
Servicer, as the case may be, in either case exercising reasonable business
judgment and acting in accordance with applicable law, the terms of this
Agreement and the terms of the respective Serviced Loans; (ii) with a view to:
the timely recovery of all payments of principal and interest, including Balloon
Payments, under the Serviced Loans or, in the case of any such Serviced Loan
that is (1) a Specially Serviced Loan or (2) a Serviced Loan as to which the
related Mortgaged Property has become an REO Property, the maximization of
recovery on the Mortgage Loan to the Certificateholders (as a collective whole)
(or, if any Loan Pair is involved, with a view to the maximization of recovery
on such Loan Pair to the Certificateholders and the related Companion Loan
Noteholders (as a collective whole)) of principal and interest, including
Balloon Payments, on a present value basis (the relevant discounting of
anticipated collections that will be distributable to the Certificateholders
(or, in the case of any Loan Pair, to the Certificateholders and the related
Companion Noteholders) to be performed at the related Mortgage Rate (or, in the
case of any Loan Pair, at the weighted average of the Mortgage Rates for such
Loan Pair); and (iii) without regard to (A) any relationship, including as
lender on any other debt, that the Master Servicer or the Special Servicer, as
the case may be, or any Affiliate thereof, may have with any of the related
Mortgagors, or any Affiliate thereof, or any other party to this Agreement; (B)
the ownership of any Certificate (or any Companion Loan or any certificate
backed by a Companion Loan or any Mezzanine Loan) by the Master Servicer or the
Special Servicer, as the case may be, or any Affiliate thereof; (C) the
obligation of the Master Servicer or the Special Servicer, as the case may be,
to make Advances; (D) the right of the Master Servicer or the Special Servicer,
as the case may be, or any Affiliate of either of them, to receive compensation
or reimbursement of costs hereunder generally or with respect to any particular
transaction; and (E) the ownership, servicing or management for others of any
other mortgage loan or real property not subject to this Agreement by the Master
Servicer or the Special Servicer, as the case may be, or any Affiliate thereof.
"Servicing Transfer Event" shall mean, with respect to any Serviced
Loan, the occurrence of any of the events described in clauses (a) through (g)
of the definition of "Specially Serviced Loan," except in the case of a Loan
Pair, if the related Subordinate Companion Loan Noteholder is exercising its
cure rights under the related Co-Lender Agreement.
"Similar Law" shall have the meaning assigned thereto in Section
5.02(c).
"Single Certificate" shall mean, for purposes of Section 4.02, a
hypothetical Regular Interest Certificate evidencing an initial $1,000
denomination.
"Single Purpose Entity" shall mean an entity, other than an
individual, whose organizational documents and/or the related loan documents
provide substantially to the effect that: (i) it was formed or organized solely
for the purpose of either owning and operating the Mortgaged Property or
Properties securing one or more Loans, or owning and pledging Defeasance
Collateral in connection with the defeasance of a Defeasance Loan, as the case
may be, (ii) it may not engage in any business unrelated to such Mortgaged
Property or Properties or such Defeasance Collateral, as the case may be, (iii)
it will not have any assets other than those related to its interest in and
operation of such Mortgaged Property or such Defeasance Collateral, as the case
may be, (iv) it may not incur indebtedness other than incidental to its
ownership and operation of the applicable Mortgaged Property or Properties or
Defeasance Collateral, as the case may be, (v) it will maintain its own books
and records and accounts separate and apart from any other Person, (vi) it will
hold itself out as a legal entity, separate and apart from any other Person, and
(vii) in the case of such an entity whose sole purpose is owning or operating a
Mortgaged Property, it will have an independent director or, if such entity is a
partnership or a limited liability company, at least one general partner or
limited liability company member thereof, as applicable, which shall itself be a
"single purpose entity" (having as its sole asset its interest in the Single
Purpose Entity) with an independent director.
"Special Servicer" shall mean Lennar Partners, Inc., in its capacity
as special servicer hereunder, or any successor special servicer appointed as
herein provided.
"Special Servicing Fee" shall mean, with respect to each Specially
Serviced Loan and each REO Loan, the fee designated as such in, and payable to
the Special Servicer pursuant to, Section 3.11(b).
"Special Servicing Fee Rate" shall mean, with respect to each
Specially Serviced Loan and each REO Loan, 0.25% per annum.
"Specially Serviced Loan" shall mean any Serviced 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 delinquent Balloon Payment, (A) for one Business
Day beyond the date on which the subject Balloon Payment was due or (B) in
the case of a Balloon Loan as to which the related Mortgagor shall have
delivered a refinancing commitment acceptable to the Special Servicer
prior to the date the subject Balloon Payment was due, for 30 days beyond
the date on which the subject Balloon Payment was due (or for such shorter
period beyond the date on which the subject Balloon Payment was due during
which the refinancing is scheduled to occur);
(b) the Master Servicer or Special Servicer (in the case of the
Special Servicer, with the consent of the applicable Directing Holder,
provided however, that if the Directing Holder shall withhold such
consent, the Special Servicer shall ignore and act without regard to any
such objection that the Special Servicer has determined, in its
reasonable, good faith judgment, would require or cause the Special
Servicer to violate any provision of this Agreement (including the Special
Servicer's obligation to act in accordance with the Servicing Standard))
shall have determined, in its good faith, reasonable judgment, based on
communications with the related Mortgagor, that a default in the making of
a Monthly Payment on such Serviced Loan, including a Balloon Payment, is
likely to occur and is likely to remain unremedied (without regard to any
grace period) for at least the applicable period contemplated by clause
(a) of this definition; or
(c) there shall have occurred a default (other than as described in
clause (a) above and other than an Acceptable Insurance Default) that (i)
materially impairs the value of the related Mortgaged Property as security
for such Serviced Loan or otherwise materially adversely affects the
interests of Certificateholders (or, in the case of any Companion Loan,
the related Companion Loan Noteholders), and (ii) continues unremedied for
the applicable grace period under the terms of such Serviced Loan (or, if
no grace period is specified and the default is capable of being cured,
for 30 days); provided that any default that results in acceleration of
the related Mortgage Loan without the application of any grace period
under the related Mortgage Loan documents shall be deemed not to have a
grace period; and provided, further, that any default requiring a
Servicing Advance shall be deemed to materially and adversely affect the
interests of Certificateholders or, in the case of any Companion Loan, the
related Companion Loan Noteholders; 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 Serviced Loan will cease to be a Specially Serviced
Loan, when a Liquidation Event has occurred with respect to such Serviced Loan,
when the related Mortgaged Property has become an REO Property or, so long as at
such time no circumstance identified in clauses (a) through (g) above exists
that would cause the Serviced Loan to continue to be characterized as a
Specially Serviced Loan, when:
(w) with respect to the circumstances described in clause (a) of
this definition, the related Mortgagor has made three consecutive full and
timely Monthly Payments under the terms of such Serviced Loan (as such terms may
be changed or modified in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or by reason of a modification, extension,
waiver or amendment granted or agreed to by the Master Servicer or the Special
Servicer pursuant to Section 3.21);
(x) with respect to the circumstances described in clauses (b), (d),
(e) and (f) of this definition, such circumstances cease to exist in the good
faith, reasonable judgment of the Special Servicer, but, with respect to any
bankruptcy or insolvency proceedings described in clauses (d), (e) and (f), no
later than the entry of an order or decree dismissing such proceeding;
(y) with respect to the circumstances described in clause (c) of
this definition, such default is cured as determined by the Special Servicer in
its reasonable, good faith judgment; and
(z) with respect to the circumstances described in clause (g) of
this definition, such proceedings are terminated.
The Special Servicer may conclusively rely on the Master Servicer's
determination as to whether a Servicing Transfer Event has occurred giving rise
to a Serviced Loan's becoming a Specially Serviced Loan. If a Serviced Loan that
is part of any Loan Pair becomes a Specially Serviced Loan, then the other
Serviced Loan or Serviced Loans in the Loan Pair shall also become a Specially
Serviced Loan.
"Specially Serviced Mortgage Loan" shall mean a Serviced Mortgage
Loan that constitutes a Specially Serviced 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 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 Loan granted or agreed to by the Special Servicer
pursuant to Section 3.21.
"Stated Principal Balance" shall mean: (a) with respect to any
Mortgage Loan (and any successor REO Mortgage Loan with respect thereto), the
Cut-off Date Balance of such Mortgage Loan, as permanently reduced on each
Distribution Date (to not less than zero) by (i) that portion, if any, of the
Principal Distribution Amount for such Distribution Date allocable to such
Mortgage Loan (or any such successor REO Mortgage Loan with respect thereto) and
(ii) the principal portion of any Realized Loss incurred in respect of such
Mortgage Loan (or, if such Mortgage Loan is part of a Loan Pair, any Realized
Loss incurred in respect of such Loan Pair and allocated to such Mortgage Loan)
(or any such successor REO Mortgage Loan with respect thereto) during the
related Collection Period; and (b) with respect to any Companion Loan (and any
successor REO Loan with respect thereto), the Cut-off Date Balance of such Loan,
as permanently reduced on each Loan Pair Remittance Date (to not less than zero)
by (i) any principal payments or collections in respect of such Loan (or any
such successor REO Loan with respect thereto), including, in the case of any
Pari Passu Companion Loan, the principal portion of any P&I Advance (which, in
the case of the Windsor Capital Portfolio Companion Loan shall include any P&I
Advance made by a party to the 2003-C1 PSA), distributed to the related
Companion Loan Noteholder on such Loan Pair Remittance Date, and (ii) the
principal portion of any Realized Loss incurred in respect of the related Loan
Pair and allocated to such Loan (or any such successor REO Loan with respect
thereto) during the related Collection Period. Notwithstanding the foregoing, if
a Liquidation Event occurs in respect of any Loan or REO Property, then the
"Stated Principal Balance" of such Loan or of the related REO Loan, as the case
may be, shall be zero commencing as of the Distribution Date in the Collection
Period next following the Collection Period in which such Liquidation Event
occurred.
"Sub-Servicer" shall mean any Person with which the Master Servicer
or the Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement" shall mean the written contract between
the Master Servicer or the Special Servicer, on the one hand, and any
Sub-Servicer, on the other hand, relating to servicing and administration of
Serviced Loans as provided in Section 3.23.
"Subordinate Companion Loan" shall have the meaning assigned thereto
in the Preliminary Statement.
"Subordinate Companion Loan Noteholder" shall mean, with respect to
any Loan Pair with a Subordinate Companion Loan, the Holder of the Mortgage Note
for such Subordinate Companion Loan.
"Subsequent Exchange Act Reports" shall have the meaning assigned
thereto in Section 8.15(a).
"Successful Bidder" shall have the meaning assigned thereto in
Section 7.01(c).
"Supplemental Report" shall mean have the meaning assigned thereto
in Section 4.02(a).
"Supplemental Servicer Schedule": With respect to the Loans to be
serviced by the Master Servicer, a list attached hereto as Schedule VI, which
list sets forth the following information with respect to each Loan:
(i) the Mortgagor's name;
(ii) property type;
(iii) the original balance;
(iv) the original and remaining amortization term;
(v) whether such Mortgage Loan has a guarantor;
(vi) whether such Mortgage Loan is secured by a letter of
credit;
(vii) the current balance and monthly amount of any reserve or
escrowed funds;
(viii) the grace period with respect to both default payments
and late payments;
(ix) whether such Mortgage Loan is insured by RVI, lease
enhancement policy or environmental policies;
(x) whether an operation and maintenance plan exists and, if
so, what repairs are required;
(xi) whether a cash management agreement or lock-box agreement
is in place; and
(xii) the number of units or square feet of the Mortgage
Property.
Such list may be in the form of more than one list, collectively setting forth
all of the information required.
"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 each 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 Treasury
Regulations Section 301.6231(a)(7)-1, which Person shall be the Plurality
Residual Interest Certificateholder in respect of the related Class of Residual
Interest Certificates.
"Tax Returns" shall mean the federal income tax return on Internal
Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC)
Income Tax Return, including Schedule Q thereto, Quarterly Notice to Residual
Interest Holders of REMIC Taxable Income or Net Loss Allocation, or any
successor forms, to be filed on behalf of each REMIC Pool due to its
classification as a REMIC under the REMIC Provisions, together with any and all
other information, reports or returns that may be required to be furnished to
the Certificateholders or filed with the IRS under any applicable provisions of
federal tax law or any other governmental taxing authority under applicable
state and local tax law.
"Total Principal Reinstatement Amount" shall mean, with respect to
any Distribution Date, an amount (to be calculated by the Trustee immediately
following, and after taking into account, all distributions to be made with
respect to the Certificates on such Distribution Date) equal to the least of:
(1) the Additional Principal Distribution Amount for the subject Distribution
Date; (2) the amount, if any, by which (a) the aggregate Stated Principal
Balance of the Mortgage Pool that will be outstanding immediately following the
subject Distribution Date, exceeds (b) the aggregate of the Class Principal
Balances of all the Classes of Principal Balance Certificates (after taking into
account the distributions made with respect to the Certificates on such
Distribution Date, but prior to any adjustments to any of those Classes of
Principal Balance Certificates pursuant to Section 4.04 or Section 4.05); and
(3) the aggregate Loss Reimbursement Amount in respect of the Principal Balance
Certificates for the subject Distribution Date (reduced by all distributions
made with respect to the Principal Balance Certificates in reimbursement of such
aggregate Loss Reimbursement Amount on the subject Distribution Date).
"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).
"Transfer Date" shall have the meaning assigned thereto in Section
5.02(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 the
Lower-Tier REMIC and the Upper-Tier REMIC.
"Trust Mortgage Loan" shall mean, with respect to any Loan Pair, the
portion of such Loan Pair that is a Mortgage Loan in the Trust.
"Trustee" shall mean LaSalle Bank National Association, in its
capacity as trustee hereunder, or any successor trustee appointed as herein
provided.
"Trustee Fee" shall mean, with respect to each Distribution Date, an
amount equal to one-twelfth of the product of (i) the Trustee Fee Rate,
multiplied by (ii) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately prior to such Distribution Date.
"Trustee Fee Rate" shall mean 0.0006% 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
(if required by the UCC) and filed pursuant to the UCC.
"Uncertificated Lower-Tier Interests" shall mean any of the 30
separate non-certificated beneficial ownership interests in the Lower-Tier REMIC
issued hereunder and designated as a "regular interest" in the Lower-Tier REMIC.
Each Uncertificated Lower-Tier Interest shall accrue interest at the Weighted
Average Net Mortgage Rate, 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 Uncertificated Lower-Tier
Interests are set forth in the Preliminary Statement hereto.
"Uncertificated Principal Balance" shall mean the principal balance
of any Uncertificated Lower-Tier Interest outstanding as of any date of
determination. As of the Closing Date: the Uncertificated Principal Balance of
each Uncertificated Lower-Tier Interest shall equal the amount set forth in the
Preliminary Statement hereto. On each Distribution Date, the Uncertificated
Principal Balance of each Uncertificated Lower-Tier 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(i), 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).
"Underwriters" shall mean Greenwich Capital Markets, Credit
Suisse First Boston LLC, Xxxxxx Xxxxxxx & Co. Incorporated and X.X. Xxxxxx
Securities Inc. and their respective successors in interest.
"Unfunded Principal Balance Reduction" shall mean any reduction made
in the Class Principal Balance of any Class of Principal Balance Certificates
pursuant to Section 4.04(a) or the Lower-Tier Interest Principal Balance of any
Lower-Tier Regular Interest pursuant to Section 4.04(b).
"United States Tax Person" shall mean a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any State thereof or the District
of Columbia, or an estate whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more such United States Tax Persons have the authority to control all
substantial decisions of the trust (or to the extent provided in the Treasury
regulations, if the trust was in existence on August 20, 1996 and elected to be
treated as a United States person), all within the meaning of Section
7701(a)(30) of the Code.
"United States Securities Person" shall mean any "U.S. person" as
defined in Rule 902(k) of Regulation S.
"U.S. Bank Tower Junior Companion Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"U.S. Bank Tower Loan Pair" shall have the meaning assigned thereto
in the Preliminary Statement.
"U.S. Bank Tower Pari Passu Companion Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"U.S. Bank Tower Senior Loans" shall have the meaning assigned
thereto in the Preliminary Statement.
"U.S. Bank Tower Trust Loan" shall have the meaning assigned thereto
in the Preliminary Statement.
"Upper-Tier Distribution Account" shall mean the subaccount deemed
to be a part of the Distribution Account and maintained by the Trustee pursuant
to Section 3.04(b).
"Upper-Tier REMIC" One of the two separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"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 XP and
Class XC Certificates, pro rata, based on the Class XP Notional Amount and Class
XC Notional Amount, respectively. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective
Certificates. No Voting Rights shall be allocated to the Class R-I, Class R-II.
"Weighted Average Net Mortgage Rate" shall mean, with respect to any
Distribution Date, the weighted average of the Net Mortgage Rates of the Pooled
Mortgage Loans as of the first day of the related Collection Period, weighted on
the basis of their respective Stated Principal Balances as of the first day of
such Collection Period (after giving effect to any payments received during any
applicable grace period).
"Xxxxx Fargo Tower Loan Pair" shall have the meaning assigned
thereto in the Preliminary Statement.
"Xxxxx Fargo Tower Pari Passu Companion Loans" shall have the
meaning assigned thereto in the Preliminary Statement.
"Xxxxx Fargo Tower Trust Loan" shall have the meaning assigned
thereto in the Preliminary Statement.
"Windsor Capital Portfolio Junior Companion Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"Windsor Capital Portfolio Loan Pair" shall have the meaning
assigned thereto in the Preliminary Statement.
"Windsor Capital Portfolio Pari Passu Companion Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"Windsor Capital Portfolio Senior Loans" shall have the meaning
assigned thereto in the Preliminary Statement.
"Windsor Capital Portfolio Trust Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Workout Fee" shall mean the fee designated as such in, and payable
to the Special Servicer with respect to certain collections on each Corrected
Loan pursuant to, Section 3.11(b).
"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,
as the context requires, as the result of a Principal Prepayment on, or other
early collection of principal of, a Loan, which payments are not otherwise due
thereon in respect of principal or interest and have been calculated (based on
scheduled payments of interest and/or principal on such Loan) to compensate the
Holder for reinvestment losses based on the value of an interest rate index at
or near the time of prepayment. Any other prepayment premiums, penalties and
fees not so calculated will not be considered "Yield Maintenance Charges." In
the event that a Yield Maintenance Charge shall become due for any particular
Loan, the Master Servicer shall be required to follow the terms and provisions
contained in the applicable Mortgage Note, provided, however, in the event the
particular Mortgage Note shall not specify the U.S. Treasuries which shall be
used in determining the discount rate or the reinvestment yield to be applied in
such calculation, the Master Servicer shall be required to use those U.S.
Treasuries which shall generate the lowest discount rate or reinvestment yield
for the purposes thereof. Accordingly, if either no U.S. Treasury issue, or more
than one U.S. Treasury issue, shall coincide with the term over which the Yield
Maintenance Charge shall be calculated (which depending on the applicable
Mortgage Note is based on the remaining average life of the Loan or the actual
term remaining through the related Stated Maturity Date), the Master Servicer
shall use the applicable U.S. Treasury whose reinvestment yield is the lowest,
with such yield being based on the bid price for such issue as published in The
Wall Street Journal on the date that is 14 days prior to the date that the Yield
Maintenance Charge shall become due and payable (or, if such bid price is not
published on that date, the next preceding date on which such bid price is so
published) and converted to a monthly compounded nominal yield. The monthly
compounded nominal yield ("MEY") is derived from the reinvestment yield or
discount rate and shall be defined as MEY = (12 X [{(1+ "BEY"/2) ^1/6}-1]) X
100, where BEY is defined as the U.S. Treasury Reinvestment Yield which is in
decimal form and not in percentage, and 1/6 is the exponential power to which a
portion of the equation is raised. For example, using a BEY of 5.50%, the MEY =
(12 X [{(1+ .055/2) ^ 0.16667}- 1]) X 100 where .055 is the decimal version of
the percentage 5.5% and 0.16667 is the decimal version of the exponential power.
The MEY in the above calculation is 5.44%.
Section 1.02 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement include the plural as well
as the singular, and the use of any gender herein shall be deemed to
include the other gender;
(ii) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP;
(iii) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs" and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein," "hereof," "hereunder," "hereto," "hereby"
and other words of similar import refer to this Agreement as a whole and
not to any particular provision; and
(vi) the terms "include" or "including" shall mean without
limitation by reason of enumeration.
Section 1.03 Certain Adjustments to the Principal Distributions on
the Certificates.
(a) If any party hereto is reimbursed out of general collections on
the Mortgage Pool on deposit in the Pool Custodial Account for any unreimbursed
Advances that have been or are determined to be Nonrecoverable Advances
(together with interest accrued and payable thereon pursuant to Section 3.12(b)
or Section 4.03(d), as applicable, to the extent such interest was paid
hereunder from a source other than Default Charges Received by the Trust on the
Mortgage Pool), then (for purposes of calculating distributions on the
Certificates) each such reimbursement and payment of interest shall be deemed to
have been made:
(i) first, out of any amounts then on deposit in the Pool Custodial
Account that represent payments or other collections of principal Received
by the Trust with respect to the Mortgage Pool that, but for their
application to reimburse a Nonrecoverable Advance and/or to pay interest
thereon, would be included in the Available Distribution Amount for the
related Distribution Date;
(ii) second, out of any amounts then on deposit in the Pool
Custodial Account that represent any other payments or other collections
Received by the Trust with respect to the Mortgage Pool that, but for
their application to reimburse a Nonrecoverable Advance and/or to pay
interest thereon, would be included in the Available Distribution Amount
for the related Distribution Date; and
(iii) third, out of any other amounts then on deposit in the Pool
Custodial Account that may be available to reimburse the subject
Nonrecoverable Advance and/or to pay interest thereon.
(b) If and to the extent that any payment or other collection of
principal of any Trust Mortgage Loan or REO Mortgage Loan is deemed to be
applied in accordance with Section 1.03(a)(i) to reimburse a Nonrecoverable
Advance or to pay interest thereon, and further if and to the extent that such
payment or other collection of principal constitutes part of the Principal
Distribution Amount for any Distribution Date, then: (i) the Adjusted Principal
Distribution Amount for such Distribution Date shall exclude such payment or
other collection of principal; and (ii) for purposes of calculating the Adjusted
Principal Distribution Amount for such Distribution Date, the amount of such
payment or other collection of principal shall be subtracted from the Principal
Distribution Amount for such Distribution Date.
(c) If and to the extent that any Advance is determined to be a
Nonrecoverable Advance, such Advance or interest thereon is reimbursed out of
general principal collections on the Mortgage Pool as contemplated by Section
1.03(a) above and the particular item for which such Advance was originally made
is subsequently collected (in whole or in part) out of payments or other
collections in respect of the related Trust Mortgage Loan or REO Mortgage Loan
(such item, and interest thereon, to the extent such interest was paid out of
general collections on the Mortgage Pool, if and to the extent so collected, a
"Recovered Amount"), then: (i) without duplication of any amounts already
included therein, the Adjusted Principal Distribution Amount for the
Distribution Date that corresponds to the Collection Period in which such item
was recovered shall include such Recovered Amount; and (ii) for purposes of
calculating the Adjusted Principal Distribution Amount for the Distribution Date
that corresponds to the Collection Period in which such item was recovered, such
Recovered Amount (to the extent not already included therein) shall be added to
the Principal Distribution Amount for such Distribution Date.
(d) Nothing contained in this Section 1.03 is intended to limit the
ability of any party hereto that is entitled to reimbursement hereunder for any
unreimbursed Advances that have been or are determined to be Nonrecoverable
Advances (together with interest accrued and payable thereon pursuant to Section
3.12(b) or Section 4.03(d)) to collections of principal Received by the Trust
with respect to the Mortgage Pool; instead the order of priority set forth in
Section 1.03(a) is a deemed allocation only for purposes of calculating
distributions on the Certificates.
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 "Greenwich Capital Commercial Funding Corp., Commercial Mortgage
Trust 2003-C2, Commercial Mortgage Pass-Through Certificates, Series 2003-C2."
LaSalle Bank National Association 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, (iii) the Co-Lender Agreements, and
(iv) all other assets included or to be included in the Trust Fund. Such
assignment includes all interest and principal received or receivable on or with
respect to the Mortgage Loans and due after the Cut-off Date and, in the case of
each Trust Mortgage Loan, is subject to the related Co-Lender Agreement.
The parties hereto acknowledge and agree that, notwithstanding
Section 11.07, the transfer of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and is intended by them to constitute a
sale.
(b) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall direct the Mortgage Loan Seller
(pursuant to the Mortgage Loan Purchase Agreement) to deliver to and deposit
with the Trustee or a Custodian appointed thereby, on or before the Closing
Date, the Mortgage File for each Mortgage Loan (other than the Windsor Capital
Portfolio Trust Loan, the Mortgage File for such Mortgage Loan other than the
related Mortgage Note shall be held by the 2003-C1 Trustee pursuant to the
2003-C1 PSA on behalf of the Trust Fund and the Certificateholders), 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 Trustee, any Custodian, the Master Servicer or the
Special Servicer shall be liable for any failure by the Mortgage Loan Seller or
the Depositor to comply with the document delivery requirements of the Mortgage
Loan Purchase Agreement and this Section 2.01(b).
After the Depositor's transfer of the Mortgage Loans to the Trustee
pursuant to this Section 2.01(b), the Depositor shall not take any action
inconsistent with the Trust's ownership of the Mortgage Loans.
(c) The Depositor hereby represents and warrants that the Mortgage
Loan Seller has covenanted in the Mortgage Loan Purchase Agreement that it shall
bear the costs related to 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 (a)(iv) of the
definition of "Mortgage File" and each related UCC-2 and UCC-3 assignment
referred to in clause (a)(viii) of the definition of "Mortgage File" and the
Trustee shall promptly undertake to record or file any such document upon its
receipt thereof.
The Depositor hereby represents and warrants that the Mortgage Loan
Seller has covenanted in the Mortgage Loan Purchase Agreement as to each
Mortgage Loan (other than the Windsor Capital Portfolio Trust Loan), that if it
cannot deliver or cause to be delivered the documents and/or instruments
referred to in clauses (a)(ii), (a)(iii), (a)(vi) (if recorded) and (a)(viii) of
the definition of "Mortgage File" solely because of a delay caused by the public
recording office where such document or instrument has been delivered for
recordation, a copy of the original certified by the Mortgage Loan Seller to be
a true and complete copy of the original thereof submitted for recording, shall
be forwarded to the Trustee. Each assignment referred to in the prior two
paragraphs that is recorded by the Trustee shall reflect that it should be
returned by the public recording office to the Trustee or its agent following
recording, and each UCC-2 and UCC-3 assignment referred to in the prior two
paragraphs that is filed by the Trustee shall reflect that the file copy thereof
should be returned to the Trustee or its agent following filing; provided that,
in those instances where the public recording office retains the original
assignment of Mortgage or assignment of Assignment of Leases, the Trustee shall
obtain therefrom a certified copy of the recorded original. On a monthly basis,
at the expense of the Mortgage Loan Seller, the Trustee shall forward to the
Master Servicer a copy of each of the aforementioned assignments following the
Trustee's receipt thereof.
If any of the aforementioned assignments 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.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall direct the Mortgage Loan Seller
(pursuant to the Mortgage Loan Purchase Agreement) to deliver to and deposit (or
cause to be delivered and deposited) with the Master Servicer within 10 Business
Days after the Closing Date, documents and records that (A) relate to the
servicing and administration of the Serviced Loans, (B) are reasonably necessary
for the ongoing administration and/or servicing of the Serviced Loans under this
Agreement (including any asset summaries related to the Mortgage Loans that were
delivered to the Rating Agencies in connection with the rating of the
Certificates) and (C) are in possession or under control of the Mortgage Loan
Seller, together with (i) all unapplied Escrow Payments and Reserve Funds in the
possession of the Mortgage Loan Seller that relate to such Serviced Loans and
(ii) a statement indicating which Escrow Payments and Reserve Funds are
allocable to such Serviced Loans, provided that the Mortgage Loan Seller shall
not be required to deliver any draft documents, privileged or other
communications, credit underwriting, due diligence analyses or data, or internal
worksheets, memoranda, communications or evaluations. In addition, on the
Closing Date, the Depositor shall deliver the Initial Deposit to the Master
Servicer for deposit in the Pool Custodial Account. The Master Servicer shall
hold all such documents, records and funds on behalf of the Trustee in trust for
the benefit of the Certificateholders (and, insofar as they also relate to the
Companion Loans, on behalf of and for the benefit of the applicable Companion
Loan Noteholder).
(e) It is not intended that this Agreement create a partnership or a
joint-stock association.
Section 2.02 Acceptance of Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
hereby accepts receipt, directly or through a Custodian on its behalf, of (i)
the Mortgage Loans and all documents delivered to it that constitute portions of
the related Mortgage Files (or in the case of the Windsor Capital Portfolio
Trust Loan, the related Mortgage Note and the related endorsements specified in
clause (a)(i)(A) of the definition of "Mortgage File") 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.
With respect to each Loan Pair, the Trustee shall also hold the portion of such
Mortgage File that relates to the Companion Loan in such Loan Pair in trust for
the use and benefit of the related Companion Loan Noteholder. 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,
except as specifically identified in the Schedule of Exceptions to Mortgage File
Delivery attached hereto as Schedule II, (i) all documents specified in clause
(a)(i) of the definition of "Mortgage File" are in its possession or the
possession of a Custodian on its behalf (other than in respect of the Windsor
Capital Portfolio Trust Loan, with the exception of the related Mortgage Note
and the related endorsements specified in clause (a)(i)(A) of the definition of
"Mortgage File"), 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 60th day following the Closing Date (and, if any
exceptions are noted, again on or about the 90th day following the Closing Date
and monthly thereafter until the earliest of (i) the second anniversary of the
Closing Date, (ii) the day on which all material exceptions have been removed
and (iii) the day on which the Depositor has repurchased the last affected
Mortgage Loan), the Trustee or a Custodian on its behalf shall review the
documents delivered to it or such Custodian with respect to each 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 (and, in the case
of a Loan Pair, other than the Windsor Capital Portfolio Loan Pair, to the
related Companion Loan Noteholder) that, as to each Mortgage Loan (other than in
respect of the Windsor Capital Portfolio Trust Loan, with the exception of the
related Mortgage Note and the related endorsements specified in clause (a)(i)(A)
of the definition of "Mortgage File") then subject to this Agreement (except as
specifically identified in any exception report annexed to such certification):
(i) all documents specified in clauses (a)(i) through (a)(v), (a)(vii) and
(a)(viii) (without regard to the second parenthetical in such clause (a)(viii))
of the definition of "Mortgage File"); (ii) the recordation/filing contemplated
by Section 2.01(c) has been completed (based solely on receipt by the Trustee of
the particular recorded/filed documents); (iii) all documents received by it or
any Custodian with respect to such Loan have been reviewed by it or by such
Custodian on its behalf and (A) appear regular on their face (handwritten
additions, changes or corrections shall not constitute irregularities if
initialed by the Mortgagor), (B) appear to have been executed (where
appropriate) and (C) purport to relate to such Mortgage Loan; and (iv) based on
the examinations referred to in Section 2.02(a) above and this Section 2.02(b)
and only as to the foregoing documents, the information set forth in the
Mortgage Loan Schedule with respect to the items specified in clauses (v) and
(vi)(B) of the definition of "Mortgage Loan Schedule" accurately reflects the
information set forth in the Mortgage File. With respect to the items listed in
clauses (ii), (iii), (iv) and (vi) of the definition of Mortgage File if the
original of such document is not in the Trustee's possession because it has not
been returned from the applicable recording office, then the Trustee's or
Custodian's certification prepared pursuant to this Section 2.02(b) should
indicate the absence of such original. If the Trustee's obligation to deliver
the certifications contemplated in this subsection terminates because two years
have elapsed since the Closing Date, the Trustee shall deliver a comparable
certification to any party hereto, the applicable Companion Loan Noteholder and
any Underwriter on request.
(c) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation to inspect, review or examine
any of the documents, instruments, certificates or other papers relating to the
Loans delivered to it to determine that the same are valid, legal, effective,
genuine, binding, enforceable, sufficient or appropriate for the represented
purpose or that they are other than what they purport to be on their face.
Furthermore, none of the Trustee, the Master Servicer, the Special Servicer or
any Custodian shall have any responsibility for determining whether the text of
any assignment or endorsement is in proper or recordable form, whether the
requisite recording of any document is in accordance with the requirements of
any applicable jurisdiction, or whether a blanket assignment is permitted in any
applicable jurisdiction.
(d) It is understood that the scope of the Trustee's review of the
Mortgage Files is limited solely to confirming that the documents specified in
clauses (a)(i) through (a)(v), (a)(vii) and (a)(viii) 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) If, after the Closing Date, the Depositor comes into possession
of any documents or records that constitute part of the Mortgage File or
Servicing File for any Mortgage Loan, the Depositor shall promptly deliver such
document to the Trustee (if it constitutes part of the Mortgage File) or the
Master Servicer (if it constitutes part of the Servicing File), as applicable.
Section 2.03 Repurchase of Mortgage Loans for Document Defects and
Breaches of Representations and Warranties.
(a) If any party hereto discovers that any document constituting a
part of a Mortgage File has not been properly executed, is missing, contains
information that does not conform in any material respect with the corresponding
information set forth in the Mortgage Loan Schedule, or does not appear to be
regular on its face (each, a "Document Defect"), or discovers or receives notice
of a breach of any representation or warranty of the Mortgage Loan Seller made
pursuant to Section 5 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 and the other
parties hereto. If any such Document Defect or Breach with respect to any
Mortgage Loan materially and adversely affects the interests of the
Certificateholders therein, then such Document Defect shall constitute a
"Material Document Defect" or such Breach shall constitute a "Material Breach,"
as the case may be. Promptly upon becoming aware of any such Material Document
Defect or Material Breach (including through a written notice given by any party
hereto, as provided above), the Trustee shall require the Mortgage Loan Seller,
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), cure the same in all material
respects (which cure shall include payment of losses and any Additional Trust
Fund Expenses associated therewith) or, if such Material Document Defect or
Material Breach, as the case may be, cannot be cured within such 90-day period,
repurchase the affected Mortgage Loan or any related REO Property at the
applicable Purchase Price by wire transfer of immediately available funds to the
Pool Custodial Account (or, in the case of a Trust Mortgage Loan or an REO
Property that relates to a Trust Mortgage Loan, to the related Loan Pair REO
Account); provided, however, that if (i) such Material Document Defect or
Material Breach is capable of being cured but not within such 90-day period,
(ii) such Material Document Defect or Material Breach is not related to any
Mortgage Loan's not being a "qualified mortgage" within the meaning of the REMIC
Provisions and (iii) the Mortgage Loan Seller has commenced and is diligently
proceeding with the cure of such Material Document Defect or Material Breach
within such 90-day period, then the Mortgage Loan Seller shall have an
additional 90 days to complete such cure or, in the event of a failure to so
cure, to complete such repurchase (it being understood and agreed that, in
connection with the Mortgage Loan Seller's receiving such additional 90-day
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 90-day 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 such additional 90-day
period); and provided, further, that, if any such Material Document Defect is
still not cured after the initial 90-day period and any such additional 90-day
period solely due to the failure of the Mortgage Loan Seller to have received
the recorded document, then the Mortgage Loan Seller shall be entitled to
continue to defer its cure and repurchase obligations in respect of such
Document Defect so long as the Mortgage Loan Seller certifies to the Trustee
every 30 days thereafter that the Document Defect is still in effect solely
because of its failure to have received the recorded document and that the
Mortgage Loan Seller is diligently pursuing the cure of such defect (specifying
the actions being taken), except that no such deferral of cure or repurchase may
continue beyond the second anniversary of the Closing Date.
If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased by the Mortgage Loan Seller as
contemplated by this Section 2.03(a), then, prior to the subject repurchase, the
Mortgage Loan Seller or its designee shall use its reasonable efforts, subject
to the terms of the related Mortgage Loan(s), to prepare and, to the extent
necessary and appropriate, have executed by the related Mortgagor and record,
such documentation as may be necessary to terminate the cross-collateralization
between the Mortgage Loan(s) in such Cross-Collateralized Group that are to be
repurchased, on the one hand, and the remaining Mortgage Loan(s) therein, on the
other hand, such that those two groups of Mortgage Loans are each secured only
by the Mortgaged Properties identified in the Mortgage Loan Schedule as directly
corresponding thereto; provided that no such termination shall be effected
unless and until the Controlling Class Directing Holder acting as the Directing
Holder, if one is then acting, has consented (which consent shall not be
unreasonably withheld and shall be deemed to have been given if no written
objection is received by the Mortgage Loan Seller within 10 days of such
Directing Holder's receipt of a written request for such consent) and the
Trustee has received from the Mortgage Loan Seller (i) an Opinion of Counsel to
the effect that such termination would not cause an Adverse REMIC Event to occur
with respect to either REMIC Pool and (ii) written confirmation from each Rating
Agency that such termination would not cause an Adverse Rating Event to occur
with respect to any Class of Certificates; and provided, further, that the
Mortgage Loan Seller may, at its option, purchase the entire subject
Cross-Collateralized Group in lieu of effecting a termination of the
cross-collateralization. All costs and expenses incurred by the Trustee or any
Person on its behalf pursuant to this paragraph shall be included in the
calculation of the Purchase Price for the Mortgage Loan(s) to be repurchased. If
the cross-collateralization of any Cross-Collateralized Group is not or cannot
be terminated as contemplated by this paragraph, then, for purposes of (i)
determining the materiality of any Breach or Defect, as the case may be, and
(ii) the application of remedies, such Cross-Collateralized Group shall be
treated as a single Mortgage Loan.
(b) In connection with any repurchase of a Mortgage Loan pursuant to
this Section 2.03, and subject to Section 3.26, the Trustee, the Custodian, the
Master Servicer and the Special Servicer shall each tender to the repurchasing
entity, upon delivery to each of them of a receipt executed by the repurchasing
entity, all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan possessed by it, and each document that constitutes a part of the
Mortgage File shall be endorsed or assigned to the extent necessary or
appropriate to the repurchasing entity or its designee in the same manner, but
only if the respective documents have been previously assigned or endorsed to
the Trustee, and pursuant to appropriate forms of assignment, substantially
similar to the manner and forms pursuant to which such documents were previously
assigned to the Trustee; provided that such tender by the Trustee shall be
conditioned upon its receipt from the Master Servicer of a Request for Release
and an Officer's Certificate to the effect that the requirements for repurchase
have been satisfied. The Master Servicer shall, and is hereby authorized and
empowered by the Trustee to, prepare, execute and deliver in its own name, on
behalf of the Certificateholders and the Trustee or any of them, the
endorsements and assignments contemplated by this Section 2.03(b), and such
other instruments as may be necessary or appropriate to transfer title to an REO
Property in connection with the repurchase of an REO Loan and the Trustee shall
execute and deliver any powers of attorney necessary to permit the Master
Servicer to do so; provided, however, that the Trustee shall not be held liable
for any misuse of any such power of attorney by the Master Servicer.
(c) The Mortgage Loan Purchase Agreement and Section 2.03(a) provide
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, and the
Depositor has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign and transfer the Mortgage Loans in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this
Agreement by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulations to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Depositor or any
indenture, agreement or instrument to which the Depositor is a party or by
which it is bound, or any order or decree applicable to the Depositor, or
result in the creation or imposition of any lien on any of the Depositor's
assets or property, which would materially and adversely affect the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; the Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Depositor of
this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Mortgage Loans or the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and
clear of all liens, claims, encumbrances and other interests with the full
right to transfer the Mortgage Loans to the Trust and the Mortgage Loans
have been validly transferred to the Trust.
The representations, warranties and covenants of the Depositor set
forth in this Section 2.04 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 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests.
The Trustee hereby acknowledges the assignment to it of the Mortgage
Loans, and, subject to Sections 2.01 and 2.02, the delivery to it or a Custodian
on its behalf of the Mortgage Files and a fully executed original counterpart of
the Mortgage Loan Purchase Agreement, together with the assignment to it of all
other assets included in the Trust Fund. Concurrently with such assignment and
delivery and in exchange therefor, the Trustee (i) acknowledges the issuance of
the Uncertificated Lower-Tier Interests to or upon the order of the Depositor,
(ii) acknowledges and hereby declares that it holds the Uncertificated
Lower-Tier Interests on behalf of the Upper-Tier REMIC and Holders of the
Certificates (other than the Class R-I Certificates) and (iii) acknowledges the
authentication and delivery of the Class R-I Certificates to or upon the order
of the Depositor, in exchange for the Mortgage Loans receipt of which is hereby
acknowledged, and immediately thereafter, the Trustee acknowledges that it has
caused the Certificate Registrar to execute and caused the Authenticating Agent
to authenticate and to deliver to or upon the order of the Depositor, in
exchange for the Uncertificated Lower-Tier Interests, the Regular Interest
Certificates and the Class R-II Certificates, and the Depositor hereby
acknowledges the receipt by it or its designees, of such Certificates in
authorized denominations evidencing the entire beneficial ownership of the
Upper-Tier REMIC.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Loans.
(a) All of the Serviced Loans and Administered REO Properties (which
does not include the Windsor Capital Portfolio Loan Pair) are to be serviced and
administered by the Master Servicer and/or the Special Servicer hereunder. Each
of the Master Servicer and the Special Servicer shall service and administer the
Serviced Loans and REO Properties that it is obligated to service and administer
pursuant to this Agreement on behalf of the Trustee, for the benefit of the
Certificateholders (or, in the case of the Companion Loans, on behalf of the
related Companion Loan Noteholders), as determined in the good faith and
reasonable judgment of the Master Servicer or the Special Servicer, as the case
may be, in accordance with: (i) any and all applicable laws; (ii) the express
terms of this Agreement, the respective Serviced Loans and, in the case of the
Loan Pairs, the related Co-Lender Agreement; and (iii) to the extent consistent
with the foregoing, the Servicing Standard. The Master Servicer or the Special
Servicer, as applicable in accordance with this Agreement, shall service and
administer each Cross-Collateralized Group as a single Mortgage Loan as and when
necessary and appropriate consistent with the Servicing Standard. Without
limiting the foregoing, and subject to Section 3.22, (i) the Master Servicer
shall service and administer all of the Performing Serviced Loans and shall
render such services with respect to the Specially Serviced Loans as are
specifically provided for herein, and (ii) the Special Servicer shall service
and administer each Specially Serviced Loan and Administered REO Property and
shall render such services with respect to the Performing Serviced Loans as are
specifically provided for herein. All references herein to the respective duties
of the Master Servicer and the Special Servicer, and to the areas in which they
may exercise discretion, shall be subject to Section 3.22.
The parties hereto acknowledge that the Windsor Capital Portfolio
Loan Pair and any related REO property are being serviced and administered under
the 2003-C1 PSA and the 2003-C1 Master Servicer will make any advances required
thereunder in respect of such loan and remit collections on the Windsor Capital
Portfolio Trust Loan to or on behalf of the Trust. The Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent shall have no obligation or
authority to supervise the 2003-C1 Master Servicer, the 2003-C1 Special
Servicer, the 2003-C1 Trustee or the 2003-C1 Fiscal Agent or to make Servicing
Advances or P&I Advances, except to the limited extent described in Section
4.03A with respect to P&I Advances to be made by the Master Servicer, the
Trustee or the Fiscal Agent with respect to the Windsor Capital Portfolio Trust
Loan. Although the Windsor Capital Portfolio Loan Pair is being serviced under
the 0000-X0 XXX, the Controlling Class Representative will have certain rights
relating to the servicing of the Windsor Capital Portfolio Loan Pair as
"Directing Holder" under the 2003-C1 PSA during an "Appraisal Control Event" as
such term is defined in the 2003-C1 PSA. The obligation of the Master Servicer
to provide information and collections to the Trustee and the Certi?cateholders
with respect to the Windsor Capital Portfolio Loan Pair shall be dependent on
its receipt of the corresponding information and collections from the 2003-C1
Master Servicer or the 2003-C1 Special Servicer.
(b) Subject to Section 3.01(a) and Section 6.11 (taking account of
Section 6.11(b)), the Master Servicer and the Special Servicer shall each have
full power and authority, acting alone or through sub-servicers, to do or cause
to be done any and all things in connection with the servicing and
administration contemplated by Section 3.01(a) that it may deem necessary or
desirable. Without limiting the generality of the foregoing, each of the Master
Servicer and the Special Servicer, in its own name, with respect to each of the
Serviced Loans it is obligated to service hereunder, is hereby authorized and
empowered by the Trustee to execute and deliver, on behalf of the
Certificateholders, the Trustee and the Companion Loan Noteholders 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 3.21 and Section 6.11 (taking account of Section
6.11(b)), any and all modifications, extensions, waivers, amendments or consents
to or with respect to any documents contained in the related Mortgage File;
(iii) any and all instruments of satisfaction or cancellation, or of partial or
full release or discharge or of assignment, and all other comparable
instruments; and (iv) any and all instruments that such party may be required to
execute on behalf of the Trustee in connection with the defeasance of a Serviced
Loan as contemplated in this Agreement. Subject to Section 3.10, the Trustee
shall, at the written request of the Master Servicer or the Special Servicer,
promptly execute any limited powers of attorney and other documents furnished by
the Master Servicer or the Special Servicer that are necessary or appropriate to
enable them to carry out their servicing and administrative duties hereunder;
provided, however, that the Trustee shall not be held liable for any misuse of
any such power of attorney by the Master Servicer or the Special Servicer.
Notwithstanding anything contained herein to the contrary, neither the Master
Servicer nor the Special Servicer shall, without the Trustee's written consent:
(i) initiate any action, suit or proceeding solely under the Trustee's name
without indicating the Master Servicer's or Special Servicer's, as applicable,
representative capacity; or (ii) take any action with the intent to cause, and
that actually causes, the Trustee to be registered to do business in any state.
(c) The parties hereto acknowledge that the Loan Pairs are subject
to the terms and conditions of the applicable Co-Lender Agreement. The parties
hereto further recognize the respective rights and obligations of the Trust
Mortgage Loan holder, the Pari Passu Companion Loan holder and/or Subordinate
Companion Loan Noteholder under the applicable Co-Lender Agreement, including
with respect to (i) the allocation of collections on or in respect of the Loan
Pairs in accordance with the applicable Co-Lender Agreement, (ii) the making of
payments to the Trust Mortgage Loan holder, the Pari Passu Companion Loan holder
and/or Subordinate Companion Loan Noteholder in accordance with the applicable
Co-Lender Agreement, (iii) the purchase of the Trust Mortgage Loans by the
related Subordinate Companion Loan Noteholders or their designees in accordance
with Section 8 of the applicable Co-Lender Agreement, and (iv) in the case where
a Companion Loan Noteholder is the Directing Holder, the right of such Directing
Holder to cure a default of the related Mortgagor in accordance with the
applicable Co-Lender Agreement.
Notwithstanding the foregoing, if, at such time as any Trust
Mortgage Loan (other than the Windsor Capital Portfolio Trust Loan, which is
being serviced under the 2003-C1 PSA) shall no longer be part of the Trust Fund,
a separate servicing agreement with respect to the related Loan Pair has not
been entered into in accordance with the terms of the related Co-Lender
Agreement, then, until such time as a separate servicing agreement is entered
into and any required rating confirmation is obtained, and notwithstanding that
such Trust Mortgage Loan is no longer part of the Trust Fund, the Master
Servicer and, if applicable, the Special Servicer shall continue to service such
Loan Pair or any related Loan Pair REO Properties, as the case may be, under
this Agreement as if it were a separate servicing agreement, for the benefit of
each holder of a Loan in such Loan Pair, under each Co-Lender Agreement, with:
(i) such Loan Pair and the related Loan Pair Mortgaged Properties constituting
the sole assets thereunder; and (ii) references to the "Trustee," "Trust,"
"Certificateholders" (or any sub-group thereof) and the "Controlling Class
Directing Holder" being construed to refer to the new holder of the Trust
Mortgage Loan that is no longer included in the Trust Fund under each Co-Lender
Agreement.
(d) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee and the Companion Loan Noteholders under this Agreement
is intended by the parties to be that of an independent contractor and not that
of a joint venturer, partner or agent.
Section 3.02 Collection of Loan Payments.
(a) Each of the Master Servicer (with respect to Performing Serviced
Loans) and the Special Servicer (with respect to Specially Serviced Loans) shall
undertake reasonable efforts to collect all payments required under the terms
and provisions of the Serviced Loans it is obligated to service hereunder and
shall follow such collection procedures as are consistent with the Servicing
Standard. The Special Servicer shall ensure that, with respect to Specially
Serviced Loans, the Mortgagors make payments directly to the Master Servicer;
provided that, in the event the Special Servicer receives a payment that should
have been made directly to the Master Servicer, the Special Servicer shall
promptly forward such payment to the Master Servicer. Upon receipt of any such
payment with respect to a Specially Serviced Loan, the Master Servicer shall
promptly notify the Special Servicer, and the Special Servicer shall direct the
Master Servicer as to the proper posting of such payment. Consistent with the
foregoing, the Special Servicer, with regard to a Specially Serviced Loan, or
the Master Servicer, with regard to a Performing Serviced Loan, may waive or
defer any Default Charges in connection with collecting any late payment on a
Serviced Loan; provided that without the consent of the Special Servicer in the
case of a proposed waiver by the Master Servicer, no such waiver or deferral may
be made by the Master Servicer pursuant to this Section 3.02 if any Advance has
been made as to such delinquent payment.
(b) All amounts Received with respect to any Cross-Collateralized
Group in the form of payments from Mortgagors, Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds, shall be applied by the Master Servicer among
the Mortgage Loans constituting such Cross-Collateralized Group in accordance
with the express provisions of the related loan documents and, in the absence of
such express provisions or to the extent that such payments and other
collections may be applied at the discretion of the lender, on a pro rata basis
in accordance with the respective amounts then "due and owing" as to each such
Mortgage Loan. Except in the case of the Loan Pairs, amounts Received in respect
of or allocable to any particular Mortgage Loan (whether or not such Mortgage
Loan constitutes part of a Cross-Collateralized Group) in the form of payments
from Mortgagors, Liquidation Proceeds, Condemnation Proceeds or Insurance
Proceeds shall be applied to amounts due and owing under the related Mortgage
Note and Mortgage (including for principal and accrued and unpaid interest) in
accordance with the express provisions of the related Mortgage Note and Mortgage
and, in the absence of such express provisions or to the extent that such
payments and other collections may be applied at the discretion of the lender,
as follows: first, as a recovery of any related and unreimbursed Servicing
Advances (together with interest thereon), and if applicable, unpaid Liquidation
Expenses, in each case to the extent such application is permitted under the
terms of the related Loan documents; second, as a recovery of accrued and unpaid
interest on, and principal of, such Mortgage Loan to the extent of any
outstanding P&I Advances and unpaid Master Servicing Fees in respect of such
Mortgage Loan, third, as a recovery of any item for which an Advance was made
with respect to such Mortgage Loan that was determined to be a Nonrecoverable
Advance and interest thereon that was reimbursed from general principal
collections on the Mortgage Pool, to the extent such application is permitted
under the terms of the related Loan documents; fourth, as a recovery of any
remaining 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); fifth,
as a recovery of any remaining principal of such Mortgage Loan then due and
owing, including by reason of acceleration of the Mortgage Loan following a
default thereunder (or, if a Liquidation Event has occurred in respect of such
Mortgage Loan, as a recovery of principal to the extent of its entire remaining
unpaid principal balance); sixth, unless a Liquidation Event has occurred with
respect to such Mortgage Loan, as a recovery of amounts to be currently applied
to the payment of, or escrowed for the future payment of, real estate taxes,
assessments, insurance premiums (including premiums on any Environmental
Insurance Policy), ground rents (if applicable) and similar items; seventh,
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;
eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then
due and owing under such Mortgage Loan; ninth, as a recovery of any Default
Charges then due and owing under such Mortgage Loan; tenth, as a recovery of any
assumption fees, modification fees and extension fees then due and owing under
such Mortgage Loan; eleventh, as a recovery of any other amounts then due and
owing under such Mortgage Loan; and, twelfth, as a recovery of any remaining
principal of such Mortgage Loan to the extent of its entire remaining unpaid
principal balance.
All amounts Received with respect to any Loan Pair shall be applied
to amounts due and owing under such Loan Pair (including for principal and
accrued and unpaid interest) in accordance with the express provisions of the
related Mortgage Notes, the related Mortgage, the related loan agreement, if
any, and the related Co-Lender Agreement.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Mortgage Loans (other than
the Windsor Capital Portfolio Trust Loan, which is being serviced under the
2003-C1 PSA), establish and maintain one or more accounts, in which all related
Escrow Payments shall be deposited and retained (each a "Servicing Account").
Subject to the terms of the related loan documents, each Servicing Account shall
be an Eligible Account. Withdrawals of amounts so collected from a Servicing
Account may be made (to the extent of amounts on deposit therein in respect of
the related Loan or, in the case of clauses (iv) and (v) below, to the extent of
interest or other income earned on such amounts) only for the following
purposes: (i) consistent with the related loan documents, to effect the payment
of real estate taxes, assessments, insurance premiums (including premiums on any
Environmental Insurance Policy), ground rents (if applicable) and comparable
items in respect of the respective Mortgaged Properties; (ii) insofar as the
particular Escrow Payment represents a late payment that was intended to cover
an item described in the immediately preceding clause (i) for which a Servicing
Advance was made, to reimburse the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent, as applicable, for such Servicing Advance; (iii) to
refund to Mortgagors any sums as may be determined to be overages; (iv) to pay
interest, if required and as described below, to Mortgagors on balances in such
Servicing Account; (v) to pay the Master Servicer interest and investment income
on balances in such Servicing Account as described in Section 3.06(b), if and to
the extent not required by law or the terms of the related loan documents to be
paid to the Mortgagor; or (vi) to clear and terminate such Servicing Account at
the termination of this Agreement in accordance with Section 9.01. To the extent
permitted by law or the applicable loan documents, funds in the Servicing
Accounts may be invested only in Permitted Investments in accordance with the
provisions of Section 3.06. The Master Servicer shall pay or cause to be paid to
the Mortgagors interest, if any, earned on the investment of funds in the
related Servicing Accounts, if required by law or the terms of the related Loan.
If the Master Servicer shall deposit in a Servicing Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
such Servicing Account, any provision herein to the contrary notwithstanding.
(b) The Master Servicer shall, as to each and every Serviced Loan,
(i) maintain accurate records with respect to the related Mortgaged Property
reflecting the status of real estate taxes, assessments and other similar items
that are or may become a lien thereon and the status of insurance premiums and
any ground rents payable in respect thereof and (ii) use reasonable efforts to
obtain, from time to time, all bills for (or otherwise confirm) the payment of
such items (including renewal premiums) and, if the subject Serviced Loan
requires the related Mortgagor to escrow for such items, shall effect payment
thereof prior to the applicable penalty or termination date. For purposes of
effecting any such payment for which it is responsible, the Master Servicer
shall apply Escrow Payments as allowed under the terms of the related Serviced
Loan (or, if such Serviced 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 3.12(d), the Master Servicer shall timely make a
Servicing Advance to cover any such item which is not so paid, including any
penalties or other charges arising from the Mortgagor's failure to timely pay
such items.
(c) The Master Servicer shall, as to each and every Serviced Loan,
make a Servicing Advance with respect to the related Mortgaged Property in an
amount equal to all such funds as are necessary for the purpose of effecting the
payment of (i) real estate taxes, assessments and other similar items, (ii)
ground rents (if applicable), and (iii) premiums on Insurance Policies
(including Environmental Insurance Policies), in each instance if and to the
extent Escrow Payments (if any) collected from the related Mortgagor are
insufficient to pay such item when due and the related Mortgagor has failed to
pay such item on a timely basis. All such Servicing Advances shall be
reimbursable in the first instance from related collections from the Mortgagors,
and further as provided in Section 3.05(a) or 3.05A. No costs incurred by the
Master Servicer in effecting the payment of real estate taxes, assessments and,
if applicable, ground rents on or in respect of the Mortgaged Properties shall,
for purposes of this Agreement, including the Trustee's calculation of monthly
distributions to Certificateholders, be added to the unpaid Stated Principal
Balances of the related Serviced Loans, notwithstanding that the terms of such
Loans so permit. The foregoing shall in no way limit the Master Servicer's
ability to charge and collect from the Mortgagor such costs together with
interest thereon.
(d) The Master Servicer shall, as to all Serviced Loans, establish
and maintain, as applicable, one or more accounts ("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.
Section 3.04 Pool Custodial Account, Defeasance Deposit Account,
Distribution Account, Interest Reserve Account and Excess Liquidation Proceeds
Account.
(a) The Master Servicer shall establish and maintain one or more
separate accounts (collectively, the "Pool Custodial Account"), in which the
amounts described in clauses (i) through (ix) below (which shall not include any
amounts allocable to the Companion Loans) shall be deposited and held on behalf
of the Trustee in trust for the benefit of the Certificateholders. The Pool
Custodial Account shall be an Eligible Account. The Master Servicer shall
deposit or cause to be deposited in the Pool 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 Serviced Mortgage
Loans, including Principal Prepayments, and regardless of whether those
payments are made by the related Mortgagor or any related guarantor, out
of any related Reserve Funds maintained for such purpose, out of
collections on any related Defeasance Collateral or from any other source;
(ii) all payments on account of interest on the Serviced Mortgage
Loans, including Default Interest and the Initial Deposit, and regardless
of whether those payments are made by the related Mortgagor or any related
guarantor, out of any related Reserve Funds maintained for such purpose,
out of collections on any related Defeasance Collateral or from any other
source;
(iii) all Prepayment Premiums, Yield Maintenance Charges and late
payment charges received in respect of any Serviced Mortgage Loan;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of any Serviced Mortgage Loan;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Pool Custodial Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard policy;
(vii) any amounts required to be transferred from an REO Account
pursuant to Section 3.17(c);
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by a Mortgagor specifically to cover items for which a
Servicing Advance has been made; and
(ix) all amounts remitted or advanced by the 2003-C1 Master Servicer
in respect of the Windsor Capital Portfolio Trust Loan pursuant to the
2003-C1 PSA;
provided that any amounts described in clauses (i) through (iv) and (vi) through
(viii) above that relate to the Trust Mortgage Loans or any related REO Property
(other than Liquidation Proceeds derived from the sale of the Trust Mortgage
Loans to or through the Companion Loan Noteholders pursuant to the Co-Lender
Agreement or as a Specially Serviced Mortgage Loan pursuant to Section 3.19 or
the repurchase of a Trust Mortgage Loan by the Mortgage Loan Seller) shall be
deposited in the applicable Loan Pair Custodial Account, and, in any such case,
shall thereafter be transferred to the Pool Custodial Account as provided in
Section 3.05A.
The foregoing requirements for deposit in the Pool Custodial Account
shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, Reserve Funds, assumption fees,
assumption application fees, funds representing a Mortgagor's payment of costs
and expenses associated with assumptions and defeasance, modification fees,
extension fees, charges for beneficiary statements or demands, amounts collected
for checks returned for insufficient funds and any similar fees not expressly
referred to in the prior paragraph need not be deposited by the Master Servicer
in the Pool Custodial Account. If the Master Servicer shall deposit in the Pool
Custodial Account any amount not required to be deposited therein, it may at any
time withdraw such amount from the Pool Custodial Account, any provision herein
to the contrary notwithstanding. The Master Servicer shall promptly deliver to
the Special Servicer, as additional special servicing compensation in accordance
with Section 3.11(c), all assumption fees and assumption application fees (or
the applicable portions thereof), and other transaction fees received by the
Master Servicer to which the Special Servicer is entitled pursuant to such
Section upon receipt of a written statement (on which the Master Servicer is
entitled to rely) of a Servicing Officer of the Special Servicer describing the
item and amount (unless pursuant to this Agreement it is otherwise clear that
the Special Servicer is entitled to such amounts, in which case a written
statement is not required). The Pool Custodial Account shall be maintained as a
segregated account, separate and apart from trust funds created for
mortgage-backed securities of other series and the other accounts of the Master
Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) above with respect to any Mortgage Loan (other than any Mortgage
Loan that is part of a Loan Pair), the Special Servicer shall promptly, but in
no event later than two Business Days after receipt, remit such amounts to the
Master Servicer for deposit into the Pool Custodial Account in accordance with
the second preceding paragraph, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item should not be
deposited because of a restrictive endorsement or other appropriate reason. With
respect to any such amounts paid by check to the order of the Special Servicer,
the Special Servicer shall endorse such check to the order of the Master
Servicer, unless the Special Servicer determines, consistent with the Servicing
Standard, that a particular item cannot be so endorsed and delivered because of
a restrictive endorsement or other appropriate reason. Any such amounts received
by the Special Servicer with respect to an REO Property (other than an REO
Property that relates to a Loan Pair) shall be deposited by the Special Servicer
into the Pool REO Account and thereafter remitted to the Master Servicer for
deposit into the Pool Custodial Account as and to the extent provided in Section
3.17(c).
If and when any Mortgagor under a Defeasance Loan elects to defease
all or any part of its 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 Mortgagor, as
beneficial owner of the Defeasance Collateral, and the Trustee and, in the case
of the Loan Pairs, the Companion Loan Noteholders, 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
Loan(s).
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the
Distribution Account shall be an Eligible Account. The Distribution Account
shall be deemed to consist of three separate sub-accounts, which shall be
established and maintained on a book-entry basis: the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account and the Interest Reserve Account.
The Master Servicer shall deliver to the Trustee each month on or before the
Master Servicer Remittance Date therein, for deposit in the Lower-Tier
Distribution 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.
Notwithstanding anything herein to the contrary, the Lower-Tier
Distribution Account, the Upper-Tier Distribution Account and the Interest
Reserve Account may be maintained as part of a single Distribution Account.
Amounts actually deposited into or distributed from the Distribution Account
will be deemed to be deposited or distributed from the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account and the Interest Reserve Account,
as applicable.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee (without duplication) for deposit in the
Lower-Tier Distribution 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 3.20 (a) in connection with Prepayment Interest
Shortfalls.
The Trustee shall, upon receipt, deposit in the Lower-Tier
Distribution Account any and all amounts received by the Trustee that are
required by the terms of this Agreement to be deposited therein.
Promptly on each Distribution Date, the Trustee shall be deemed to
withdraw from the Lower-Tier Distribution Account and deposit in the Upper-Tier
Distribution Account an aggregate amount of immediately available funds equal to
the Lower-Tier Distribution Amount and the amount of any Net Prepayment
Consideration for such Distribution Date allocated in payment of the
Uncertificated Lower-Tier Interests as specified in Sections 4.01(i) and
4.01(j), respectively.
In the event that the Master Servicer fails, on any Master Servicer
Remittance Date, to remit to the Trustee any amount(s) required to be so
remitted to the Trustee hereunder by such date, the Master Servicer shall pay
the Trustee, for the account of the Trustee, interest, calculated at the Prime
Rate, on such amount(s) not timely remitted, from and including that Master
Servicer Remittance Date, to but not including the related Distribution Date.
On the Master Servicer Remittance Date in March of each year
(commencing in March 2004), the Trustee shall transfer from the Interest Reserve
Account to the Lower-Tier Distribution Account all Interest Reserve Amounts then
on deposit in the Interest Reserve Account with respect to the Interest Reserve
Mortgage Loans and any Interest Reserve REO Mortgage Loans.
As and when required pursuant to Section 3.04(d), the Trustee shall
transfer monies from the Excess Liquidation Proceeds Account to the Distribution
Account.
(c) The Trustee shall establish and maintain one or more accounts
(collectively, the "Interest Reserve Account"), which may be a sub-account of
the Distribution 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 Lower-Tier Distribution Account and deposit in the Interest
Reserve Account with respect to each Interest Reserve Mortgage Loan and Interest
Reserve REO Mortgage Loan, an amount equal to the Interest Reserve Amount, if
any, in respect of such Mortgage Loan or REO Mortgage Loan, as the case may be,
for such Distribution Date.
Notwithstanding that the Interest Reserve Account, the Lower-Tier
Distribution Account and the Upper-Tier Distribution Account may be sub-accounts
of the Distribution Account for reasons of administrative convenience, the
Interest Reserve Account, the Lower-Tier Distribution Account and the Upper-Tier
Distribution Account shall, for all purposes of this Agreement (including the
obligations and responsibilities of the Trustee hereunder), be considered to be
and shall be required to be treated as, separate and distinct accounts. The
Trustee shall indemnify and hold harmless the Trust Fund against any losses
arising out of the failure by the Trustee to perform its duties and obligations
hereunder as if such accounts were separate. The provisions of this paragraph
shall survive any resignation or removal of the Trustee and appointment of a
successor trustee.
(d) If any Excess Liquidation Proceeds are received on the Mortgage
Pool, the Trustee shall establish and maintain one or more accounts
(collectively, the "Excess Liquidation Proceeds Account") to be held in trust
for the benefit of the Certificateholders. Each account that constitutes the
Excess Liquidation Proceeds Account shall be an Eligible Account. On each Master
Servicer Remittance Date, the Master Servicer shall withdraw from the Pool
Custodial Account and remit to the Trustee for deposit in the Excess Liquidation
Proceeds Account all Excess Liquidation Proceeds received during the Collection
Period ending on the Determination Date immediately prior to such Master
Servicer Remittance Date.
(e) Funds in the Pool Custodial Account may be invested only in
Permitted Investments in accordance with the provisions of Section 3.06. Funds
in the Distribution Account (and all subaccounts thereof) and the Excess
Liquidation Proceeds Account shall remain uninvested. The Master Servicer shall
give notice to the Trustee, the Special Servicer and the Rating Agencies of the
location of the Pool Custodial Account as of the Closing Date and of the new
location of the Pool Custodial Account within two Business Days of any change
thereof. As of the Closing Date, the Distribution Account (and all subaccounts
thereof) 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 Distribution Account (and all subaccounts thereof), the
Interest Reserve Account or the Excess Liquidation Proceeds Account prior to any
change thereof.
Section 3.04A Loan Pair Custodial Account.
(a) The Master Servicer shall establish and maintain, with respect
to each Loan Pair (other than the Windsor Capital Portfolio Loan Pair, which is
being serviced under the 2003-C1 PSA), one or more separate accounts, which may
be sub-accounts of a single account (with respect to each Loan Pair, the "Loan
Pair Custodial Account") in which the amounts described in clauses (i) through
(ix) below shall be deposited and held in trust for the benefit of the related
Loan Pair Noteholders, as their interests may appear; provided that a Loan Pair
Custodial Account may be sub-account of another Custodial Account. Each of the
Loan Pair Custodial Accounts shall be an Eligible Account or a subaccount of an
Eligible Account. The Master Servicer shall deposit or cause to be deposited in
the applicable Loan Pair Custodial Account, within one Business Day of receipt
(in the case of payments or other collections on the such Loan Pair) or as
otherwise required hereunder, the following payments and collections received or
made by the Master Servicer or on its behalf with respect to the related Loan
Pair subsequent to the Cut-off Date (other than in respect of principal and
interest on such Loan Pair due and payable on or before the Cut-off Date, which
payments shall be held pursuant to the terms of the related Co-Lender Agreement,
and other than amounts required to be deposited in the Defeasance Deposit
Account):
(i) all payments on account of principal of the applicable Loan
Pair, including Principal Prepayments, and regardless of whether those
payments are made by the related Mortgagor or any related guarantor, out
of any related Reserve Funds maintained for such purpose, out of
collections on any related Defeasance Collateral or from any other source;
(ii) all payments on account of interest on the applicable Loan
Pair, including Default Interest, and regardless of whether those payments
are made by the related Mortgagor or any related guarantor, out of any
related Reserve Funds maintained for such purpose, out of collections on
any related Defeasance Collateral or from any other source;
(iii) all Prepayment Premiums, Yield Maintenance Charges and/or late
payment charges received in respect of the applicable Loan Pair;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of the applicable Loan Pair (other than
Liquidation Proceeds derived from the sale of any Trust Mortgage Loans to
or through the related Subordinate Companion Loan Noteholder or the
repurchase of a Trust Mortgage Loan by the Mortgage Loan Seller, which
shall be deposited directly into the Pool Custodial Account);
(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 applicable Loan Pair
Custodial Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
with respect to the applicable Loan Pair resulting from a deductible
clause in a blanket hazard policy;
(vii) any amounts required to be transferred from the related Loan
Pair REO Account pursuant to Section 3.17(c);
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by the related Mortgagor with respect to the applicable Loan
Pair specifically to cover items for which a Servicing Advance has been
made; and
(ix) any P&I Advances required to be made by the Master Servicer
with respect to a Trust Mortgage Loan in the related Loan Pair or the
related Pari Passu Companion Loans in accordance with Section 4.03A.
The foregoing requirements for deposit in the applicable Loan Pair
Custodial Account shall be exclusive. Notwithstanding the foregoing, actual
payments from the related Mortgagor in respect of all Loan Pairs in the nature
of Escrow Payments, Reserve Funds, assumption fees, assumption application fees,
funds representing such Mortgagor's payment of costs and expenses associated
with assumptions and defeasance, modification fees, extension fees, charges for
beneficiary statements or demands, amounts collected for checks returned for
insufficient funds and any similar fees not expressly referred to in the prior
paragraph need not be deposited by the Master Servicer in the applicable Loan
Pair Custodial Account. If the Master Servicer shall deposit into a Loan Pair
Custodial Account any amount not required to be deposited therein, it may at any
time withdraw such amount from such Loan Pair 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(c), all assumption fees and assumption application
fees (or the applicable portions thereof) and other transaction fees received by
the Master Servicer with respect to all Loan Pairs, to which the Special
Servicer is entitled pursuant to such section, upon receipt of a written
statement of a Servicing Officer of the Special Servicer describing the item and
amount (unless pursuant to this Agreement it is otherwise clear that the Special
Servicer is entitled to such amounts, in which case a written statement is not
required). Each Loan Pair Custodial Account shall be maintained as a segregated
account, separate and apart from trust funds created for mortgage-backed
securities of other series and the other accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) above with respect to a Loan Pair, the Special Servicer shall
promptly, but in no event later than two Business Days after receipt, remit such
amounts to the Master Servicer for deposit into the related Loan Pair Custodial
Account in accordance with the second preceding paragraph, unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item should not be deposited because of a restrictive endorsement or other
appropriate reason. With respect to any such amounts paid by check to the order
of the Special Servicer, the Special Servicer shall endorse such check to the
order of the Master Servicer, unless the Special Servicer determines, consistent
with the Servicing Standard, that a particular item cannot be so endorsed and
delivered because of a restrictive endorsement or other appropriate reason. Any
such amounts received by the Special Servicer with respect to an REO Property
that relates to any Loan Pair shall initially be deposited by the Special
Servicer into the related REO Account and thereafter remitted to the Master
Servicer for deposit into the related Loan Pair Custodial Account, all in
accordance with Section 3.17(c).
(f) If and when the related Mortgagor elects to defease a Loan Pair
(other than the Windsor Capital Portfolio Loan Pair, which is being serviced
under the 2003-C1 PSA), the provisions of the last paragraph of Section 3.04(a)
relating to the Defeasance Deposit Account shall apply.
(g) The Master Servicer shall give notice to the Trustee, the
related Companion Loan Noteholders and the Special Servicer of the location of
the related Loan Pair Custodial Account when first established and of the new
location of such Custodial Account prior to any change thereof.
Section 3.05 Permitted Withdrawals From the Pool Custodial Account,
the Distribution Account, the Interest Reserve Account and the Excess
Liquidation Proceeds Account.
(a) The Master Servicer may, from time to time, make withdrawals
from the Pool Custodial Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Distribution Account
the amounts required to be so deposited pursuant to the first paragraph of
Section 3.04(b), and any amounts that may be applied to make P&I Advances
pursuant to Section 4.03(a);
(ii) to reimburse the Fiscal Agent, the Trustee and itself, in that
order, for xxxxxxxxxxxx X&X Advances made thereby with respect to the
Mortgage Pool (exclusive of the Trust Mortgage Loans (other than the
Windsor Capital Portfolio Trust Loan) and any related REO Mortgage Loans),
the Fiscal Agent's, the Trustee's and Master Servicer's, as the case may
be, respective rights to reimbursement pursuant to this clause (ii) with
respect to any such P&I Advance being limited to amounts on deposit in the
Pool Custodial Account that represent Late Collections of interest and
principal (net of the related Master Servicing Fees and any related
Workout Fees or Liquidation Fees) received in respect of the particular
Mortgage Loan or REO Mortgage Loan as to which such P&I Advance was made;
(iii) to pay to itself earned and unpaid Master Servicing Fees with
respect to the Mortgage Pool (exclusive of the Trust Mortgage Loans (other
than the Windsor Capital Portfolio Trust Loan) and any related REO
Mortgage Loans), the Master Servicer's right to payment pursuant to this
clause (iii) with respect to any such Master Servicing Fees being limited
to amounts on deposit in the Pool Custodial Account that are allocable as
a recovery of interest on or in respect of the Mortgage Loan or REO
Mortgage Loan as to which such Master Servicing Fees were earned;
(iv) to pay (A) to the Special Servicer, out of general collections
on the Mortgage Pool on deposit in the Pool Custodial Account, earned and
unpaid Special Servicing Fees in respect of each Specially Serviced
Mortgage Loan and REO Mortgage Loan (including the Trust Mortgage Loans
and/or any related REO Mortgage Loans, to the extent not paid from the
related Loan Pair Custodial Account pursuant to Section 3.05A) and (B) to
itself, out of general collections on the Mortgage Pool on deposit in the
Pool Custodial Account, any Master Servicing Fee earned in respect of any
Mortgage Loan or REO Mortgage Loan (including any Trust Mortgage Loans
and/or any related REO Mortgage Loans, to the extent not paid from the
related Loan Pair Custodial Account pursuant to Section 3.05A) that
remains unpaid in accordance with clause (iii) above following a Final
Recovery Determination made with respect to such Mortgage Loan or the
related REO Property and the deposit into the Pool Custodial Account of
all amounts received in connection with such Final Recovery Determination;
(v) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) any earned and unpaid Workout Fees and Liquidation Fees
in respect of each Specially Serviced Mortgage Loan, Corrected Loan and/or
REO Mortgage Loan (including the Trust Mortgage Loans and/or any related
REO Mortgage Loans, to the extent not paid from the related Loan Pair
Custodial Account pursuant to Section 3.05A), as applicable, in the
amounts and from the sources specified in Section 3.11(b);
(vi) to reimburse the Fiscal Agent, the Trustee, itself and the
Special Servicer, in that order, for any unreimbursed Servicing Advances
made thereby with respect to any Mortgage Loan or REO Property (other than
the Trust Mortgage Loans and/or any related REO Properties), the Fiscal
Agent's, the Trustee's, the Master Servicer's and the Special Servicer's
respective rights to reimbursement pursuant to this clause (vi) with
respect to any Servicing Advance being limited to amounts on deposit in
the Pool Custodial Account that represent payments made by the related
Mortgagor to cover the item for which such Servicing Advance was made, and
to amounts on deposit in the Pool Custodial Account that represent
Liquidation Proceeds (net of Liquidation Fees payable therefrom),
Condemnation Proceeds, Insurance Proceeds and, if applicable, REO Revenues
received in respect of the particular Mortgage Loan or REO Property as to
which such Servicing Advance was made;
(vii) to reimburse the Fiscal Agent, the Trustee, itself and the
Special Servicer, in that order, out of general collections on the
Mortgage Pool on deposit in the Pool Custodial Account, for any
unreimbursed Advances (other than xxxxxxxxxxxx X&X Advances with respect
to the U.S. Bank Tower Pari Passu Companion Loan, 1801 K Street Pari Passu
Companion Loan, 237 Park Avenue Pari Passu Companion Loans and Xxxxx Fargo
Tower Pari Passu Companion Loans or any successor REO Loan) that have been
or are determined to be Nonrecoverable Advances and, in respect of the
Windsor Capital Portfolio Loan Pair, to reimburse the 2003-C1 Fiscal
Agent, the 2003-C1 Trustee and the 2003-C1 Master Servicer, in that order,
out of general collections on the Mortgage Pool on deposit in the Pool
Custodial Account, for any unreimbursed advances made by any such party
pursuant to the 2003-C1 PSA in respect of such Loan Pair (other than
principal and interest advances made on the Windsor Capital Portfolio
Companion Loans) that have been or are determined to be nonrecoverable
advances pursuant to the terms of the 2003-C1 PSA (up to the Windsor
Capital Portfolio Trust Loan's proportionate share of such advance, or if
such amount, together with amounts available in the trust fund created
under the 2003-C1 PSA is insufficient to reimburse the party that made
such advance, then up to the full amount of such advance); provided that
such amounts may be withdrawn over time in accordance with Section
3.05(e);
(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 3.12(b), 4.03(d) or 4.03A(d), as applicable, on any Advance
made thereby with respect to the Mortgage Pool (exclusive of the Trust
Mortgage Loans (other than the Windsor Capital Portfolio Trust Loan) and
any related REO Mortgage Loans), the Fiscal Agent's, the Trustee's, the
Master Servicer's and the Special Servicer's respective rights to payment
pursuant to this clause (viii) with respect to interest on any such
Advance being limited to amounts on deposit in the Pool Custodial Account
that represent Default Charges collected on or in respect of the Mortgage
Pool during the Collection Period in which such Advance is reimbursed, as
and to the extent contemplated by Sections 3.27(a) and (b);
(ix) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, the Fiscal Agent, the Trustee,
itself and the Special Servicer, in that order, any interest accrued and
payable in accordance with Section 3.12(b), 4.03(d) or 4.03A(d), as
applicable, (i) on any Advance made thereby with respect to the Mortgage
Pool or (ii) any advance made by the 2003-C1 Master Servicer, the 2003-C1
Special Servicer, the 2003-C1 Trustee or the 2003-C1 Fiscal Agent with
respect to the Windsor Capital Portfolio Loan Pair other than any
principal and interest advance made on the Windsor Capital Portfolio
Companion Loans, but only to the extent that such Advance has been
reimbursed and the interest thereon is not otherwise payable as
contemplated by the immediately preceding clause (viii) or Section 3.05A,
as applicable;
(x) to pay, out of amounts on deposit in the Pool Custodial Account
that represent Default Charges collected on or in respect of the Mortgage
Pool and not otherwise applied as contemplated by clause (viii) above, any
unpaid expense (other than interest accrued on Advances, which is payable
pursuant to clause (viii) above, and other than Special Servicing Fees,
Liquidation Fees and Workout Fees) incurred with respect to any Mortgage
Loan or REO Mortgage Loan that, if paid from a source other than Default
Charges, would constitute an Additional Trust Fund Expense, as and to the
extent contemplated by Sections 3.27(a) and (b);
(xi) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, for (A) costs and expenses incurred
by the Trust Fund pursuant to Section 3.09(c) (other than the costs of
environmental testing, which are to be covered by, and reimbursable as, a
Servicing Advance), (B) the cost of an independent appraiser or other
expert in real estate matters retained pursuant to Sections 3.12(d),
3.19(g), or 4.03(c), and (C) the fees of any Independent Contractor
retained with respect to any related REO Property pursuant to Section
3.18(d) (to the extent that it has not paid itself such fees prior to
remitting collections on such REO Property to the Special Servicer);
provided that, in the case of a Loan Pair Mortgaged Property, such payment
pursuant to this clause (xi) is to be made only to the extent that it
would not ultimately be payable out of collections on or in respect of the
related Loan Pair;
(xii) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (A) interest and investment income earned
in respect of amounts held in the Pool Custodial Account as provided in
Section 3.06(b), but only to the extent of the Net Investment Earnings
with respect to the Pool Custodial Account for any Collection Period, (B)
Prepayment Interest Excesses collected on the Mortgage Pool (exclusive of
the Trust Mortgage Loans (other than the Windsor Capital Portfolio Trust
Loan)) and (C) Net Default Charges (after application pursuant to Sections
3.27(a) and (b)) actually collected that accrued in respect of Mortgage
Loans (other than the Trust Mortgage Loans (other than the Windsor Capital
Portfolio Trust Loan)) that are not Specially Serviced Mortgage Loans, and
to pay the Special Servicer, as additional special servicing compensation
in accordance with Section 3.11(c), Net Default Charges (after application
pursuant to Sections 3.27(a) and (b)) actually collected that accrued in
respect of Specially Serviced Mortgage Loans and REO Mortgage Loans (other
than the Trust Mortgage Loans (other than the Windsor Capital Portfolio
Trust Loan) and/or any related REO Mortgage Loans);
(xiii) to pay itself, the Special Servicer, the Depositor, or any of
their respective members, managers, directors, officers, employees and
agents, as the case may be, out of general collections on the Mortgage
Pool on deposit in the Pool Custodial Account, any amounts payable to any
such Person pursuant to Section 6.03; provided that such payment does not
relate solely to the Companion Loans;
(xiv) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, for (A) the cost of the Opinion of
Counsel contemplated by Section 11.02(a), (B) the cost of an Opinion of
Counsel contemplated by Section 11.01(a) or 11.01(c) in connection with
any amendment to this Agreement requested by the Master Servicer or the
Special Servicer that protects or is in furtherance of the rights and
interests of Certificateholders, and (C) the cost of recording this
Agreement in accordance with Section 11.02(a);
(xv) to pay itself, the Special Servicer, the Depositor, any
Controlling Class Certificateholder or any other Person, as the case may
be, with respect to each Mortgage Loan, if any, previously purchased by
such Person pursuant to this Agreement, all amounts received thereon
subsequent to the date of purchase that have been deposited in the Pool
Custodial Account;
(xvi) to pay, in accordance with Section 3.12(e), out of general
collections on the Mortgage Pool on deposit in the Pool Custodial Account,
any servicing expenses, that would, if advanced, constitute Nonrecoverable
Servicing Advances (other than servicing expenses that relate solely to
the Companion Loans or any related REO Loans), to the extent no funds are
available therefor in the related Loan Pair Custodial Account;
(xvii) on each Master Servicer Remittance Date, to transfer Excess
Liquidation Proceeds in respect of the Mortgage Pool to the Trustee, for
deposit in the Excess Liquidation Proceeds Account, in accordance with
Section 3.04(d); and
(xviii) to clear and terminate the Pool Custodial Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis when appropriate, in connection with any
withdrawal from the Pool Custodial Account pursuant to clauses (ii) through
(xvii) above.
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer), the Trustee or the
Fiscal Agent from the Pool Custodial Account, amounts permitted to be paid to
the Special Servicer (or to any such third party contractor), the Trustee or the
Fiscal Agent therefrom promptly upon receipt of a written statement of a
Servicing Officer of the Special Servicer or of a Responsible Officer of the
Trustee or the Fiscal Agent describing the item and amount to which the Special
Servicer (or such third party contractor), the Trustee or the Fiscal Agent, as
applicable, is entitled (unless such payment to the Special Servicer, the
Trustee (for example, the Trustee Fee) or the Fiscal Agent, as the case may be,
is clearly required pursuant to this Agreement, in which case a written
statement is not required). The Master Servicer may rely conclusively on any
such written statement and shall have no duty to re-calculate the amounts stated
therein. With respect to any reimbursement to be made hereunder to the 2003-C1
Master Servicer, the 2003-C1 Special Servicer, the 2003-C1 Trustee or the
2003-C1 Fiscal Agent in respect of any advance made by such parties subsequently
determined to be nonrecoverable pursuant to the terms of the 0000-X0 XXX, the
Master Servicer may conclusively rely on a written statement from such party
delivered to the Master Servicer that such advance made is nonrecoverable under
the terms of the 2003-C1 PSA.
The Special Servicer shall keep and maintain separate accounting for
each Specially Serviced Mortgage Loan and REO Property, on a loan-by-loan basis,
for the purpose of justifying any request for withdrawal from the Pool Custodial
Account. With respect to each Mortgage Loan for which it makes an Advance, each
of the Trustee and Fiscal Agent shall keep and maintain separate accounting, on
a loan-by-loan basis, for the purpose of justifying any request for withdrawal
from the Pool Custodial Account for reimbursements of Advances or interest
thereon.
(b) Promptly on each Distribution Date, the Trustee shall be deemed
to withdraw from the Lower-Tier Distribution Account and deposit in the
Upper-Tier Distribution Account an aggregate amount of immediately available
funds equal to the Lower-Tier Distribution Amount and the amount of any Net
Prepayment Consideration for such Distribution Date allocated in payment of the
Uncertificated Lower-Tier Interests as specified in Sections 4.01(i) and
4.01(j), respectively. The Trustee may, from time to time, make withdrawals from
the Distribution Account (which in the case of clauses (ii) through (vii) shall
be deemed to have been withdrawn from the Lower-Tier Distribution Account) for
any of the following purposes (in no particular order of priority):
(i) to make distributions to Certificateholders from the applicable
subaccount on each Distribution Date pursuant to Section 4.01 or 9.01, as
applicable;
(ii) to pay (A) the Trustee, the Fiscal Agent or any of their
respective directors, officers, employees and agents, as the case may be,
out of general collections on the Mortgage Loans on deposit in the
Distribution Account, any amounts payable or reimbursable to any such
Person pursuant to Section 7.01(b) and/or Section 8.05, as applicable, and
(B) as and when contemplated by Section 8.08, the cost of the Trustee's
transferring Mortgage Files and other documents to a successor after being
terminated by Certificateholders pursuant to Section 8.07(c) without
cause;
(iii) to pay, out of general collections on the Mortgage Loans on
deposit in the Distribution Account, 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 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 on
deposit in the Distribution Account, any and all federal, state and local
taxes imposed on either REMIC Pool or on the assets or transactions of
either such REMIC Pool, together with all incidental costs and expenses,
to the extent none of the Trustee, the Tax Administrator, the Master
Servicer or the Special Servicer is liable therefor pursuant to Section
10.01(j);
(v) to pay the Tax Administrator, out of general collections on the
Mortgage Loans on deposit in the Distribution Account, any amounts
reimbursable to it pursuant to Section 10.01(f);
(vi) to pay the Master Servicer any amounts deposited by the Master
Servicer in the Distribution Account in error;
(vii) to transfer Interest Reserve Amounts in respect of the
Interest Reserve Mortgage Loans and any Interest Reserve REO Mortgage
Loans from the Distribution Account to the Interest Reserve Account as and
when required by Section 3.04(c); and
(viii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
On or prior to a Distribution Date, the Trustee shall be entitled to
withdraw amounts that are payable or reimbursable as set forth in clauses (ii)
through (vii) above from the Distribution Account (which will be deemed to be
withdrawn from the Lower-Tier Distribution Account) prior to making
distributions to Certificateholders on such Distribution Date.
(c) On each Master Servicer Remittance Date in March (commencing in
March 2004), the Trustee shall withdraw from the Interest Reserve Account and
deposit in the Lower-Tier Distribution Account all Interest Reserve Amounts that
have been deposited in the Interest Reserve Account in respect of the Interest
Reserve Loans and any Interest Reserve REO Mortgage Loans during February and/or
January 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
Lower-Tier Distribution Account, for distribution on the 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 with respect to the Regular Interest
Certificates on such Distribution Date pursuant to Sections 4.01(a) and 4.01(b),
over the Available Distribution Amount for such Distribution Date (calculated
without regard to such transfer from the Excess Liquidation Proceeds Account to
the Distribution 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 Lower-Tier
Distribution Account, for distribution on such Distribution Date, any and all
amounts then on deposit in the Excess Liquidation Proceeds Account.
(e) Notwithstanding anything to the contrary contained herein, upon
a determination that a previously made Advance is a Nonrecoverable Advance,
instead of obtaining reimbursement out of general collections on the Mortgage
Pool on deposit in the Pool Custodial Account immediately as contemplated by
Section 3.05(a)(vii), the Master Servicer, the Special Servicer, the Trustee or
the Fiscal Agent, as applicable, may, in its sole discretion, elect to obtain
reimbursement for such Nonrecoverable Advance over time and the unreimbursed
portion of such Advance will accrue interest at the Prime Rate. At any time
after such a determination to obtain reimbursement over time, the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as applicable,
may, in its sole discretion, decide to obtain reimbursement immediately. The
fact that a decision to recover such Nonrecoverable Advances over time, or not
to do so, benefits some Classes of Certificateholders to the detriment of other
Classes shall not constitute a violation of the Servicing Standard by the Master
Servicer or the Special Servicer or be deemed a breach of any fiduciary duty of
the Trustee to Certificateholders by the Trustee or the Fiscal Agent, or a
breach of a contractual obligation by the Master Servicer, the Special Servicer,
the Trustee or the Fiscal Agent.
(f) In the event that servicing advances on the Windsor Capital
Portfolio Loan Pair or P&I advances on the Windsor Capital Portfolio Trust Loan
have been made with respect to the Windsor Capital Portfolio Loan Pair under the
2003-C1 PSA by the 2003-C1 Master Servicer, 2003-C1 Trustee or the 2003-C1
Fiscal Agent, and in accordance with the 2003-C1 PSA, a subsequent determination
has been made that such advance constitutes a nonrecoverable advance, the party
that made such advance shall be entitled to a reimbursement of such advance with
interest thereon as set forth in the 0000-X0 XXX, from general collections on
all Mortgage Loans in the Pool Custodial Account (up to, with respect to a
servicing advance, the Windsor Capital Portfolio Trust Loan's proportionate
share of such servicing advance, or if such amount together with amounts
available from general collections in the custodial account created under the
2003-C1 PSA is insufficient to reimburse the party that made such servicing
advance, then up to the full amount of such servicing advance and interest
thereon).
Section 3.05A Permitted Withdrawals From the Loan Pair Custodial
Accounts.
(a) The Master Servicer may, from time to time, make withdrawals
from the applicable Loan Pair Custodial Account, for any of the following
purposes (the order set forth below not constituting an order of priority for
such withdrawals):
(i) to make remittances each month on or before the Master Servicer
Remittance Date therein, in an aggregate amount of immediately available
funds equal to the applicable Loan Pair Remittance Amount, to the Trust
(as holder of the Trust Mortgage Loans or any related REO Mortgage Loans)
and the related Companion Loan Noteholder (which remittance shall be made
on the Loan Pair Remittance Date), in accordance with Section 3 or Section
4 of the related Co-Lender Agreement, as applicable, such remittances to
the Trust to be made into the Pool Custodial Account;
(ii) to reimburse, first, the Fiscal Agent, second, the Trustee, and
last, itself, in that order, for xxxxxxxxxxxx X&X Advances made by such
party (with its own funds) with respect to the related Trust Mortgage Loan
or in the case of the Master Servicer, the U.S. Bank Tower Pari Passu
Companion Loan, 1801 K Street Pari Passu Companion Loan, 237 Park Avenue
Pari Passu Companion Loans or Xxxxx Fargo Tower Pari Passu Companion
Loans, any such party's rights to reimbursement pursuant to this clause
(ii) with respect to any such P&I Advance being limited to amounts on
deposit in the applicable Loan Pair Custodial Account that represent late
collections of interest and principal (net of the related Master Servicing
Fees and any related Workout Fees or Liquidation Fees) received in respect
of the particular Trust Mortgage Loan or, in the case of the Master
Servicer, the U.S. Bank Tower Pari Passu Companion Loan, 1801 K Street
Pari Passu Companion Loan, 237 Park Avenue Pari Passu Companion Loans or
Xxxxx Fargo Tower Pari Passu Companion Loans (as allocable thereto
pursuant to the related loan documents and the related Co-Lender
Agreement);
(iii) to pay to itself earned and unpaid Master Servicing Fees with
respect to the related Loan Pair (or any successor REO Loans), the Master
Servicer's respective rights to payment pursuant to this clause (iii) with
respect to any Loan (or any successor REO Loan) in such Loan Pair being
limited to amounts on deposit in the related Loan Pair Custodial Account
that were received on or in respect of such Loan (or successor REO Loan)
and are allocable as a recovery of interest thereon;
(iv) to reimburse, first, the Fiscal Agent, second, the Trustee, and
last itself, in that order, for any xxxxxxxxxxxx X&X Advances made by such
party (with its own funds) with respect to the related Trust Mortgage Loan
or, in the case of the Master Servicer, the U.S. Bank Tower Pari Passu
Companion Loan, 1801 K Street Pari Passu Companion Loan, 237 Park Avenue
Pari Passu Companion Loans or Xxxxx Fargo Tower Pari Passu Companion Loans
that such party has determined are Nonrecoverable Advances, such party's
rights to reimbursement pursuant to this clause (iv) with respect to any
such P&I Advance being limited to amounts on deposit in the applicable
Loan Pair Custodial Account that were received in respect of the
particular Trust Mortgage Loan or the U.S. Bank Tower Pari Passu Companion
Loan, 1801 K Street Pari Passu Companion Loan, 237 Park Avenue Pari Passu
Companion Loans or Xxxxx Fargo Tower Pari Passu Companion Loans, as
applicable (as allocable thereto pursuant to the related loan documents
and the related Co-Lender Agreement), in the Loan Pair as to which such
P&I Advance was made;
(v) to pay to the Special Servicer earned and unpaid Special
Servicing Fees in respect of the related Loan Pair while any Loan in such
Loan Pair constitutes a Specially Serviced Loan and after the Loan Pair
Mortgaged Properties become REO Properties;
(vi) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) earned and unpaid Workout Fees and Liquidation Fees in
respect of the related Loan Pair, in the amounts and from the sources
specified in Section 3.11(b);
(vii) to reimburse first, the Fiscal Agent, second, the Trustee,
third, itself and, last, the Special Servicer, in that order, for any
unreimbursed Servicing Advances made thereby with respect to the related
Loan Pair or any related REO Properties, any such party's respective
rights to reimbursement pursuant to this clause (vii) with respect to any
Servicing Advance being limited to amounts on deposit in the applicable
Loan Pair Custodial Account that represent payments made by the related
Mortgagor to cover the item for which such Servicing Advance was made, and
to amounts on deposit in the related Loan Pair Custodial Account that
represent Liquidation Proceeds (net of Liquidation Fees payable
therefrom), Condemnation Proceeds, Insurance Proceeds and, if applicable,
REO Revenues received in respect of the related Loan Pair or related Loan
Pair REO Properties as to which such Servicing Advance was made;
(viii) to reimburse, first, the Fiscal Agent, second, the Trustee,
third, itself and last the Special Servicer, in that order, out of general
collections in the Loan Pair Custodial Account, for any unreimbursed
Servicing Advances made thereby with respect to the related Loan Pair or
any related REO Properties that such party has determined are
Nonrecoverable Advances; provided that such amounts may be withdrawn over
time in accordance with Section 3.05A(b);
(ix) to pay first, the Fiscal Agent, second, the Trustee, third,
itself and, last the Special Servicer, in that order, any interest accrued
on any Advance made thereby with respect to the Loans in the related Loan
Pair or with respect to the related Loan Pair Mortgaged Properties, any
such party's respective right to payment pursuant to this clause (viii)
with respect to interest on any Advance being permitted to be satisfied
(A) first, out of any amounts on deposit in the applicable Loan Pair
Custodial Account that represent Default Charges collected on or in
respect of the Subordinate Companion Loans during the same Collection
Period in which such Advance is reimbursed, as and to the extent
contemplated by Section 3.27(c), (B) second, out of any amounts on deposit
in the applicable Loan Pair Custodial Account that represent Default
Charges collected on or in respect of the Trust Mortgage Loans during the
same Collection Period in which such Advance is reimbursed, as and to the
extent contemplated by Sections 3.27(a) and (b) and (C) third, to the
extent that the Default Charges described in the immediately preceding
clauses (A) and (B) are insufficient, but only if such Advance is being
reimbursed at the same time or if such Advance has been previously
reimbursed, out of any amounts on deposit in the applicable Loan Pair
Custodial Account that represent any other collections on or in respect of
the related Loan Pair;
(x) to pay for (A) costs and expenses incurred with respect to the
Loan Pair Mortgaged Properties pursuant to Section 3.09(c) (other than the
costs of environmental testing, which are to be covered by, and
reimbursable as, a Servicing Advance), (B) the costs and expenses of
obtaining appraisals of the Loan Pair Mortgaged Properties pursuant to
Section 3.12(d) or 4.03A(c), as applicable, and (C) the fees of any
Independent Contractor retained with respect to any related Loan Pair REO
Property pursuant to Section 3.18(d) (to the extent that it has not paid
itself such fees prior to remitting collections on such REO Property to
the Special Servicer);
(xi) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (A) interest and investment income earned
in respect of amounts held in the applicable Loan Pair Custodial Account
as provided in Section 3.06(b), but only to the extent of the Net
Investment Earnings with respect to the applicable Loan Pair Custodial
Account for any Collection Period and (B) Net Default Charges (after
application pursuant to Section 3.27(c)) actually collected that accrued
in respect of the Companion Loans during a period that they were not
Specially Serviced Loans and the Loan Pair Mortgaged Properties were not
REO Properties, and to pay the Special Servicer, as additional special
servicing compensation in accordance with Section 3.11(c), Net Default
Charges (after application pursuant to Section 3.27(c)) actually collected
that accrued in respect of the Companion Loans during a period that they
were Specially Serviced Loans or the Loan Pair Mortgaged Properties were
REO Properties;
(xii) to pay itself, the Special Servicer, or any of their
respective members, managers, directors, officers, employees and agents,
as the case may be, any amounts payable to any such Person pursuant to
Section 6.03, to the extent such amounts relate to the related Loan Pair;
(xiii) to pay for the cost of recording the Co-Lender Agreement and
any required opinion of counsel related thereto and, to the extent
applicable pursuant to Section 11.02(a), the allocable portion of the cost
of the Opinion of Counsel contemplated by Section 11.02(a);
(xiv) to pay, in accordance with Section 3.12(e), out of collections
on the related Loan Pair on deposit in the related Loan Pair Custodial
Account, any servicing expenses with respect to the related Loans, that
would, if advanced, constitute Nonrecoverable Servicing Advances (provided
that servicing expenses that relate solely to the U.S. Bank Tower Pari
Passu Companion Loan, 1801 K Street Pari Passu Companion Loan, 237 Park
Avenue Pari Passu Companion Loans or Xxxxx Fargo Tower Pari Passu
Companion Loans or any related REO Loans will be paid solely from funds
allocable thereto);
(xv) to transfer to the Pool Custodial Account all amounts
representing Default Charges actually collected that accrued in respect of
the Trust Mortgage Loans or any successor REO Mortgage Loans in respect of
the Trust Mortgage Loans, to the extent such Default Charges were not
applied to offset interest on Advances pursuant to clause (viii)(B) above
(to be applied in accordance with Sections 3.27(a) and (b)); and
(xvi) to clear and terminate the applicable Loan Pair Custodial
Account at the termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records in connection with each Loan Pair Custodial Account, including but not
limited to, any withdrawal from each Loan Pair Custodial Account, pursuant to
clauses (ii) through (xv) above.
The Master Servicer shall pay to each of the Special Servicer (or to
third party contractors at the direction of the Special Servicer), the Trustee
and the Fiscal Agent, as applicable, from the applicable Loan Pair Custodial
Account, amounts permitted to be paid thereto from such account promptly upon
receipt of a written statement of a Servicing Officer of the Special Servicer or
a Responsible Officer of the Trustee or the Fiscal Agent, as the case may be,
describing the item and amount to which the Special Servicer (or such third
party contractor), the Trustee or the Fiscal Agent, as the case may be, is
entitled (unless such payment to the Special Servicer, the Trustee or the Fiscal
Agent, as the case may be, is clearly required pursuant to this Agreement, in
which case a written statement is not required). The Master Servicer may rely
conclusively on any such written statement and shall have no duty to
re-calculate the amounts stated therein. The parties seeking payment pursuant to
this Section shall each keep and maintain separate accounting for the purpose of
justifying any request for withdrawal from each Loan Pair Custodial Account, on
a loan-by-loan basis.
In the event that the Master Servicer fails, on any Master Servicer
Remittance Date, to remit to the Companion Loan Noteholders any amount(s)
required to be so remitted to such Companion Loan Noteholders hereunder by such
date, the Master Servicer shall pay such Companion Loan Noteholders, for the
account of such Companion Loan Noteholders, interest, calculated at the Prime
Rate, on such amount(s) not timely remitted, from and including that Master
Servicer Remittance Date, to but not including the date of remittance.
(b) Notwithstanding anything to the contrary contained herein, upon
a determination that a previously made Servicing Advance with respect to a Loan
Pair is a Nonrecoverable Advance, instead of obtaining reimbursement out of
general collections on the Loan Pair on deposit in the Loan Pair Custodial
Account immediately as contemplated by Section 3.05(A)(a)(viii), the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as applicable,
may, in its sole discretion, elect to obtain reimbursement for such
Nonrecoverable Advance over time and the unreimbursed portion of such Servicing
Advance will accrue interest at the Prime Rate. At any time after such a
determination to obtain reimbursement over time, the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent, as applicable, may, in its
sole discretion, decide to obtain reimbursement immediately. The fact that a
decision to recover such Nonrecoverable Advances over time, or not to do so,
benefits some Classes of Certificateholders to the detriment of other Classes
shall not constitute a violation of the Servicing Standard by the Master
Servicer or the Special Servicer or be deemed a breach of any fiduciary duty of
the Trustee to Certificateholders by the Trustee or the Fiscal Agent, or a
breach of a contractual obligation by the Master Servicer, the Special Servicer,
the Trustee or the Fiscal Agent.
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 Distribution Account, the Interest Reserve Account and the Excess
Liquidation Proceeds Account will remain uninvested. All such Permitted
Investments shall be held to maturity, unless payable on demand. Any investment
of funds in an Investment Account shall be made in the name of the Trustee (in
its capacity as such) and, in the case of a Permitted Investment in any
Investment Account solely related to a Loan Pair, the related Companion Loan
Noteholders. The Master Servicer (with respect to Permitted Investments of
amounts in the Servicing Accounts, the Reserve Accounts, the Defeasance Deposit
Account and the Custodial Accounts) and the Special Servicer (with respect to
Permitted Investments of amounts in the REO Accounts), on behalf of the Trustee
and, in the case of any Investment Account solely related to a Loan Pair, the
related Companion Loan Noteholders, shall (and the Trustee hereby designates the
Master Servicer and the Special Servicer, as applicable, as the Person that
shall) (i) be the "entitlement holder" of any Permitted Investment that is a
"security entitlement" and (ii) maintain "control" of any Permitted Investment
that is a "certificated security," "uncertificated security" or "deposit
account." For purposes of this Section 3.06(a), (i) the terms "entitlement
holder," "security entitlement," "control" (except with respect to deposit
accounts), "certificated security" and "uncertificated security" shall have the
meanings given such terms in Revised Article 8 (1994 Revision) of the UCC, and
the terms "control" (with respect to deposit accounts) and "deposit account"
shall have the meanings given such terms in Revised Article 9 (1998 Revision) of
the UCC, and (ii) "control" of any Permitted Investment in any Investment
Account by the Master Servicer or the Special Servicer shall constitute
"control" by a Person designated by, and acting on behalf of, the Trustee and,
in the case of any Investment Account solely related to a Loan Pair, the related
Companion Loan Noteholders, 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), 3.05(a) or 3.05A, as
applicable. Whether or not the Special Servicer directs the investment of funds
in either of the REO Accounts, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
such Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Special Servicer and shall be subject to its withdrawal
in accordance with Section 3.17(b). If any loss shall be incurred in respect of
any Permitted Investment on deposit in any Investment Account, the Master
Servicer (in the case of (i) the Servicing Accounts, the Reserve Accounts and
the Defeasance Deposit Account (except to the extent that any investment of
funds with respect thereto is at the direction of a Mortgagor in accordance with
the related loan documents or applicable law) and (ii) the Custodial Accounts)
and the Special Servicer (in the case of the REO Accounts) shall promptly
deposit therein from its own funds, without right of reimbursement, no later
than the end of the Collection Period during which such loss was incurred, the
amount of the Net Investment Loss, if any, for such Investment Account for such
Collection Period. Notwithstanding any of the foregoing provisions of this
Section 3.06, no party shall be required under this Agreement to deposit any
loss on a deposit of funds in an Investment Account if such loss is incurred
solely as a result of the insolvency of the federal or state chartered
depository institution or trust company with which such deposit was maintained
so long as such depository institution or trust company satisfied the conditions
set forth in the definition of "Eligible Account" at the time such deposit was
made and also as of a date no earlier than 30 days prior to the insolvency.
(c) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee may, and subject to Section 8.02, upon the request of
Certificateholders entitled to a majority of the Voting Rights allocated to a
Class, shall take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including the calculation
of the Available Distribution Amount, the Master Servicer Remittance Amount and
the Loan Pair Remittance Amount, the amounts so invested shall be deemed to
remain on deposit in such Investment Account.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage; Environmental Insurance.
(a) The Master Servicer shall, consistent with the Servicing
Standard, cause to be maintained for each Mortgaged Property (other than the
Mortgaged Property securing the Windsor Capital Portfolio Loan Pair, which is
serviced under the 2003-C1 PSA) that is not an REO Property, all insurance
coverage as is required under the related Mortgage (except to the extent that
the failure to maintain such insurance coverage is an Acceptable Insurance
Default); provided that, if and to the extent that any such Mortgage permits the
holder thereof any discretion (by way of consent, approval or otherwise) as to
the insurance coverage that the related Mortgagor is required to maintain, the
Master Servicer or Special Servicer, as the case may be, shall exercise such
discretion in a manner consistent with the Servicing Standard; and provided,
further, that, if and to the extent that a Mortgage so permits, the Master
Servicer or Special Servicer, as the case may be, shall use reasonable best
efforts to require the related Mortgagor to obtain the required insurance
coverage from Qualified Insurers that have a "claims paying ability" or
"financial strength" rating, as applicable, of at least "A" from S&P and "A2" by
Xxxxx'x (or, in the case of any such Rating Agency, such lower rating as will
not result in an Adverse Rating Event, as evidenced in writing by such Rating
Agency); and provided, further, that the Master Servicer shall cause to be
maintained for any such Mortgaged Property from Qualified Insurers that have a
"claims paying ability" or "financial strength rating", as applicable, of at
least "A" from S&P and "A2" from Xxxxx'x, any such insurance that the related
Mortgagor is required but fails to maintain, only to the extent that the Trustee
(as mortgagee of record on behalf of the Certificateholders and, in the case of
a Loan Pair Mortgaged Property, the related Companion Loan Noteholders) has an
insurable interest, and such insurance is available at a commercially reasonable
rate and the subject hazards are at the time commonly insured against by prudent
owners of properties similar to the Mortgaged Property located in or around the
region in which such Mortgaged Property is located (or, in the case of all-risk
insurance or other insurance that covers acts of terrorism, the Master Servicer
shall not be required to cause to be maintained for any such Mortgaged Property
any such insurance that the related Mortgagor is required but fails to maintain
if the Trustee (as mortgagee of record on behalf of the Certificateholders and,
in the case of a Loan Pair Mortgaged Property, the related Companion Loan
Noteholders) does not have an insurable interest or the Special Servicer has
determined (in its reasonable judgment and in accordance with the Servicing
Standard) that either (i) such insurance is not available at a commercially
reasonable rate and the subject hazards are at the time commonly insured against
by prudent owners of properties similar to the Mortgaged Property located in or
around the region in which such Mortgaged Property is located or (ii) such
insurance is not available at any rate). Any Controlling Class
Certificateholder, or (i) in the case of a Loan Pair, the holder of the related
Subordinate Companion Loan 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 3.18(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 and the subject hazards are at the time
commonly insured against by prudent owners of properties similar to the REO
Property located in or around the region in which such REO Property is located
(or, in the case of all-risk insurance or other insurance that covers acts of
terrorism, such insurance is available at a commercially reasonable rate or the
subject hazards are at the time commonly insured against by prudent owners of
properties similar to the REO Property located in or around the region in which
such REO Property is located); and provided, further, that all such insurance
shall be obtained from Qualified Insurers that, if they are providing casualty
insurance, shall have a "claims paying ability" or "financial strength" rating,
as applicable, of at least "A" from S&P and "A2" from Xxxxx'x (or, in the case
of either Rating Agency, such lower rating as will not result in an Adverse
Rating Event, as evidenced in writing by such Rating Agency). All such insurance
policies shall contain (if they insure against loss to property and do not
relate to an REO Property) a "standard" mortgagee clause, with loss payable to
the Master Servicer (in the case of insurance maintained in respect of Loans,
including Specially Serviced Loans), and shall be in the name of the Special
Servicer (in the case of insurance maintained in respect of REO Properties), on
behalf of the Trustee; and, in each case, such insurance shall be issued by a
Qualified Insurer. Any amounts collected by the Master Servicer or the Special
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the related Mortgaged Property or REO Property or
amounts to be released to the related Mortgagor, in each case subject to the
rights of any tenants and ground lessors, as the case may be, and in each case
in accordance with the terms of the related Mortgage and the Servicing Standard)
shall be deposited in the applicable Custodial Account in accordance with
Section 3.04(a) or 3.04A(a), as the case may be, in the case of amounts received
in respect of a Loan, or in the applicable REO Account in accordance with
Section 3.17(b), in the case of amounts received in respect of an REO Property.
Any cost incurred by the Master Servicer or the Special Servicer in maintaining
any such insurance (including any earthquake insurance maintained at the request
of a Controlling Class Certificateholder or the related Companion Loan
Noteholders) shall not, for purposes hereof, including calculating monthly
distributions to Certificateholders, be added to the unpaid principal balance or
Stated Principal Balance of the related Loan or REO Loan, notwithstanding that
the terms of such loan so permit, but shall be recoverable by the Master
Servicer and the Special Servicer as a Servicing Advance.
(b) If either the Master Servicer or the Special Servicer shall
obtain and maintain, or cause to be obtained and maintained, a blanket policy
insuring against hazard losses on all of the Loans and/or REO Properties that it
is required to service and administer, then, to the extent such policy (i) is
obtained from a Qualified Insurer having (or whose obligations are guaranteed or
backed, in writing, by an entity having) a "claims paying ability" or "financial
strength" rating, as applicable, of at least "A" from S&P and "A3" from Xxxxx'x
(if then rated by Xxxxx'x, and if not then rated by Xxxxx'x, then a rating of at
least "A" by S&P) (or, in the case of either Rating Agency, such lower rating as
will not result in an Adverse Rating Event, as evidenced in writing by such
Rating Agency), and (ii) provides protection equivalent to the individual
policies otherwise required, the Master Servicer or the Special Servicer, as the
case may be, shall conclusively be deemed to have satisfied its obligation to
cause hazard insurance to be maintained on the related Mortgaged Properties
and/or REO Properties. Such blanket policy may contain a deductible clause (not
in excess of a customary amount), in which case the Master Servicer or the
Special Servicer, as appropriate, shall, if there shall not have been maintained
on the related Mortgaged Property or REO Property an individual hazard insurance
policy complying with the requirements of Section 3.07(a), and there shall have
been one or more losses that would have been covered by such individual policy,
promptly deposit into the applicable Custodial Account from its own funds the
amount not otherwise payable under the blanket policy because of the deductible
clause therein, to the extent that any such deductible exceeds the deductible
limitation that pertained to the related Loan (or in the absence of any such
deductible limitation, the deductible limitation for an individual policy which
is consistent with the Servicing Standard). The Master Servicer or the Special
Servicer, as appropriate, shall prepare and present, on behalf of itself, the
Trustee and the Certificateholders and, in the case of a Loan Pair Mortgaged
Property, the related Companion Loan Noteholders, claims under any such blanket
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 Loans and/or REO
Properties are part of the Trust Fund) keep in force with Qualified Insurers
having (or whose obligations are guaranteed or backed, in writing, by entities
having) a "claims paying ability" or "financial strength" rating, as applicable,
of at least "A" from S&P and "A2" from Xxxxx'x (or, if not then rated by
Xxxxx'x, then at least "A:IX" by A.M. Best's Key Rating Guide) (or, in the case
of either Rating Agency, such lower rating as will not result in an Adverse
Rating Event, as evidenced in writing by such Rating Agency), a fidelity bond,
which fidelity bond shall be in such form and amount as would permit it to be a
qualified Xxxxxx Xxx seller-servicer of multifamily mortgage loans, or in such
other form and amount as would not cause an Adverse Rating Event (as evidenced
in writing from each Rating Agency). Each of the Master Servicer and the Special
Servicer shall be deemed to have complied with the foregoing provision if an
Affiliate thereof has such fidelity bond coverage and, by the terms of such
fidelity bond, the coverage afforded thereunder extends to the Master Servicer
or the Special Servicer, as the case may be.
Subject to the third paragraph of this Section 3.07(c), each of the
Master Servicer and the Special Servicer shall at all times during the term of
this Agreement (or, in the case of the Special Servicer, at all times during the
term of this Agreement in which Specially Serviced Loans and/or REO Properties
are part of the Trust Fund) also keep in force with Qualified Insurers having
(or whose obligations are guaranteed or backed, in writing, by entities having)
a "claims paying ability" or "financial strength" rating, as applicable, of at
least "A" from S&P and "A2" from Xxxxx'x (or, if not then rated by Xxxxx'x, then
at least "A:IX" by A.M. Best's Key Rating Guide) (or, in the case of either
Rating Agency, such lower rating as will not result in an Adverse Rating Event,
as evidenced in writing by such Rating Agency), a policy or policies of
insurance covering loss occasioned by the errors and omissions of its officers,
employees and agents in connection with its servicing obligations hereunder,
which policy or policies shall be in such form and amount as would permit it to
be a qualified Xxxxxx Mae seller-servicer of multifamily mortgage loans, or in
such other form and amount as would not cause an Adverse Rating Event (as
evidenced in writing from each Rating Agency). Each of the Master Servicer and
the Special Servicer shall be deemed to have complied with the foregoing
provisions if an Affiliate thereof has such insurance and, by the terms of such
policy or policies, the coverage afforded thereunder extends to the Master
Servicer or the Special Servicer, as the case may be.
Notwithstanding the foregoing, for so long as the long-term debt
obligations of the Master Servicer or Special Servicer, as the case may be, are
rated at xxxxx "X0" from Xxxxx'x (if then rated by Xxxxx'x, and if not then
rated by Xxxxx'x, then an equivalent rating by at least one additional
nationally recognized statistical rating agency besides S&P) and "A" from S&P
(or, in the case of any such Rating Agency, such lower rating as will not result
in an Adverse Rating Event, as evidenced in writing by such Rating Agency), such
Person may self-insure with respect to the risks described in this Section
3.07(c).
(d) In the event that either of the Master Servicer or the Special
Servicer has actual knowledge of any event (an "Insured Environmental Event")
giving rise to a claim under any Environmental Insurance Policy in respect of
any Environmentally Insured Mortgage Loan for which the Mortgagor has not filed
a claim or in respect of an REO Property, the Master Servicer shall notify the
Special Servicer if such Loan is a Specially Serviced Loan, and the Special
Servicer shall notify the Master Servicer in all cases. Upon becoming aware of
such Insured Environmental Event, the Master Servicer, in the case of a
non-Specially Serviced Loan, and the Special Servicer, in the case of a
Specially Serviced Loan or an REO Property, in accordance with the terms of such
Environmental Insurance Policy and the Servicing Standard, shall timely make a
claim thereunder with the appropriate insurer and shall take such other actions
necessary under such Environmental Insurance Policy in order to realize the full
value thereof for the benefit of the Certificateholders. With respect to each
Environmental Insurance Policy in respect of an Environmentally Insured Mortgage
Loan, the Master Servicer (in the case of any such Loan that is a non-Specially
Serviced Loan) and the Special Servicer (in the case of any such Loan that is a
Specially Serviced Loan or in the case of an REO Property) shall each review and
familiarize itself with the terms and conditions relating to enforcement of
claims and shall, in the event the Master Servicer or the Special Servicer has
actual knowledge of an Insured Environmental Event giving rise to a claim under
such policy, monitor the dates by which any claim must be made or any action
must be taken under such policy to realize the full value thereof for the
benefit of the Certificateholders.
The Master Servicer (in the case of non-Specially Serviced Loans)
and the Special Servicer (in the case of Specially Serviced Loans and REO
Properties) shall each abide by the terms and conditions precedent to payment of
claims under the Environmental Insurance Policies with respect to the
Environmentally Insured Mortgage Loans and take all such actions as may be
required to comply with the terms and provisions of such policies in order to
maintain such policies in full force and effect and to make claims thereunder.
In the event that either the Master Servicer or the Special Servicer
receives notice of a termination of any Environmental Insurance Policy with
respect to an Environmentally Insured Mortgage Loan, then the party receiving
such notice shall, within five Business Days after receipt thereof, provide
written notice of such termination to the other such party and the Trustee. Upon
receipt of such notice, the Master Servicer, with respect to a Performing
Serviced Loan, or the Special Servicer, with respect to a Specially Serviced
Loan or an REO Property, shall address such termination in accordance with
Section 3.07(a). Any legal fees, premiums or other out-of-pocket costs incurred
in accordance with the Servicing Standard in connection with enforcing the
obligations of the Mortgagor under any Environmental Insurance Policy or a
resolution of such termination of an Environmental Insurance Policy shall be
paid by the Master Servicer and shall be reimbursable to it as a Servicing
Advance.
The Master Servicer (with respect to Performing Serviced Loans) and
the Special Servicer (with respect to Specially Serviced Loans) shall monitor
the actions, and enforce the obligations, of the related Mortgagor under each
Environmentally Insured Mortgage Loan insofar as such actions/obligations relate
to (i) to the extent consistent with Section 3.07(a), the maintenance
(including, without limitation, any required renewal) of an Environmental
Insurance Policy with respect to the related Mortgaged Property or (ii)
environmental testing or remediation at the related Mortgaged Property.
Section 3.08 Enforcement of Due-on-Sale and Due on Encumbrance
Provisions.
(a) In the event that the Master Servicer receives a request from a
Mortgagor pursuant to the provisions of any Performing Serviced Loan that
expressly permit, with the lender's consent, subject to the conditions described
in the loan documents, the transfer of the related Mortgaged Property to, and
assumption of such Loan by, another Person or transfers of certain interests in
such Mortgagor, the Master Servicer shall promptly obtain relevant information
for purposes of evaluating such request. For the purpose of the foregoing
sentence, the term "expressly permits" means outright permission to assign,
permission to assign upon satisfaction of certain conditions or prohibition
against assignment except upon the satisfaction of stated conditions. If the
Master Servicer recommends to approve such transfer and/or assumption, the
Master Servicer shall promptly provide to the Special Servicer a copy of such
recommendation (which shall include the reason therefor) and the materials upon
which such recommendation is based. The Special Servicer shall have the right
hereunder, within 15 days of receipt of such recommendation and supporting
materials and any other materials reasonably requested by the Special Servicer,
to reasonably withhold or, subject to Section 3.08(b), Section 3.08(c) and
Section 6.11, grant consent to any such request for such transfer and/or
assumption in accordance with the terms of the Loan and this Agreement,
including, without limitation, the Servicing Standard. If the Special Servicer
does not respond within such 15 day period, the Special Servicer's consent shall
be deemed granted. If the Special Servicer consents or is deemed to have
consented to such proposed transfer and/or assumption, the Master Servicer shall
process such request of the related Mortgagor; and, in the case of a transfer of
the related Mortgaged Property to, and assumption of such Loan by, another
Person, the Master Servicer shall be authorized to enter into an assumption or
substitution agreement with the Person, which shall be a Single Purpose Entity,
to whom the related Mortgaged Property has been or is proposed to be conveyed
and/or release the original Mortgagor from liability under the related Loan and
substitute as obligor thereunder the Person to whom the related Mortgaged
Property has been or is proposed to be conveyed; provided, however, that the
Master Servicer shall not enter into any such agreement to the extent that any
terms thereof would result in an Adverse REMIC Event or create any lien on a
Mortgaged Property that is senior to, or on parity with, the lien of the related
Mortgage. The Master Servicer shall notify the Trustee, the Special Servicer,
each Rating Agency and, in the case of a Loan Pair, the related Subordinate
Companion Loan Noteholders of any assumption or substitution agreement executed
pursuant to this Section 3.08(a) and shall forward thereto a copy of such
agreement together with a Review Package. Subject to the terms of the related
loan documents, no assumption of a Cross Collateralized Mortgage Loan shall be
made without the assumption of all other Mortgage Loans making up the related
Cross Collateralized Group. Further, subject to the terms of the related loan
documents and applicable law, no assumption of a Loan shall be made or transfer
of interest in a Mortgagor approved, unless all costs in connection therewith,
including any arising from seeking Rating Agency confirmation, are paid by the
related Mortgagor.
(b) Other than with respect to a transfer and assumption referred to
in subsection (a) above, if any Loan contains a provision in the nature of a
"due-on-sale" clause, which by its terms:
(i) provides that such Loan shall (or may at the lender's option)
become due and payable upon the sale or other transfer of an interest in
the related Mortgaged Property or related Mortgagor, or
(ii) provides that such Loan may not be assumed without the consent
of the lender in connection with any such sale or other transfer,
then the Special Servicer on behalf of the Trustee (as mortgagee of record on
behalf of the Certificateholders and, in the case of a Loan Pair Mortgaged
Property, on behalf of the related Companion Loan Noteholders), shall, to the
extent permitted by applicable law, enforce such restrictions, unless the
Special Servicer has determined in its reasonable, good faith judgment, that a
waiver of such restrictions would be in accordance with the Servicing Standard
(as evidenced by an Officer's Certificate setting forth the basis for such
determination delivered, together with a Review Package in respect thereof, to
the Trustee, the Master Servicer, each Rating Agency and, with respect to a Loan
Pair, the related Companion Loan Noteholders); provided that any such waiver of
such restrictions shall be subject to Section 6.11. In addition, the Special
Servicer may not waive any "due-on-sale" provision unless:
(x) 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 or
(y) the related Mortgage Loan (A) represents less than 5% of
the principal balance of all of the Mortgage Loans in
the Trust Fund, (B) has a principal balance that is
equal to or less than $35,000,000 and (C) is not one of
the 10 largest Mortgage Loans in the Mortgage Pool based
on principal balance; and
If the Master Servicer receives a request for consent to a transfer
and assumption of any Loan, the Master Servicer shall promptly notify the
Special Servicer of such request and deliver to the Special Servicer all
documents and records (or copies thereof) in the Master Servicer's possession
regarding the proposed transfer and assumption and such other documents in the
Master Servicer's possession (or copies thereof) regarding the related Loans as
the Special Servicer shall reasonably require in order to consider the request.
Upon consent by the Special Servicer to any proposed transfer of a
Mortgaged Property and assumption by the proposed transferee of the related Loan
pursuant to this Section 3.08(b), the Special Servicer shall process the request
of the related Mortgagor for such transfer and assumption and shall be
authorized to enter into an assumption or substitution agreement with the
Person, which shall be a Single Purpose Entity, to whom the related Mortgaged
Property has been or is proposed to be conveyed and/or release the original
Mortgagor from liability under the related Loan and substitute as obligor
thereunder the Person to whom the related Mortgaged Property has been or is
proposed to be conveyed; provided, however, that the Special Servicer may not
enter into any such agreement to the extent that any terms thereof would result
in an Adverse REMIC Event or create any lien on a Mortgaged Property that is
senior to, or on parity with, the lien of the related Mortgage. The Special
Servicer shall notify the Trustee, the Master Servicer, each Rating Agency and,
with respect to a Loan Pair, the related Companion Loan Noteholders, of any
assumption or substitution agreement executed pursuant to this Section 3.08(b)
and shall forward thereto a copy of such agreement.
Subject to the terms of the related loan documents, no assumption of
a Cross Collateralized Mortgage Loan shall be made without the assumption of all
other Loans making up the related Cross Collateralized Group. Further, subject
to the terms of the related loan documents and applicable law, the Master
Servicer or the Special Servicer, as applicable, shall use reasonable efforts to
ensure that all costs in connection with any assumption, including any arising
from seeking Rating Agency confirmation, are paid by the related Mortgagor. To
the extent not collected from the related Mortgagor, any rating agency charges
in connection with the foregoing shall be paid by the Master Servicer as a
Servicing Advance. In connection with any request for rating confirmation from a
Rating Agency pursuant to this Section 3.08(b), the Special Servicer shall
deliver a Review Package to such Rating Agency. To the extent permitted by the
applicable loan documents and applicable law, the Special Servicer may charge
the related Mortgagor a fee in connection with any enforcement or waiver
contemplated in this subsection (b).
(c) If any Loan contains a provision in the nature of a "due on
encumbrance" clause, which by its terms:
(i) provides that such Loan shall (or may at the lender's option)
become due and payable upon the creation of any lien or other encumbrance
on the related Mortgaged Property or interests in the related Mortgagor,
or
(ii) requires the consent of the lender to the creation of any such
lien or other encumbrance on the related Mortgaged Property or any
interest in the related Mortgagor,
then the Special Servicer, on behalf of the Trustee (as mortgagee of record on
behalf of the Certificateholders and, in the case of a Loan Pair Mortgaged
Property, on behalf of the related Companion Loan Noteholders), shall, to the
extent permitted by applicable law, enforce such restrictions, unless the
Special Servicer has determined in its reasonable, good faith judgment, that a
waiver of such restrictions would be in accordance with the Servicing Standard
(as evidenced by an Officer's Certificate setting forth the basis for such
determination delivered, together with a Review Package in respect thereof, to
the Trustee, the Master Servicer, each Rating Agency and, with respect to a Loan
Pair, the related Companion Loan Noteholders); provided that any such waiver of
such restrictions shall be subject Section 6.11. In addition, the Special
Servicer may not waive any "due-on-encumbrance" provision unless:
(i) the Special Servicer shall have received prior written
confirmation from each Rating Agency that such action would not result in
an Adverse Rating Event,
(ii) the related Mortgage Loan (A) represents less than 2% the
principal balance of all of the Mortgage Loans in the Trust Fund, (B) has
a principal balance that is equal to or less than $20,000,000, (C) is not
one of the 10 largest mortgage loans in the Mortgage Pool based on
principal balance, (D) does not have an aggregate loan-to-value ratio
(including existing and proposed additional debt) that is equal to or
greater than 85%, and (E) does not have an aggregate debt service coverage
ratio (including the debt service on the existing and proposed additional
debt) that is equal to or less than 1.2x to 1.0x, or
(iii) the encumbrance relates to the grant of an easement,
right-of-way or similar encumbrance that the Special Servicer determines
will not have a material adverse impact on the value, use or operation of
the Mortgaged Property or the ability of the borrower to perform its
obligations under the Mortgage Loan.
If the Master Servicer receives a request for consent to an
encumbrance or 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 promptly notify the Special Servicer of such
request or such encumbrance and deliver to the Special Servicer all documents
and records in the Master Servicer's possession (or copies thereof) regarding
the further encumbrance and such other documents in the Master Servicer's
possession (or copies thereof) regarding the related Loans as the Special
Servicer shall reasonably require in order to consider the request.
Further, subject to the terms of the related loan documents and
applicable law, the Master Servicer or the Special Servicer, as applicable,
shall use reasonable efforts to ensure that all costs in connection with any
assumption, including any arising from seeking Rating Agency confirmation, are
paid by the related Mortgagor. To the extent not collected from the related
Mortgagor, the Special Servicer shall use reasonable efforts to ensure that all
costs in connection with any encumbrance, including any arising from seeking
Rating Agency confirmation, are paid by the related Mortgagor. To the extent not
collected from the related Mortgagor, any rating agency charges in connection
with the foregoing shall be paid by the Master Servicer as a Servicing Advance.
In connection with any request for rating confirmation from a Rating Agency
pursuant to this Section 3.08(c), the Special Servicer shall deliver a Review
Package to such Rating Agency. To the extent permitted by the applicable loan
documents and applicable law, the Special Servicer may charge the related
Mortgagor a fee in connection with any enforcement or waiver contemplated in
this subsection (c).
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 6.11, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Specially Serviced Loans as come
into and continue in default and as to which no satisfactory arrangements can be
made for collection of delinquent payments, including pursuant to Section 3.21.
Subject to Section 3.12(d), the Special Servicer shall advance all costs and
expenses incurred by it in any such proceedings, and shall be entitled to
reimbursement therefor as provided in Section 3.05(a) or Section 3.05A, as
applicable. The Special Servicer shall be responsible, consistent with the
Servicing Standard, for determining whether to exercise any rights it may have
under the cross-collateralization and/or cross-default provisions of a
Cross-Collateralized Mortgage Loan. Nothing contained in this Section 3.09 shall
be construed so as to require the Special Servicer, on behalf of the
Certificateholders and, in the case of a Loan Pair Mortgaged Property, on behalf
of the related Companion Loan Noteholders, 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 3.19 and the results of any appraisal obtained as provided below in this
Section 3.09, all such bids to be made in a manner consistent with the Servicing
Standard.
If and when the Master Servicer or the Special Servicer deems it
necessary and prudent for purposes of establishing the fair market value of any
Mortgaged Property securing a Specially Serviced Loan, whether for purposes of
bidding at foreclosure or otherwise, it may have an appraisal performed with
respect to such property by an Independent Appraiser or other expert in real
estate matters, which appraisal shall take into account the factors specified in
Section 3.19, and the cost of which appraisal shall be covered by, and be
reimbursable as, a Servicing Advance; provided that if the Master Servicer
intends to obtain an appraisal in connection with the foregoing, the Master
Servicer shall so notify the Special Servicer and consult with the Special
Servicer regarding such appraisal.
If any Serviced Loan becomes a Required Appraisal Loan, then the
Special Servicer shall (i) obtain or conduct, as applicable, a Required
Appraisal within 60 days of such Serviced Loan's becoming a Required Appraisal
Loan (unless a Required Appraisal was obtained or conducted, as applicable, with
respect to such Required Appraisal Loan within the prior 12 months and the
Special Servicer reasonably believes, in accordance with the Servicing Standard,
that no material change has subsequently occurred with respect to the related
Mortgaged Property that would draw into question the applicability of such
Required Appraisal) and (ii) obtain or conduct, as applicable, an update of the
most recent Required Appraisal approximately 12 months following the most recent
Required Appraisal or subsequent update thereof for so long as such Serviced
Loan or any successor REO Loan, as the case may be, remains a Required Appraisal
Loan. The Special Servicer shall deliver copies of all such Required Appraisals
and updated Required Appraisals to the Trustee, the Master Servicer and, in the
case of a Loan Pair Mortgaged Property, the related Companion Loan Noteholder,
in each such case, promptly following the Special Servicer's receipt of the
subject appraisal, and to the Controlling Class Directing Holder upon request,
and based thereon, the Special Servicer shall calculate and notify the Trustee,
the Master Servicer, the Controlling Class Directing Holder and, in the case of
a Loan Pair, the related Companion Loan Noteholders, of any resulting Appraisal
Reduction Amount. Such calculations by the Special Servicer shall be subject to
review and confirmation by the Master Servicer, provided that the Master
Servicer may rely on any information provided by the Special Servicer.
The Special Servicer shall advance the cost of each such Required
Appraisal and updated Required Appraisal; provided, however, that such expense
will be subject to reimbursement to the Special Servicer as a Servicing Advance
out of the related Custodial Account pursuant to Section 3.05(a) or Section
3.05A. At any time that an Appraisal Reduction Amount exists with respect to any
Required Appraisal Loan, the applicable Directing Holder (without giving effect
to any Control Appraisal Event, which may have been triggered by the most recent
Appraisal Reduction Amount) may, at its own expense direct the Special Servicer
to appoint an Independent Appraiser reasonably satisfactory to the Companion
Loan Holder to prepare a second Appraisal of the Mortgaged Property at the
expense of the Companion Loan Holder. If the Appraised Value of the Mortgaged
Property determined by the second Appraisal does not differ from that used in
determining the Appraisal Reduction Amount by more than 10%, the first Appraisal
shall be utilized to determine the Appraisal Reduction Amount. If the Appraised
Value of the Mortgaged Property determined by the second Appraisal differs from
that used in determining the Appraisal Reduction Amount by more than 10%, the
Special Servicer shall direct the Independent Appraisers to jointly appoint a
third Independent Appraiser, at the expense of the related Companion Loan
Holder, to reconcile the differences between the Appraised Values determined
under each Appraisal. The determination of such third Independent Appraiser
shall be the final and binding determination of the Appraised Value of the
Mortgaged Property for purposes of this paragraph until the preparation of a new
Appraisal in accordance with the terms of this Agreement. Until such time as the
Special Servicer determines to change the Appraisal Reduction Amount as a result
of any Appraisal requested by the Companion Loan Holder, the original Control
Appraisal Event shall remain in effect.
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Certificateholders (and, in the case of a Loan Pair Mortgaged Property, the
related Companion Loan Noteholders) under such circumstances, in such manner or
pursuant to such terms as would, in the reasonable, good faith judgment of the
Special Servicer (exercised in accordance with the Servicing Standard), (i)
cause such Mortgaged Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code (unless the portion of such
Mortgaged Property that is not treated as "foreclosure property" and that is
held by the Lower-Tier REMIC at any given time constitutes not more than a de
minimis amount of the assets of the Lower-Tier REMIC within the meaning of
Treasury Regulations Section 1.860D-1(b)(3)(i) and (ii)), or (ii) except as
permitted by Section 3.18(a), subject the Trust Fund to the imposition of any
federal income taxes under the Code.
In addition, the Special Servicer shall not acquire any personal
property pursuant to this Section 3.09 unless either:
(i) such personal property is, in the reasonable, good faith
judgment of the Special Servicer (exercised in accordance with the
Servicing Standard), incident to real property (within the meaning of
Section 856(e)(1) of the Code) so acquired by the Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be covered by, and be reimbursable as, a
Servicing Advance) to the effect that the holding of such personal
property as part of the Trust Fund will not cause the imposition of a tax
on either REMIC Pool under the REMIC Provisions or cause either REMIC Pool
to fail to qualify as a REMIC at any time that any Certificate is
outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trustee (and, in the case of a Loan Pair Mortgaged Property, on behalf of the
related Companion Loan Noteholders), obtain title to a Mortgaged Property by
foreclosure, deed in lieu of foreclosure or otherwise, or take any other action
with respect to any Mortgaged Property, if, as a result of any such action, the
Trustee, on behalf of the Certificateholders (and, in the case of a Loan Pair
Mortgaged Property, the related Companion Loan Noteholders), could, in the
reasonable, good faith judgment of the Special Servicer, exercised in accordance
with the Servicing Standard, be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law (a
"potentially responsible party"), unless such action is consistent with Section
6.11 and the Special Servicer has previously determined (as evidenced by an
Officer's Certificate to such effect delivered to the Trustee (and, in the case
of a Loan Pair Mortgaged Property, the related Companion Loan Noteholders) that
shall specify all of the bases for such determination), in accordance with the
Servicing Standard and based on an Environmental Assessment of such Mortgaged
Property performed by an Independent Person, who regularly conducts
Environmental Assessments, within six months prior to any such acquisition of
title or other action (a copy of which Environmental Assessment shall be
delivered to the Trustee, the Master Servicer and, in the case of a Loan Pair
Mortgaged Property, the related Companion Loan Noteholders), that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that it would (taking into
account the coverage provided under any related Environmental Insurance
Policy) maximize the recovery on the related Serviced Loan to the
Certificateholders (as a collective whole) (or, if a Loan Pair is
involved, would maximize the recovery on such Loan Pair to the
Certificateholders and the related Companion Loan Noteholders (as a
collective whole)), on a present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders
(or, in the case of a Loan Pair, to Certificateholders and the related
Companion Loan Noteholders) to be performed at the related Mortgage Rate
(or, in the case of any Loan Pair, at the weighted average of the Mortgage
Rates for such Loan Pair)) in each case) to acquire title to or possession
of the Mortgaged Property and to take such actions as are necessary to
bring the Mortgaged Property into compliance therewith in all material
respects; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could reasonably be
expected to be required, that it would (taking into account the coverage
provided under any related Environmental Insurance Policy) maximize the
recovery on the related Serviced Loan to the Certificateholders (as a
collective whole) (or, if a Loan Pair is involved, would maximize the
recovery of such Loan Pair to the Certificateholders and the related
Companion Loan Noteholders (as a collective whole)), on a present value
basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders (or, in the case of a Loan Pair, to
Certificateholders and the related Companion Loan Noteholders) to be
performed at the related Mortgage Rate, in each case, to acquire title to
or possession of the Mortgaged Property and to take such actions with
respect to the affected Mortgaged Property.
The Special Servicer shall, in good faith, undertake reasonable
efforts to make the determination referred to in the preceding paragraph and may
conclusively rely on the Environmental Assessment referred to above in making
such determination. The cost of any such Environmental Assessment shall be
covered by, and reimbursable as, a Servicing Advance; and if any such
Environmental Assessment so warrants, the Special Servicer shall perform or
cause to be performed such additional environmental testing as it deems
necessary and prudent to determine whether the conditions described in clauses
(i) and (ii) of the preceding paragraph have been satisfied (the cost of any
such additional testing also to be covered by, and reimbursable as, a Servicing
Advance). The cost of any remedial, corrective or other further action
contemplated by clause (i) and/or clause (ii) of the preceding paragraph, shall
be payable out of the related Custodial Account pursuant to Section 3.05 or
Section 3.05A, as applicable (or, in the case of a Loan Pair, to the extent the
funds in the applicable Loan Pair Custodial Account are insufficient, shall be
advanced by the Master Servicer).
(d) If the environmental testing contemplated by Section 3.09(c)
above establishes that any of the conditions set forth in clauses (i) and (ii)
of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a defaulted Serviced Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property). At such time as it deems
appropriate, the Special Servicer may, on behalf of the Trust (and, if a
Companion Loan is affected, the related Companion Loan Noteholders), subject to
Section 6.11, release all or a portion of such Mortgaged Property from the lien
of the related Mortgage; provided that, if such Loan has a then outstanding
principal balance greater than $1,000,000, then prior to the release of all or a
portion of the related Mortgaged Property from the lien of the related Mortgage,
(i) the Special Servicer shall have notified the Rating Agencies, the Trustee
and the Master Servicer in writing of its intention to so release all or a
portion of such Mortgaged Property and the bases for such intention, (ii) the
Trustee shall have notified the Certificateholders (and, if a Loan Pair is
affected, the related Companion Loan Noteholders) in writing of the Special
Servicer's intention to so release all or a portion of such Mortgaged Property,
and (iii) the Holders of Certificates entitled to a majority of the Voting
Rights shall not have objected to such release within 30 days of the Trustee's
distributing such notice.
(e) The Special Servicer shall report to the Master Servicer, the
Underwriters, the Trustee and, if a Loan Pair is affected, the related Companion
Loan Noteholders, monthly in writing as to any actions taken by the Special
Servicer with respect to any Mortgaged Property that represents security for a
defaulted Serviced Loan as to which the environmental testing contemplated in
Section 3.09(c) above has revealed that any of the conditions set forth in
clauses (i) and (ii) of the first sentence thereof has not been satisfied, in
each case until the earlier to occur of satisfaction of all such conditions and
release of the lien of the related Mortgage on such Mortgaged Property.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the affected Serviced Loan permit such an action, and shall, in
accordance with the Servicing Standard, seek such deficiency judgment if it
deems advisable (the cost of which undertaking shall be covered by, and be
reimbursable as, a Servicing Advance).
(g) The Master Servicer shall, with the reasonable cooperation of
the Special Servicer, prepare and file information returns with respect to the
receipt of mortgage interest received with respect to any Mortgaged Property
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 Serviced Loan or REO Property, it shall
promptly notify the Trustee, the Master Servicer and, if a Loan Pair is
affected, the related Companion Loan Noteholders. The Special Servicer shall
maintain accurate records, prepared by a Servicing Officer, of each such Final
Recovery Determination (if any) and the basis thereof. Each such Final Recovery
Determination (if any) shall be evidenced by an Officer's Certificate delivered
to the Trustee, the Master Servicer and, if a Loan Pair is affected, the related
Companion Loan Noteholders, no later than the seventh Business Day following
such Final Recovery Determination.
Section 3.10 Trustee and Custodian to Cooperate; Release of Mortgage
Files.
(a) Upon the payment in full of any Serviced Loan, or the receipt by
the Master Servicer or the Special Servicer of a notification that payment in
full shall be escrowed in a manner customary for such purposes, the Master
Servicer or the Special Servicer shall promptly notify the Trustee (and, in the
case of a Companion Loan, the related Companion Loan Noteholders) by a
certification (which certification shall be in the form of a Request for Release
in the form of Exhibit D-1 attached hereto and shall be accompanied by the form
of a release or discharge and shall include a statement to the effect that all
amounts received or to be received in connection with such payment which are
required to be deposited in the appropriate Custodial Account pursuant to
Section 3.04(a) or 3.04A(a), as applicable, have been or will be so deposited)
of a Servicing Officer (a copy of which certification shall be delivered to the
Special Servicer) and shall request delivery to it of the related Mortgage File
and, in the case of a Companion Loan, the original of the Mortgage Note for such
Companion Loan. Upon receipt of such certification and request, the Trustee
shall release, or cause any related Custodian to release, the related Mortgage
File (and, in the case of a Companion Loan, the Master Servicer shall cause the
related Companion Loan Noteholders to release the Mortgage Note for such
Companion Loan) to the Master Servicer or Special Servicer and shall deliver to
the Master Servicer or Special Servicer, as applicable, such release or
discharge, duly executed. No expenses incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Distribution
Account or any Custodial Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Serviced Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof) (or the
original of the Mortgage Note for the Companion Loans), the Trustee, upon
request of the Master Servicer and receipt from the Master Servicer of a Request
for Release in the form of Exhibit D-1 attached hereto signed by a Servicing
Officer thereof, or upon request of the Special Servicer and receipt from the
Special Servicer of a Request for Release in the form of Exhibit D-2 attached
hereto, shall release, or cause any related Custodian to release, such Mortgage
File (or such portion thereof) (and, in the case of the Companion Loans, the
Master Servicer shall cause the related Companion Loan Noteholders to release
the original of the Mortgage Note for such Companion Loan) to the Master
Servicer or the Special Servicer, as the case may be. Upon return of such
Mortgage File (or such portion thereof) (or such original Mortgage Note for the
related Companion Loans) to the Trustee or related Custodian (or to the related
Companion Loan Noteholders), or the delivery to the Trustee (or to the related
Companion Loan Noteholders) of a certificate of a Servicing Officer of the
Special Servicer stating that such Serviced Loan was liquidated and that all
amounts received or to be received in connection with such liquidation that are
required to be deposited into the related Custodial Account pursuant to Section
3.04(a) or 3.04A(a), as applicable, have been or will be so deposited, or that
the related Mortgaged Property has become an REO Property, the Request for
Release shall be released by the Trustee or related Custodian to the Master
Servicer or the Special Servicer, as applicable.
(c) Within seven Business Days (or within such shorter period (but
no less than three Business Days) as execution and delivery can reasonably be
accomplished if the Special Servicer notifies the Trustee (and, in the case of a
Loan Pair Mortgaged Property, the related Companion Loan Noteholders) of an
exigency) of the Special Servicer's request therefor, the Trustee shall execute
and deliver to the Special Servicer (or the Special Servicer may execute and
deliver in the name of the Trustee (on behalf of the Certificateholders and, in
the case of a Loan Pair Mortgaged Property, also on behalf of the related
Companion Loan Noteholders) 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 to any legal action brought
to obtain judgment against any Mortgagor on the Mortgage Note or Mortgage or to
obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Mortgage Note or Mortgage or otherwise available at law or in
equity or to defend any legal action or counterclaim filed against the Trust
Fund, the Master Servicer, the Special Servicer or the Companion Loan
Noteholders. Together with such documents or pleadings, the Special Servicer
shall deliver to the Trustee (and, in the case of a Loan Pair Mortgaged
Property, the related Companion Loan Noteholders) a certificate of a Servicing
Officer requesting that such pleadings or documents be executed by the Trustee
and certifying as to the reason such documents or pleadings are required and
that the execution and delivery thereof by the Trustee (on behalf of the
Certificateholders and, in the case of a Loan Pair Mortgaged Property, also on
behalf of the related Companion Loan Noteholders) will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale. Notwithstanding
anything contained herein to the contrary, neither the Master Servicer nor the
Special Servicer shall, without the Trustee's written consent: (i) initiate any
action, suit or proceeding solely under the Trustee's name without indicating
the Master Servicer's or Special Servicer's, as applicable, representative
capacity, or (ii) take any action with the intent to cause, and that actually
causes, the Trustee to be registered to do business in any state.
Section 3.11 Servicing Compensation; Payment of Expenses.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Loan (other than the Windsor Capital Portfolio Companion Loans but
including the Windsor Capital Portfolio Trust Loan), including each Specially
Serviced Loan, and each REO Loan. As to each Loan (other than the Windsor
Capital Portfolio Companion Loans but including the Windsor Capital Portfolio
Trust Loan) and REO Loan, the Master Servicing Fee shall: (i) accrue from time
to time at the related Master Servicing Fee Rate on the same principal amount as
interest accrues from time to time on such Loan or is deemed to accrue from time
to time on such REO Loan; and (ii) be calculated on a 30/360 Basis (or, in the
case of the Companion Loans or any related REO Loans, on an Actual/360 Basis)
(or, in the event that a Principal Prepayment in full or other Liquidation Event
shall occur with respect to any such Loan or REO Loan on a date that is not a
Due Date, on the basis of the actual number of days to elapse from and including
the most recently preceding related Due Date to but excluding the date of such
Principal Prepayment or Liquidation Event in a month consisting of 30 days). The
Master Servicing Fee with respect to any such Loan or REO Loan shall cease to
accrue if a Liquidation Event occurs in respect thereof. Earned but unpaid
Master Servicing Fees shall be payable monthly, on a loan-by-loan basis, from
payments of interest on each such Loan and REO Revenues allocable as interest on
each such REO Loan. The Master Servicer shall be entitled to recover unpaid
Master Servicing Fees in respect of any such Loan or REO Loan out of that
portion of related Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds allocable as recoveries of interest, to the extent permitted by Section
3.05(a) or Section 3.05A(a), as applicable. The right to receive the Master
Servicing Fee may not be transferred in whole or in part except in connection
with the transfer of all of the Master Servicer's responsibilities and
obligations under this Agreement.
Additional servicing compensation in the form of (i) Net Default
Charges, charges for beneficiary statements or demands, amounts collected for
checks returned for insufficient funds, and any similar fees (excluding
Prepayment Premiums and Yield Maintenance Charges), in each case to the extent
actually paid by a Mortgagor with respect to any Serviced Loan and accrued
during the time that such Serviced Loan was not a Specially Serviced Loan, (ii)
100% of each modification fee or extension fee actually paid by a Mortgagor with
respect to a modification, consent, extension, waiver or amendment agreed to by
the Master Servicer pursuant to Section 3.21(c) and 100% of any fee actually
paid by a Mortgagor in connection with a defeasance of a Serviced Loan as
contemplated under Section 3.21(k), and (iii) 50% of any and all assumption fees
and 100% of any and all assumption application fees and other applicable fees,
actually paid by a Mortgagor in accordance with the related loan documents, with
respect to any assumption or substitution agreement entered into by the Master
Servicer on behalf of the Trust (or, in the case of a Loan Pair, on behalf of
the Trust and the related Companion Loan Noteholders) pursuant to Section
3.08(a) or paid by a Mortgagor with respect to any transfer of an interest in a
Mortgagor pursuant to Section 3.08(a), shall be retained by the Master Servicer
or promptly paid to the Master Servicer by the Special Servicer and such
additional servicing compensation is not required to be deposited in any
Custodial Account. The Master Servicer shall also be entitled to additional
servicing compensation in the form of (i) Prepayment Interest Excesses (except
in the case of the Companion Loans); (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).
(b) Except as provided in the last sentence of this paragraph, as
compensation for its activities hereunder, the Special Servicer shall be
entitled to receive the Special Servicing Fee with respect to each Specially
Serviced Loan and each REO Loan that was previously a Serviced Loan. With
respect to each such Specially Serviced Loan and REO Loan, for any calendar
month (or portion thereof), the Special Servicing Fee shall: (i) accrue from
time to time at the Special Servicing Fee Rate on the same principal amount as
interest accrues from time to time on such Loan or is deemed to accrue from time
to time on such REO Loan; and (ii) be calculated on a 30/360 Basis (or, in the
case of the Companion Loans or any related REO Loans, on an Actual/360 Basis)
(or, in the event that a Principal Prepayment in full or other Liquidation Event
shall occur with respect to any such Specially Serviced Loan or REO Loan on a
date that is not a Due Date, on the basis of the actual number of days to elapse
from and including the most recently preceding related Due Date to but excluding
the date of such Principal Prepayment or Liquidation Event, in a month
consisting of 30 days and, in the case of any other partial period that does not
run from one Due Date through and including the day immediately preceding the
next Due Date, on the basis of the actual number of days in such period in a
month consisting of 30 days). The Special Servicing Fee with respect to any such
Specially Serviced Loan or REO Loan shall cease to accrue as of the date a
Liquidation Event occurs in respect thereof or it becomes a Corrected Loan.
Earned but unpaid Special Servicing Fees shall be payable monthly out of general
collections on the Mortgage Loans and any REO Properties (or, in the case of
Special Servicing Fees in respect of a Loan Pair, solely out of collections
relating to such Loan Pair or any related REO Property) on deposit in the
appropriate Custodial Account pursuant to Section 3.05(a) or Section 3.05A(a),
as applicable.
As further compensation for its services hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Loan. As to each such Corrected Loan, the Workout Fee shall be payable
from, and shall be calculated by application of the Workout Fee Rate to, all
collections of principal, interest (other than Default Interest), Prepayment
Premiums and/or Yield Maintenance Charges received on such Loan for so long as
it remains a Corrected Loan; provided that no Workout Fee shall be payable from,
or based upon the receipt of, Liquidation Proceeds collected in connection with
the purchase of any such Specially Serviced Loan or REO Property by a Purchase
Option Holder pursuant to Section 3.19, by the Depositor, the Mortgage Loan
Seller, the Special Servicer, a Controlling Class Certificateholder or the
Master Servicer pursuant to Section 9.01, a Companion Loan Noteholder or its
designee pursuant to the Co-Lender Agreement, by the Depositor pursuant to
Section 2.03(a), or by the holder of a related mezzanine loan pursuant to a
purchase right in connection with a Loan default as set forth in the related
intercreditor agreement, or out of any Condemnation Proceeds. The Workout Fee
with respect to any Corrected Loan will cease to be payable if such Corrected
Loan again becomes a Specially Serviced Loan or if the related Mortgaged
Property becomes an REO Property; provided that a new Workout Fee will become
payable if and when the particular Serviced Loan again becomes a Corrected Loan.
If the Special Servicer is terminated or removed other than for cause (and other
than as a result of an Event of Default under Sections 7.01(a)(x), 7.01(a)(xi)
or 7.01(a)(xii)) or resigns in accordance with the first sentence of the first
paragraph of Section 6.04, it shall retain the right to receive any and all
Workout Fees payable in respect of Serviced Loans that became Corrected Loans
during the period that it acted as Special Servicer and were still such at the
time of such termination, removal or resignation (and the successor Special
Servicer shall not be entitled to any portion of such Workout Fees), in each
case until the Workout Fee for any such Serviced Loan ceases to be payable in
accordance with the preceding sentence.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive the Liquidation Fee with respect to
each Specially Serviced Loan as to which it receives a full, partial or
discounted payoff and, subject to the provisos to the next sentence, each
Specially Serviced Loan and Administered REO Property as to which it receives
Liquidation Proceeds. As to each such Specially Serviced Loan or Administered
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); provided that no Liquidation Fee
shall be payable (i) with respect to any such Specially Serviced Loan that
becomes a Corrected Loan or (ii) from, or based upon the receipt of, Liquidation
Proceeds collected in connection with the purchase of any such Specially
Serviced Loan or Administered REO Property by a Purchase Option Holder pursuant
to Section 3.19, by the Depositor, the Mortgage Loan Seller, the Special
Servicer, a Controlling Class Certificateholder or the Master Servicer pursuant
to Section 9.01, by a Companion Loan Noteholder or its designee pursuant to the
Co-Lender Agreement, by the Mortgage Loan Seller pursuant to Section 2.03(a) in
connection with a Material Document Defect or a Material Breach (within 180 days
of the discovery or receipt of notice by the Mortgage Loan Seller of the subject
Material Document Defect or Material Breach, as applicable, that gave rise to
the particular repurchase obligation) or by the holder of a related mezzanine
loan pursuant to a purchase right in connection with a Loan default as set forth
in the related intercreditor agreement; and provided, further, that, in
connection with any purchase by the Mortgage Loan Seller pursuant to Section
2.03(a), more than 180 days following the discovery or receipt of notice by the
Mortgage Loan Seller, the Liquidation Fee shall equal 1% of the Stated Principal
Balance of the repurchased Mortgage Loan (or, if an REO Property is being
repurchased, 1% of the Stated Principal Balance of the related REO Mortgage
Loan).
Notwithstanding anything to the contrary herein, a Liquidation Fee
and a Workout Fee relating to the same Loan shall not be paid from the same
proceeds with respect to such Loan.
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.
The Special Servicer will not be entitled to any compensation with
respect to the Windsor Capital Portfolio Loan Pair, which is serviced under the
2003-C1 PSA.
(c) Additional special servicing compensation in the form of (i) Net
Default Charges actually collected on the Mortgage Pool that accrued with
respect to a Specially Serviced Loan or an REO Loan, (ii) with respect to any
Specially Serviced Loan, 100% of any and all assumption application fees and
other applicable fees, actually paid by a Mortgagor in accordance with the
related loan documents, with respect to any assumption or substitution agreement
entered into by the Special Servicer on behalf of the Trust (or, in the case of
a Loan Pair, on behalf of the Trust and the related Companion Loan Noteholders)
pursuant to Section 3.08(b) or paid by a Mortgagor with respect to any transfer
of an interest in a Mortgagor pursuant to Section 3.08(b), and (iii) any and all
assumption fees, modification fees, consent fees, extension fees and similar
fees actually collected on the Serviced Loans that are not otherwise payable to
the Master Servicer as additional servicing compensation pursuant to Section
3.11(a), shall be retained by the Special Servicer or promptly paid to the
Special Servicer by the Master Servicer, as the case may be, and shall not be
required to be deposited in any Custodial Account pursuant to Section 3.04(a) or
Section 3.04A(a). The Special Servicer shall also be entitled to additional
special servicing compensation in the form of interest or other income earned on
deposits in any of the REO Accounts, if established, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any, with
respect to such account for each Collection Period).
(d) The Master Servicer and the Special Servicer shall each be
required to pay out of its own funds all expenses incurred by it in connection
with its servicing activities hereunder (including payment of any amounts due
and owing to any of its Sub-Servicers and the premiums for any blanket policy
obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if
and to the extent such expenses are not payable directly out of any of the
Custodial Accounts or, in the case of the Special Servicer, any of the REO
Accounts, and neither the Master Servicer nor the Special Servicer shall be
entitled to reimbursement for such expenses except as expressly provided in this
Agreement.
Section 3.12 Certain Matters Regarding Servicing Advances.
(a) If the Master Servicer or Special Servicer is required under any
provision of this Agreement to make a Servicing Advance, but neither does so
within 15 days after such Advance is required to be made, the Trustee shall, if
it has actual knowledge of such failure on the part of the Master Servicer or
Special Servicer, as the case may be, give written notice of such failure, as
applicable, to the Master Servicer or the Special Servicer. If such Servicing
Advance is not made by the Master Servicer or the Special Servicer within three
Business Days after such notice is given to the Master Servicer or the Special
Servicer, as applicable, then (subject to Section 3.12(d)) 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 3.12(d)) 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.
(b) The Master Servicer, the Special Servicer, the Trustee and the
Fiscal Agent shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, compounded monthly, accrued on the amount of
each Servicing Advance made thereby (with its own funds) for so long as such
Servicing Advance is outstanding, such interest to be payable: (i) out of any
Default Charges on deposit in the Pool Custodial Account that were collected on
or in respect of the Mortgage Pool during the same Collection Period in which
such Servicing Advance is reimbursed; and (ii) to the extent that such Default
Charges are insufficient, but not before the related Advance has been reimbursed
pursuant to this Agreement, out of general collections on the Mortgage Loans and
REO Properties on deposit in the Pool Custodial Account; provided that, if such
Servicing Advance was made with respect to a Loan Pair (other than the Windsor
Capital Portfolio Loan Pair) or a Loan Pair Mortgaged Property (other than the
Windsor Capital Portfolio Loan Pair), then such interest shall first be payable
out of amounts on deposit in the related Loan Pair Custodial Account in
accordance with clause (viii) of Section 3.05A.
(c) The Master Servicer shall reimburse itself, the Special
Servicer, the Trustee or the Fiscal Agent, as appropriate and in accordance with
Section 3.03, Section 3.05(a) or Section 3.05A(a), as applicable, for any
Servicing Advance as soon as practicable after funds available for such purpose
are deposited in the related Custodial Account.
(d) Notwithstanding anything herein to the contrary, none of the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent shall be
required to make out of its own funds any Servicing Advance that would, if made,
constitute a Nonrecoverable Servicing Advance. The determination by either the
Master Servicer or the Special Servicer that it has made a Nonrecoverable
Servicing Advance or that any proposed Servicing Advance, if made, would
constitute a Nonrecoverable Servicing Advance, shall be made in accordance with
the Servicing Standard and shall be evidenced by an Officer's Certificate
delivered promptly to the Trustee and the Depositor (and, if affected thereby,
the related Companion Loan Noteholder), setting forth the basis for such
determination, together with a copy of any appraisal of the related Mortgaged
Property or REO Property, as the case may be (which appraisal shall be an
expense of the Trust, shall take into account the factors specified in Section
3.19 and shall have been conducted by an Independent Appraiser in accordance
with the standards of the Appraisal Institute within the twelve months preceding
such determination of nonrecoverability), and further accompanied by related
Mortgagor operating statements and financial statements, budgets and rent rolls
of the related Mortgaged Property (to the extent available and/or in the Master
Servicer's or the Special Servicer's possession) and any engineers' reports,
environmental surveys or similar reports that the Master Servicer or the Special
Servicer may have obtained and that support such determination. If the Master
Servicer intends to obtain an appraisal in connection with the foregoing, the
Master Servicer shall so notify the Special Servicer and consult with the
Special Servicer regarding such appraisal. The Trustee and the Fiscal Agent
shall be entitled to rely, conclusively, on any determination by the Master
Servicer or the Special Servicer that a Servicing Advance, if made, would be a
Nonrecoverable Advance; provided, however, that if the Master Servicer or the
Special Servicer has failed to make a Servicing Advance for reasons other than a
determination by the Master Servicer or the Special Servicer, as applicable,
that such Servicing Advance would be a Nonrecoverable Advance, the Trustee or
the Fiscal Agent, as applicable, shall make such Servicing Advance within the
time periods required by Section 3.12(a) unless the Trustee or the Fiscal Agent,
in good faith, makes a determination that such Servicing Advance would be a
Nonrecoverable Advance.
(e) Notwithstanding anything set forth herein to the contrary, the
Master Servicer shall (at the direction of the Special Servicer if a Specially
Serviced Loan or an Administered REO Property is involved) pay directly out of
the Pool Custodial Account or the related Loan Pair Custodial Account, as
applicable, any servicing expense that, if advanced by the Master Servicer or
the Special Servicer, would constitute a Nonrecoverable Servicing Advance;
provided that the Master Servicer (or the Special Servicer, if a Specially
Serviced Loan or an Administered REO Property is involved) has determined in
accordance with the Servicing Standard that making such payment, in the case of
withdrawals from the Pool Custodial Account, is in the best interests of the
Certificateholders (as a collective whole) or, in the case of a Custodial
Account, is in the best interests of the Certificateholders and, in the case of
a Loan Pair, the related Companion Loan Noteholders (as a collective whole), as
evidenced in each case by an Officer's Certificate delivered promptly to the
Trustee, the Depositor, the Controlling Class Directing Holder and, if affected
thereby, the applicable Companion Loan Noteholder, setting forth the basis for
such determination and accompanied by any information that such Person may have
obtained that supports such determination. A copy of any such Officer's
Certificate (and accompanying information) of the Master Servicer shall also be
promptly delivered to the Special Servicer, and a copy of any such Officer's
Certificate (and accompanying information) of the Special Servicer shall also be
promptly delivered to the Master Servicer. The Master Servicer may conclusively
rely on any information in this regard provided by the Special Servicer (if
other than the Master Servicer or an Affiliate thereof).
Section 3.13 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 Serviced Loan becomes a Specially Serviced Loan and annually thereafter
for so long as the related Loan remains a Specially Serviced Loan, the cost of
which shall be paid by the Special Servicer and shall be reimbursable as a
Servicing Advance. In addition, the Special Servicer shall perform or cause to
be performed a physical inspection of each of the REO Properties at least once
per calendar year, the cost of which shall be paid by the Special Servicer and
shall be reimbursable as a Servicing Advance. Beginning in 2004, the Master
Servicer shall at its expense perform or cause to be performed a physical
inspection of each Mortgaged Property securing a Performing Serviced Loan: (i)
at least once every two calendar years in the case of Mortgaged Properties
securing Loans that have outstanding principal balances of (or Mortgaged
Properties having allocated loan amounts of) $2,000,000 or less; and (ii) at
least once every calendar year in the case of all other such Mortgaged
Properties; provided, that the Master Servicer will not be required to perform
or cause to be performed an inspection on a Mortgaged Property if such Mortgaged
Property has been inspected by the Master Servicer or the Special Servicer in
the preceding six months. The Master Servicer and the Special Servicer shall
each promptly prepare or cause to be prepared and deliver to the Trustee and
each other a written report of each such inspection performed by it that sets
forth in detail the condition of the Mortgaged Property and that specifies the
existence of: (i) any sale, transfer or abandonment of the Mortgaged Property of
which the Master Servicer or the Special Servicer, as applicable, is aware, (ii)
any change in the condition or value of the Mortgaged Property that the Master
Servicer or the Special Servicer, as applicable, in its reasonable, good faith
judgment, considers material, or (iii) any waste committed on the Mortgaged
Property. The Master Servicer and Special Servicer shall each forward copies of
any such inspection reports prepared by it to the Underwriters and the
Controlling Class Directing Holder upon request, subject to payment of a
reasonable fee.
(b) The Special Servicer, in the case of each Specially Serviced
Loan and each REO Loan that was previously a Serviced Loan, and the Master
Servicer, in the case of each Performing Serviced Loan, shall each, consistent
with the Servicing Standard, use reasonable efforts to obtain quarterly, annual
and other periodic operating statements and rent rolls with respect to each of
the related Mortgaged Properties and REO Properties. The Special Servicer shall,
promptly following receipt, deliver copies of the operating statements and rent
rolls received or obtained by it to the Master Servicer, and the Master Servicer
shall promptly deliver copies of the operating statements and rent rolls
received or obtained by it to the Trustee, the Special Servicer or any
Controlling Class Certificateholder, in each case upon request. In addition to
the foregoing and solely with respect to the Loan Pairs, the Special Servicer
and the Master Servicer, as applicable, shall each, consistent with the
Servicing Standard, use reasonable efforts to obtain occupancy reports, sales
reports for retail tenants, 24-month rolling lease expiration schedules, reserve
balances and capital expenditure statements, as well as information as to
bankrupt tenants and tenants whose leases have expired and have not been
renewed. The Special Servicer shall, promptly following receipt, deliver copies
of the materials received or obtained by it pursuant to the foregoing sentence
to the Master Servicer, and the Master Servicer shall promptly deliver copies of
all such materials received or obtained by it pursuant to the foregoing sentence
and this sentence to the Trustee, the Special Servicer, any Controlling Class
Certificateholders and, in the case of the Loan Pairs, to the related Companion
Loan Noteholders, in each case upon request; provided that, with respect to the
Loan Pairs, the Special Servicer or the Master Servicer, as applicable, shall
forward any financial statements received with respect to the Loan Pair
Mortgaged Properties to the Trustee promptly upon receipt thereof without the
Trustee having to make a request, but only insofar as such financial statements
are to be included in an Annual Report on Form 10-K; and provided, further, that
in the event that any losses are incurred by the Depositor that are based upon
or arise out of financial statements filed with the Commission with respect to
the Loan Pair Mortgaged Properties, the Trustee shall assign or subrogate, as
appropriate, any rights it may have against the related Mortgagor with respect
to such financial statements or against the applicable auditors under any
independent auditors' report filed together with such financial statements, to
the Depositor and/or its designee, to the extent such assignment is permitted by
applicable law.
Within 30 days after receipt by the Master Servicer of any annual
operating statements with respect to any Mortgaged Property or Administered REO
Property, the Master Servicer with respect to a Performing Serviced Loan and the
Special Servicer with respect to a Specially Serviced Loan shall prepare or
update and forward to the Trustee a CMSA NOI Adjustment Worksheet for such
Mortgaged Property or REO Property (with, upon request, the annual operating
statements attached thereto as an exhibit).
The Master Servicer with respect to a Performing Serviced Loan and
the Special Servicer with respect to a Specially Serviced Loan shall prepare and
maintain one CMSA Operating Statement Analysis Report for each Mortgaged
Property and Administered REO Property. The CMSA Operating Statement Analysis
Report for each such Mortgaged Property and REO Property is to be updated by the
Master Servicer or Special Servicer, as applicable, within 30 days after its
receipt of updated operating statements for a Mortgaged Property or REO
Property, as the case may be. The Master Servicer or Special Servicer, as
applicable, shall use the "Normalized" column from the CMSA NOI Adjustment
Worksheet for any such Mortgaged Property or REO Property (other than the
Mortgaged Property securing the Windsor Capital Portfolio Loan Pair), as the
case may be, to update and normalize the corresponding annual year-end
information in the CMSA Operating Statement Analysis Report and shall use any
annual operating statements and related data fields received with respect to any
such Mortgaged Property or REO Property (other than the Mortgaged Property
securing the Windsor Capital Portfolio Loan Pair), 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 forwarded to the Trustee automatically until such time as a Form 15 is filed
with respect to the Trust pursuant to Section 8.15(c), and are otherwise to be
made available by the Master Servicer to the Trustee, the Special Servicer or
any Controlling Class Certificateholder, in each case upon request.
(c) Not later than 2:00 p.m. (New York City time) on the second
Business Day prior to each Determination Date, the Special Servicer shall
deliver or cause to be delivered to the Master Servicer the following reports
with respect to the Specially Serviced Loans and any Administered REO
Properties, providing the required information as of the end of the preceding
calendar month: (i) a CMSA Property File; and (ii) a CMSA Comparative Financial
Status Report. Not later than 2:00 p.m. (New York City time) on the third
Business Day prior to each Distribution Date, the Special Servicer shall deliver
or cause to be delivered to the Master Servicer the following reports with
respect to the Specially Serviced Loans, any Administered REO Properties and, to
the extent that the subject information relates to when they were Specially
Serviced Loans, any Corrected Loans: (i) a CMSA Delinquent Loan Status Report;
(ii) a Loan Payoff Notification Report; (iii) a CMSA Historical Liquidation
Report; (iv) a CMSA Historical Loan Modification and Corrected Mortgage Loan
Report; (v) a CMSA REO Status Report; and (vi) a CMSA Loan Level Reserve/LOC
Report.
(d) Not later than 2:00 p.m. (New York City time) on the first
Business Day prior to each Distribution Date, the Master Servicer shall deliver
or cause to be delivered to the Trustee, the Rating Agencies, the Special
Servicer and, upon request, any Controlling Class Certificateholder: (i) the
most recent CMSA Historical Loan Modification and Corrected Mortgage Loan
Report, CMSA Historical Liquidation Report, CMSA REO Status Report and CMSA Loan
Level Reserve/LOC Report received from the Special Servicer pursuant to Section
3.13(c); (ii) the most recent CMSA Property File, CMSA Financial File, CMSA Loan
Set-up File (if modified), CMSA Delinquent Loan Status Report, CMSA Comparative
Financial Status Report and Loan Payoff Notification Report (in each case
combining the reports prepared by the Special Servicer and the Master Servicer);
and (iii) a CMSA Servicer Watch List with information that is current as of the
related Determination Date with respect to the Loans. The Master Servicer shall
include on one of such reports updated information as of the applicable
Determination Date regarding the amount of accrued and unpaid interest on
Advances in accordance with Section 3.12(b), 4.03(d) and/or 4.03A(d) such
information to be presented on a loan-by-loan basis.
If the Master Servicer determines, in its reasonable judgment, that
information regarding the Mortgage Loans and REO Properties (in addition to the
information otherwise required to be contained in the CMSA Investor Reporting
Package) should be disclosed to Certificateholders and Certificate Owners, then
it shall forward such information in the form of a Supplemental Report to the
Trustee in accordance with Section 4.02(a).
(e) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.13(c) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer, and the Master
Servicer shall deliver to the Trustee, the Special Servicer and, upon request,
any Controlling Class Certificateholder or Loan Pair Directing Holder the
reports set forth in Section 3.13(d) 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 3.13(c). The Master Servicer may, absent
manifest error, conclusively rely on the reports to be provided by the 2003-C1
Master Servicer pursuant to the 2003-C1 PSA. The Trustee may, absent manifest
error, conclusively rely on the reports to be provided by the Master Servicer
pursuant to Section 3.13(d). In the case of information or reports to be
furnished by the Master Servicer to the Trustee pursuant to Section 3.13(d), to
the extent that such information is based on reports to be provided by the
Special Servicer pursuant to Section 3.13(c) and/or that such reports are to be
prepared and delivered by the Special Servicer pursuant to Section 3.13(c), so
long as the Master Servicer and the Special Servicer are not the same Person or
Affiliates, the Master Servicer shall have no obligation to provide such
information or reports until it has received such information or reports from
the Special Servicer, and the Master Servicer shall not be in default hereunder
due to a delay in providing the reports required by Section 3.13(d) caused by
the Special Servicer's failure to timely provide any report required under
Section 3.13(c) of this Agreement.
(f) The preparation and maintenance by the Master Servicer and the
Special Servicer of all the reports specified in this Section 3.13, including
the calculations made therein, shall be done in accordance with CMSA standards
to the extent applicable thereto.
Section 3.13A Delivery of Certain Reports to the Companion Loan
Noteholders.
(a) The Master Servicer and the Special Servicer shall each promptly
prepare or cause to be prepared and deliver to each Companion Loan Noteholder a
written report, prepared in the manner set forth in Section 3.13, of each
inspection performed by it with respect to the related Loan Pair Mortgaged
Properties (other than the Mortgaged Property securing the Windsor Capital
Portfolio Loan Pair, which is serviced under the 2003-C1 PSA).
The Master Servicer shall promptly deliver to each Companion Loan
Noteholder: (i) copies of operating statements and rent rolls; (ii) upon
request, annual CMSA NOI Adjustment Worksheets (with annual operating statements
as exhibits); and (iii) annual CMSA Operating Statement Analysis Reports, in
each case prepared, received or obtained by it pursuant to Section 3.13 with
respect to the related Loan Pair Mortgaged Properties (other than the Mortgaged
Property securing the Windsor Capital Portfolio Loan Pair, which is serviced
under the 2003-C1 PSA).
(b) If the Loans forming the Loan Pairs constitute Specially
Serviced Loans, or if the Loan Pair Mortgaged Properties have become REO
Properties, then each calendar month, not later than 2:00 p.m. (New York City
time) on the second Business Day prior to each Determination Date, the Special
Servicer shall deliver or cause to be delivered to the Master Servicer the
following reports with respect to the Loan Pairs and/or the Loan Pair Mortgaged
Properties, providing the required information as of the end of the preceding
calendar month: (i) a CMSA Property File (or similar report satisfactory to the
Master Servicer); and (ii) a CMSA Comparative Financial Status Report (or
similar report satisfactory to the Master Servicer). If the Loans forming the
Loan Pairs constitute Specially Serviced Loans, or if the Loan Pair Mortgaged
Properties have become REO Properties, then each calendar month, not later than
2:00 p.m. (New York City time) on the second Business Day prior to the Master
Servicer Remittance Date in such month, the Special Servicer shall deliver or
cause to be delivered to the Master Servicer such of the following reports as
may be relevant with respect to the Loan Pairs and/or the Loan Pair Mortgaged
Properties: (i) a CMSA Delinquent Loan Status Report; (ii) a Loan Payoff
Notification Report, (iii) a CMSA Historical Liquidation Report; (iv) a CMSA
Historical Loan Modification and Corrected Mortgage Loan Report; and (v) a CMSA
REO Status Report.
(c) Not later than 2:00 p.m. (New York City time) on each Loan Pair
Remittance Date, the Master Servicer shall, with respect to the Loan Pairs
(other than the Windsor Capital Portfolio Loan Pair, which is being serviced
under the 2003-C1 PSA), prepare all Loan Pair Servicing Reports as may be
relevant and that are not otherwise required to be prepared by the Special
Servicer pursuant to Section 3.13A(b). The Master Servicer shall include on one
of such reports updated information as of the applicable Determination Date
regarding the amount of accrued and unpaid interest on Advances in accordance
with Section 3.12(b), 4.03(d) and/or 4.03A(d), such information to be presented
on a loan-by-loan basis.
(d) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.13A(b) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer. The Master Servicer
may, absent manifest error, conclusively rely on the reports to be provided by
the Special Servicer pursuant to Section 3.13A(b). In the case of information or
reports to be furnished by the Master Servicer to the applicable Companion Loan
Noteholder pursuant to Section 3.13B(a), to the extent that such information is
based on reports to be provided by the Special Servicer pursuant to Section
3.13A(b) and/or that such reports are to be prepared and delivered by the
Special Servicer pursuant to Section 3.13A(b), so long as the Master Servicer
and the Special Servicer are not the same Person or Affiliates, the Master
Servicer shall have no obligation to provide such information or reports until
it has received such information or reports from the Special Servicer, and the
Master Servicer shall not be in default hereunder due to a delay in providing
the reports required by Section 3.13B(a) caused by the Special Servicer's
failure to timely provide any report required under Section 3.13A(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 3.13A, including
the calculations made therein, shall be done in accordance with CMSA standards,
to the extent applicable thereto.
Section 3.13B Statements to the Companion Loan Noteholders.
(a) On each Loan Pair Remittance Date, the Master Servicer shall
forward to each Companion Loan Noteholder (other than the holders of the Windsor
Capital Portfolio Pari Passu Companion Loan which such holders will receive
similar reports from the 2003-C1 Master Servicer under the 2003-C1 PSA) all Loan
Pair Servicing Reports prepared with respect to the related Loan Pair, pursuant
to Section 3.13A, during the calendar month in which such applicable Master
Servicer Remittance Date occurs.
(b) The Master Servicer shall only be obligated to deliver the
statements, reports and information contemplated by Section 3.13B(a) to the
extent it receives the necessary underlying information from the Special
Servicer and shall not be liable for its failure to deliver such statements,
reports and information on the prescribed due dates, to the extent caused by the
failure of the Special Servicer to deliver timely such underlying information.
Nothing herein shall obligate the Master Servicer or the Special Servicer to
violate any applicable law prohibiting disclosure of information with respect to
the related Mortgagor, and the failure of the Master Servicer or the Special
Servicer to disseminate information for such reason shall not be a breach
hereunder.
Absent manifest error of which it has actual knowledge, neither the
Master Servicer nor the Special Servicer shall be responsible for the accuracy
or completeness of any information supplied to it by a Mortgagor, the Depositor,
the Mortgage Loan Seller or third party that is included in any reports,
statements, materials or information prepared or provided by the Master Servicer
or the Special Servicer, as applicable, pursuant to this Agreement. Neither the
Master Servicer nor the Special Servicer shall have any obligation to verify the
accuracy or completeness of any information provided by a Mortgagor, the
Depositor, the Mortgage Loan Seller, a third party or each other.
Section 3.14 Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver
to the Trustee, the Rating Agencies, the Depositor, the Underwriters, the
Companion Loan Noteholders (other than the Windsor Portfolio Companion Loan
Noteholders) and each other, on or before April 30 of each year, beginning in
2004 (or, as to any such year, such earlier date as is contemplated by the last
sentence of this Section 3.14), 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, 2004,
inclusive) and, in particular, of its performance under this Agreement, has been
made under such officer's supervision, (ii) to the best of such officer's
knowledge, based on such review, the Master Servicer or the Special Servicer, as
the case may be, has fulfilled all of its material obligations under this
Agreement in all material respects throughout such preceding calendar year or
portion thereof (or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof), and (iii) the Master Servicer or the Special Servicer, as
the case may be, has received no notice regarding the qualification, or
challenging the status, of either REMIC Pool as a REMIC, 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 20 of
such following year, and if March 20 is not a Business Day, then the preceding
Business Day; 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 2003.
Section 3.15 Reports by Independent Public Accountants.
On or before April 30 of each year, beginning in 2004 (or, as to any
such year, such earlier date as is contemplated by the last sentence of this
paragraph), each of the Master Servicer and the Special Servicer at its expense
shall cause a firm of independent public accountants (which may also render
other services to the Master Servicer or the Special Servicer) that is a member
of the American Institute of Certified Public Accountants to furnish a statement
(the "Annual Accountants' Report") to the Trustee, the Rating Agencies, the
Depositor, the Underwriters, the Companion Loan Noteholders and each other, to
the effect that (i) such firm has obtained a letter of representation regarding
certain matters from the management of the Master Servicer or the Special
Servicer, as applicable, which includes an assertion that the Master Servicer or
the Special Servicer, as applicable, has complied with certain minimum mortgage
loan servicing standards (to the extent applicable to commercial and multifamily
mortgage loans), identified in the Uniform Single Attestation Program for
Mortgage Bankers established by the Mortgage Bankers Association of America,
with respect to the servicing of commercial and multifamily mortgage loans
during the most recently completed calendar year and (ii) on the basis of an
examination conducted by such firm in accordance with standards established by
the American Institute of Certified Public Accountants, such representation is
fairly stated in all material respects, subject to such exceptions and other
qualifications that may be appropriate. In rendering its report such firm may
rely, as to matters relating to the direct servicing of commercial and
multifamily mortgage loans by sub-servicers, upon comparable reports of firms of
independent certified public accountants rendered (within one year of such
report) on the basis of examinations conducted in accordance with the same
standards with respect to those sub-servicers. Notwithstanding the timing
provided for in the first sentence of this paragraph, if (as confirmed in
writing by the Depositor) the Depositor is required to file a Form 10-K with the
Commission in respect of the Trust covering any particular calendar year, then
the Annual Accountants' Report to be delivered on behalf of each of the Master
Servicer and the Special Servicer during the following year, shall be delivered
on or before March 20 of such following year, and if March 20 is not a Business
Day, then the preceding Business Day; 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 2003.
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 3.15 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 3.16 Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, the Underwriters, the Rating Agencies, the Depositor, any
Certificateholder, the Companion Loan Noteholders and any Certificate Owner
(identified as such to the reasonable satisfaction of the Master Servicer or the
Special Servicer, as the case may be), and to the OTS, the FDIC and any other
banking or insurance regulatory authority that may exercise authority over any
Certificateholder, Certificate Owner (identified as such to the reasonable
satisfaction of the Master Servicer or the Special Servicer, as the case may be)
or Companion Loan Noteholder, access to any records regarding the Serviced Loans
and the servicing thereof within its control (which access shall be limited, in
the case of the Companion Loan Noteholders or any regulatory authority seeking
such access in respect of the Companion Loan Noteholders, to records relating to
the Companion Loans), except to the extent it is prohibited from doing so by
applicable law or contract or to the extent such information is subject to a
privilege under applicable law to be asserted on behalf of the
Certificateholders or the Companion Loan Noteholders. 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 a Certificateholder, a Certificate Owner, the
Companion Loan Noteholders or any regulatory authority that may exercise
authority over a Certificateholder, a Certificate Owner or Companion Loan
Noteholder, the Master Servicer and the Special Servicer may each require
payment from such Certificateholder, a Certificate Owner or Companion Loan
Noteholder of a sum sufficient to cover the reasonable costs and expenses of
providing such information or access, including copy charges and reasonable fees
for employee time and for space; provided that no charge may be made if such
information or access was required to be given or made available under
applicable law. In connection with providing Certificateholders and Certificate
Owners access to the information described in the preceding paragraph, the
Master Servicer and the Special Servicer shall require (prior to affording such
access) a written confirmation executed by the requesting Person substantially
in such form as may be reasonably acceptable to the Master Servicer or the
Special Servicer, as the case may be, generally to the effect that such Person
is a Holder of Certificates or a beneficial holder of Book-Entry Certificates
and will keep such information confidential.
Upon the reasonable request of any Certificateholder, or any
Certificate Owner identified to the Master Servicer to the Master Servicer's
reasonable satisfaction, the Master Servicer may provide (or forward
electronically) (at the expense of such Certificateholder or Certificate Owner)
copies of any operating statements, rent rolls and financial statements obtained
by the Master Servicer or the Special Servicer; provided that, in connection
therewith, the Master Servicer shall require a written confirmation executed by
the requesting Person substantially in such form as may be reasonably acceptable
to the Master Servicer, 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 3.17 Title to REO Property; REO Accounts.
(a) If title to any Mortgaged Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee on behalf of
the Certificateholders and, in the case of a Loan Pair Mortgaged Property, on
behalf of the related Companion Loan Noteholders. The Special Servicer, on
behalf of the Trust Fund and, any affected Companion Loan Noteholder, shall sell
any Administered REO Property by the end of the third calendar year following
the calendar year in which the Lower-Tier REMIC acquires ownership of such REO
Property for purposes of Section 860G(a)(8) of the Code, unless the Special
Servicer either (i) applies, more than 60 days prior to the end of such third
succeeding year, for and is granted an extension of time (an "REO Extension") by
the IRS to sell such REO Property or (ii) obtains for the Trustee an Opinion of
Counsel, addressed to the Trustee, the Special Servicer and the Master Servicer,
to the effect that the holding by the Lower-Tier 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 either REMIC Pool or cause either REMIC Pool to fail to qualify as
a REMIC at any time that any Certificates are outstanding. If the Special
Servicer is granted the REO Extension contemplated by clause (i) of the
immediately preceding sentence or obtains the Opinion of Counsel contemplated by
clause (ii) of the immediately preceding sentence, the Special Servicer shall
sell the subject Administered REO Property within such extended period as is
permitted by such REO Extension or such Opinion of Counsel, as the case may be.
Any expense incurred by the Special Servicer in connection with its obtaining
the REO Extension contemplated by clause (i) of the second preceding sentence or
its obtaining the Opinion of Counsel contemplated by clause (ii) of the second
preceding sentence, shall be covered by, and reimbursable as, a Servicing
Advance.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any Administered REO Property separate
and apart from its own funds and general assets. If an REO Acquisition shall
occur in respect of any Mortgaged Property (other than any Loan Pair Mortgaged
Property), the Special Servicer shall establish and maintain one or more
accounts (collectively, the "Pool REO Account"), held on behalf of the Trustee
in trust for the benefit of the Certificateholders, for the retention of
revenues and other proceeds derived from each REO Property (other than any Loan
Pair REO Properties). If such REO Acquisition occurs with respect to the Loan
Pair Mortgaged Properties, the Special Servicer shall establish an REO Account
solely with respect to each such property (each, a "Loan Pair REO Account"), to
be held for the benefit of the Certificateholders and the applicable Companion
Loan Noteholder. The Pool REO Account and each Loan Pair REO Account shall each
be an Eligible Account. The Special Servicer shall deposit, or cause to be
deposited, in the related REO Account, upon receipt, all REO Revenues, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds received in respect of
any Administered REO Property. Funds in an REO Account 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(c),
interest and investment income earned in respect of amounts held in such REO
Account as provided in Section 3.06(b) (but only to the extent of the Net
Investment Earnings with respect to such REO Account for any Collection Period).
The Special Servicer shall give notice to the Trustee and the Master Servicer of
the location of each REO Account, and shall give notice to the related Companion
Loan Noteholders of the location of any related Loan Pair REO Account, in each
case when first established and of the new location of any such REO Account
prior to any change thereof.
(c) The Special Servicer shall withdraw from the related REO Account
funds necessary for the proper operation, management, leasing, maintenance and
disposition of any Administered REO Property, but only to the extent of amounts
on deposit in the REO Account relating to such REO Property. On the Business Day
following each Determination Date, the Special Servicer shall withdraw from each
REO Account and deposit into the corresponding Custodial Account (or deliver to
the Master Servicer or such other Person as may be designated by the Master
Servicer for deposit into the corresponding Custodial Account) the aggregate of
all amounts received in respect of each REO Property during the Collection
Period ending on such Determination Date, net of any withdrawals made out of
such amounts pursuant to the preceding sentence; provided that the Special
Servicer may retain in an REO Account such portion of proceeds and collections
in respect of any related REO Property as may be necessary to maintain a reserve
of sufficient funds for the proper operation, management, leasing, maintenance
and disposition of such REO Property (including the creation of a reasonable
reserve for repairs, replacements, necessary capital replacements and other
related expenses), such reserve not to exceed an amount sufficient to cover such
items to be incurred during the following twelve-month period. For purposes of
the foregoing, the Pool REO Account and applicable Loan Pair REO Account
correspond to the Pool Custodial Account and the applicable Loan Pair Custodial
Account, respectively.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, each REO Account pursuant to Section 3.17(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 3.18 Management of REO Property.
(a) Prior to the acquisition by it 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 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 (such tax referred to herein as
an "REO Tax"), then such Mortgaged Property may be Directly Operated by
the Special Servicer (other than the holding of such Mortgaged Property
for sale to customers in the ordinary course of trade or business or the
performance of any construction work thereon) as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property
could result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor
with respect to such property, or another method of operating such
property would not result in income subject to an REO Tax, then the
Special Servicer may (provided, that in the good faith and reasonable
judgment of the Special Servicer, it is commercially reasonable) acquire
such Mortgaged Property as REO Property and so lease or operate such REO
Property; or
(iii) It is reasonable to believe that Directly Operating such
Mortgaged Property as REO Property could result in income subject to an
REO Tax and that no commercially reasonable means exists to operate such
property as REO Property without the Trust Fund incurring or possibly
incurring an REO Tax on income from such property, the Special Servicer
shall deliver to the Tax Administrator, in writing, a proposed plan (the
"Proposed Plan") to manage such property as REO Property. Such plan shall
include potential sources of income, and, to the extent reasonably
possible, estimates of the amount of income from each such source. Upon
request of the Special Servicer, the Tax Administrator shall advise the
Special Servicer of the Tax Administrator's federal income tax reporting
position with respect to the various sources of income that the Trust Fund
would derive under the Proposed Plan. After receiving the information
described in the preceding sentence from the Tax Administrator, the
Special Servicer shall either (A) implement the Proposed Plan (after
acquiring the respective Mortgaged Property as REO Property), with any
amendments required to be made thereto as a result of the Tax
Administrator's tax reporting position or (B) manage and operate such
property in a manner that would not result in the imposition of an REO Tax
on income derived from such property.
The Special Servicer's decision as to how each Administered REO
Property, shall be managed and operated shall be based on the Servicing Standard
and, further, based on the good faith and reasonable judgment of the Special
Servicer as to which means would be in the best interest of the
Certificateholders (or in the case of a Loan Pair REO Property, in the best
interest of the Certificateholders and the applicable Companion Loan Noteholders
(as a collective whole)) by maximizing (to the extent commercially reasonable
and consistent with Section 3.18(b)) the net after-tax REO Revenues received by
the Trust Fund with respect to such property without materially impairing the
Special Servicer's ability to promptly sell such property for a fair price. In
connection with performing their respective duties under this Section 3.18(a),
both the Special Servicer and the Tax Administrator may consult with counsel and
tax accountants, the reasonable cost of which consultation shall be covered by,
and be reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property, is acquired, the
Special Servicer shall manage, conserve, protect and operate such REO Property
for the benefit of the Certificateholders (or in the case of a Loan Pair REO
Property, in the best interest of the Certificateholders and the applicable
Companion Loan Noteholders (as a collective whole)) solely for the purpose of
its prompt disposition and sale in a manner that does not and will not: (i)
cause such REO Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the
Code; or (ii) except as contemplated by Section 3.18(a), either result in the
receipt by either 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. 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 applicable REO Account, to the extent of amounts on deposit therein
with respect to such REO Property, funds necessary for the proper operation,
management, maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell,
protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the applicable REO Account
in respect of any Administered REO Property are insufficient for the purposes
set forth in the preceding sentence with respect to such REO Property, the
Special Servicer shall make Servicing Advances in such amounts as are necessary
for such purposes unless the Special Servicer determines, in accordance with the
Servicing Standard, that such payment would be a Nonrecoverable Advance;
provided, however, that the Special Servicer may make any such Servicing Advance
without regard to recoverability if it is a necessary fee or expense incurred in
connection with the defense or prosecution of legal proceedings. The Special
Servicer shall notify the Master Servicer if it shall have made any such
Servicing Advance within the previous 30-day period.
(c) Without limiting the generality of the foregoing, the Special
Servicer shall not, with respect to any REO Property:
(i) enter into, renew or extend any New Lease with respect to any
Administered REO Property, if the New Lease, by its terms would give rise
to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any Administered REO
Property, other than the completion of a building or other improvement
thereon, and then only if more than 10% of the construction of such
building or other improvement was completed before default on the related
Mortgage Loan became imminent, all within the meaning of Section
856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate any Mortgaged Property as REO
Property on any date more than 90 days after the related REO Acquisition;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Special Servicer as a Servicing
Advance) to the effect that such action would not cause such REO Property to
fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at any time
that it is held by the Lower-Tier 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 so required to prevent the
Administered 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 Administered 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 or with respect to any Loan Pair REO Property
such fees shall be netted out of collections on such Loan Pair REO
Property prior to their being remitted to the Special Servicer) shall be
reasonable and customary in consideration of the nature and locality of
such REO Property;
(iii) except as permitted under Section 3.18(a), any such contract
shall require, or shall be administered to require, that the Independent
Contractor, in a timely manner, (A) pay all costs and expenses incurred in
connection with the operation and management of such REO Property,
including those listed in Section 3.18(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 Treasury Regulations Section
1.856-4(b)(5)), 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 3.18(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 3.17 and this Section 3.18 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 3.18(d) shall be deemed a Sub-Servicing
Agreement for purposes of Section 3.23.
Section 3.19 Sale of Mortgage Loans and REO Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may
sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO
Property only (i) on the terms and subject to the conditions set forth in this
Section 3.19, (ii) as otherwise expressly provided in or contemplated by
Sections 2.03(a) and 9.01 of this Agreement, (iii) in the case of the Loan
Pairs, as expressly contemplated in the related Co-Lender Agreement, and (iv) in
the case of a Mortgage Loan with a related mezzanine loan, in connection with a
Loan default as set forth in the related intercreditor agreement.
(b) Within five Business Days after any Serviced Mortgage Loan has
become a Specially Serviced Mortgage Loan, the Special Servicer shall give
notice of such event to each Holder of a Certificate of the Controlling Class,
to each holder of the related Companion Loans (if such Mortgage Loan is a Trust
Mortgage Loan) and the Trustee. The Special Servicer, any single Holder or any
group of Certificateholders evidencing a majority of the Voting Rights allocated
to the Controlling Class and any assignees of the foregoing parties
(collectively, the "Purchase Option Holders") shall each have the option to
purchase such Specially Serviced Mortgage Loan at a cash price that is at least
equal to the Purchase Price. In addition, if such Specially Serviced Mortgage
Loan is part of a Loan Pair as to which there is a Pari Passu Companion Loan
that has been securitized, the Special Servicer shall also send a copy of the
notice described above to the parties under the related pooling and servicing
agreement that have the equivalent rights as the Purchase Option Holders under
this Agreement. The Special Servicer shall accept the first offer by a Purchase
Option Holder that is at least equal to the Purchase Price.
(c) If none of the Purchase Option Holders exercises its option to
purchase any Specially Serviced Mortgage Loan as described in subsection (b)
above, then each Purchase Option Holder will also have the option to purchase
that Specially Serviced Mortgage Loan at a price equal to the fair value of such
Specially Serviced Mortgage Loan (the "FV Price"). With respect to any Loan
Pair, the Purchase Option Holders will only have the right to purchase the
related Trust Mortgage Loan. Upon receipt of a request from any Purchase Option
Holder to determine the FV Price in contemplation of its intention to exercise
its option to purchase a Specially Serviced Mortgage Loan at a price that is
below the Purchase Price, the Special Servicer shall promptly obtain an MAI
appraisal of the related Mortgaged Property by an Independent Appraiser (unless
such an appraisal was obtained within one year of such date and the Special
Servicer has no knowledge of any circumstances that would materially affect the
validity of such appraisal). Promptly after obtaining such appraisal, the
Special Servicer shall determine the FV Price in accordance with the Servicing
Standard and the provisions of subsection (i) below. Promptly after determining
the FV Price, the Special Servicer shall report such FV Price to the Trustee and
each Purchase Option Holder. With respect to the Windsor Capital Portfolio Trust
Loan, the Special Servicer will use the FV Price determined by the 2003-C1
Special Servicer under the 2003-C1 PSA.
With respect to each such Specially Serviced Mortgage Loan that is
part of a Loan Pair as to which there is a Pari Passu Companion Loan that has
been securitized, the Special Servicer shall also send a copy of the notice
containing the FV Price described above to the parties under the related pooling
and servicing agreement that have the equivalent rights as the Purchase Option
Holders under this Agreement.
(d) In the event that the Special Servicer determines that it is
willing, or another Purchase Option Holder notifies the Special Servicer that it
is willing, to purchase any Specially Serviced Mortgage Loan (the party
submitting such bid, the "Initial Bidder") at a price equal to or above the FV
Price (a "FV Bid"), the Special Servicer shall notify all other Purchase Option
Holders that it has made or received, as the case may be, such FV Bid (without
disclosing the amount of such FV Bid). All other Purchase Option Holders may
submit competing bids within the ten Business Day period following such notice.
At the conclusion of the above-described ten Business Day period, the Special
Servicer shall accept the highest bid received from any Purchase Option Holder
that is at least equal to the FV Price.
(e) If the Special Servicer accepts the bid of any Purchase Option
Holder, such Purchase Option Holder shall be required to purchase the subject
Specially Serviced Mortgage Loan within ten Business Days of receipt of notice
of such acceptance.
(f) If the Special Servicer has not accepted a FV Bid prior to the
expiration of 120 days from its determination of the FV Price and thereafter
receives a FV Bid or a request from a Purchase Option Holder for an updated FV
Price, the Special Servicer shall within 45 days recalculate the FV Price (with
no presumption that such FV Price should be reduced on account of the lack of an
FV Bid) and repeat the notice and bidding procedure provided in subsection (d)
above until the purchase option terminates under subsection (j) below. In
connection with such recalculation, the Special Servicer may obtain an updated
Appraisal if it determines that market conditions or conditions at the mortgaged
property warrant an updated Appraisal.
(g) If the party exercising the purchase option at the FV Price for
any Specially Serviced Mortgage Loan is the Special Servicer or an Affiliate
thereof, the Trustee shall verify that the FV Price is at least equal to the
fair value of such Mortgage Loan. In determining whether the FV Price is at
least equal to the fair value of such Mortgage Loan the Trustee will be
permitted to conclusively rely on an appraisal obtained by the Trustee from an
Independent Appraiser at the time it is required to verify the FV Price and/or
the opinion of an Independent expert in real estate matters (including the
Master Servicer) with at least 5 years' experience in valuing or investing in
loans, similar to such Mortgage Loan, that has been selected by the Trustee with
reasonable care at the expense of the Trust Fund.
(h) Any Purchase Option Holder may, once such option is exercisable,
assign its purchase option with respect to any Specially Serviced Mortgage Loan
to a third party other than another Purchase Option Holder and upon such
assignment such third party shall have all of the rights that had been granted
to the Purchase Option Holder hereunder in respect of the purchase option. Such
assignment shall only be effective upon written notice (together with a copy of
the executed assignment and assumption agreement) being delivered to the
Trustee, the Master Servicer and the Special Servicer.
(i) In determining the FV Price for any Specially Serviced Mortgage
Loan, the Special Servicer may take into account, among other factors, the
results of any appraisal or updated appraisal that it or the Master Servicer may
have obtained in accordance with this Agreement within the prior twelve months;
the opinions on fair value expressed by Independent investors in mortgage loans
comparable to the subject Specially Serviced Mortgage Loan; the period and
amount of any delinquency on the subject Specially Serviced Mortgage Loan; the
physical condition of the related Mortgaged Property; the state of the local
economy; and the expected recoveries from the subject Specially Serviced
Mortgage Loan if the Special Servicer were to pursue a workout or foreclosure
strategy instead of selling such Mortgage Loan to a Purchase Option Holder.
(j) The purchase option for any Specially Serviced Mortgage Loan
pursuant to this Section 3.19 shall terminate, and shall not be exercisable as
set forth in subsections (b) and (c) above (or if exercised, but the purchase of
the subject Mortgage Loan has not yet occurred, shall terminate and be of no
further force or effect) if and when (i) the Special Servicer has accepted a FV
Bid, (ii) such Specially Serviced Mortgage Loan has become a Corrected Loan,
(iii) the related Mortgaged Property has become an REO Property or (iv) a Final
Recovery Determination has been made with respect to such Specially Serviced
Mortgage Loan.
(k) Until such time as an FV Bid is accepted, the Special Servicer
shall continue to pursue all of the other resolution options available to it
with respect to the Specially Serviced Mortgage Loan in accordance with the
Servicing Standard.
(l) Notwithstanding anything to the contrary herein, the holders of
the related Companion Loan shall be entitled to purchase the related Trust
Mortgage Loans in accordance with the terms and conditions set forth in the
related Co-Lender Agreement, even after it has been purchased out of the Trust
Fund pursuant to this Section 3.19. The Master Servicer or the Special Servicer,
as applicable, shall determine the price to be paid in accordance with the terms
of the related Co-Lender Agreement in connection with any such purchase and
shall provide such notices to the appropriate Companion Loan Noteholders as are
required by the related Co-Lender Agreement in connection with each such
holders' purchase rights.
(m) Any purchase of a Specially Serviced Mortgage Loan that is
purchased pursuant to this Section 3.19 will remain subject to the cure and
purchase rights of, in each case if applicable, the related Companion Loan
Noteholders as set forth in the related Co-Lender Agreement and any holder of a
related mezzanine loan in connection with a Loan default as set forth in the
related intercreditor agreement.
(n) The Special Servicer shall use its best efforts to solicit bids
for each Administered REO Property in such manner as will be reasonably likely
to realize a fair price within the time period provided for by Section 3.17(a).
Subject to Section 6.11, the Special Servicer shall accept the first (and, if
multiple bids are received contemporaneously or subsequently, the highest) cash
bid received from any Person that constitutes a fair price for such REO
Property. If the Special Servicer reasonably believes that it will be unable to
realize a fair price for any Administered REO Property within the time
constraints imposed by Section 3.17(a), then (subject to Section 6.11) the
Special Servicer shall dispose of such REO Property upon such terms and
conditions as the Special Servicer shall deem necessary and desirable to
maximize the recovery thereon under the circumstances and, in connection
therewith, shall accept the highest outstanding cash bid, regardless of from
whom received.
(o) The Special Servicer shall give the Trustee and the Depositor
prior written notice of its intention to sell any Administered REO Property
pursuant to this Section 3.19.
(p) No Interested Person shall be obligated to submit a bid to
purchase any Administered REO Property, and notwithstanding anything to the
contrary herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may bid for or purchase any Administered REO Property pursuant
hereto.
(q) Whether any cash bid constitutes a fair price for any
Administered REO Property for purposes of this Section 3.19, shall be determined
by the Special Servicer or, if such cash bid is from an Interested Person, by
the Trustee. In determining whether any bid received from an Interested Person
represents a fair price for any Administered REO Property, the Trustee shall be
supplied with and shall be entitled to rely on the most recent appraisal in the
related Servicing File conducted in accordance with this Agreement within the
preceding 12-month period (or, in the absence of any such appraisal or if there
has been a material change at the subject property since any such appraisal, on
a new appraisal to be obtained by the Special Servicer (the cost of which shall
be covered by, and be reimbursable as, a Servicing Advance)). The appraiser
conducting any such new appraisal shall be an Independent Appraiser selected by
the Special Servicer if neither the Special Servicer nor any Affiliate thereof
is bidding with respect to an Administered REO Property and selected by the
Trustee if either the Special Servicer or any Affiliate thereof is so bidding.
Where any Interested Person is among those bidding with respect to an
Administered REO Property, the Special Servicer shall require that all bids be
submitted to it (and, if the Special Servicer or any Affiliate thereof is
bidding, to the Trustee) in writing and be accompanied by a refundable deposit
of cash in an amount equal to 5% of the bid amount. In determining whether any
bid from a Person other than an Interested Person constitutes a fair price for
any Administered REO Property, the Special Servicer shall take into account the
results of any appraisal or updated appraisal that it or the Master Servicer may
have obtained in accordance with this Agreement within the prior twelve months,
and any Independent Appraiser shall be instructed to take into account, as
applicable, among other factors, the occupancy level and physical condition of
the subject REO Property, the state of the local economy and the obligation to
dispose of the subject REO Property within the time period specified in Section
3.17(a). The Purchase Price for any Administered REO Property shall in all cases
be deemed a fair price. Notwithstanding the other provisions of this Section
3.19, no cash bid from the Special Servicer or any Affiliate thereof shall
constitute a fair price for any Administered REO Property unless such bid is the
highest cash bid received and at least two independent bids (not including the
bid of the Special Servicer or any Affiliate) have been received. In the event
the bid of the Special Servicer or any Affiliate thereof is the only bid
received or is the higher of only two bids received, then additional bids shall
be solicited. If an additional bid or bids, as the case may be, are received and
the original bid of the Special Servicer or any Affiliate thereof is the highest
of all cash bids received, then the bid of the Special Servicer or such
Affiliate shall be accepted, provided that the Trustee has otherwise determined,
as provided above in this Section 3.19(r), that such bid constitutes a fair
price for any Administered REO Property. Any bid by the Special Servicer shall
be unconditional; and, if accepted, the subject Administered REO Property shall
be transferred to the Special Servicer without recourse, representation or
warranty other than customary representations as to title given in connection
with the sale of a real property.
(r) Subject to Sections 3.19(a) through 3.19(f) above, and further
subject to Section 6.11, the Special Servicer shall act on behalf of the Trustee
in negotiating with independent third parties seeking to purchase an
Administered REO Property and taking any other action necessary or appropriate
in connection with the sale of any Specially Serviced Mortgage Loan or
Administered REO Property pursuant to this Section 3.19, and the collection of
all amounts payable in connection therewith. In connection therewith, the
Special Servicer may charge prospective bidders for any Administered REO
Property, and may retain, fees that approximate the Special Servicer's actual
costs in the preparation and delivery of information pertaining to, or
evaluating bids for, such Administered REO Property without obligation to
deposit such amounts into the Pool Custodial Account. Any sale of a Specially
Serviced Mortgage Loan or an Administered REO Property pursuant to this Section
3.19 shall be final and without recourse to the Trustee or the Trust, and if
such sale is consummated in accordance with the terms of this Agreement, neither
the Special Servicer nor the Trustee shall have any liability to any
Certificateholder with respect to the purchase price therefor accepted by the
Special Servicer or the Trustee.
(s) Any sale of a Specially Serviced Mortgage Loan or an
Administered REO Property pursuant to this Section 3.19 shall be for cash only
and shall be on a servicing released basis.
Section 3.20 Additional Obligations of the Master Servicer;
Obligations to Notify Ground Lessors; the Special Servicer's Right to Request
the Master Servicer to Make Servicing Advances.
(a) The Master Servicer shall deliver to the Trustee for deposit in
the Distribution Account on each Master Servicer Remittance Date, without any
right of reimbursement therefor, an amount equal to the lesser of (i) the
aggregate amount of all Prepayment Interest Shortfalls, if any, incurred in
connection with Principal Prepayments received during the most recently ended
Collection Period with respect to Performing Serviced Mortgage Loans in the
Mortgage Pool and (ii) 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 0.01% per annum with respect to each and every Serviced Mortgage Loan
and each and every REO Mortgage Loan that was previously a Serviced Mortgage
Loan); provided, however, that if any Prepayment Interest Shortfall occurs as a
result of the Master Servicer's allowing the Mortgagor to deviate from the terms
of the related loan documents regarding principal prepayments, the Master
Servicer shall be obligated to pay an amount equal to the entire Prepayment
Interest Shortfall with respect to the subject Serviced Mortgage Loan without
any limitation of the kind set forth in clause (ii) above.
(b) The Master Servicer shall, as to each Serviced Loan which is
secured by the interest of the related Mortgagor under a Ground Lease, even if
the corresponding fee interest is encumbered, promptly (and in any event within
60 days) following the Closing Date, notify the related ground lessor of the
transfer of such Serviced Loan to the Trust Fund pursuant to this Agreement and
inform such ground lessor that any notices of default under the related Ground
Lease should thereafter be forwarded to the Master Servicer.
(c) Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer is required under this Agreement to make any
Servicing Advance but does not desire to do so, the Special Servicer may, in its
sole discretion, request that the Master Servicer make such Servicing Advance,
such request to be made, in writing, at least five (5) Business Days (or, in an
emergency situation or on an urgent basis, two (2) Business Days, provided that
the written request set forth the nature of the emergency or the basis of the
urgency) in advance of the date on which such Servicing Advance is required to
be made hereunder and to be accompanied by such information and documentation
regarding the subject Servicing Advance as the Master Servicer may reasonably
request. The Master Servicer shall have the obligation to make any such
Servicing Advance that it is so requested by the Special Servicer to make,
within five (5) Business Days (or, in an emergency situation or on an urgent
basis, two (2) Business Days) of the Master Servicer's receipt of such request.
If the request is timely and properly made, the Special Servicer shall be
relieved of any obligations with respect to a Servicing Advance that it so
requests the Master Servicer to make (regardless of whether or not the Master
Servicer shall make such Servicing Advance). The Master Servicer shall be
entitled to reimbursement for any Servicing Advance made by it at the direction
of the Special Servicer, together with interest thereon in accordance with
Sections 3.05(a), 3.05A and 3.12(b), 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 3.20(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 3.12(d). Any request by the Special Servicer that the Master Servicer
make a Servicing Advance shall be deemed to be a determination by the Special
Servicer that such requested Servicing Advance is not a Nonrecoverable Servicing
Advance, and the Master Servicer, the Trustee and the Fiscal Agent shall be
entitled to conclusively rely on such determination. Upon determining that any
Servicing Advance previously made with respect to a Specially Serviced Loan or
Administered REO Property is a Nonrecoverable Servicing Advance, the Special
Servicer shall report to the Master Servicer the Special Servicer's
determination. The Master Servicer shall be entitled to conclusively rely on
such a determination.
Section 3.21 Modifications, Waivers, Amendments and Consents;
Defeasance.
(a) Subject to Sections 3.21(b) through 3.21(f) and 3.21(l) below,
and further subject to Section 6.11, the Special Servicer (or, under the limited
circumstances set forth in Section 3.21(c), the Master Servicer) may, on behalf
of the Trustee and, in the case of the Companion Loans, any Companion Loan
Noteholder, agree to any modification, extension, waiver or amendment of any
term of any Serviced Loan and respond to various Mortgagor requests for consent
on the part of the mortgagee (including the lease reviews and lease consents
related thereto), without the consent of the Trustee, any Certificateholder, any
Companion Loan Noteholder, the Master Servicer (in the case of any such action
taken by the Special Servicer) or, except as expressly set forth below, the
Special Servicer (in the case of any such action taken by the Master Servicer).
(b) All modifications, extensions, waivers or amendments of any
Serviced Loan, including the lease reviews and lease consents related thereto,
shall be in writing and shall be considered and effected in a manner consistent
with the Servicing Standard.
(c) In the case of any Performing Serviced Loan, and subject to the
rights of the Special Servicer set forth below, the Master Servicer shall be
responsible for responding to any request by a Mortgagor for the consent or
approval of the mortgagee with respect to a modification, extension, waiver or
amendment of any term thereof, provided that such consent or approval or such
modification, extension, waiver or amendment would not (except as permitted by
Sections 3.02(a), 3.03(d), 3.07, 3.08(a) and 3.21(l) hereof) affect the amount
or timing of any of the payment terms of such Loan (including payment terms
related to late payment charges), result in the release of the related Mortgagor
from any material term thereunder, waive any rights thereunder with respect to
any guarantor thereof, relate to the release, addition or substitution of any
material collateral for such Loan or relate to any waiver of or granting of
consent under a "due-on-sale" or "due-on-encumbrance" clause. With respect to
any action proposed to be taken by the Master Servicer under this Section
3.21(c) where the thresholds in clauses (i) through (v) of the next sentence are
exceeded, or which involves the situations set forth in the proviso to the
previous sentence, the Special Servicer only may take such action. To the extent
consistent with the foregoing, but subject to Section 3.21(f), the Master
Servicer shall also be responsible for the following with respect to the
Performing Serviced Loans:
(i) Approving any waiver affecting the timing of receipt of
financial statements from any Mortgagor, provided that such financial
statements are delivered no less than quarterly and within 60 days of the
end of the calendar quarter to which such financial statements relate;
(ii) Approving routine leasing activity with respect to leases for
less than the lesser of (A) 50,000 square feet and (B) 20% of the related
Mortgaged Property;
(iii) Approving a transfer of equity in a Mortgagor from one current
equity holder to another, provided that such transfer of equity does not
(A) affect (if applicable) the status of such Mortgagor or such equity
holder as a special purpose, bankruptcy-remote entity, (B) result in a
change of control of such Mortgagor, (C) cause the transferee to hold more
than 49% of the equity in such Mortgagor, (D) relate to a Serviced
Mortgage Loan that represents 2% or more of the then aggregate principal
balance of the Mortgage Pool or (E) relate to the Loan Pairs;
(iv) Approving annual budgets for the related Mortgaged Property,
provided that no such budget (A) 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 (B) 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 a change of the property manager at the request of the
related Mortgagor, provided that (A) the successor property manager is not
affiliated with the Mortgagor and is a nationally or regionally recognized
manager of similar properties, (B) the related Serviced Mortgage Loan does
not represent 2% or more of the then aggregate principal balance of the
Mortgage Pool and (C) the Loan Pair Mortgaged Properties are not involved.
Except as permitted by Section 3.02(a), Section 3.03(d), Section
3.07, Section 3.08(a), this Section 3.21(c) and Section 3.21(l), the Master
Servicer may not agree to waive, modify or amend any term of any Loan or respond
to any Mortgagor requests for mortgagee consent. Furthermore, the Master
Servicer may not agree to any modification, extension, waiver or amendment of
any term of any Mortgage Loan that would cause an Adverse REMIC Event with
respect to either REMIC Pool.
(d) Except as provided in Section 3.02(a), Section 3.07, Section
3.08 or Section 3.21(e), the Special Servicer, on behalf of the Trustee and, in
the case of a Companion Loan, the related Companion Loan Noteholders, shall not
agree or consent to any modification, extension, waiver or amendment of any term
of any Serviced Loan that would:
(i) affect the amount or timing of any scheduled payment of
principal, interest or other amount (including Prepayment Premiums or
Yield Maintenance Charges, but excluding Default Interest and other
amounts payable as additional servicing compensation) payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge or effect the waiver of any
prepayment restriction thereunder or permit a Principal Prepayment during
any period in which the related Mortgage Note prohibits Principal
Prepayments;
(iii) except as expressly contemplated by the related Mortgage or
pursuant to Section 3.09(d), result in a release of the lien of the
Mortgage on any material portion of the related Mortgaged Property without
a corresponding Principal Prepayment in an amount not less than the fair
market value (as determined by an appraisal by an Independent Appraiser
delivered to the Special Servicer at the expense of the related Mortgagor
and upon which the Special Servicer may conclusively rely) of the property
to be released; or
(iv) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impair the security for such Loan or reduce the
likelihood of timely payment of amounts due thereon.
(e) Notwithstanding Section 3.21(d), but subject to Section 6.11 and
the second paragraph of this Section 3.21(e), the Special Servicer may (i)
reduce the amounts owing under any Specially Serviced Loan by forgiving
principal, accrued interest or any Prepayment Premium or Yield Maintenance
Charge, (ii) reduce the amount of the Monthly Payment on any Specially Serviced
Loan, including by way of a reduction in the related Mortgage Rate, (iii)
forbear in the enforcement of any right granted under any Mortgage Note,
Mortgage or other loan document relating to a Specially Serviced Loan, (iv)
accept a Principal Prepayment on any Specially Serviced Loan during any Lockout
Period or (v) extend the maturity of any Specially Serviced Loan; provided that
(A) the related Mortgagor is in monetary default or material non-monetary
default with respect to such Specially Serviced Loan or, in the reasonable, good
faith judgment of the Special Servicer, such default is reasonably foreseeable,
(B) in the reasonable, good faith judgment of the Special Servicer, such
modification, extension, waiver or amendment would increase the recovery on such
Specially Serviced Loan to Certificateholders (as a collective whole) or, if a
Loan Pair is involved, would increase the recovery on such Loan Pair to
Certificateholders and related Companion Loan Noteholders (as a collective
whole), on a present value basis (the relevant discounting of anticipated
collections that will be distributable to the Certificateholders (or, in the
case of the Loan Pairs, to Certificateholders and related Companion Loan
Noteholders), to be performed at the related Mortgage Rate (or, in the case of a
Loan Pair, at the weighted average of the Mortgage Rates for such Loan Pair) in
each case), and (C) such modification, extension, waiver or amendment would not
cause an Adverse REMIC Event in respect of either REMIC Pool; and provided,
further, that (i) any modification, extension, waiver or amendment of the
payment terms of a Loan Pair shall be structured so as to be consistent with the
allocation and payment priorities set forth in the related loan documents and
the related Co-Lender Agreement, such that neither the Trust as holder of the
related Mortgage Loan nor the related Companion Loan Noteholders shall gain a
priority over the other such Holder with respect to any payment, which priority
is not, as of the date of the related Co-Lender Agreement, reflected in the
related loan documents and such Co-Lender Agreement and (ii) any waiver,
reduction or deferral of any particular amount due on any Loan in a Loan Pair or
reduction of any Mortgage Rate on any Loan in a Loan Pair shall be allocated in
the manner set forth in the related Co-Lender Agreement.
In no event shall the Special Servicer: (i) extend the maturity date
of a Serviced Loan beyond the date that is two years prior to the last Rated
Final Distribution Date; (ii) extend the maturity date of any Serviced Loan for
more than five years beyond its Stated Maturity Date; or (iii) if the Serviced
Loan is secured solely or primarily by a Mortgage on the leasehold interest
under a Ground Lease (but not the related fee interest), extend the maturity
date of such Serviced Loan beyond the date which is 20 years (or, to the extent
consistent with the Servicing Standard, giving due consideration to the
remaining term of the Ground Lease, 10 years) prior to the expiration of the
term of such Ground Lease.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 3.21(e) shall be evidenced
by an Officer's Certificate to such effect delivered to the Trustee and the
Master Servicer (and, in the case of a Loan Pair, the affected Companion Loan
Noteholders and describing in reasonable detail the basis for the Special
Servicer's determination. The Special Servicer shall attach to such Officer's
Certificate any information including but not limited to income and expense
statements, rent rolls, property inspection reports and appraisals that support
such determination.
(f) Notwithstanding anything to the contrary in this Agreement, none
of the Trustee, the Master Servicer or the Special Servicer, as applicable,
shall give any consent, approval or direction regarding the termination of the
related property manager or the designation of any replacement property manager
or, if such Mortgaged Property is hospitality property, give any consent,
approval or direction regarding the termination of the franchise or the
designation of a new franchise, with respect to any Mortgaged Property that
secures either (A) the Companion Loans or (B) a Serviced Mortgage Loan that has
an unpaid principal balance that is at least equal to the lesser of $20,000,000
and 2% of the then aggregate principal balance of the Mortgage Pool, unless: (1)
the mortgagee is not given discretion under the terms of the related Loan; or
(2) it has received prior written confirmation from each Rating Agency that such
action will not result in an Adverse Rating Event.
Any party hereto seeking Rating Agency confirmation with respect to
the matters described above shall deliver a Review Package to such Rating
Agency.
(g) Any payment of interest that is deferred pursuant to any
modification, extension, waiver or amendment permitted hereunder, shall not, for
purposes hereof, including calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Loan, notwithstanding that the terms of such
modification, extension, waiver or amendment so permit. The foregoing shall in
no way limit the Special Servicer's ability to charge and collect from the
Mortgagor costs otherwise collectible under the terms of the related Mortgage
Note.
(h) The Special Servicer or Master Servicer may, as a condition to
granting any request by a Mortgagor for consent, modification, extension, waiver
or indulgence or any other matter or thing, the granting of which is within its
discretion pursuant to the terms of the instruments evidencing or securing the
related Loan and, further, by the terms of this Agreement and applicable law,
require that such Mortgagor pay to it (i) as additional servicing compensation,
a reasonable or customary fee for the additional services performed in
connection with such request, and (ii) any related costs and expenses incurred
by it. Any such fee that is to be shared by the Master Servicer and the Special
Servicer may not be waived or reduced by either such party without the consent
of the other party. In no event shall the Special Servicer or Master Servicer be
entitled to payment for such fees or expenses unless such payment is collected
from the related Mortgagor.
(i) The Special Servicer and Master Servicer shall each notify the
other, any related Sub-Servicers, the Trustee and, where a Companion Loan is
affected, the related Companion Loan Noteholder, in writing, of any
modification, extension, waiver or amendment of any term of any Loan (including
fees charged the Mortgagor) agreed to by it and the date thereof, and shall
deliver to the Trustee or any related Custodian for deposit in the related
Mortgage File (with a copy to be delivered to or retained by, as applicable, the
Master Servicer), an executed counterpart of the agreement relating to such
modification, extension, waiver or amendment promptly following execution and
delivery thereof, to be followed by an original recorded counterpart promptly
following the recordation (and receipt) thereof.
(j) To the extent that either the Master Servicer or Special
Servicer waives any Default Charge in respect of any Serviced Loan, whether
pursuant to Section 3.02(a) or this Section 3.21, the respective amounts of
additional servicing compensation payable to the Master Servicer and the Special
Servicer as Net Default Charges out of such Default Charges shall be reduced
proportionately based upon the respective amounts that would have been payable
thereto as Net Default Charges out of such Default Charges if such waiver had
not been granted.
(k) With respect to any Serviced Loan that permits the release of
Mortgaged Properties through defeasance, to the extent permitted under the
related Loan documents, the Master Servicer shall, subject to the next paragraph
and the related Loan documents, (1) notify each Rating Agency, the Trustee, the
Underwriters and the Special Servicer upon receipt of a Mortgagor's notice of
defeasance of such Loan, (2) obtain the written confirmation from each Rating
Agency that the acceptance of a pledge of the Defeasance Collateral will not
result in an Adverse Rating Event, and (3) take such further action as provided
in such Mortgage Note to effectuate such defeasance, including the purchase and
perfection of the Defeasance Collateral on behalf of the Trustee (as mortgagee
of record on behalf of the Certificateholders and, in the case of the Companion
Loans, the related Companion Loan Noteholders. The confirmation described in
clause (2) above shall not be required:
(i) from S&P in the case of a Serviced Mortgage Loan with an unpaid
principal balance less than or equal to $20,000,000 and constitutes less
than 5% of the aggregate unpaid principal balance of the Mortgage Pool,
and is not then one of the ten largest (measured by unpaid principal
balance) Mortgage Loans in the Mortgage Pool, provided the Master Servicer
delivers to S&P a certification in the form attached hereto as Exhibit L
(a "Defeasance Certificate"), or
(ii) Xxxxx'x in the case of any Serviced Mortgage Loan that is not
then one of the ten largest (measured by unpaid principal balance)
Mortgage Loans in the Mortgage Pool and that is not then one of the ten
largest groups (measured by aggregate unpaid principal balance) of
Mortgage Loans with related Mortgagors, provided the Master Servicer
delivers to Xxxxx'x a Defeasance Certificate;
provided that, in the case of (i) or (ii) above, such written confirmation shall
not be required from S&P and/or Xxxxx'x (provided that the Master Servicer
delivers a Defeasance Certificate to the applicable Rating Agency), as
applicable, in the event the subject Mortgage Loan complies with the then
current applicable guidelines set forth by such Rating Agency, or the unpaid
principal balance of such Mortgage Loan, the percentage such Mortgage Loan
constitutes of the Mortgage Pool or the relative size of such Mortgage Loan with
respect to the Mortgage Pool, as applicable, does not exceed the current
applicable threshold for review as set forth by such Rating Agency).
Notwithstanding the foregoing, but subject to the related Loan
documents, the Master Servicer shall not permit a pledge of Defeasance
Collateral under a Defeasance Loan if (i) such defeasance would occur within two
years of the Startup Day, (ii) if the Defeasance Collateral shall not be
Government Securities; (iii) such Defeasance Loan (or any applicable agreement
executed in connection with the related defeasance) provides that the Mortgagor
shall be liable for any shortfalls from such Defeasance Collateral or otherwise
be subject to recourse liability with respect to the Defeasance Loan (except for
any liability that, pursuant to the terms of the related Loan documents,
survives such defeasance), (iv) all costs to be incurred in connection with such
defeasance (including Rating Agency fees, accountants' fees and costs incurred
in connection with any required opinions of counsel) would not be paid by the
related Mortgagor, or (v) unless such confirmation is not required pursuant to
the first paragraph of this Section 3.21(k), either Rating Agency does not
confirm in writing to the Master Servicer that the acceptance of a pledge of the
Defeasance Collateral in lieu of a prepayment will not result in an Adverse
Rating Event.
All expenses related to the defeasance of a Defeasance Loan shall be
charged to the related Mortgagor or other responsible party.
Section 3.22 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 Loan that had otherwise been a Performing Serviced Loan, and
if the Master Servicer is not also the Special Servicer, the Master Servicer
shall immediately give notice thereof to the Special Servicer and with respect
to any Loan Pair to the related Companion Loan Noteholder, and shall deliver a
copy of the related Servicing File, to the Special Servicer and shall use
reasonable efforts to provide the Special Servicer with all information,
documents (or copies thereof) and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to such
Loan, either in the Master Servicer's or any of its directors', officers',
employees', affiliates' or agents' possession or control or otherwise available
to the Master Servicer without undue burden or expense, and reasonably requested
by the Special Servicer to enable it to assume its functions hereunder with
respect thereto without acting through a Sub-Servicer. The Master Servicer shall
use reasonable efforts to comply with the preceding sentence within five
Business Days of the occurrence of each related Servicing Transfer Event;
provided, however, that if the information, documents and records requested by
the Special Servicer are not contained in the Servicing File, the Master
Servicer shall have such period of time as reasonably necessary to make such
delivery. The Special Servicer may conclusively rely on the Master Servicer's
determination that a Servicing Transfer Event has occurred giving rise to a
Serviced Loan's becoming a Specially Serviced Loan. The Special Servicer shall
not be liable or in default hereunder for any reasonable act or failure to act
because of or arising out of the Master Servicer's failure to deliver
information, documents or records with respect to any Specially Serviced Loan in
accordance with the requirements hereof.
Upon determining that a Specially Serviced Loan has become a
Corrected Loan, and if the Master Servicer is not also the Special Servicer, the
Special Servicer shall immediately give notice thereof, and shall within five
Business Days of such occurrence return the related Servicing File, together
with any and all new information, documents and records relating to the subject
Loan that were not part of the Servicing File when it was delivered to the
Special Servicer, to the Master Servicer (or such other Person as may be
directed by the Master Servicer) and upon giving such notice, and returning such
Servicing File, to the Master Servicer (or such other Person as may be directed
by the Master Servicer), the Special Servicer's obligation to service such Loan,
and the Special Servicer's right to receive the Special Servicing Fee with
respect to such Loan shall terminate, and the obligations of the Master Servicer
to service and administer such Loan shall resume.
Notwithstanding anything herein to the contrary, in connection with
the transfer to the Special Servicer of the servicing of a Cross-Collateralized
Mortgage Loan as a result of a Servicing Transfer Event or the re-assumption of
servicing responsibilities by the Master Servicer with respect to any such
Mortgage Loan upon its becoming a Corrected Loan, the Master Servicer and the
Special Servicer shall each transfer to the other, as and when applicable, the
servicing of all other Cross-Collateralized Mortgage Loans constituting part of
the same Cross-Collateralized Group; provided that no Cross-Collateralized
Mortgage Loan may become a Corrected Loan at anytime that a continuing Servicing
Transfer Event exists with respect to another Cross-Collateralized Mortgage Loan
in the same Cross-Collateralized Group.
(b) In servicing any Specially Serviced Loans, the Special Servicer
shall provide to the Custodian originals of newly executed documents included
within the definition of "Mortgage File" for inclusion in the related Mortgage
File (with a copy of each such original to the Master Servicer), and shall
provide to the Master Servicer copies of any additional related Loan
information, including correspondence with the related Mortgagor.
(c) Upon request (and to the extent not otherwise already provided
by the Special Servicer pursuant to its reporting obligations hereunder), the
Special Servicer shall deliver to the Master Servicer, the Trustee and each
Rating Agency (or such other Person as may be directed by the Master Servicer) a
statement in writing and in computer readable format (the form of such statement
to be agreed upon by the Master Servicer and the Special Servicer) describing,
on a loan-by-loan and property-by-property basis, (1) insofar as it relates to
Specially Serviced Loans and REO Properties, the information described in
clauses (vi) through (xv) of Section 4.02(a) (with respect to information set
forth in such clauses related to prior Distribution Dates and/or periods, the
Special Servicer may conclusively rely on information furnished to it by the
Master Servicer or the Trustee) and, insofar as it relates to the Special
Servicer, the information described in clauses (xxiv) and (xxx) of Section
4.02(a), (2) the amount of all payments, Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds received, and the amount of any Realized Loss
incurred, with respect to each Specially Serviced Loan during the related
Collection Period, and the amount of Insurance Proceeds, Condemnation Proceeds
and Liquidation Proceeds received, and the amount of any Realized Loss incurred,
with respect to each Administered REO Property during the related Collection
Period, (3) the amount, purpose and date of all Servicing Advances made by the
Special Servicer with respect to each Specially Serviced Loan and REO Property
during the related Collection Period, (4) in writing, a brief narrative summary
of the status of each Specially Serviced Loan and (5) such additional
information relating to the Specially Serviced Loans and Administered REO
Properties as the Master Servicer reasonably requests to enable it to perform
its responsibilities under this Agreement. Notwithstanding the foregoing
provisions of this subsection (c), the Master Servicer shall maintain ongoing
payment records with respect to each of the Specially Serviced Loans and REO
Properties and shall provide the Special Servicer with any information
reasonably available to the Master Servicer required by the Special Servicer to
perform its duties under this Agreement.
Section 3.23 Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer may enter into
Sub-Servicing Agreements to provide for the performance by third parties of any
or all of their respective obligations hereunder, provided that in each case,
the Sub-Servicing Agreement:
(i) is consistent with this Agreement in all material respects,
requires the Sub-Servicer to comply with all of the applicable conditions
of this Agreement and, with the exception of Sections 7.01(a)(x), (xi) and
(xii), provides for events of default with respect to the Sub-Servicer
substantially the same as those set forth in Section 7.01 (modified as
necessary to apply to the Sub-Servicer's obligations under the
Sub-Servicing Agreement);
(ii) provides that if the Master Servicer or the Special Servicer,
as the case may be, shall for any reason no longer act in such capacity
hereunder (including by reason of an Event of Default), the Trustee or its
designee may thereupon assume all of the rights and, except to the extent
they arose prior 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 3.23(d) hereof and in such additional manner as is provided in
such Sub-Servicing Agreement);
(iii) provides that the Trustee, for the benefit of the
Certificateholders and, in the case of a Sub-Servicing Agreement relating
to a Loan Pair, the related Companion Loan Noteholders, shall each be a
third party beneficiary under such agreement, but that (except to the
extent the Trustee or its designee assumes the obligations of the Master
Servicer or the Special Servicer, as the case may be, thereunder as
contemplated by the immediately preceding clause (ii)) none of the
Trustee, the Trust, any successor Master Servicer, the Special Servicer or
any Companion Loan Noteholder, as the case may be, or any
Certificateholder shall have any duties under such agreement or any
liabilities arising therefrom;
(iv) permits any purchaser of a Serviced Mortgage Loan pursuant to
this Agreement to terminate such agreement with respect to such purchased
Mortgage Loan at its option and without penalty;
(v) does not permit the Sub-Servicer to enter into or consent to any
modification, extension, waiver or amendment or otherwise take any action
on behalf of the Master Servicer or the Special Servicer contemplated by
Section 3.08, Section 3.09 and Section 3.21 hereof or to foreclose on any
Mortgage without the consent of the Master Servicer or Special Servicer,
as the case may be;
(vi) does not permit the Sub-Servicer any direct rights of
indemnification that may be satisfied out of assets of the Trust Fund;
(vii) each Sub-Servicing Agreement entered into by the Master
Servicer (including any with an effective date on or before the Closing
Date) provides that such agreement shall, with respect to any Serviced
Loan serviced thereunder, terminate at the time such Loan becomes a
Specially Serviced Loan (or, alternatively, be subject to the Special
Servicer's rights to service such Loan for so long as such Loan continues
to be a Specially Serviced Loan); and
(viii) each Sub-Servicing Agreement entered into by the Special
Servicer provides that it relates only to Specially Serviced Loans and
shall terminate with respect to any such Loan which ceases to be a
Specially Serviced Loan.
The Master Servicer and the Special Servicer each shall deliver to
the Trustee and each other copies of all Sub-Servicing Agreements (and, to each
of the Companion Loan Noteholders, copies of any Sub-Servicing Agreement in
respect of the Companion Loans), as well as any amendments thereto and
modifications thereof, entered into by it promptly upon its execution and
delivery of such documents. References in this Agreement to actions taken or to
be taken by the Master Servicer or the Special Servicer include actions taken or
to be taken by a Sub-Servicer on behalf of the Master Servicer or the Special
Servicer, as the case may be; and, in connection therewith, all amounts advanced
by any Sub-Servicer to satisfy the obligations of the Master Servicer or the
Special Servicer hereunder to make P&I Advances or Servicing Advances shall be
deemed to have been advanced by the Master Servicer or the Special Servicer, as
the case may be, out of its own funds and, accordingly, such P&I Advances or
Servicing Advances shall be recoverable by such Sub-Servicer in the same manner
and out of the same funds as if such Sub-Servicer were the Master Servicer or
the Special Servicer, as the case may be. For so long as they are outstanding,
Advances shall accrue interest in accordance with Sections 3.12(b), 4.03(d) and
4.03A(d), such interest to be allocable between the Master Servicer or the
Special Servicer, as the case may be, and such Sub-Servicer as they may agree.
For purposes of this Agreement, the Master Servicer and the Special Servicer
each shall be deemed to have received any payment when a Sub-Servicer retained
by it receives such payment. The Master Servicer and the Special Servicer each
shall notify the other, the Trustee, the Depositor, the Controlling Class
Certificateholders and, if a Loan Pair is affected, the related Companion Loan
Noteholders, 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)
except for any Sub-Servicer that is servicing any of the Mortgage Loans on the
Closing Date, shall be an approved conventional seller/servicer of mortgage
loans for FHLMC or Xxxxxx Xxx or a HUD-Approved Servicer.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders and, in the case of the Companion Loans,
also for the benefit of the related Companion Loan Noteholders, shall (at no
expense to the Trustee, the Certificateholders, the Companion Loan Noteholders
or the Trust Fund) monitor the performance and enforce the obligations of their
respective Sub-Servicers under the related Sub-Servicing Agreements. Such
enforcement, including the legal prosecution of claims, termination of
Sub-Servicing Agreements in accordance with their respective terms and the
pursuit of other appropriate remedies, shall be in such form and carried out to
such an extent and at such time as the Master Servicer or the Special Servicer,
as applicable, in its good faith business judgment, would require were it the
owner of the subject Serviced Loans.
(d) In the event of the resignation, removal or other termination of
the Master Servicer or any successor Master Servicer hereunder for any reason,
the Trustee or other Person succeeding such resigning, removed or terminated
party as Master Servicer, shall elect, with respect to any Sub-Servicing
Agreement in effect as of the Closing Date (or, if being negotiated as of the
Closing Date, in effect within 90 days thereafter) that still exists at the time
of such termination: (i) to assume the rights and obligations of the Master
Servicer under such Sub-Servicing Agreement and continue the sub-servicing
arrangements thereunder on the same terms (including the obligation to pay the
same sub-servicing fee); (ii) to enter into a new Sub-Servicing Agreement with
such Sub-Servicer on such terms as the Trustee or other successor Master
Servicer and such Sub-Servicer shall mutually agree (it being understood that
such Sub-Servicer is under no obligation to accept any such new Sub-Servicing
Agreement or to enter into or continue negotiations with the Trustee or other
successor Master Servicer), provided that neither the Trustee nor any successor
Master Servicer shall enter into a new Sub-Servicing Agreement with a
Sub-Servicer that was a party to a Sub-Servicing Agreement as of the Closing
Date, if such new Sub-Servicing Agreement amends, alters or fails to restate any
rights of any Underwriter or the 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 the
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 the Mortgage Loan Seller, as the case may be; or (iii) to terminate the
Sub-Servicing Agreement if (but only if) an Event of Default (as defined in such
Sub-Servicing Agreement) has occurred and is continuing, without paying any
sub-servicer termination fee, and in any additional manner provided for in such
Sub-Servicing Agreement.
The Sub-Servicers as to which Sub-Servicing Agreements are in effect
or being negotiated as of the Closing Date are listed on Exhibit K hereto.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall remain obligated and liable to the Trustee, the
Certificateholders and the Companion Loan Noteholders 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 Serviced Loans and/or
Administered REO Properties for which it is responsible.
Section 3.24 Representations and Warranties of the Master Servicer.
(a) The Master Servicer, in such capacity, hereby represents,
warrants and covenants to the other parties hereto and for the benefit of the
Certificateholders and the Companion Loan Noteholders, as of the Closing Date,
that:
(i) The Master Servicer is a national banking association, duly
organized under the laws of the United States, and the Master Servicer is
in compliance with the laws of each state in which any Mortgaged Property
is located to the extent necessary to perform its obligations under this
Agreement.
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not violate the Master Servicer's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument to which it is a party or which is applicable to it or any of
its assets.
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, receivership, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
(including bank creditors') rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Master Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened, against the Master Servicer, the outcome
of which, in the Master Servicer's good faith and reasonable judgment,
could reasonably be expected to prohibit the Master Servicer from entering
into this Agreement or materially and adversely affect the ability of the
Master Servicer to perform its obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required under federal or state law for the
execution, delivery and performance by the Master Servicer of or
compliance by the Master Servicer with this Agreement or the consummation
of the transactions contemplated by this Agreement has been obtained and
is effective except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by the
Master Servicer under this Agreement.
(viii) The Master Servicer possesses all insurance required pursuant
to Section 3.07(c) of this Agreement.
(ix) The Master Servicer has reviewed all Sub-Servicing Agreements
in effect as of the Closing Date and will review all Sub-Servicing
Agreements entered into by it after the Closing Date.
(b) The representations and warranties of the Master Servicer set
forth in Section 3.24(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 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 3.24(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 Representations and Warranties of the Special Servicer.
(a) The Special Servicer, in such capacity, hereby represents,
warrants and covenants to the other parties hereto and for the benefit of the
Certificateholders and the Companion Loan Noteholders, as of the Closing Date,
that:
(i) The Special Servicer is a corporation validly existing and in
good standing under the laws of the State of Florida, and the Special
Servicer is in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, will not violate the Special Servicer's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument to which it is a party or which is applicable to it or any of
its assets.
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against the Special Servicer, the
outcome of which, in the Special Servicer's good faith and reasonable
judgment, could reasonably be expected to prohibit the Special Servicer
from entering into this Agreement or materially and adversely affect the
ability of the Special Servicer to perform its obligations under this
Agreement.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required under federal or state law for the
execution, delivery and performance by the Special Servicer of or
compliance by the Special Servicer with this Agreement or the consummation
of the transactions contemplated by this Agreement has been obtained and
is effective except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by the
Special Servicer under this Agreement.
(viii) The Special Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement.
(b) The representations and warranties of the Special Servicer set
forth in Section 3.25(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 3.25(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.25(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 3.26 Certain Matters Regarding the Purchase of the Trust
Mortgage Loans.
If, pursuant to Section 2.03, Section 3.19 and Section 9.01, any
Trust Mortgage Loan is purchased or repurchased from the Trust Fund, the
purchaser thereof shall be bound by the terms of the related Co-Lender Agreement
and shall assume the rights and obligations of the holder of the Note that was
formerly part of the Trust Fund under the related Co-Lender Agreement. All
portions of the related Mortgage File and other documents pertaining to such
Mortgage Loan shall be endorsed or assigned to the extent necessary or
appropriate to the purchaser of such Mortgage Loan. Thereafter such Mortgage
File shall be held by the holder of such purchased Mortgage Loan, as applicable,
or a custodian appointed thereby for the benefit of the "Note A Lender" and the
"Note B Lender" as their interests appear under the related Co-Lender Agreement.
If the related Servicing File is not already in the possession of such party, it
shall be delivered to the master servicer or special servicer, as the case may
be, under the separate servicing agreement for the Loan Pairs.
Section 3.27 Application of Default Charges.
(a) Any and all Default Charges that are actually collected with
respect to any Mortgage Loan or REO Mortgage Loan in the Mortgage Pool during
any Collection Period, shall be applied for the following purposes and in the
following order, in each case to the extent of the remaining portion of such
Default Charges:
First, to pay to the Fiscal Agent, the Trustee, the Master Servicer
or the Special Servicer, in that order, any interest due and owing to such party
on any outstanding Advances made thereby with respect to any Mortgage Loan or
REO Mortgage Loan in the Mortgage Pool and reimbursed in the related Collection
Period;
Second, to pay any other outstanding expenses (exclusive of Special
Servicing Fees, Liquidation Fees and Workout Fees) incurred with respect to any
Mortgage Loan or REO Mortgage Loan in the Mortgage Pool and that, if paid from a
source other than such Default Charges, would constitute Additional Trust Fund
Expenses;
Third, to reimburse the Trust for any interest on Advances paid to
the Fiscal Agent, the Trustee, the Master Servicer or the Special Servicer in
the preceding twelve months with respect to any Mortgage Loan or REO Mortgage
Loan in the Mortgage Pool, which payment was made from a source other than
Default Charges and not previously reimbursed under this clause third;
Fourth, to reimburse the Trust for any other Additional Trust Fund
Expenses (exclusive of Special Servicing Fees, Liquidation Fees and Workout
Fees) paid in the preceding twelve months with respect to any Mortgage Loan or
REO Mortgage Loan in the Mortgage Pool, which payment was made from a source
other than Default Charges and not previously reimbursed under this clause
fourth; and
Fifth, to pay any remaining portion of such Default Charges (such
remaining portion, "Net Default Charges") as additional master servicing
compensation to the Master Servicer, to the extent received, if they were
accrued in respect of a Performing Serviced Mortgage Loan, or as additional
special servicing compensation to the Special Servicer, to the extent received,
if they were accrued in respect of a Specially Serviced Mortgage Loan or an REO
Mortgage Loan, in each case pursuant to Section 3.11;
provided that any and all Default Charges that are actually collected with
respect to any Trust Mortgage Loans (other than the Windsor Capital Portfolio
Trust Loan) during any Collection Period (as allocable thereto pursuant to the
related loan agreement) shall be applied for the following purpose, prior to
being applied in accordance with clauses first through fifth above, in each case
to the extent of the remaining portion of such Default Charges: to pay the
Fiscal Agent, the Trustee, the Master Servicer or the Special Servicer, in that
order, any interest due and owing to such party on any outstanding Servicing
Advance made thereby with respect to the related Loan Pair or the related Loan
Pair Mortgaged Property and/or any outstanding P&I Advance made thereby with
respect to such Mortgage Loan or any successor REO Mortgage Loan with respect
thereto, which Advance was reimbursed in such Collection Period, but in each
case only to the extent that Default Charges collected with respect to such
Companion Loans and applied pursuant to clause first of subsection (c) below are
insufficient for such purpose; and provided further, that no Default Charges
collected with respect to the U.S. Bank Tower Trust Loan, 1801 K Street Trust
Loan, 000 Xxxx Xxxxxx Trust Loan or the Xxxxx Fargo Tower Trust Loan may be
applied to pay interest on outstanding P&I Advances made with respect to the
U.S. Bank Tower Pari Passu Companion Loan, 1801 K Street Pari Passu Companion
Loan, 237 Park Avenue Pari Passu Companion Loans or the Xxxxx Fargo Tower Pari
Passu Companion Loans (such reimbursement to be made solely from Default Charges
collected with respect to such Companion Loan(s)).
(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 Distribution Account, subject to application pursuant to Section
3.05(a) for any items payable out of general collections on the Mortgage Loans
and any REO Properties. Default Charges applied to pay outstanding interest on
Advances to any particular party pursuant to clause first of subsection (a)
shall be applied to pay such party such interest on Advances in such manner that
the interest that accrued first and has been outstanding the longest shall be
paid first. Default Charges applied to pay outstanding expenses pursuant to
clause second of subsection (a) shall be applied to pay such expenses in the
chronological order in which they were incurred. Default Charges applied to
reimburse the Trust pursuant to clauses third and fourth, of subsection (a)
shall be deemed to offset either interest paid on Advances or other Additional
Trust Fund Expenses, depending on which clause is applicable, in the
chronological order in which they were made or incurred, as applicable
(whereupon such interest paid on Advances or such other Additional Trust Fund
Expenses, depending on which clause is applicable, shall thereafter be deemed to
have been paid out of Default Charges).
(c) Any and all Default Charges that are actually collected with
respect to any Loan Pair (other than the Windsor Capital Portfolio Companion
Loans, which are being serviced under the 2003-C1 PSA) or any successor REO Loan
with respect thereto during any Collection Period (as allocable thereto pursuant
to the related loan agreement), shall first, be allocated among the related
Trust Mortgage Loans and Companion Loans (but not distributed) in accordance
with the terms of the related Co-Lender Agreement without giving effect to any
limitation set forth in such Co-Lender Agreement regarding the portion of any
Default Interest to be retained by the Master Servicer, Trustee or Fiscal Agent,
and second, shall be applied for the following purposes and in the following
order, in each case to the extent of the remaining portion of such Default
Charges:
First, to pay to the Fiscal Agent, the Trustee, the Master Servicer
or the Special Servicer, in that order, any interest due and owing to such party
on any outstanding Advances made thereby with respect to such Loan Pair or REO
Loan or the related Loan Pair Mortgaged Property and reimbursed in the related
Collection Period (to be applied with respect to any particular party in such
manner that the interest that accrued first and has been outstanding the longest
shall be paid first);
Second, to pay any other outstanding expenses (exclusive of Special
Servicing Fees, Liquidation Fees and Workout Fees) incurred with respect to such
Loan Pair or REO Loan and that, if paid from a source other than such Default
Charges, would constitute Additional Trust Fund Expenses;
Third, to reimburse the Trust or any Companion Loan Noteholder for
any interest on Advances paid to the Fiscal Agent, the Trustee, the Master
Servicer or the Special Servicer in the preceding twelve months with respect to
such Loan Pair or REO Loan, which payment was made from a source other than
Default Charges and not previously reimbursed under this clause third or clause
third under Section 3.27(a);
Fourth, to reimburse the Trust or any Companion Loan Noteholder for
any other Additional Trust Fund Expenses (exclusive of Special Servicing Fees,
Liquidation Fees and Workout Fees) paid in the preceding twelve months with
respect to such Loan Pair or REO Loan, which payment was made from a source
other than Default Charges and not previously reimbursed under this clause
fourth or clause fourth under Section 3.27(a); and
Fifth, to pay any remaining portion of such Default Charges (in the
case of the Independent Square Loan Pair, net of any amount of such Default
Charges allocable to the Independent Square Subordinate Companion Loan) (such
remaining portion, "Net Default Charges") as additional master servicing
compensation to the Master Servicer, to the extent received, if they were
accrued with respect to such Companion Loan during a period that it was a
Performing Serviced Loan, or as additional special servicing compensation to the
Special Servicer, to the extent received, if they were accrued with respect to
such Companion Loan during a period that it was a Specially Serviced Loan or an
REO Loan, in each case pursuant to Section 3.11.
Section 3.28 Limitations on and Authorizations of the Master
Servicer and Special Servicer with Respect to Specific Mortgage Loans.
(a) With respect to any Mortgage Loans that provide for a "cash
trap" provision whereby excess cash in an account controlled by the lender (i)
is not released to the related borrower and (ii) may, at the lender's
discretion, be applied as a prepayment on the Mortgage Loan, the Master Servicer
shall not apply any of such excess cash as prepayment of the related Mortgage
Loan unless the Special Servicer consents.
(b) With respect to any Companion Loan that is an asset of a
securitization that is rated by Fitch Ratings, the Master Servicer and Special
Servicer shall be required to obtain, with respect to each of the items below
that relate to such Companion Loan, a confirmation from Fitch Ratings that such
action will not result in the qualification, downgrade or withdrawal of any
rating then assigned to the related Companion Loan Securities, to the same
extent as the Master Servicer or Special Servicer is required to obtain such
confirmation from the Rating Agencies under this Agreement:
(i) 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,
any consent, approval or direction regarding the termination of the
franchise or the designation of a new franchise;
(ii) any waiver of a "due-on-sale" or "due-on-encumbrance clause";
(iii) entering into any assumption agreement; and
(iv) the acceptance of a pledge of the Defeasance Collateral.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions.
(a) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Trustee shall transfer the
Lower-Tier Distribution Amount from the Lower-Tier Distribution Account to the
Upper-Tier Distribution Account in the amounts and priorities set forth in
Section 4.01(i) with respect to each class of Uncertificated Lower-Tier
Interests, and immediately thereafter, shall make distributions thereof from the
Upper-Tier Distribution Account in the following order of priority, satisfying
in full, to the extent required and possible, each priority before making any
distribution with respect to any succeeding priority:
(i) to the Holders of the Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates, the Class A-4 Certificates, the
Class XP Certificates and the Class XC Certificates, pro rata (based upon
their respective entitlements to interest for such Distribution Date), 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) to the Holders of the Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates and the Class A-4 Certificates in
reduction of the Class Principal Balances thereof in an amount up to the
Adjusted Principal Distribution Amount: (A) prior to the Cross-Over Date,
(1) first, to the Holders of the Class A-1 Certificates, until the
outstanding Class Principal Balance of the Class A-1 Certificates has been
reduced to zero, (2) second, to the Holders of the Class A-2 Certificates
until the outstanding Class Principal Balance of the Class A-2
Certificates has been reduced to zero, (3) third, to the Holders of the
Class A-3 Certificates until the outstanding Class Principal Balance of
the Class A-3 Certificates has been reduced to zero, and (4) fourth, to
the Holders of the Class A-4 Certificates until the outstanding Class
Principal Balance of the Class A-4 Certificates has been reduced to zero;
and (B) on or after the Cross-Over Date, to the Holders of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates and
the Class A-4 Certificates, pro rata (based upon their respective
outstanding Class Principal Balances), until their respective outstanding
Class Principal Balances have been reduced to zero;
(iii) to the Holders of the Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates and the Class A-4 Certificates,
pro rata (based upon the aggregate unreimbursed Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a)), until all amounts of
Realized Losses previously and Additional Trust Fund Expenses allocated to
such Classes, but not previously reimbursed, have been reimbursed in full;
(iv) 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;
(v) 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 Adjusted
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 any prior
clause of this Section 4.01(a);
(vi) 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;
(vii) 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;
(viii) 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 Adjusted
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 any prior
clause of this Section 4.01(a));
(ix) 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;
(x) 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;
(xi) 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 Adjusted
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 any prior
clause of this Section 4.01(a));
(xii) 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;
(xiii) 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;
(xiv) 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 Adjusted
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 any prior
clause of this Section 4.01(a));
(xv) 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;
(xvi) 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;
(xvii) 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 Adjusted
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 any prior
clause of this Section 4.01(a));
(xviii) 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;
(xix) 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;
(xx) 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 Adjusted
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 any prior
clause of this Section 4.01(b));
(xxi) 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;
(xxii) 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;
(xxiii) 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 Adjusted
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 any prior
clause of this Section 4.01(a));
(xxiv) 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;
(xxv) 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;
(xxvi) 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 Adjusted
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 any prior
clause of this Section 4.01(a));
(xxvii) 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;
(xxviii) 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;
(xxix) 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 Adjusted
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 any prior
clause of this Section 4.01(a));
(xxx) 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;
(xxxi) 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;
(xxxii) 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 Adjusted
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 any prior
clause of this Section 4.01(a));
(xxxiii) 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;
(xxxiv) 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;
(xxxv) 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 Adjusted
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 any prior
clause of this Section 4.01(b));
(xxxvi) 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;
(xxxvii) 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;
(xxxviii) 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 Adjusted
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 any prior
clause of this Section 4.01(a));
(xxxix) 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;
(xl) to make distributions of interest to the Holders of the Class O
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 N Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class O 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 Adjusted
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 any prior
clause of this Section 4.01(a));
(xlii) to make distributions to the Holders of the Class O
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xliii) to make distributions of interest to the Holders of the
Class 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;
(xliv) 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 Adjusted
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 any prior
clause of this Section 4.01(a));
(xlv) 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;
(xlvi) to the Holders of the Class R-II Certificates, the amount, if
any, of the Available Distribution Amount remaining in the Upper-Tier
Distribution Account with respect to such Distribution Date.
All distributions of interest made in respect of the Class XC and
Class XP Certificates on any Distribution Date pursuant to clause (i) above,
shall be deemed to have been made in respect of all the Components of such
Class, pro rata in accordance with the respective amounts of interest that would
be payable on such Components on such Distribution Date based on the Class XC
Strip Rate and Class XP Strip Rate, as applicable, of such Component multiplied
by its Component Notional Amount, less an allocable portion of any Net Aggregate
Prepayment Interest Shortfall, together with any amounts thereof remaining
unpaid from previous Distribution Dates.
(b) On each Distribution Date, the Trustee shall withdraw any
amounts on deposit in the Upper-Tier Distribution Account that represent Net
Prepayment Consideration actually collected on Pooled Mortgage Loans or Pooled
REO Mortgage Loans during the related Collection Period and remitted in respect
of the Uncertificated Lower-Tier Interests pursuant to Section 4.01(j), and
shall distribute such amounts to the Holders of each of the Class A-1, Class
A-2, Class A-3, Class A-4, Class B, Class C, Class D, Class E, Class F, Class G
and Class H Certificates entitled to distributions of principal pursuant to
Section 4.01(a) on such Distribution Date, up to an amount equal to, and pro
rata based on, the respective Prepayment Consideration Entitlements for such
Classes of Certificates for such Distribution Date.
Any Net Prepayment Consideration not otherwise distributed in
respect of the Principal Balance Certificates pursuant to the foregoing
paragraph of this Section 4.01(b) shall be distributed as follows: (i)
commencing with the initial Distribution Date through and including the
Distribution Date in November 2010, 15% to the Holders of the Class XP
Certificates and 85% to the Holders of the Class XC Certificates; and (ii)
commencing with the Distribution Date in December 2010, 100% to the Holders of
the Class XC Certificates.
(c) Reserved.
(d) 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 (or, in the case of the initial Distribution Date, on) the related
Record Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates), or otherwise by check mailed
to the address of such Certificateholder as it appears in the Certificate
Register. The final distribution on each Certificate (determined, in the case of
a Principal Balance Certificate, without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to such Certificate pursuant to Section 4.04(a)) will be made in a
like manner, but only upon presentation and surrender of such Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution. Prior to any
termination of the Trust Fund pursuant to Section 9.01, any distribution that is
to be made with respect to a Certificate in reimbursement of a Realized Loss or
Additional Trust Fund Expense previously allocated thereto, which reimbursement
is to occur after the date on which such Certificate is surrendered as
contemplated by the preceding sentence, will be made by check mailed to the
address of the Certificateholder that surrendered such Certificate as such
address last appeared in the Certificate Register or to any other address of
which the Trustee was subsequently notified in writing. If such check is
returned to the Trustee, then the Trustee, directly or through an agent, shall
take such reasonable steps to contact the related Holder and deliver such check
as it shall deem appropriate. Any funds in respect of a check returned to the
Trustee shall be set aside by the Trustee and held uninvested in trust and
credited to the account of the appropriate Holder. The costs and expenses of
locating the appropriate Holder and holding such funds shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If the Trustee has not, after having taken such
reasonable steps, located the related Holder by the second anniversary of the
initial sending of a check, the Trustee shall, subject to applicable law,
distribute the unclaimed funds to the Class R-II Certificateholders.
(e) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm for which it acts as agent. Each indirect
participating brokerage firm shall be responsible for disbursing funds to the
related Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor or the Master Servicer shall have any
responsibility therefor except as otherwise provided by this Agreement or
applicable law. The Trustee and the Depositor shall perform their respective
obligations under each Letter of Representations among the Depositor, the
Trustee and the initial Depository dated as of the Closing Date and pertaining
to the Book-Entry Certificates.
(f) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund with respect to the Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates with respect to amounts properly
previously distributed on the Certificates.
(g) 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)) 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(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, then the Trustee, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such non-tendering
Certificateholders following the first anniversary of the delivery of such
second notice thereto shall be paid out of such funds. No interest shall accrue
or be payable to any former Holder on any amount held in trust pursuant to this
paragraph. If all of the Certificates as to which notice has been given pursuant
to this Section 4.01(g) 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-II Certificateholders all
unclaimed funds and other assets which remain subject thereto.
(h) 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.
(i) During each Interest Accrual Period, each Uncertificated
Lower-Tier Interest shall accrue interest in an amount equal to the product of
the Uncertificated Principal Balance of each such Uncertificated Lower-Tier
Interest and the Weighted Average Net Mortgage Rate. On each Distribution Date,
each Uncertificated Lower-Tier Interest shall be deemed to receive distributions
in respect of interest in an amount equal to the Distributable Certificate
Interest for such Distribution Date (and, to the extent not previously paid, for
all prior Distribution Dates, if any) in respect of its Corresponding
Certificate, in each case allocable among the Corresponding Uncertificated
Lower-Tier Interests, pro rata, and the portion of the Distributable Certificate
Interest for such Distribution Date (and, to the extent not previously paid, for
all prior Distribution Dates, if any) of the Class XC and Class XP Certificates
that is attributable to the Corresponding Component of such Uncertificated
Lower-Tier Interest, in each case to the extent actually distributable thereon
as provided in Section 4.01(a).
All distributions made in respect of any Class of Principal Balance
Certificates on each Distribution Date pursuant to Section 4.01(a) or Section
9.01 shall be deemed to have first been distributed from the Lower-Tier REMIC to
the Upper-Tier REMIC in respect of its Corresponding Uncertificated Lower-Tier
Interest set forth in the Preliminary Statement hereto; provided, however, that
distributions of principal:
(i) with respect to the Class A-1 Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Uncertificated Lower-Tier Interest LA-1-1; second, to
Uncertificated Lower-Tier Interest LA-1-2; and third, to Uncertificated
Lower-Tier Interest LA-1-3; in each case, until their respective
Uncertificated Principal Balances are reduced to zero;
(ii) with respect to the Class A-2 Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Uncertificated Lower-Tier Interest LA-2-1; second, to
Uncertificated Lower-Tier Interest LA-2-2; third, to Uncertificated
Lower-Tier Interest LA-2-3; in each case, until their respective
Uncertificated Principal Balances are reduced to zero;
(iii) with respect to the Class A-3 Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Uncertificated Lower-Tier Interest LA-3-1; and second,
to Uncertificated Lower-Tier Interest LA-3-2; and third, to Uncertificated
Lower-Tier Interest LA-3-3; in each case, until their respective
Uncertificated Principal Balances are reduced to zero;
(iv) with respect to the Class A-4 Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Uncertificated Lower-Tier Interest LA-4-1 until its
Uncertificated Principal Balance is reduced to zero; and second, to
Uncertificated Lower-Tier Interest LA-4-2; in each case, until their
respective Uncertificated Principal Balances are reduced to zero;
(v) with respect to the Class F Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Uncertificated Lower-Tier Interest LF-1; and second,
to Uncertificated Lower-Tier Interest LF-2; in each case, until their
respective Uncertificated Principal Balances are reduced to zero;
(vi) with respect to the Class G Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Uncertificated Lower-Tier Interest LG-1; and second,
to Uncertificated Lower-Tier Interest LG-2; in each case, until their
respective Uncertificated Principal Balances are reduced to zero;
(vii) with respect to the Class H Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Uncertificated Lower-Tier Interest LH-1; and second,
to Uncertificated Lower-Tier Interest LH-2; in each case, until their
respective Uncertificated Principal Balances are reduced to zero;
(viii) with respect to the Class J Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Uncertificated Lower-Tier Interest LJ-1; and second,
to Uncertificated Lower-Tier Interest LJ-2; in each case, until their
respective Uncertificated Principal Balances are reduced to zero; and
(ix) with respect to the Class L Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Uncertificated Lower-Tier Interest LL-1; and second,
to Uncertificated Lower-Tier Interest LL-2; in each case, until their
respective Uncertificated Principal Balances are reduced to zero.
All distributions made in respect of the Class XC and Class XP
Certificates on each Distribution Date pursuant to Section 4.01(a) or Section
9.01, and allocable to any particular Component of such Class of Certificates in
accordance with the penultimate paragraph of Section 4.01(a), shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in
respect of such Component's Corresponding Uncertificated Lower-Tier Interest.
All distributions of reimbursements of Realized Losses and Additional Trust Fund
Expenses made in respect of any Class of Principal Balance Certificates on each
Distribution Date pursuant to Section 4.01(a) shall be deemed to have first been
distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in respect of its
Corresponding Uncertificated Lower-Tier Interests set forth in the Preliminary
Statement hereto; provided, however, that distributions of reimbursements of
Realized Losses and Additional Trust Fund Expenses shall be made in reverse
sequential order of the priority set forth in this Section 4.01(i) for principal
distributions, up to the amount of Realized Losses and Additional Trust Fund
Expenses previously allocated to a particular Class of Uncertificated Lower-Tier
Interests.
(j) On each Distribution Date, the Trustee shall withdraw from the
Lower-Tier Distribution Account an aggregate amount equal to all Net Prepayment
Consideration actually collected on the Pooled Mortgage Loans or any Pooled REO
Mortgage Loans during the related Collection Period and shall distribute such
amount in respect of the Class LA-1 Uncertificated Lower-Tier Interest by
depositing such amount in the Upper-Tier Distribution Account (notwithstanding
that all principal and interest distributable with respect to the Class LA-1
Uncertificated Lower-Tier Interest has been paid in full).
(k) Any amount that remains in the Lower-Tier Distribution Account
on each Distribution Date after distribution of the Lower-Tier Distribution
Amount, and after the distribution of any Net Prepayment Consideration shall be
distributed to the Holders of the Class R-I Certificates (but only to the extent
of the Available Distribution Amount for such Distribution Date remaining in the
Lower-Tier Distribution Account).
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 Directing Holder, 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/or the Special Servicer, setting forth, without limitation:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of Principal Balance Certificates in reduction of
the Class Principal Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Regular Interest Certificates allocable to
Distributable Certificate Interest;
(iii) the amount of the distribution on such Distribution Date to
the Holders of each Class of Regular Interest Certificates allocable to
Prepayment Premiums and Yield Maintenance Charges, respectively;
(iv) the amount of the distribution on such Distribution Date to the
Holders of each Class of Principal Balance Certificates in reimbursement
of previously allocated Realized Losses and Additional Trust Fund
Expenses;
(v) the Available Distribution Amount for such Distribution Date;
(vi) the aggregate amount of P&I Advances made in respect of the
Mortgage Pool for the prior Distribution Date pursuant to Section 4.03(a)
and/or Section 4.03A(a);
(vii) (A) the aggregate amount of xxxxxxxxxxxx X&X Advances that had
been outstanding with respect to the Mortgage Pool at the close of
business on the related Determination Date and the aggregate amount of any
interest accrued and payable to the Master Servicer, the Trustee or the
Fiscal Agent in respect of such xxxxxxxxxxxx X&X Advances in accordance
with Section 4.03(d) or 4.03A(d) as of the close of business on such
Determination Date and (B) the aggregate amount of unreimbursed Servicing
Advances that had been outstanding with respect to the Mortgage Pool as of
the close of business on the related Determination Date and the aggregate
amount of interest accrued and payable to the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent in respect of such unreimbursed
Servicing Advances in accordance with Section 3.12(b) 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 the amount of REO Revenues and other amounts, if any,
received with respect to such REO Property during the related Collection
Period (separately identifying the portion thereof allocable to
distributions on the Certificates) and, if available, the Appraised Value
of such REO Property as expressed in the most recent appraisal thereof and
the date of such appraisal;
(xiv) with respect to any Mortgage Loan as to which the related
Mortgaged Property became an REO Property during the related Collection
Period, the loan number of such Mortgage Loan and the Stated Principal
Balance of such Mortgage Loan as of the related Acquisition Date;
(xv) with respect to any REO Property included in the Trust Fund as
to which a Final Recovery Determination was made during the related
Collection Period, (A) the loan number of the related Mortgage Loan, (B) a
brief description of the basis for the Final Recovery Determination, (C)
the aggregate of all Liquidation Proceeds and other amounts received with
respect to such REO Property during the related Collection Period
(separately identifying the portion thereof allocable to distributions on
the Certificates), (D) the amount of any Realized Loss in respect of the
related REO Loan in connection with such Final Recovery Determination and
(E), if available, the Appraised Value of such REO Property as expressed
in the most recent appraisal thereof and the date of such appraisal;
(xvi) the Distributable Certificate Interest and Accrued Certificate
Interest in respect of each Class of Regular Interest Certificates for
such Distribution Date or the related Interest Accrual Period, as
applicable;
(xvii) any unpaid Distributable Certificate Interest in respect of
each Class of Regular Interest Certificates after giving effect to the
distributions made on such Distribution 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
(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 Notional Amount of each Class of the Class X
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 3.12(b), Section 4.03(d) and/or Section 4.03A(d);
(xxv) (A) the loan number for each Required Appraisal Loan and any
related Appraisal Reduction Amount (including an itemized calculation
thereof) as of the related Determination Date and (B) the aggregate
Appraisal Reduction Amount for all Required Appraisal Loans as of the
related Determination Date;
(xxvi) on a cumulative basis from the Cut-off Date, the number,
aggregate Stated Principal Balance immediately after such Distribution
Date (in the case of subclauses (A), (B) and (E)), aggregate Cut-off Date
Balance (in the case of subclauses (C) and (D)), weighted average
extension period (except in the case of subclause (B) and which shall be
zero in the case of subclause (C)), and weighted average anticipated
extension period (in the case of subclause (B)) of Mortgage Loans (A) as
to which the maturity dates have been extended, (B) as to which the
maturity dates are in the process of being extended, (C) that have paid
off and were never extended, (D) as to which the maturity dates had
previously been extended and have paid off and (E) as to which the
maturity dates had been previously extended and are in the process of
being further extended;
(xxvii) the original and then current credit support levels for each
Class of Regular Interest Certificates;
(xxviii) the original and then current ratings, if any, for each
Class of Regular Interest Certificates;
(xxix) the aggregate amount of Prepayment Premiums and Yield
Maintenance Charges collected (A) during the related Collection Period and
(B) since the Closing Date;
(xxx) (A) the aggregate amount of servicing compensation in respect
of the Mortgage Pool (separately identifying the amount of each category
of compensation) paid to the Master Servicer, the Special Servicer and, if
payable directly out of the Trust Fund without a reduction in the
servicing compensation otherwise payable to the Master Servicer or the
Special Servicer, to each Sub-Servicer, during the related Collection
Period, and (B) such other information as the Trustee is required by the
Code or other applicable law to furnish to enable Certificateholders to
prepare their tax returns; and
(xxxi) the amounts, if any, actually distributed with respect to the
Class R-I and Class R-II Certificates on such Distribution Date.
In the case of information to be furnished pursuant to clauses (i)
through (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. In the case of information provided to the Trustee as a basis for
information to be furnished pursuant to clauses (vi) through (xv), (xix), (xx),
(xxiv), (xxv), (xxvi), (xxix) and (xxx) above, insofar as the underlying
information is solely within the control of the Special Servicer or the Master
Servicer, the Trustee may, absent manifest error, conclusively rely on the
reports to be provided by the Special Servicer or the Master Servicer.
The Trustee shall forward electronically a copy of each Distribution
Date Statement to the Depository. The Trustee shall make available each month,
to Certificateholders, Certificate Owners, the Underwriters, the Rating
Agencies, the Controlling Class Directing Holder, any party hereto or any Person
identified by any Certificateholder or Certificate Owner as a prospective
transferee, via the Trustee's internet website, 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 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 initially 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 Directing
Holder (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 Directing Holder, the Underwriters,
the Rating Agencies or any party hereto, the Certificateholder Reports, on its
internet website. The Master Servicer will make no representations or warranties
as to the accuracy or completeness of any report not prepared by it and will
assume no responsibility for any information for which it is not the original
source.
The Master Servicer's internet website shall initially be located at
"xxx.xxxxxxxx.xxx" or at such other address as shall be specified by the Master
Servicer from time to time in one or more written notices delivered to the other
parties hereto, the Controlling Class Directing Holder (if any), the
Certificateholders and the Rating Agencies. In connection with providing access
to the Master Servicer's internet website, the Master Servicer may require the
acceptance of a disclaimer. The Master Servicer shall not be liable for the
dissemination of information to Certificateholders and Certificate Owners in
accordance with this Agreement.
If the Master Servicer determines, in its reasonable judgment, that
information regarding the Mortgage Loans and REO Properties (in addition to the
information otherwise required to be contained in the CMSA Investor Reporting
Package) should be disclosed to Certificateholders and Certificate Owners, then
(A) the Master Servicer shall so notify the Trustee, set forth such information
in an additional report, in a format reasonably acceptable to the Trustee and
the Master Servicer (the "Supplemental Report"), and deliver such report to the
Trustee upon preparation thereof or simultaneously with the delivery of its
reports described in Section 3.13(d); and (B) the Trustee shall include the
Supplemental Report in or as an attachment to the Distribution Date Statement
for the following Distribution Date and, to the extent required by Section
8.15(a), shall file such Supplemental Report, together with such Distribution
Date Statement and the other corresponding Servicer Reports, on the related
Current Report on Form 8-K and/or the related Annual Report on Form 10-K, as
applicable, in accordance with Section 8.15(a).
During any period that reports are required to be filed with the
Commission with respect to the Trust pursuant to Section 15(d) of the Exchange
Act, each recipient of a Certificateholder Report, a CMSA NOI Adjustment
Worksheet or a CMSA Operating Statement Analysis Report shall be deemed to have
agreed to keep confidential the information therein until such statement or
report is filed with the Commission, and each Certificateholder Report, CMSA NOI
Adjustment Worksheet and CMSA Operating Statement Analysis Report shall bear a
legend to the effect that: "Until this statement/report is filed with the
Commission with respect to the Trust pursuant to Section 15(d) of the Securities
Exchange Act of 1934, as amended, the recipient hereof shall be deemed to keep
the information contained herein confidential and such information will not,
without the prior consent of the Master Servicer or the Trustee, be disclosed by
such recipient or by its officers, directors, partners, employees, agents or
representatives in any manner whatsoever, in whole or in part."
Absent manifest error of which it has actual knowledge, none of the
Master Servicer, the Special Servicer or the Trustee shall be responsible for
the accuracy or completeness of any information supplied to it by a Mortgagor,
the Depositor (including information in the Prospectus Supplement), the Mortgage
Loan Seller or third party that is included in any reports, statements,
materials or information prepared or provided by the Master Servicer, the
Special Servicer or the Trustee, as applicable, pursuant to this Agreement. None
of the Trustee, the Master Servicer or the Special Servicer shall have any
obligation to verify the accuracy or completeness of any information provided by
a Mortgagor, the Mortgage Loan Seller, a third party or each other.
Within a reasonable period of time after the end of each calendar
year the Trustee shall send to each Person who at any time during the calendar
year was a Certificateholder of record, a report summarizing on an annual basis
(if appropriate) the items relating to distributions of interest (including
Prepayment Premiums and Yield Maintenance Charges) and principal to
Certificateholders during such calendar year set forth in the Distribution Date
Statements and such other information as may be required to enable such
Certificateholders to prepare their federal income tax returns. Such information
shall include the amount of original issue discount accrued on each Class of
Certificates and information regarding the expenses of the Trust Fund. Such
requirement shall be deemed to be satisfied to the extent such information is
provided pursuant to applicable requirements of the Code from time to time in
force.
Upon receipt of notice from the Depositor that the Underwriters have
sold the Non-Registered Certificates to unaffiliated third parties, the Trustee
shall make available electronically or, if so requested, forward by hard copy,
on each Distribution Date, to (i) the Xxxxx Group (at 000 Xxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other address as the Xxxxx Group may
designate), (ii) Intex Solutions, Inc. (at 00 Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000, or such other address as Intex Solutions, Inc. may
hereafter designate), (iii) Charter Research Corporation (at 000 Xxxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or such other address as Charter Research
Corporation may hereafter designate), and (iv) any other similar third party
information provider, a copy of the reports made available to the Holders of the
Certificates on such Distribution Date as described above.
Upon written request of the Depositor or any Underwriter, without
payment of any fee, and upon written request of any Certificateholders or any
other Person, together with payment of a reasonable fee specified by the
Trustee, the Trustee shall provide any statements, reports and/or information
contemplated by this Section 4.02(a) electronically to such party (such
electronic distribution and such statements, reports, and/or information thereon
to bear such appropriate disclaimers and qualifications as the Depositor and the
Trustee shall determine in their reasonable discretion).
If any Certificate Owner does not receive through the Depository or
any of its Depository Participants any of the statements, reports and/or other
written information described above in this Section 4.02(a) that it would
otherwise be entitled to receive if it were the Holder of a Definitive
Certificate evidencing its ownership interest in the related Class of Book-Entry
Certificates, then the Trustee shall forward such statements, reports and/or
other written information to such Certificate Owner as provided above, upon the
request of such Certificate Owner made in writing to the Corporate Trust Office
(accompanied by current verification of such Certificate Owner's ownership
interest). Such portion of such information as may be agreed upon by the
Depositor and the Trustee shall be furnished to any such Person via overnight
courier delivery or telecopy from the Trustee; provided that the cost of such
overnight courier delivery or telecopy shall be an expense of the party
requesting such information.
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 or the Special Servicer, as applicable, and
shall not be liable for any failure to deliver any thereof on the prescribed due
dates, to the extent caused by failure to receive timely such underlying
information. Nothing herein shall obligate the Trustee, the Master Servicer or
the Special Servicer to violate any applicable law prohibiting disclosure of
information with respect to any Mortgagor and the failure of the Trustee, Master
Servicer or the Special Servicer to disseminate information for such reason
shall not be a breach hereof.
The information to be furnished by the Trustee to the
Certificateholders pursuant to Sections 4.02(a) and (b) shall not limit the
Trustee in furnishing any such information to other Persons to whom it
determines such disclosure to be appropriate and shall not limit the Trustee in
furnishing to Certificateholders or to any Person any other information with
respect to the Mortgage Loans, the Mortgaged Properties or the Trust Fund as may
be provided to it by the Depositor, the Master Servicer or the Special Servicer
or gathered by it in any investigation or other manner from time to time (such
information, other than as described in Sections 4.02(a) and (b), is referred to
herein as "Additional Information") as it may reasonably deem necessary or
appropriate from time to time, provided that (A) the Trustee shall give the
Depositor three Business Days' advance notice before doing so, (B) any such
Additional Information shall only be furnished with the consent or at the
request of the Depositor (except pursuant to clause (E) below), (C) the Trustee
shall be entitled to indicate the source of all information furnished by it, and
the Trustee may affix thereto any disclaimer it deems appropriate in its
reasonable discretion, (D) the Trustee shall notify Certificateholders of the
availability of any such information in any manner as it, in its sole
discretion, may determine, and (E) this provision shall not prevent the Trustee,
whether with or without the consent of the Depositor, from furnishing
information with respect to the Trust Fund and its administration thereof to any
Person, if it reasonably determines that the furnishing of such information is
required by applicable law. The Trustee shall forward to the Depositor any
requests for Additional Information which, for their fulfillment, require the
consent of the Depositor. Nothing herein shall be construed to impose upon the
Trustee any obligation or duty to furnish or distribute any Additional
Information to any Person in any instance.
(b) Not later than 1:00 p.m. (New York City time) on the second
Business Day prior to each Distribution Date, the Master Servicer shall furnish
to the Trustee, and upon request, to the Depositor, the Underwriters and the
Special Servicer, by electronic transmission (or in such other form to which the
Trustee or the Depositor, as the case may be, and the Master Servicer may
agree), an accurate and complete CMSA Loan Periodic Update File providing the
required information for the Mortgage Loans and any successor REO Mortgage Loans
as of the related Determination Date.
In the performance of its obligations set forth in Section 4.06 and
its other duties hereunder, the Trustee may conclusively rely on the CMSA Loan
Periodic Update File provided to it by the Master Servicer, and the Trustee
shall not be responsible to recompute, recalculate or verify the information
provided to it by the Master Servicer. In the case of information to be
furnished by the Master Servicer to the Trustee pursuant to this Section
4.02(b), insofar as such information is solely within the control of the Special
Servicer, the Master Servicer (if other than the Special Servicer or an
Affiliate thereof) shall have no obligation to provide such information until it
has received such information from the Special Servicer, shall not be in default
hereunder due to a delay in providing the CMSA Loan Periodic Update File caused
by the Special Servicer's failure to timely provide any report required under
this Agreement and may, absent actual knowledge of an error therein,
conclusively rely on the reports to be provided by the Special Servicer. The
Master Servicer may conclusively rely on any information provided by the
Depositor or any Mortgagor with respect to the CMSA Loan Periodic Update File,
CMSA Loan Setup File, CMSA Property File and CMSA Financial File.
Section 4.03 P&I Advances.
(a) On or before 2:00 p.m., New York City time, on each Master
Servicer Remittance Date, the Master Servicer shall, subject to Section 4.03(c)
below, satisfy its obligations to make any required P&I Advances with respect to
the related Distribution Date in respect of the Mortgage Pool (other than the
Trust Mortgage Loans or any successor REO Mortgage Loans with respect thereto),
first, by transferring to the Trustee for deposit in the Distribution Account
amounts then held in the Pool Custodial Account for future distribution to
Certificateholders in subsequent months in discharge of such obligations, and
second, by remitting its own funds to the Trustee for deposit in a Distribution
Account in an amount equal to the remaining portion of such required P&I
Advances. Any amounts held in the Pool Custodial Account for future distribution
and so used to make P&I Advances shall be appropriately reflected in the Master
Servicer's records and replaced by the Master Servicer by deposit in the Pool
Custodial Account on or before the next succeeding Determination Date (to the
extent not previously replaced through the deposit of Late Collections of the
delinquent principal and interest in respect of which such P&I Advances were
made). If, as of 4:00 p.m., New York City time, on any Master Servicer
Remittance Date, the Master Servicer shall not have made any P&I Advance
required to be made on such date pursuant to this Section 4.03(a) (and shall not
have delivered to the Trustee the requisite Officer's Certificate and
documentation related to a determination of nonrecoverability of a P&I Advance),
then the Trustee shall provide notice of such failure to a Servicing Officer of
the Master Servicer by facsimile transmission sent to telecopy no. (704)
593-7740 (or such alternative number provided by the Master Servicer to the
Trustee in writing) and by telephone at telephone no. (000) 000-0000 or (704)
593-7867 (or such alternative number provided by the Master Servicer to the
Trustee in writing) as soon as possible, but in any event before 5:00 p.m., New
York City time, on such Master Servicer Remittance Date. If after such notice by
facsimile, the Trustee does not receive the full amount of such P&I Advances by
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 Master Servicer Remittance Date. If the Trustee fails to make any such P&I
Advance on the related Distribution Date, but the Fiscal Agent makes such P&I
Advance on such date, then the Trustee shall be deemed not to be in default
hereunder.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer, the Trustee or the Fiscal Agent, as the case may be, pursuant to the
first paragraph of Section 4.03(a) in respect of any Distribution Date shall,
subject to Section 4.03(c) below, equal the aggregate of all Monthly Payments
(other than Balloon Payments) and any Assumed Monthly Payments, in each case net
of related Master Servicing Fees and any related Workout Fees, due or deemed
due, as the case may be, in respect of the Mortgage Loans (including Balloon
Mortgage Loans delinquent as to their respective Balloon Payments) and any REO
Mortgage Loans in the Mortgage Pool (exclusive of the Trust Mortgage Loans or
any successor REO Mortgage Loans with respect thereto) on their respective Due
Dates during the related Collection Period, in each case to the extent such
amount was not paid by or on behalf of the related Mortgagor or otherwise
collected (including as net income from REO Properties) as of the close of
business on the related Determination Date; provided that if it is determined
that an Appraisal Reduction Amount exists with respect to any such Mortgage Loan
or REO Mortgage Loan, then, in the event of subsequent delinquencies thereon,
the amount of each P&I Advance, if any, required to be made in respect of such
Mortgage Loan or REO Mortgage Loan, as the case may be, during the period that
such Appraisal Reduction Amount continues to exist, shall be reduced to equal
the product of (x) the amount of the subject P&I Advance that would otherwise be
required without regard to this proviso, multiplied by (y) a fraction, the
numerator of which is equal to the Stated Principal Balance of such Mortgage
Loan or REO Mortgage Loan, as the case may be, net of such Appraisal Reduction
Amount, and the denominator of which is equal to the Stated Principal Balance of
such Mortgage Loan or REO Mortgage Loan, as the case may be.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made under this Section 4.03 if such P&I Advance would,
if made, constitute a Nonrecoverable P&I Advance. The determination by the
Master Servicer that it has made a Nonrecoverable P&I Advance pursuant to this
Section 4.03 or that any proposed P&I Advance, if made pursuant to this Section
4.03, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an
Officer's Certificate delivered to the Trustee, the Fiscal Agent and the
Depositor on or before the related Master Servicer Remittance Date, setting
forth the basis for such determination, together with any other information that
supports such determination, including an appraisal (which appraisal shall have
been conducted by an Independent Appraiser within the 12-month period preceding
such determination in accordance with the standards of the Appraisal Institute
taking into account the factors specified in Section 3.19), 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 its good faith, reasonable
discretion, makes a determination prior to the times specified in Section
4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. Upon
determining that any P&I Advance previously made with respect to a Specially
Serviced Loan or REO Loan is a Nonrecoverable P&I Advance, the Special Servicer
shall report to the Master Servicer the Special Servicer's determination. The
Master Servicer shall be entitled to conclusively rely on such determination.
(d) The Master Servicer, the Trustee and the Fiscal Agent shall each
be entitled to receive interest at the Reimbursement Rate in effect from time to
time, compounded monthly, accrued on the amount of each P&I Advance made thereby
under this Section 4.03 (with its own funds) for so long as such P&I Advance is
outstanding; provided that, if the grace period for the delinquent Monthly
Payment as to which a P&I Advance was made under this Section has not elapsed as
of the time such P&I Advance was made, then the total interest so accrued on
such P&I Advance prior to the expiration of such grace period, shall not exceed
the amount of Default Charges, if any, collected in connection with the late
payment of such delinquent Monthly Payment; and provided, further that, in no
event shall interest so accrue on any P&I Advance as to which the corresponding
Late Collection was received by the Master Servicer or a Sub-Servicer on its
behalf as of the related Master Servicer Remittance Date. Interest so accrued on
any P&I Advance made under this Section shall be payable: (i) out of any Default
Charges collected on or in respect of the Mortgage Pool during the same
Collection Period in which such Advance is reimbursed; and (ii) to the extent
that such Default Charges are insufficient, but only if the related Advance is
being reimbursed at the same time or has been previously reimbursed pursuant to
this Agreement, out of general collections on the Mortgage Loans and REO
Properties on deposit in the Pool Custodial Account. The Master Servicer shall,
in accordance with Section 3.05(a), reimburse itself, the Trustee or the Fiscal
Agent, as applicable, for any outstanding P&I Advance made thereby under this
Section 4.03 as soon as practicable after funds available for such purpose are
deposited in the Pool Custodial Account.
Section 4.03A. P&I Advances on the Trust Mortgage Loans and
U.S. Bank Tower Pari Passu Companion Loan, 1801 K Street Pari Passu Companion
Loan, 237 Park Avenue Pari Passu Companion Loans and Xxxxx Fargo Tower Pari
Passu Companion Loans.
(a) The Master Servicer shall, subject to Section 4.03A(c) below,
satisfy its obligations to make any required P&I Advance on each Master Servicer
Remittance Date in respect of (i) the Trust Mortgage Loans (including the
Windsor Capital Portfolio Trust Loan (but only to the extent such P&I Advance
was required to be made by the 2003-C1 Master Servicer, pursuant to the 0000-X0
XXX, and the 2003-C1 Master Servicer failed to make such P&I Advance) and (ii)
the U.S. Bank Tower Pari Passu Companion Loan, 1801 K Street Pari Passu
Companion Loan, 237 Park Avenue Pari Passu Companion Loans and Xxxxx Fargo Tower
Pari Passu Companion Loans, with respect to each such Pari Passu Companion Loan,
from and after the date on which such Pari Passu Companion Loan is an asset in a
securitization that is rated by S&P, Xxxxx'x or Xxxxx Ratings, by depositing
into the related Loan Pair Custodial Account, out of amounts held in such
Custodial Account for future distribution (subject to replacement of such
amounts by the following Master Servicer Remittance Date) and, if such amounts
are insufficient, then out of its own funds, the amount of such P&I Advance
required to be made. P&I Advances with respect to (i) any Trust Mortgage Loan
shall be made no later than 2:00 p.m., New York City time on each Master
Servicer Remittance Date and (ii) any Pari Passu Companion Loan that is an asset
in a securitization, by 2:00 p.m. New York City time on the related Loan Pair
Remittance Date. If, as of 4:00 p.m., New York City time, on any Master Servicer
Remittance Date, the Master Servicer shall not have made any P&I Advance
required to be made on such date pursuant to this Section 4.03A(a) in respect of
the Trust Mortgage Loans (and the Master Servicer 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 or (000) 000-0000 (or such alternative
number provided by the Master Servicer to the Trustee in writing) as soon as
possible, but in any event before 5:00 p.m., New York City time, on such Master
Servicer Remittance Date. The Trustee shall also provide a copy of such notice
to the master servicer of the securitization holding the related Pari Passu
Companion Loan, such obligation being contingent upon such Master Servicer
having previously provided notice to the Trustee; provided, however that the
Trustee has actual knowledge that the related Pari Passu Companion Loan is
included in such securitization based upon a notice received from such master
servicer. If after such notice, the Trustee does not receive the full amount of
such P&I Advance(s) 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 in respect of the Trust Mortgage Loans or any successor
REO Mortgage Loans with respect thereto on the preceding Master Servicer
Remittance Date. If the Trustee fails to make any such P&I Advance on the
related Distribution Date, but the Fiscal Agent makes such P&I Advance on such
date, then the Trustee shall be deemed not to be in default hereunder. In
addition, if, as of 4:00 p.m., New York City time, on any Loan Pair Remittance
Date, the Master Servicer shall not have made any P&I Advance required to be
made on such date pursuant to this Section 4.03A(a) in respect of a Pari Passu
Companion Loan that is an asset of a securitization, the Master Servicer shall
provide notice of such failure to the master servicer of the securitization
holding the related Pari Passu Companion Loan.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer, the Trustee or the Fiscal Agent, as the case may be, pursuant to the
first paragraph of Section 4.03A(a) in respect of any Distribution Date shall,
subject to Section 4.03A(c) below, equal the aggregate of all Monthly Payments
(other than Balloon Payments) and any Assumed Monthly Payments, in each case net
of related Master Servicing Fees and any related Workout Fees, due or deemed
due, as the case may be, in respect of the Trust Mortgage Loans including the
Windsor Capital Portfolio Trust Loan and related Pari Passu Companion Loans
(excluding the Windsor Capital Portfolio Pari Passu Companion Loan) (including
Balloon Loans delinquent as to their respective Balloon Payments) and any
successor REO Loans to such Loans on their respective Due Dates during the
related Collection Period, (i) in each case, other than with respect to the
Windsor Capital Portfolio Trust Loan, to the extent such amount was not paid by
or on behalf of the related Mortgagor or otherwise collected (including as net
income from REO Properties) as of the close of business on the related
Determination Date, or (ii) in the case of the Windsor Capital Portfolio Trust
Loan, to the extent such amount was required to be advanced by the 2003-C1
Master Servicer, pursuant to the 2003-C1 PSA and the 2003-C1 Master Servicer
failed to make such advance by noon (New York City time) on the Master Servicer
Remittance Date; provided that if it is determined that an Appraisal Reduction
Amount exists with respect to any such Loan Pair 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 Loan Pair 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 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 the Trust Mortgage Loan and the related Pari Passu
Companion Loan(s) (or related REO Loan), net of the portion of the applicable
Appraisal Reduction Amount allocated to such Trust Mortgage Loan and Pari Passu
Companion Loan(s), and the denominator of which is equal to the Stated Principal
Balance of such Trust Mortgage Loan and the related Pari Passu Companion Loan(s)
(or related Mortgage Loan or REO Mortgage Loan). For purposes of the preceding
sentence Appraisal Reduction Amounts with respect to a Loan Pair shall be
applied first to the related Subordinate Companion Loan until its balance is
reduced to zero and then to the related Trust Mortgage Loan and, if applicable,
the related Pari Passu Companion Loan(s) pro rata, based on their respective
outstanding principal balances (except in the case of the U.S. Tower Loan Pair,
in which such allocation shall, be made first, by deeming a pro rata allocation
of the Appraisal Reduction Amount to (1) the U.S. Bank Tower Trust Mortgage Loan
and the U.S. Bank Tower Junior Companion Loan, collectively and (2) the U.S.
Bank Tower Pari Passu Companion Loan and then by applying the amounts allocated
in clause (1) to the U.S. Bank Tower Junior Companion Loan until its balance is
reduced to zero and then to the U.S. Bank Tower Trust Loan, and by applying the
amounts allocated in clause (2) above to the U.S. Bank Tower Pari Passu
Companion Loan.
With respect to P&I Advances and the Windsor Capital Portfolio Trust
Loan, the Master Servicer, the Trustee and the Fiscal Agent shall be entitled to
rely on the "appraisal reduction amount" calculated by the 2003-C1 Special
Servicer or the 2003-C1 Master Servicer in accordance with the terms of the
2003-C1 PSA. In the event that an Appraisal Reduction Event has occurred and the
2003-C1 Special Servicer or the 2003-C1 Master Servicer has not obtained an
appraisal and has not calculated an appraisal reduction amount in accordance
with the terms of the 2003-C1 PSA, the Windsor Capital Portfolio Trust Loan will
be deemed to be a "Required Appraisal Loan" and the Master Servicer shall obtain
an Appraisal (the cost of which shall be reimbursable to the Master Servicer as
a Servicing Advance) and calculate the applicable Appraisal Reduction Amount in
accordance with provisions of this Agreement.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made under this Section 4.03A with respect to Trust
Mortgage Loans or any Pari Passu Companion Loans (excluding the Windsor Capital
Portfolio Pari Passu Companion Loan), or related REO Loans if such P&I Advance
would, if made, constitute a Nonrecoverable P&I Advance. The determination by
the Master Servicer that any proposed P&I Advance, if made pursuant to this
Section 4.03A with respect to Trust Mortgage Loans or any Pari Passu Companion
Loans, or related REO Loans, would constitute a Nonrecoverable P&I Advance,
shall be evidenced by an Officer's Certificate delivered to the Trustee and the
Companion Loan Noteholders on or before the next Master Servicer Remittance
Date, setting forth the basis for such determination, together with any other
information that supports such determination, including an appraisal (which
appraisal shall be an expense payable out of the related Loan Pair Custodial
Account and shall have been conducted by an Independent Appraiser in accordance
with the standards of the Appraisal Institute, within the twelve months
preceding such determination of nonrecoverability), Mortgagor operating
statements and financial statements, budgets and rent rolls of the Mortgaged
Property (to the extent available and/or in the Master Servicer's or the Special
Servicer's possession), engineers' reports, environmental surveys and any
similar reports that the Master Servicer may have obtained consistent with the
Servicing Standard and that support such determination by the Master Servicer.
If, in connection with the foregoing, it is necessary for the Master Servicer to
obtain an appraisal, the Master Servicer shall so notify the Special Servicer
and consult with the Special Servicer regarding such appraisal. The Trustee and
the Fiscal Agent shall be entitled to rely, conclusively, on any determination
by the Master Servicer that a P&I Advance to be made in respect of the Trust
Mortgage Loans or any successor REO Mortgage Loans with respect thereto, if
made, would be a Nonrecoverable Advance; provided, however, that if the Master
Servicer has failed to make such a P&I Advance with respect to the Trust
Mortgage Loans or any successor REO Mortgage Loan for reasons other than a
determination by the Master Servicer that such P&I Advance would be
Nonrecoverable Advance, the Trustee or Fiscal Agent shall make such Advance
within the time periods required by Section 4.03A(a) unless the Trustee or the
Fiscal Agent, in its good faith, reasonable discretion, makes a determination
prior to the times specified in Section 4.03A(a) that such P&I Advance would be
a Nonrecoverable P&I Advance. In the event the Trust Mortgage Loans are
Specially Serviced Mortgage Loans, then upon determining that any P&I Advance
made with respect to the Trust Mortgage Loans or any successor REO Mortgage
Loans with respect thereto is a Nonrecoverable P&I Advance, the Special Servicer
shall report to the Master Servicer the Special Servicer's determination. The
Master Servicer shall be entitled to conclusively rely on such determination.
(d) The Master Servicer, the Trustee and the Fiscal Agent shall be
entitled to receive interest at the Reimbursement Rate in effect from time to
time, compounded monthly, accrued on the amount of each P&I Advance made thereby
in respect of a Trust Mortgage Loan or any Pari Passu Companion Loan or related
REO Loans under this Section 4.03A (with its own funds) for so long as such P&I
Advance is outstanding; provided that, if the grace period for the delinquent
Monthly Payment as to which a P&I Advance was made under this Section has not
elapsed as of the time such P&I Advance was made, then the total interest so
accrued on such P&I Advance prior to the expiration of such grace period, shall
not exceed the amount of Default Charges, if any, collected in connection with
the late payment of such delinquent Monthly Payment; and provided, further, that
in no event shall interest so accrue on any P&I Advance in respect of a Trust
Mortgage Loan or any Pari Passu Companion Loan (excluding the Windsor Capital
Portfolio Pari Passu Companion Loan) or related REO Loan as to which the
corresponding Late Collection was received by the Master Servicer or a
Sub-Servicer on its behalf as of the Master Servicer Remittance Date on which
such P&I Advance was made. Interest so accrued on any P&I Advance made under
this Section shall be payable: (i) first, out of Default Charges collected on or
in respect of the related Subordinate Companion Loan during the same Collection
Period in which such Advance is reimbursed, (ii) second, out of Default Charges
collected on or in respect of the related Trust Mortgage Loan and related Pari
Passu Companion Loan during the same Collection Period in which such Advance is
reimbursed, and (iii) third, to the extent that the Default Charges described in
the immediately preceding clauses (i) and (ii) are insufficient, but only if
such Advance is being reimbursed at the same time or if such Advance has been
previously reimbursed, out of any other collections that were made on or in
respect of the Loan Pairs; provided that interest on P&I Advances made with
respect to any Pari Passu Companion Loan may be paid solely, pursuant to clauses
(i) and (ii) above, and from Default Charges or other collections Received on or
in respect of the related Pari Passu Companion Loan. The Master Servicer shall,
in accordance with Section 3.05A, reimburse itself, the Trustee and the Fiscal
Agent, as applicable, for any outstanding P&I Advance made thereby in respect of
a Trust Mortgage Loan or, in the case of the Master Servicer, any Pari Passu
Companion Loan, under this Section 4.03A as soon as practicable after funds
available for such purpose are deposited in the related Loan Pair Custodial
Account.
None of the Master Servicer, Special Servicer, Trustee or the Fiscal
Agent shall make any P&I Advance with respect to the Companion Loans other than,
in the case of the Master Servicer, the U.S. Bank Tower Pari Passu Companion
Loan, 1801 K Street Pari Passu Companion Loan, 237 Park Avenue Pari Passu
Companion Loans and Xxxxx Fargo Tower Pari Passu Companion Loans.
(e) With respect to any Pari Passu Companion Loan that is an asset
of a securitization rated by S&P, Xxxxx'x or Fitch Ratings, if the related
Subsequent Master Servicer (in connection with any back-up P&I Advance made by
the Subsequent Master Servicer) determines that a proposed P&I advance, if made,
or any outstanding P&I advance previously made, would be, or is, as applicable,
a nonrecoverable advance, such Subsequent Master Servicer will be required to
provide the Master Servicer written notice of such determination within 2
Business Days after such determination was made. Once notice of such
determination has been received by the Master Servicer from the Subsequent
Master Servicer, none of the Master Servicer, the Trustee or the Fiscal Agent
shall make any additional P&I Advances with respect to the Loans in the related
Loan Pair until the Master Servicer has consulted with the Subsequent Master
Servicer and they agree that circumstances with respect to such Loans have
changed such that a proposed future P&I Advance would not be a nonrecoverable
advance.
For the purposes of this Section 4.03A(e), "Subsequent Master
Servicer" with respect to any Pari Passu Companion Loan shall mean the master
servicer under the securitization of such Pari Passu Companion Loan.
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 P, Class O, 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 the Class A Certificates
shall be reduced on a pro rata basis in accordance with the relative sizes of
such Class Principal Balances, until any such remaining excess is reduced to
zero. All such reductions in the Class Principal Balances of the respective
Classes of the Principal Balance Certificates shall constitute allocations of
Realized Losses and Additional Trust Fund Expenses.
(b) On each Distribution Date, following the deemed distributions of
principal or in reimbursement of previously allocated Realized Losses and
Additional Trust Fund Expenses made in respect of the Uncertificated Lower-Tier
Interests pursuant to Section 4.01(i), the Uncertificated Principal Balance (or
aggregate Uncertificated Principal Balance with respect to the Uncertificated
Lower-Tier Interests corresponding to the Class A-1, Class A-2, Class X-0, Xxxxx
X-0, Class F, Class G, Class H, Class J and Class L Certificates) of the
Corresponding Uncertificated Lower-Tier Interests (after taking account of such
deemed distributions) shall be reduced as a result of Realized Losses and
Additional Trust Fund Expenses to equal the Class Principal Balance of the Class
of Corresponding Certificates that will be outstanding immediately following
such Distribution Date; provided, that Realized Losses and Additional Trust Fund
Expenses shall be allocated:
(i) with respect to the Class L Certificates, first, in respect of
Uncertificated Lower-Tier Interest LL-1; and second, in respect of
Uncertificated Lower-Tier Interest LL-2; in each case until their
respective Uncertificated Principal Balances are reduced to zero;
(ii) with respect to the Class J Certificates, first, in respect of
Uncertificated Lower-Tier Interest LJ-1; and second, in respect of
Uncertificated Lower-Tier Interest LJ-2; in each case until their
respective Uncertificated Principal Balances are reduced to zero;
(iii) with respect to the Class H Certificates, first, in respect of
Uncertificated Lower-Tier Interest LH-1; and second, in respect of
Uncertificated Lower-Tier Interest LH-2; in each case until their
respective Uncertificated Principal Balances are reduced to zero;
(iv) with respect to the Class G Certificates, first, in respect of
Uncertificated Lower-Tier Interest LG-1; and second, in respect of
Uncertificated Lower-Tier Interest LG-2; in each case until their
respective Uncertificated Principal Balances are reduced to zero;
(v) with respect to the Class F Certificates, first, in respect of
Uncertificated Lower-Tier Interest LF-1; and second, in respect of
Uncertificated Lower-Tier Interest LF-2; in each case until their
respective Uncertificated Principal Balances are reduced to zero;
(vi) with respect to the Class A-4 Certificates, first, in respect
of Uncertificated Lower-Tier Interest LA-4-1 and second, in respect of
Uncertificated Lower-Tier Interest LA-4-2; in each case until their
respective Uncertificated Principal Balances are reduced to zero;
(vii) with respect to the Class A-3 Certificates, first, in respect
of Uncertificated Lower-Tier Interest LA-3-1; second, in respect of
Uncertificated Lower-Tier Interest LA-3-2; and third, in respect of
Uncertificated Lower-Tier Interest LA-3-3; in each case, until their
respective Uncertificated Principal Balances are reduced to zero;
(viii) with respect to the Class A-2 Certificates, first, in respect
of Uncertificated Lower-Tier Interest LA-2-1; second, in respect of
Uncertificated Lower-Tier Interest LA-2-2; and third, in respect of
Uncertificated Lower-Tier Interest LA-2-3; in each case, until their
respective Uncertificated Principal Balances are reduced to zero; and
(ix) with respect to the Class A-1 Certificates, first, in respect
of Uncertificated Lower-Tier Interest LA-1-1; second, in respect of
Uncertificated Lower-Tier Interest LA-1-2; and third, in respect of
Uncertificated Lower-Tier Interest LA-1-3; in each case, until their
respective Uncertificated Principal Balances are reduced to zero.
Section 4.05 Various Reinstatement Amounts.
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01 or 9.01, as
applicable, the Trustee shall determine the amount, if any, by which (i) the
aggregate Stated Principal Balance of the Mortgage Pool that will be outstanding
immediately following such Distribution Date, exceeds (ii) the then aggregate of
the Class Principal Balances of all the Classes of Principal Balance
Certificates. If such an excess does exist, then the Trustee shall allocate the
Total Principal Reinstatement Amount, if any, for the subject Distribution Date
as follows until it is allocated in full: first, to all of the Classes of Class
A Certificates, up to, and on a pro rata basis in accordance with, the
respective Loss Reimbursement Amounts, if any, for such Classes of Class A
Certificates with respect to the next succeeding Distribution Date; and then to
the remaining Classes of Principal Balance Certificates, sequentially in
alphabetical order based on the respective Class designations thereof, in each
case up to any Loss Reimbursement Amount for such Class of Principal Balance
Certificates with respect to the next succeeding Distribution Date. Any portion
of the Total Principal Reinstatement Amount for any Distribution Date that is
allocated to a particular Class of Principal Balance Certificates shall be: (i)
referred to herein as the "Class Principal Reinstatement Amount" in respect of
such Class of Principal Balance Certificates for such Distribution Date; and
(ii) added to the Class Principal Balance of such Class of Principal Balance
Certificates on such Distribution Date. Notwithstanding anything to the contrary
contained herein, the parties hereby acknowledge that the reinstatement of all
or any portion of the Class Principal Balance of any Class of Principal Balance
Certificates on any Distribution Date shall be a result of the collection of
Recovered Amounts during the related Collection Period and the upward adjustment
of the Adjusted Principal Distribution Amount for such Distribution Date as a
result of such Recovered Amounts.
(b) In addition, in connection with its reinstatement of all or any
portion of the Class Principal Balance of any one or more Classes of Principal
Balance Certificates on any Distribution Date, pursuant to Section 4.05(a), the
Trustee shall calculate the amount of lost Distributable Certificate Interest
that would have accrued on the respective Classes of Regular Interest
Certificates through and including the end of the Interest Accrual Period for
such Distribution Date if no Unfunded Principal Balance Reductions had resulted
from the reimbursement out of general collections of principal on the Mortgage
Pool of the particular Advances relating to the Recovered Amounts associated
with such reinstatement of outstanding principal. Once determined, such lost
Distributable Certificate Interest in respect of any particular Class of Regular
Interest Certificates shall be reinstated and become due and payable on future
Distribution Dates as part of the unpaid Distributable Certificate Interest for
such Class of Regular Interest Certificates from prior Distribution Dates. All
such reinstated Distributable Certificate Interest in respect of any particular
Class of Regular Interest Certificates shall be treated the same as any other
unpaid Distributable Certificate Interest in respect of such Class of Regular
Interest Certificates.
(c) If the Class Principal Balance of any Class of Principal Balance
Certificates is increased on any Distribution Date pursuant to Section 4.05(a),
then the Lower-Tier Interest Principal Balance of such Class' Corresponding
Lower-Tier Regular Interest (or, if applicable, the aggregate Lower-Tier
Interest Principal Balance of such Class' Corresponding Lower-Tier Regular
Interests) shall be deemed to have first been increased by the exact same
amount. In circumstances where there are multiple Corresponding Lower-Tier
Regular Interests with respect to a Class of Principal Balance Certificates, the
increases in the respective Lower-Tier Interest Principal Balances of such
Corresponding Lower-Tier Regular Interests as contemplated by the prior sentence
shall be made in the reverse order that reductions are made to such Lower-Tier
Interest Principal Balances pursuant to Section 4.04(b), in each case up to the
amount of the Loss Reimbursement Amount with respect to the subject Lower-Tier
Regular Interest for the next succeeding Distribution Date. The amount of each
such increase in the Lower-Tier Interest Principal Balance of a Lower-Tier
Regular Interest on any Distribution Date shall be referred to herein as the
"Lower-Tier Interest Principal Reinstatement Amount" in respect of such
Lower-Tier Regular Interest for such Distribution Date.
Section 4.06 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 amounts 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 4.07 Use of Agents.
The Master Servicer, the Special Servicer or the Trustee may at its
own expense utilize agents or attorneys-in-fact in performing any of its
obligations under this Article IV (except the obligation to make P&I Advances),
but no such utilization shall relieve the Master Servicer, the Special Servicer
or the Trustee, as applicable, from any of such obligations, and the Master
Servicer, the Special Servicer or the Trustee, as applicable, shall remain
responsible for all acts and omissions of any such agent or attorney-in-fact.
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
Certificates (other than the Class R-I or Class R-II 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
Notional Amount, as the case may be, as of the Closing Date of $25,000 in the
case of the Class A-1, Class A-2, Class A-3, Class A-4, Class B and Class C
Certificates, $1,000,000 in the case of the Class XP, Class XC 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 and Class
R-II Certificates will be issuable in denominations representing Percentage
Interests in the related Class of not less than 5%.
(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--Greenwich Capital Commercial Funding Corp., Commercial
Mortgage Trust Series 2003-C2. 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 a Transfer of a Global Certificate for any Class of Book-Entry
Non-Registered Certificates 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, with respect to each Definitive Non-Registered Certificate
other than the Class R-I and Class R-II Certificates, 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 (except in the case of the Class R-I and Class R-II
Certificates, where the prospective Transferee must be 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.
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. A Transferee of an
interest in the Rule 144A Global Certificate that takes delivery for a Class of
Book-Entry Non-Registered Certificates 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.
Any interest in the Rule 144A 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 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 Certificates to be
transferred (such date of transfer, the "Transfer Date"). 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 applicable Class of Certificates and increase the denomination of
the Regulation S Global Certificate for the applicable Class, by the
denomination of the beneficial interest in such Class specified in such orders
and instructions, provided that no Regulation S Restricted Certificate may be
transferred to a Person acquiring such Certificate in reliance on Regulation S.
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 date (the "Release Date") which is 40 days after the Transfer
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, provided that no Regulation S Restricted
Certificate may be transferred to a Person acquiring such Certificate in
reliance on Regulation S.
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 Certificates 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 applicable Class being transferred 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 (i) 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 Title I of ERISA, Section 4975 of the Code or any materially similar
provision ("Similar Law") of applicable federal, state or local law (each, a
"Plan"), or (ii) 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 or any similar
violation of Similar Law. Except in connection with 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, either (i) a certification to the effect that such
prospective Transferee is not a Plan and is not directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or (ii) alternatively, but only in
the case of a Certificate other than a Class R-I or Class R-II 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, by reason of Sections I and III of Prohibited Transaction Class
Exemption 95-60; or (iii) alternatively, but only in the case of a Certificate
other than a Class R-I or Class R-II Certificate, 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 form of certification attached hereto
as Exhibit G (with respect to Definitive Non-Registered Certificates) is
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) any certification and/or
Opinion of Counsel contemplated by the second preceding sentence, then such
Transferee (and in any event any owner of a Book-Entry Certificate that is not
an Investment Grade Certificate) 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 (or similar violation of Similar Law). Any
Transferee of a Book-Entry Certificate that is an Investment Grade Certificate
that is being acquired by or on behalf of a Plan in reliance on the Prohibited
Transaction Exemption shall be deemed to have represented and warranted that
such Plan (X) is an accredited investor as defined in Rule 501(a)(1) of
Regulation D of the Securities Act, and (Y) is not sponsored (within the meaning
of Section 3(16)(B) of ERISA) by the Trustee, the Depositor, the 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.
(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, except in the case of
an initial transfer to an Underwriter or the Initial Purchaser or an
affiliate thereof, 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 Regulations Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest
in a Residual Interest Certificate, if it is, or is holding an
Ownership Interest in a Residual Interest Certificate on behalf of,
a "pass-through interest holder".
(ii) (A) If any purported Transferee shall become a Holder of a
Residual Interest Certificate in violation of the provisions of this
Section 5.02(d), then the last preceding Holder of such Residual Interest
Certificate that was in compliance with the provisions of this Section
5.02(d) shall be restored, to the extent permitted by law, to all rights
as Holder thereof retroactive to the date of registration of such Transfer
of such Residual Interest Certificate. None of the Depositor, the Trustee
or the Certificate Registrar shall be under any liability to any Person
for any registration of Transfer of a Residual Interest Certificate that
is in fact not permitted by this Section 5.02(d) or for making any
payments due on such Certificate to the Holder thereof or for taking any
other action with respect to such Holder under the provisions of this
Agreement.
(B) If any purported Transferee shall become a Holder of a Residual
Interest Certificate in violation of the restrictions in this Section 5.02(d),
then, to the extent that retroactive restoration of the rights of the preceding
Holder of such Residual Interest Certificate as described in clause (ii)(A)
above shall be invalid, illegal or unenforceable, the Trustee shall have the
right but not the obligation, to cause the Transfer of such Residual Interest
Certificate to a Permitted Transferee selected by the Trustee on such terms as
the Trustee may choose, and the Trustee shall not be liable to any Person having
an Ownership Interest in such Residual Interest Certificate as a result of the
Trustee's exercise of such discretion. Such purported Transferee shall promptly
endorse and deliver such Residual Interest Certificate in accordance with the
instructions of the Trustee. Such Permitted Transferee may be the Trustee itself
or any Affiliate of the Trustee.
(iii) The Tax Administrator shall make available to the IRS and to
those Persons specified by the REMIC Provisions all information furnished
to it by the other parties hereto necessary to compute any tax imposed (A)
as a result of the Transfer of an Ownership Interest in a Residual
Interest Certificate to any Person who is a Disqualified Organization,
including the information described in Treasury Regulations Sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions"
of such Residual Interest Certificate and (B) as a result of any regulated
investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of
the Code that holds an Ownership Interest in a Residual Interest
Certificate having as among its record Holders at any time any Person
which is a Disqualified Organization, and each of the other parties hereto
shall furnish to the Tax Administrator all information in its possession
necessary for the Tax Administrator to discharge such obligation. The
Person holding such Ownership Interest shall be responsible for the
reasonable compensation of the Tax Administrator for providing information
thereto pursuant to this subsection (d)(iii) and Section 10.01(h)(i).
(iv) The provisions of this Section 5.02(d) set forth prior to this
clause (iv) may be modified, added to or eliminated, provided that there
shall have been delivered to the Trustee and the Tax Administrator the
following:
(A) written confirmation from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause an Adverse Rating Event; and
(B) an Opinion of Counsel, in form and substance satisfactory
to the Trustee and the Tax Administrator, obtained at the expense of
the party seeking such modification of, addition to or elimination
of such provisions (but in no event at the expense of the Trustee,
the Tax Administrator or the Trust), to the effect that doing so
will not (1) cause either 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 Certificates (other than the Class R-I and Class R-II)
shall, in the case of each such Class, initially be issued as one or more
Certificates registered in the name of the Depository or its nominee and, except
as provided in Section 5.03(c) and in the fifth paragraph of Section 5.02(b), a
Transfer of such Certificates may not be registered by the Certificate Registrar
unless such Transfer is to a successor Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and Transfer their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided in Section 5.03(c) and in
the fifth paragraph of Section 5.02(b), shall not be entitled to definitive,
fully registered Certificates ("Definitive Certificates") in respect of such
Ownership Interests. The Certificates (other than the Class R-I and Class R-II)
initially sold to Qualified Institutional Buyers in reliance on Rule 144A or in
reliance on another exemption from the registration requirements of the
Securities Act shall, in the case of each such Class, be represented by the Rule
144A Global Certificate for such Class, which shall be deposited with the
Trustee as custodian for the Depository and registered in the name of Cede & Co.
as nominee of the Depository. The Certificates (other than the Class R-I and
Class R-II) initially sold in offshore transactions in reliance on Regulation S
shall, in the case of each such Class, be represented by the Regulation S Global
Certificate for such Class, which shall be deposited with the Trustee as
custodian for the Depository and registered in the name of Cede & Co. as nominee
of the Depository, provided that only Investment Grade Certificates shall be
sold in offshore transactions in reliance on Regulation S. 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. 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 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
DIRECTING HOLDER
Section 6.01 Liability of Depositor, Master Servicer and Special
Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
Section 6.02 Continued Qualification and Compliance of Master
Servicer; Merger, Consolidation or Conversion of Depositor, Master Servicer or
Special Servicer.
Subject to the following paragraph, the Depositor, the Master
Servicer and the Special Servicer shall each keep in full effect its existence,
rights and franchises as a legal entity under the laws of the jurisdiction of
its organization, and each will obtain and preserve its qualification to do
business as a foreign entity in, and will otherwise remain in compliance with
the laws of, each jurisdiction in which such qualification and compliance is or
shall be necessary to protect the validity and enforceability of this Agreement,
the Certificates or any of the Loans and to perform its respective duties under
this Agreement.
Each of the Depositor, the Master Servicer and the Special Servicer
may be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets (which, in the case of the Master Servicer or
the Special Servicer, may be limited to all or substantially all of its assets
related to commercial mortgage loan servicing) to any Person, in which case any
Person resulting from any merger or consolidation to which the Depositor, the
Master Servicer or the Special Servicer shall be a party, or any Person
succeeding to the business (which, in the case of the Master Servicer or the
Special Servicer, may be limited to the commercial mortgage loan servicing
business) of the Depositor, the Master Servicer or the Special Servicer, shall
be the successor of the Depositor, the Master Servicer or the Special Servicer,
as the case may be, hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that no successor or surviving
Person shall succeed to the rights of the Master Servicer or the Special
Servicer unless (i) as confirmed in writing by each of the Rating Agencies, such
succession will not result in an Adverse Rating Event, and (ii) such successor
or surviving Person makes the applicable representations and warranties set
forth in Section 3.24 (in the case of a successor or surviving Person to the
Master Servicer) or Section 3.25 (in the case of a successor or surviving Person
to the Special Servicer), as applicable.
Section 6.03 Limitation on Liability of Depositor, Master Servicer
and Special Servicer.
None of the Depositor, the Master Servicer or the Special Servicer
shall be under any liability to the Trust Fund, the Trustee, the
Certificateholders or the Companion Loan Noteholders 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,
the Trustee, the Certificateholders or the Companion Loan Noteholders for the
breach of a representation or warranty made herein by such party, or against any
expense or liability specifically required to be borne by such party without
right of reimbursement pursuant to the terms hereof, or against any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of its obligations or duties hereunder or
negligent disregard of such obligations or duties. The Depositor, the Master
Servicer, the Special Servicer and any director, manager, member, officer,
employee or agent of the Depositor, the Master Servicer or the Special Servicer
may rely in good faith on any document of any kind which, prima facie, is
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Master Servicer, the Special Servicer and any
director, manager, member, officer, employee or agent of the Depositor, the
Master Servicer or the Special Servicer shall be indemnified and held harmless
by the Trust Fund out of the Pool Custodial Account (or, if and to the extent
the matter relates to a Loan Pair, out of the related Loan Pair Custodial
Account, and to the extent amounts on deposit therein are insufficient therefor,
out of the Pool Custodial Account) against any loss, liability or reasonable
expense (including reasonable legal fees and expenses) incurred in connection
with any legal action or claim relating to this Agreement or the Certificates
(including in connection with the dissemination of information and reports as
contemplated by this Agreement), other than any such loss, liability or expense:
(i) specifically required to be borne by the party seeking indemnification,
without right of reimbursement pursuant to the terms hereof; (ii) which
constitutes a Servicing Advance that is otherwise reimbursable hereunder; (iii)
incurred in connection with any legal action or claim against the party seeking
indemnification, resulting from any breach on the part of that party of a
representation or warranty made herein; or (iv) incurred in connection with any
legal action or claim against the party seeking indemnification, resulting from
any willful misfeasance, bad faith or negligence on the part of that party in
the performance of its obligations or duties hereunder or negligent disregard of
such obligations or duties; provided that if a Loan Pair (other than the Windsor
Capital Portfolio Loan Pair) is involved, such indemnity shall be payable out of
the related Loan Pair Custodial Account pursuant to Section 3.05A and, to the
extent not solely attributable to the Companion Loan in such Loan Pair, shall
also be payable out of the Pool Custodial Account if amounts on deposit in the
related Loan Pair Custodial Account are insufficient therefor. 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, hearing 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 (or, if a Loan Pair is affected, the rights of the
Certificateholders and the related Companion Loan Noteholders (as a collective
whole)). In such event, the legal expenses and costs of such action, and any
liability resulting therefrom, shall be expenses, costs and liabilities of the
Trust Fund, and the Depositor, the Master Servicer and the Special Servicer
shall be entitled to be reimbursed therefor from the Pool Custodial Account as
provided in Section 3.05; provided, however, that if a Loan Pair and/or the
related Companion Loan Noteholders are involved, such expenses, costs and
liabilities shall be payable out of the related Loan Pair Custodial Account
pursuant to Section 3.05A and, to the extent attributable to the Mortgage Loan
in such Loan Pair, shall also be payable out of the Pool Custodial Account if
amounts on deposit in the related Loan Pair Custodial Account are insufficient
therefor. In no event shall the Master Servicer or the Special Servicer be
liable or responsible for any action taken or omitted to be taken by the other
of them (unless they are the same Person or Affiliates) or for any action taken
or omitted to be taken by the Depositor, the Trustee, any Certificateholder or
the Companion Loan Noteholders, 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 6.09, the Special
Servicer may each resign from the obligations and duties hereby imposed on it,
upon a determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it (the other activities of the Master Servicer
or the Special Servicer, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer or the Special Servicer, as
the case may be, at the date of this Agreement). Any such determination
requiring the resignation of the Master Servicer or the Special Servicer, as
applicable, shall be evidenced by an Opinion of Counsel to such effect which
shall be delivered to the Trustee. Unless applicable law requires the Master
Servicer's or Special Servicer's resignation to be effective immediately, and
the Opinion of Counsel delivered pursuant to the prior sentence so states, no
such resignation shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
in accordance with Section 6.09 or Section 7.02 hereof. The Master Servicer and,
subject to the rights of the Controlling Class under Section 6.09 to appoint a
successor special servicer, the Special Servicer shall each have the right to
resign at any other time, provided that (i) a willing successor thereto
reasonably acceptable to the Depositor has been found (provided that if the
Depositor has not responded to a request for consent to a successor within 15
days, such successor shall be deemed approved thereby), (ii) each of the Rating
Agencies confirms in writing that the successor's appointment will not result in
an Adverse Rating Event, (iii) the resigning party pays all costs and expenses
in connection with such resignation and the resulting transfer of servicing, and
(iv) the successor accepts appointment prior to the effectiveness of such
resignation and agrees in writing to be bound by the terms and conditions of
this Agreement. Neither the Master Servicer nor the Special Servicer shall be
permitted to resign except as contemplated above in this Section 6.04(a).
(b) Consistent with Section 6.04(a), neither the Master Servicer nor
the Special Servicer shall, except as expressly provided herein, assign or
transfer any of its rights, benefits or privileges hereunder to any other Person
or, except as provided in Sections 3.22, 4.06, 7.01(c) and 7.01(d), delegate to
or subcontract with, or authorize or appoint any other Person to perform any of
the duties, covenants or obligations to be performed by it hereunder. If,
pursuant to any provision hereof, the duties of the Master Servicer or the
Special Servicer are transferred to a successor thereto, the Master Servicing
Fee, the Special Servicing Fee, any Workout Fee (except as expressly
contemplated by Section 3.11(b)) and/or any Liquidation Fee, as applicable, that
accrues or otherwise becomes payable pursuant hereto from and after the date of
such transfer shall be payable to such successor.
Section 6.05 Rights of Depositor, Trustee and the Companion Loan
Noteholders in Respect of the Master Servicer and the Special Servicer.
The Master Servicer and the Special Servicer shall each afford the
Depositor, each Underwriter, the Trustee and the Companion Loan Noteholders,
upon reasonable notice, during normal business hours access to all records
maintained thereby in respect of its rights and obligations hereunder. Upon
reasonable request, the Master Servicer and the Special Servicer shall each
furnish the Depositor, each Underwriter, the Trustee and the Companion Loan
Noteholders 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 Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee.
The Depositor, the Master Servicer and the Special Servicer shall
each furnish such reports, certifications and information as are reasonably
requested by the Trustee in order to enable it to perform its duties hereunder.
Section 6.07 Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Master Servicer in order to enable it to perform its duties hereunder.
Section 6.08 Depositor, Master Servicer and Trustee to Cooperate
with Special Servicer.
The Depositor, the Master Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Special Servicer in order to enable it to perform its duties hereunder.
Section 6.09 Designation of Special Servicer by the Directing
Holder.
The Directing Holder (and in the case of the Mortgage Loans
identified on the Mortgage Loan Schedule as U.S. Bank Tower, 000 Xxxx Xxxxxx and
Xxxxxx Business Campus, the Controlling Class Directing Holder) may at any time
and from time to time, without cause, terminate the existing Special Servicer
and designate a replacement Special Servicer hereunder. With respect to the
Mortgage Loans identified in the Mortgage Loan Schedule as U.S. Bank Tower, 000
Xxxx Xxxxxx and Xxxxxx Business Campus, the related Directing Holder may, for so
long as the Directing Holder is not the Controlling Class Directing Holder, only
terminate the existing Special Servicer for cause. In addition, with respect to
each Mortgage Loan the Directing Holder may appoint a replacement Special
Servicer for any existing Special Servicer that has resigned or otherwise ceased
to serve (including in connection with termination pursuant to Section 7.01) as
Special Servicer. With respect to each Loan Pair, the rights of the Directing
Holder to terminate and/or appoint a replacement Special Servicer shall be
limited to that Loan Pair.
The Directing Holder shall so designate a Person to serve as
replacement Special Servicer by the delivery to the Trustee, the Master
Servicer, the Companion Loan Noteholders 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 the Directing
Holder has 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 Directing Holder and appointment of a successor thereto
pursuant to the terms of this Section 6.09. Any designated Person (whether
designated by the Directing Holder or 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 (except in
the case of the appointment of Midland Loan Services, Inc. by the holder of the
Independent Square Companion Loan, if Midland Loan Services, Inc. is on S&P's
list of approved special servicers at the time of such appointment); (2) an
Acknowledgment of Proposed Special Servicer in the form attached hereto as
Exhibit I-2, executed by the designated Person, and (3) an Opinion of Counsel
(at the expense of the Person designated to become the Special Servicer) to the
effect that, upon the execution and delivery of the Acknowledgment of Proposed
Special Servicer, the designated Person shall be bound by the terms of this
Agreement and, subject to customary limitations, that this Agreement shall be
enforceable against the designated Person in accordance with its terms. Any
existing Special Servicer shall be deemed to have resigned simultaneously with
such designated Person's becoming the Special Servicer hereunder; provided,
however, that (i) the resigning Special Servicer shall continue to be entitled
to receive all amounts accrued or owing to it under this Agreement on or prior
to the effective date of such resignation, whether in respect of Servicing
Advances or otherwise, (ii) if the resigning Special Servicer was terminated
without cause, it shall be entitled to a portion of certain Workout Fees
thereafter payable with respect to the Corrected Loans (but only if and to the
extent permitted by Section 3.11(b)) and (iii) the resigning Special Servicer
shall continue to be entitled to the benefits of Section 6.03 notwithstanding
any such resignation. Such resigning Special Servicer shall cooperate with the
Trustee and the replacement Special Servicer in effecting the termination of the
resigning Special Servicer's responsibilities and rights hereunder, including
the transfer within two Business Days to the replacement Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the Special Servicer to a Custodial Account, a Servicing
Account, a Reserve Account or an REO Account or should have been delivered to
the Master Servicer or that are thereafter received with respect to Specially
Serviced Loans and REO Properties. The Trustee shall notify the other parties
hereto, the Certificateholders and the Companion Loan Noteholders of any
termination of the Special Servicer and appointment of a new Special Servicer in
accordance with this Section 6.09.
Any out-of-pocket costs and expenses incurred in connection with the
removal of a Special Servicer and its replacement by a Person designated by the
Directing Holder that are not paid by the replacement Special Servicer shall be
paid by the Directing Holder. Notwithstanding anything herein to the contrary,
the Directing Holder with respect to any Loan Pair shall be permitted to replace
the Special Servicer in accordance with this Agreement only with respect to such
related Loan Pair.
Section 6.10 Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer, the Special Servicer or any Affiliate of either
of them may become the Holder of (or, in the case of a Book-Entry Certificate,
Certificate Owner with respect to) any Certificate with (except as otherwise set
forth in the definition of "Certificateholder") the same rights it would have if
it were not the Master Servicer or the Special Servicer or an Affiliate thereof.
If, at any time during which the Master Servicer or the Special Servicer or an
Affiliate of the Master Servicer or the Special Servicer is the Holder of (or,
in the case of a Book-Entry Certificate, Certificate Owner with respect to) any
Certificate, the Master Servicer or the Special Servicer proposes to take action
(including for this purpose, omitting to take action) that is not expressly
prohibited by the terms hereof and would not, in the Master Servicer's or the
Special Servicer's reasonable, good faith judgment, violate the Servicing
Standard, but that, if taken, might nonetheless, in the Master Servicer's or the
Special Servicer's good faith judgment, be considered by other Persons to
violate the Servicing Standard, then the Master Servicer or the Special Servicer
may (but need not) seek the approval of the Certificateholders to such action by
delivering to the Trustee a written notice that (a) states that it is delivered
pursuant to this Section 6.10, (b) identifies the Percentage Interest in each
Class of Certificates beneficially owned by the Master Servicer or an Affiliate
thereof or the Special Servicer or an Affiliate thereof, as appropriate, and (c)
describes in reasonable detail the action that the Master Servicer or the
Special Servicer proposes to take. The Trustee, upon receipt of such notice,
shall forward it to the Certificateholders (other than the Master Servicer and
its Affiliates or the Special Servicer and its Affiliates, as appropriate),
together with such instructions for response as the Trustee shall reasonably
determine. If at any time Certificateholders holding greater than 50% of the
Voting Rights of all Certificateholders (calculated without regard to the
Certificates beneficially owned by the Master Servicer or its Affiliates or the
Special Servicer or its Affiliates, as appropriate) shall have failed to object
in writing (with a copy to the Companion Loan Noteholders, if the Loan Pairs are
involved) to the proposal described in the written notice, and if the Master
Servicer or the Special Servicer shall act as proposed in the written notice
within 30 days, such action shall be deemed to comply with, but not modify, the
Servicing Standard. The Trustee shall be entitled to reimbursement from the
Master Servicer or the Special Servicer, as applicable, for the reasonable
expenses of the Trustee incurred pursuant to this paragraph. It is not the
intent of the foregoing provision that the Master Servicer or the Special
Servicer be permitted to invoke the procedure set forth herein with respect to
routine servicing matters arising hereunder, but rather only in the case of
unusual circumstances.
Section 6.11 Certain Powers of the Directing Holder.
(a) The Directing Holder will be entitled to advise the Special
Servicer with respect to the following actions of the Special Servicer, subject
to the consultation rights of certain holders of the Pari Passu Companion Loans,
as further set forth in Section 6.11(e) and (f) below. The Special Servicer will
not be permitted to take any of the following actions unless and until it has
notified the applicable Directing Holder in writing in capitalized, bold faced
14 point type containing the following statement at the top of the first page:
"THIS IS A REQUEST FOR DIRECTING HOLDER ACTION APPROVAL. IF THE DIRECTING HOLDER
FAILS TO APPROVE OR DISAPPROVE THE ENCLOSED APPROVAL ACTION WITHIN FIVE (5)
BUSINESS DAYS, THE SPECIAL SERVICER, MAY DELIVER A DEEMED APPROVAL NOTICE", and
(b) if the Directing Holder fails to either approve or reject said approval
action within such five Business Day period after receipt of the first notice,
and having been provided with all reasonably requested information with respect
thereto, and the Special Servicer delivers the approval action request to the
Directing Holder accompanied by a second notice in capitalized, bold faced 14
point type containing the following statement at the top of the first page:
"THIS IS A SECOND REQUEST FOR APPROVAL ACTION. IF THE DIRECTING HOLDER FAILS TO
APPROVE OR DISAPPROVE THE ENCLOSED APPROVAL ACTION WITHIN FIVE BUSINESS DAYS,
SUCH APPROVAL ACTION WILL BE DEEMED APPROVED BY THE DIRECTING HOLDER", then, if
the Directing Holder fails to approve or reject such approval action within such
second five Business Day period (approval or rejection by notice by facsimile on
the same day being acceptable), then the Directing Holder'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 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 Loan;
(iii) any proposed sale of an Administered 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 of a 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 Loan or any release of a
Mortgagor (other than in accordance with the terms of, or upon
satisfaction of, such Loan);
(vii) any acceptance of substitute or additional collateral for a
Loan (other than in accordance with the terms of such Loan);
(viii) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to any Loan;
(ix) any acceptance of an assumption agreement releasing a Mortgagor
or a guarantor from liability under a Loan;
(x) with respect to the Independent Square Loan Pair, the approval
of any replacement Special Servicer for the Mortgage Loan (other than in
connection with the Trustee becoming the successor thereto pursuant to the
terms of the Pooling and Servicing Agreement);
(xi) with respect to the Independent Square Loan Pair, for so long
the unpaid principal balance of the Loan Pair is greater than $5,000,000,
any acceptance of a change in the property management company;
(xii) with respect to the Independent Square Loan Pair, any
determination by the Master Servicer (A) that a Servicing Transfer Event
has occurred with respect to the Mortgage Loan solely by reason of the
failure of the Mortgagor to maintain or cause to be maintained insurance
coverage against damages or losses arising from acts of terrorism in
accordance with the loan documents or (B) to force place any insurance
against damages or losses arising from acts of terrorism that is failed to
be maintained by the Mortgagor with respect to the Mortgaged Property;
provided that, notwithstanding this clause (xii), a Servicing Transfer
Event shall occur with respect to a non Specially Serviced Mortgage Loan
on the 60th day (or sooner with the consent of the Directing Holder)
following the forced placement of any insurance referred to under clause
(B) above with respect to the Mortgaged Property based upon either (1) the
continued failure of the Mortgagor to maintain or cause to be maintained
such insurance coverage or (2) the failure of the Master Servicer to have
been reimbursed for any Servicing Advances made in connection with the
forced placement of the subject insurance (unless both the circumstances
giving rise to such forced placement of such insurance have otherwise been
cured and the Master Servicer has been reimbursed for any Servicing
Advances made in connection with the forced placement of the subject
insurance); and
(xiii) with respect to the Independent Square Loan Pair, any
extension of the maturity date of the Mortgage Loan pursuant to Section
3.21(c);
provided that, in the event that the Special Servicer determines that immediate
action is necessary to protect the interests of the Certificateholders (as a
collective whole) (or, in the case of a Loan Pair, to protect the interests of
the Certificateholders and the related Companion Loan Noteholder (as a
collective whole)), the Special Servicer may take any such action without
waiting for the applicable Directing Holder's response.
In addition, the Directing Holder may direct the Special Servicer to
take, or to refrain from taking, any actions with respect to the servicing
and/or administration of a Specially Serviced Loan as the Directing Holder may
deem advisable or as to which provision is otherwise made herein subject to
Section 6.11(b). Upon reasonable request, the Special Servicer shall provide the
Directing Holder with any information in the Special Servicer's possession with
respect to such matters, including its reasons for determining to take a
proposed action; provided that such information shall also be provided, in a
written format, to the Trustee, who shall make it available for review pursuant
to Section 8.14(b) and, insofar as a Loan Pair is involved, for review by the
related Companion Loan Noteholders.
Each of the Master Servicer and the Special Servicer shall notify
the applicable Directing Holder of any release or substitution of collateral for
a Loan even if such release or substitution is in accordance with such Loan.
Notwithstanding anything herein to the contrary, if a Companion Loan
Noteholder is a Directing Holder it shall be permitted to exercise the powers of
a Directing Holder under this Agreement only with respect to its related Loan
Pair.
(b) Notwithstanding anything herein to the contrary, no advice,
direction or objection from or by the Directing Holder, as contemplated by
Section 6.11(a), may (and the Special Servicer shall ignore and act without
regard to any such advice, direction or objection that the Special Servicer has
determined, in its reasonable, good faith judgment, would) require or cause the
Special Servicer to violate any provision of this Agreement (exclusive of
Section 6.11(a)) (including the Special Servicer's obligation to act in
accordance with the Servicing Standard), the related loan documents or the REMIC
Provisions. Furthermore, the Special Servicer shall not be obligated to seek
approval from the Directing Holder for any actions to be taken by the Special
Servicer with respect to any particular Specially Serviced Loan if:
(i) the Special Servicer has, as provided in Section 6.11(a),
notified the applicable Directing Holder in writing of various actions
that the Special Servicer proposes to take with respect to the workout or
liquidation of that Loan; and
(ii) for 60 days following the first such notice, such Directing
Holder has objected to all of those proposed actions and has failed to
suggest any alternative actions that the Special Servicer considers to be
consistent with the Servicing Standard.
(c) The Directing Holder will have no liability to the
Certificateholders or the Companion Loan Noteholders for any action taken, or
for refraining from the taking of any action, in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that the Directing
Holder will not be protected against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of negligent disregard of obligations or
duties. Each Certificateholder acknowledges and agrees, by its acceptance of its
Certificates, that: (i) the Controlling Class Directing Holder 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 Directing Holder may, and is permitted hereunder to, act
solely in the interests of the Holders of the Controlling Class; (iii) the
Controlling Class Directing Holder does not have any duties to the Holders of
any Class of Certificates other than the Controlling Class; (iv) the Controlling
Class Directing Holder 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; (v) the Controlling
Class Directing Holder shall not be deemed to have been negligent or reckless,
or to have acted in bad faith or engaged in willful misconduct, by reason of its
having acted solely in the interests of the Holders of the Controlling Class;
and (vi) the Controlling Class Directing Holder shall have no liability
whatsoever for having so acted, and no Certificateholder may take any action
whatsoever against the Controlling Class Directing Holder, any Holder of the
Controlling Class or any director, officer, employee, agent or principal thereof
for having so acted.
(d) The applicable Companion Loan Noteholders shall be entitled to
receive, upon request made to any party hereto, a copy of any notice or report
required to be delivered (upon request or otherwise) by such party to the
related Loan Pair Directing Holder or the Trustee with respect to the related
Loan Pair. Any such party shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing such copies.
(e) In addition to the provisions of Section 6.11(a), with respect
to each of the Loan Pairs (other that the Windsor Capital Portfolio Loan Pair,
which is being serviced under the 2003-C1 PSA) the Special Servicer may not take
any of the actions set forth in Section 6.11(a)(i)-(ix), without consulting, on
a non-binding basis, the holders of the related Pari Passu Companion Loans as
set forth below:
1. with respect to the U.S. Bank Tower Loan Pair, in the
event that the holder of the U.S. Bank Tower Junior
Companion Loan is no longer the Directing Holder, in
addition to obtaining the consent of the Directing
Holder in connection with the items listed above, the
Special Servicer shall consult, on a non-binding basis,
with the holders of the U.S. Bank Tower Pari Passu
Companion Loans,
2. with respect to the 1801 K Street Loan Pair, in addition
to obtaining the consent of the Directing Holder in
connection with the items listed above, the Special
Servicer shall consult, on a non-binding basis, with the
holder of the 1801 K Street Pari Passu Companion Loan,
and
3. with respect to the Xxxxx Fargo Tower Loan Pair, in
addition to obtaining the consent of the Directing
Holder in connection with the items listed above, the
Special Servicer shall consult on a non-binding basis
with the representative of the holders of more than 50%
of the Controlling Class (in respect of the Xxxxx Fargo
Tower Trust Loan) and the holder of the other Xxxxx
Fargo Tower Pari Passu Companion Loans.
(f) In connection with the foregoing consultation rights:
(i) the Special Servicer shall deliver notice to the holder of such
consultation rights of the proposed action at the same time as notice is
delivered to the Directing Holder in accordance with Section 6.11(a);
(ii) the party entitled to such consultation rights shall have an
opportunity to consult with the Special Servicer for a period from the
date of receipt of the Special Servicer's written description of its
proposed action through (but excluding) the fifth Business Day following
the date of receipt; and
(iii) if the Special Servicer determines that it needs to take
immediate action and cannot wait until the review period set forth above
expires, then, in such case, the Special Servicer shall decide, in
accordance with the Servicing Standard, what course of action to take.
(g) The Windsor Capital Portfolio Loan Pair is serviced under the
2003-C1 PSA. The 2003-C1 PSA provides that if a Control Appraisal Event (as
defined therein) occurs, the "Directing Holder" under the 2003-C1 PSA will be
the Trustee, as the holder of the Windsor Capital Portfolio Trust Loan for the
benefit of the Certificateholders. In the event that such Control Appraisal
Event occurs and the 2003-C1 Special Servicer seeks the consent of the Trustee
for any action with respect to the Windsor Capital Portfolio Loan Pair, the
Trustee shall direct the 2003-C1 Special Servicer to consult with Controlling
Class Directing Holder, as its agent, and the Controlling Class Directing Holder
shall be entitled to exercise all of the rights granted to the "Directing
Holder" under the 2003-C1 PSA with respect to the Windsor Capital Portfolio Loan
Pair.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into a Custodial
Account, any amount, including a P&I Advance, required to be so deposited
or remitted by it under this Agreement, which failure continues unremedied
for one Business Day following the date on which a deposit or remittance
was first required to be made; or
(ii) any failure by the Special Servicer to deposit into an REO
Account or to deposit into, or to remit to the Master Servicer for deposit
into, a Custodial Account, any amount required to be so deposited or
remitted under this Agreement, which failure continues unremedied for one
Business Day following the date on which a deposit or remittance was first
required to be made; or
(iii) any failure by the Master Servicer to deposit into, or remit
to the Trustee for deposit into, the Distribution Account, any amount
(including any P&I Advances and any amounts to cover Prepayment Interest
Shortfalls) required to be so deposited or remitted by it under this
Agreement, which failure continues unremedied until 11:00 a.m. (New York
City time) on the applicable Distribution Date, or any failure by the
Master Servicer to make, on a timely basis, the required payments
(including in the case of the U.S. Bank Tower Pari Passu Companion Loan,
1801 K Street Pari Passu Companion Loan, 237 Park Avenue Pari Passu
Companion Loans and Xxxxx Fargo Tower Pari Passu Companion Loans any P&I
Advances) to the applicable Companion Loan Noteholder on any Master
Servicer Remittance Date, which failure continues unremedied until 11:00
a.m. (New York City time) on the first Business Day after such remittance
date; or
(iv) any failure by the Master Servicer or the Special Servicer to
timely make any Servicing Advance required to be made by it hereunder,
which Servicing Advance remains unmade for a period of three Business Days
following the date on which notice of such failure shall have been given
to the Master Servicer or the Special Servicer, as the case may be, by the
Trustee or any other parties hereunder; or
(v) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other
covenants or agreements on the part of the Master Servicer or the Special
Servicer, as the case may be, contained in this Agreement, which continues
unremedied for a period of 30 days (15 days in the case of payment of
insurance premiums) after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Master Servicer or the Special Servicer, as the case may be, by any other
party hereto or to the Master Servicer or the Special Servicer, as the
case may be (with a copy to each other party hereto), by any Companion
Loan Noteholder (if affected thereby) or the Holders of Certificates
entitled to at least 25% of the Voting Rights, provided, however, that
with respect to any such failure which is not curable within such 30-day
period, the Master Servicer or the Special Servicer, as the case may be,
shall have an additional cure period of 30 days to effect such cure so
long as the Master Servicer or the Special Servicer, as the case may be,
has commenced to cure such failure within the initial 30-day period and
has provided the Trustee and, if affected thereby, any Companion Loan
Noteholder with an Officer's Certificate certifying that it has diligently
pursued, and is diligently continuing to pursue, a full cure; or
(vi) any breach on the part of the Master Servicer or the Special
Servicer of any of its representations or warranties contained in this
Agreement that materially and adversely affects the interests of any Class
of Certificateholders or the Companion Loan Noteholders and which breach
continues unremedied for a period of 30 days after the date on which
written notice of such breach, requiring the same to be remedied, shall
have been given to the Master Servicer or the Special Servicer, as the
case may be, by any other party hereto or to the Master Servicer or the
Special Servicer, as the case may be (with a copy to each other party
hereto), by the Companion Loan Noteholders (if affected thereby) or the
Holders of Certificates entitled to at least 25% of the Voting Rights,
provided, however, that with respect to any such breach which is not
curable within such 30-day period, the Master Servicer or the Special
Servicer, as the case may be, shall have an additional cure period of 30
days so long as the Master Servicer or the Special Servicer, as the case
may be, has commenced to cure such breach within the initial 30-day period
and provided the Trustee and the Companion Loan Noteholders with an
Officer's Certificate certifying that it has diligently pursued, and is
diligently continuing to pursue, a full cure; or
(vii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer or the Special Servicer and such decree or order shall
have remained in force undischarged, undismissed or unstayed for a period
of 60 days; or
(viii) the Master Servicer or the Special Servicer shall consent to
the appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to it or
of or relating to all or substantially all of its property; or
(ix) the Master Servicer or the Special Servicer shall admit in
writing its inability to pay its debts generally as they become due, file
a petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations, or take any
corporate action in furtherance of the foregoing; or
(x) one or more ratings assigned by Xxxxx'x to the Certificates has
been qualified, downgraded or withdrawn, or otherwise made the subject of
a "negative" credit watch, which Xxxxx'x has determined and given notice
in writing (including through a publication or newsletter) or
electronically (including through an internet website), is solely or in
material part a result of the Master Servicer or Special Servicer, as the
case may be, acting in such capacity; or
(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 qualified,
downgraded or withdrawn in connection with the removal.
When a single entity acts as the Master Servicer and the Special
Servicer, an Event of Default in one capacity shall constitute an Event of
Default in the other capacity.
(b) If any Event of Default described in clauses (i) - (ix) and (xi)
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, subject to Section 7.01(d), all of the rights and
obligations (but not the liabilities for actions and omissions occurring prior
thereto) of the Defaulting Party under this Agreement and in and to the Trust
Fund and the Companion Loans, other than its rights, if any, as a
Certificateholder hereunder or as the holder of the Companion Loans or any
interest therein.
If any Event of Default described in clause (x) of subsection (a)
above shall occur with respect to the Master Servicer or the Special Servicer
(in either case, under such circumstances, for purposes of this Section 7.01(b),
the "Defaulting Party"), the Trustee shall, by notice in writing (to be sent
immediately by facsimile transmission) to the Defaulting Party (with a copy of
such notice to each other party hereto and the Rating Agencies), terminate,
subject to Section 7.01(d), all of the rights and obligations (but not the
liabilities for actions and omissions occurring prior thereto) of the Defaulting
Party under this Agreement and in and to the Trust Fund and the Companion Loans,
other than its rights, if any, as a Certificateholder hereunder or as the holder
of the Companion Loans or any interest therein, within 30 days following the
occurrence of such Event of Default.
From and after the receipt by the Defaulting Party of such written
notice of termination, all authority and power of the Defaulting Party under
this Agreement, whether with respect to the Certificates (other than as a Holder
of any Certificate), the Loans (other than as a holder thereof or any interest
therein) or otherwise, shall pass to and be vested in the Trustee pursuant to
and under this section, and, without limitation, the Trustee is hereby
authorized and empowered to execute and deliver, on behalf of and at the expense
of the Defaulting Party, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the Loans and
related documents, or otherwise.
The Master Servicer and the Special Servicer each agree that, if it
is terminated pursuant to this Section 7.01(b), it shall promptly (and in any
event no later than ten 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
Distribution Account, the Defeasance Deposit Account, a Servicing Account or a
Reserve Account or that are thereafter received by or on behalf of it with
respect to any Loan or (ii) if the Special Servicer is the Defaulting Party, the
transfer within two Business Days to the Trustee or a successor Special Servicer
for administration by it of all cash amounts that shall at the time be or should
have been credited by the Special Servicer to an REO Account, a Custodial
Account, a Servicing Account or a Reserve Account or should have been delivered
to the Master Servicer or that are thereafter received by or on behalf of it
with respect to any Loan or REO Property; provided, however, that the Master
Servicer and the Special Servicer each shall, if terminated pursuant to this
Section 7.01(b), continue to be entitled to receive all amounts accrued or owing
to it under this Agreement on or prior to the date of such termination, whether
in respect of Advances or otherwise, and it shall continue to be entitled to the
benefits of Section 6.03 notwithstanding any such termination.
Any cost or expenses in connection with any actions to be taken by
any party hereto pursuant to the prior paragraph shall be borne by the
Defaulting Party and if not paid by the Defaulting Party within 90 days after
the presentation of reasonable documentation of such costs and expenses, such
expense shall be reimbursed by the Trust Fund; provided, however, that the
Defaulting Party shall not thereby be relieved of its liability for such
expenses. For purposes of this Section 7.01 and also for purposes of Section
7.03(b), the Trustee shall not be deemed to have knowledge of an event which
constitutes, or which with the passage of time or notice, or both, would
constitute an Event of Default unless a Responsible Officer of the Trustee
assigned to and working in the Trustee's Corporate Trust Office has actual
knowledge thereof or unless notice of any event which is in fact such an Event
of Default is received by the Trustee and such notice references the
Certificates, the Trust Fund or this Agreement.
(c) In the case of an Event of Default under Section 7.01(a)(x) or
(xi) of which the Trustee has notice, the Trustee shall provide written notice
thereof to the Master Servicer promptly upon receipt of such notice.
Notwithstanding Section 7.01(b), if the Master Servicer receives a notice of
termination under Section 7.01(b) solely due to an Event of Default under
Section 7.01(a)(x) or (xi) and if the terminated Master Servicer provides the
Trustee with the appropriate "request for proposal" materials within five
Business Days following such termination, then the Master Servicer shall
continue to serve in such capacity hereunder until a successor thereto is
selected in accordance with this Section 7.01(c) or the expiration of 45 days
from the Master Servicer's receipt of the notice of termination, whichever
occurs first.
Upon receipt of such "request for proposal" materials from the
terminated Master Servicer, the Trustee shall promptly thereafter (using such
"request for proposal" materials) solicit good faith bids for the rights to
master service the Loans under this Agreement from at least three (3) Persons
qualified to act as a successor Master Servicer hereunder in accordance with
Section 6.02 and Section 7.02 (any such Person so qualified, a "Qualified
Bidder") or, if three (3) Qualified Bidders cannot be located, then from as many
Persons as the Trustee can determine are Qualified Bidders; provided that at the
Trustee's request, the terminated Master Servicer shall supply the Trustee with
the names of Persons from whom to solicit such bids; and provided, further, that
the Trustee shall not be responsible if less than three (3) or no Qualified
Bidders submit bids for the right to master service the Loans under this
Agreement. The bid proposal shall require any Successful Bidder (as defined
below), as a condition of such bid, to enter into this Agreement as successor
Master Servicer, and to agree to be bound by the terms hereof, within 45 days
after the receipt of notice of termination by the terminated Master Servicer.
The Trustee shall solicit bids: (i) on the basis of such successor Master
Servicer retaining all Sub-Servicers to continue the primary servicing of the
Loans pursuant to the terms of the respective Sub-Servicing Agreements and to
enter into a Sub-Servicing Agreement with the terminated Master Servicer to
sub-service each of the Loans not subject to a Sub-Servicing Agreement at a
sub-servicing fee rate per annum equal to the Master Servicing Fee Rate minus
one (1) basis point per Loan serviced (each, a "Servicing-Retained Bid"); and
(ii) on the basis of terminating each Sub-Servicing Agreement and Sub-Servicer
that it is permitted to terminate in accordance with Section 3.23 (each, a
"Servicing-Released Bid"). The Trustee shall select the Qualified Bidder with
the highest cash Servicing-Retained Bid (or, if none, the highest cash Servicing
Released Bid) (the "Successful Bidder") to act as successor Master Servicer
hereunder. The Trustee shall direct the Successful Bidder to enter into this
Agreement as successor Master Servicer pursuant to the terms hereof (and, if the
successful bid was a Servicing Retained Bid, to enter into a Sub-Servicing
Agreement with the terminated Master Servicer as contemplated above) no later
than 45 days after the receipt of notice of termination by the terminated Master
Servicer.
Upon the assignment and acceptance of the master servicing rights
hereunder to and by the Successful Bidder, the Trustee shall remit or cause to
be remitted (i) if the successful bid was a Servicing-Retained Bid, to the
terminated Master Servicer the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
The terminated Master Servicer shall be responsible for all
out-of-pocket expenses incurred in connection with the attempt to sell its
rights to service the Loans, which expenses are not reimbursed to the party that
incurred such expenses pursuant to the preceding paragraph.
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within 45 days after the terminated Master Servicer
received written notice of termination or no Successful Bidder was identified
within such 45-day period, the terminated Master Servicer shall reimburse the
Trustee for all reasonable "out-of-pocket" expenses incurred by the Trustee in
connection with such bid process and the Trustee shall have no further
obligations under this Section 7.01(c). The Trustee thereafter may act or may
select a successor to act as Master Servicer hereunder in accordance with
Section 7.02.
(d) Notwithstanding Section 7.01(b), if (1) any Event of Default on
the part of the Master Servicer occurs that affects only one or more of the
Companion Loans, and the Master Servicer is not otherwise terminated in
accordance with Section 7.01(b), or (2) a Companion Loan is included as an asset
of a securitization that is rated by Fitch Ratings and the Master Servicer is
rated less than "CMS3" by Fitch Ratings, then, at the direction of the related
Companion Loan Noteholder, the Trustee shall require the Master Servicer to
appoint, within 30 days of the Trustee's request, a Sub-Servicer (or, if the
Loan Pairs are currently being sub-serviced, to replace, within 30 days of the
Trustee's request, the then-current Sub-Servicer with a new Sub-Servicer) with
respect to the related Loan Pair. In connection with the Master Servicer's
appointment of a Sub-Servicer at the request of the Trustee in accordance with
this Section 7.01(d), the Master Servicer shall obtain written confirmation from
each Rating Agency that such appointment will not result in an Adverse Rating
Event. The related Sub-Servicing Agreement shall provide that any Sub-Servicer
appointed by the Master Servicer at the request of the Trustee in accordance
with this Section 7.01(d) shall be responsible for all duties, and shall be
entitled to all compensation, of the Master Servicer under this Agreement with
respect to the related Loan Pair, except that the Master Servicer shall be
entitled to retain a portion of the Master Servicing Fee for the Mortgage Loan
in the related Loan Pair calculated at 0.01% per annum. Such Sub-Servicing
Agreement shall also provide that such Sub-Servicer shall agree to become the
master servicer under a separate servicing agreement for the applicable Loan
Pair in the event that the applicable Loan Pair is no longer to be serviced and
administered hereunder, which separate servicing agreement shall contain
servicing and administration, limitation of liability, indemnification and
servicing compensation provisions substantially similar to the corresponding
provisions of this Agreement, except for the fact that the applicable Loan Pair
and the related Loan Pair Mortgaged Properties shall be the sole assets serviced
and administered thereunder and the sole source of funds thereunder. If any
Sub-Servicer appointed by the Master Servicer at the request of the Trustee in
accordance with this Section 7.01(d) shall at any time resign or be terminated,
the Master Servicer shall be required to promptly appoint a substitute
Sub-Servicer, which appointment shall not result in an Adverse Rating Event (as
evidenced in writing by each Rating Agency). In the event that a successor
Master Servicer is acting hereunder and that successor Master Servicer desires
to terminate the Sub-Servicer appointed under this Section 7.01(d), the
terminated Master Servicer that was responsible for the Event of Default that
led to the appointment of such Sub-Servicer shall be responsible for all costs
incurred in connection with such termination, including the payment of any
termination fee.
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer
resigns pursuant to Section 6.04 or receives a notice of termination pursuant to
Section 7.01, the Trustee shall, unless and until a successor is appointed
pursuant to Section 6.04, Section 6.09 or Section 7.01(c), be the successor in
all respects to the Master Servicer or the Special Servicer, as the case may be,
in its capacity as such under this Agreement and the transactions set forth or
provided for herein and shall have all (and the former Master Servicer or the
Special Servicer, as the case may be, shall cease to have any) of the
responsibilities, duties and liabilities of the Master Servicer or the Special
Servicer, as the case may be, arising thereafter, including, if the Master
Servicer is the resigning or terminated party, the Master Servicer's obligation
to make P&I Advances, including in connection with any termination of the Master
Servicer for an Event of Default described in clause 7.01(a)(iii), the unmade
P&I Advances that gave rise to such Event of Default; provided that any failure
to perform such duties or responsibilities caused by the Master Servicer's or
the Special Servicer's, as the case may be, failure to provide information or
monies required by Section 7.01 shall not be considered a default by the Trustee
hereunder. The Trustee shall not be liable for any of the representations and
warranties of the resigning or terminated party or for any losses incurred by
the resigning or terminated party pursuant to Section 3.06 hereunder nor shall
the Trustee be required to purchase any Loan hereunder. As compensation
therefor, the Trustee shall be entitled to all fees and other compensation which
the resigning or terminated party would have been entitled to if the resigning
or terminated party had continued to act hereunder. Notwithstanding the above,
the Trustee may, if it shall be unwilling to so act as either Master Servicer or
Special Servicer, as the case may be, or shall, if it is unable to so act as
either Master Servicer or Special Servicer, as the case may be, or if the
Trustee is not approved as a master servicer or a special servicer, as the case
may be, by any of the Rating Agencies, or if the Holders of Certificates
entitled to a majority of the Voting Rights so request in writing to the
Trustee, promptly appoint, or 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 3.24; and provided, further, that in the case of a resigning or
terminated Special Servicer, such appointment shall be subject to the rights of
the Holders of Certificates evidencing a majority of the Voting Rights allocated
to the Controlling Class to designate a successor pursuant to Section 6.09. No
appointment of a successor to the Master Servicer or the Special Servicer
hereunder shall be effective until the assumption by the successor to such party
of all its responsibilities, duties and liabilities under this Agreement.
Pending appointment of a successor to the Master Servicer or the Special
Servicer hereunder, the Trustee shall act in such capacity as hereinabove
provided. In connection with any such appointment and assumption described
herein, the Trustee may make such arrangements for the compensation of such
successor out of payments on the Loans as it and such successor shall agree,
subject to the terms of this Agreement limiting the use of funds Received in
respect of a Loan Pair to matters related to such Loan Pair; provided, however,
that no such compensation shall be in excess of that permitted the resigning or
terminated party hereunder. Such successor and the other parties hereto shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
Section 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.09, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register and to the
Companion Loan Noteholders.
(b) Not later than 10 days after a Responsible Officer of the
Trustee has notice of the occurrence of any event which constitutes or, with
notice or lapse of time or both, would constitute an Event of Default, the
Trustee shall transmit by mail to the Depositor, all the Certificateholders, the
Companion Loan Noteholders and the Rating Agencies notice of such occurrence,
unless such default shall have been cured.
Section 7.04 Waiver of Events of Default.
The Holders representing at least 66-2/3% of the Voting Rights
allocated to each Class of Certificates affected by any Event of Default
hereunder, together with the Companion Loan Noteholders (if it is adversely
affected by such Event of Default) may waive such Event of Default; provided,
however, that an Event of Default under any of clauses (i), (ii), (iii), (x) and
(xi) of Section 7.01(a) may be waived only by all of the Certificateholders of
the affected Classes, together with the Companion Loan Noteholders, if any, that
is affected by such Event of Default. Upon any such waiver of an Event of
Default, such Event of Default shall cease to exist and shall be deemed to have
been remedied for every purpose hereunder. No such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent thereon
except to the extent expressly so waived. Notwithstanding any other provisions
of this Agreement, for purposes of waiving any Event of Default pursuant to this
Section 7.04, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor shall be entitled to Voting Rights with respect to
the matters described above.
The foregoing paragraph notwithstanding, if the Holders representing
at least the requisite percentage of the Voting Rights allocated to each
affected Class of Certificates desire to waive an Event of Default by the Master
Servicer, but a Companion Loan Noteholder (if it is adversely affected thereby)
does not wish to waive that Event of Default, then those Holders may still waive
that default and the applicable Companion Loan Noteholder will be entitled to
request that the Master Servicer appoint, within 60 days of the Companion Loan
Noteholder's request, a Sub-Servicer (or, if the applicable Loan Pair is
currently being subserviced, to replace, within 60 days of the Companion Loan
Noteholder's request, the then-current Sub-Servicer with a new Sub-Servicer)
with respect to the applicable Loan Pair. In connection with the Master
Servicer's appointment of a Sub-Servicer at the request of a Companion Loan
Noteholder in accordance with this Section 7.04, the Master Servicer shall
obtain written confirmation from each Rating Agency that such appointment will
not result in an Adverse Rating Event. The related Sub-Servicing Agreement shall
provide that any Sub-Servicer appointed by the Master Servicer at the request of
a Companion Loan Noteholder in accordance with this Section 7.04 shall be
responsible for all duties, and shall be entitled to all compensation, of the
Master Servicer under this Agreement with respect to the applicable Loan Pair,
except that the Master Servicer shall be entitled to retain a portion of the
Master Servicing Fee for the Mortgage Loan in the Loan Pair calculated at 0.01%
per annum. Such Sub-Servicing Agreement shall also provide that such
Sub-Servicer shall become the master servicer under a separate servicing
agreement for the applicable Loan Pair in the event that the Loan Pair is no
longer to be serviced and administered hereunder, which separate servicing
agreement shall contain servicing and administration, limitation of liability,
indemnification and servicing compensation provisions substantially similar to
the corresponding provisions of this Agreement, except for the fact that the
applicable Loan Pair and the Loan Pair Mortgaged Properties shall be the sole
assets serviced and administered thereunder and the sole source of funds
thereunder. Such Sub-Servicer shall meet the requirements of Section 3.23. If
any Sub-Servicer appointed by the Master Servicer at the request of the
Companion Loan Noteholder in accordance with this Section 7.04 shall at any time
resign or be terminated, the Master Servicer shall be required to promptly
appoint a substitute Sub-Servicer, which appointment shall not result in an
Adverse Rating Event (as evidenced in writing by each Rating Agency). In the
event a successor Master Servicer is acting hereunder and that successor Master
Servicer desires to terminate the Sub-Servicer appointed under this Section
7.04, the terminated Master Servicer that was responsible for the Event of
Default that led to the appointment of such Sub-Servicer shall be responsible
for all costs incurred in connection with such termination, including the
payment of any termination fee.
Section 7.05 Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right, in its own name and as
trustee of an express trust and on behalf of the Companion Loan Noteholders, to
take all actions now or hereafter existing at law, in equity or by statute to
enforce its rights and remedies and to protect the interests, and enforce the
rights and remedies, of the Certificateholders and the Companion Loan
Noteholders (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 terms of this Agreement and the direction of any
Directing Holder, Controlling Class or 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 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 Distribution 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 Regulations Section 1.860G-1(b)(3)(ii); and provided,
further, that neither the Trustee nor any of the other above specified Persons
shall be entitled to indemnification pursuant to this Section 8.05(b) for (1)
any liability specifically required to be borne thereby pursuant to the terms of
this Agreement, or (2) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of, or the
negligent disregard of, the Trustee's obligations and duties hereunder, or as
may arise from a breach of any representation, warranty or covenant of the
Trustee made herein, or (3) any loss, liability or expense that constitutes
allocable overhead. The provisions of this Section 8.05(b) and of Section
8.05(c) shall survive any resignation or removal of the Trustee and appointment
of a successor trustee.
(c) If the Trustee Liability arises from the issuance or sale of the
Certificates and the indemnification provided for in Section 8.05(b) is invalid
or unenforceable, then the Trust Fund shall contribute to the amount paid or
payable by the Trustee as a result of such Trustee Liability in such proportion
as is appropriate to reflect the relative fault of any of the other parties on
the one hand and the Trustee on the other in connection with the actions or
omissions which resulted in such Trustee Liability, as well as any other
relevant equitable considerations.
(d) The Trustee shall indemnify and hold harmless the Trust Fund
against any losses arising out of any errors made solely by the Trustee in
calculating distributions to be made hereunder and any other calculation or
reporting hereunder (in each case not attributable to information provided to
the Trustee by the Master Servicer or the Special Servicer); provided that such
loss arose by reason of willful misfeasance, bad faith or negligence on the part
of the Trustee. The provisions of this Section 8.05(d) shall survive any
resignation or removal of the Trustee and appointment of a successor trustee.
Section 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a bank, a trust company,
an association or a corporation organized and doing business under the laws of
the United States of America or any state thereof or the District of Columbia,
authorized under such laws to exercise trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination by
federal or state banking authority. If such bank, trust company, association or
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such bank,
trust company, association or corporation shall be deemed to be its combined
capital and surplus 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 "Aa3" by Xxxxx'x and "AA-" by S&P (or "A+" by S&P if the
short-term unsecured debt rating of the Trustee is rated at least "A-1" by S&P)
(or, if a Fiscal Agent meeting the requirements of Section 8.17(a) is then
currently acting in such capacity, of at least "A3" by Xxxxx'x and "A-" by each
of S&P) (or, in the case of either Rating Agency, such other rating as shall not
result in an Adverse Rating Event, as confirmed in writing by such Rating
Agency). The Trustee's acting in such capacity shall not adversely affect the
application of the Prohibited Transaction Exemption to the Investment Grade
Certificates. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07;
provided that if the Trustee shall cease to be so eligible because its combined
capital and surplus is no longer at least $50,000,000 or its long-term unsecured
debt rating no longer conforms to the requirements of the immediately preceding
sentence, and if the Trustee proposes to the other parties hereto to enter into
an agreement with (and reasonably acceptable to) each of them, and if in light
of such agreement the Trustee's continuing to act in such capacity would not (as
evidenced in writing by each Rating Agency) cause an Adverse Rating Event, then
upon the execution and delivery of such agreement the Trustee shall not be
required to resign, and may continue in such capacity, for so long as none of
the ratings assigned by the Rating Agencies to the Certificates is adversely
affected thereby. The bank, trust company, corporation or association serving as
Trustee may have normal banking and trust relationships with the Depositor, the
Master Servicer, the Special Servicer and their respective Affiliates.
Section 8.07 Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer, all Certificateholders and the Companion
Loan Noteholders. Upon receiving such notice of resignation, the Depositor shall
promptly appoint a successor trustee acceptable to the Depositor by written
instrument, in duplicate, which instrument shall be delivered to the resigning
Trustee and to the successor trustee. A copy of such instrument shall be
delivered to the Master Servicer, the Special Servicer, the Certificateholders
and the Companion Loan Noteholders 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, the Certificateholders and the Companion Loan
Noteholders by the successor trustee so appointed.
(c) The Holders of Certificates entitled to 51% of the Voting Rights
may at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which instruments shall be delivered to the
Master Servicer, one complete set to the Trustee so removed and one complete set
to the successor trustee so appointed. A copy of such instrument shall be
delivered to the Depositor, the Special Servicer, the remaining
Certificateholders and the Companion Loan Noteholders by the successor trustee
so appointed.
(d) In the event that the Trustee is terminated or removed pursuant
to this Section 8.07, all of its and any corresponding Fiscal Agent's rights and
obligations under this Agreement and in and to the Loans shall be terminated,
other than any rights or obligations that accrued prior to the date of such
termination or removal (including the right to receive all fees, expenses and
other amounts (including P&I Advances and any accrued interest thereon) accrued
or owing to it under this Agreement, with respect to periods prior to the date
of such termination or removal, and no termination without cause shall be
effective until the payment of such amounts to the Trustee and such Fiscal
Agent).
(e) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
Section 8.08 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Master Servicer,
the Special Servicer and to the predecessor trustee an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The predecessor trustee
shall deliver to the successor trustee (at the expense of the Certificateholders
that effected the removal, if the Trustee has been removed in accordance with
Section 8.07(c) without cause or if such expenses are not paid by such
Certificateholders within ninety (90) days after they are incurred, at the
expense of the Trust, provided that such Certificateholders shall remain liable
to the Trust for such expenses) all Mortgage Files and related documents and
statements held by it hereunder (other than any Mortgage Files at the time held
on its behalf by a third-party Custodian, which Custodian shall become the agent
of the successor trustee), and the Depositor, the Master Servicer, the Special
Servicer and the predecessor trustee shall execute and deliver such instruments
and do such other things as may reasonably be required to more fully and
certainly vest and confirm in the successor trustee all such rights, powers,
duties and obligations, and to enable the successor trustee to perform its
obligations hereunder.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08, unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor, the Master Servicer, the
Special Servicer, the Certificateholders and the Companion Loan Noteholders.
Section 8.09 Merger or Consolidation of Trustee and Fiscal Agent.
Any entity into which the Trustee or the Fiscal Agent may be merged
or converted, or with which the Trustee or the Fiscal Agent may be consolidated,
or any entity resulting from any merger, conversion or consolidation to which
the Trustee or the Fiscal Agent shall be a party, or any entity succeeding to
the corporate trust business of the Trustee, shall be the successor of the
Trustee or the Fiscal Agent, as the case may be, hereunder, provided such entity
shall be eligible under the provisions of Section 8.06 or Section 8.17, as
applicable, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Trustee shall have the power and shall execute and deliver all instruments
to appoint one or more Persons approved by the Trustee to act as co-trustee or
co-trustees, jointly with the Trustee, or separate trustee or separate trustees,
of all or any part of the Trust Fund, and to vest in such Person or Persons, in
such capacity, such title to the Trust Fund, or any part thereof, and, subject
to the other provisions of this Section 8.10, such powers, duties, obligations,
rights and trusts as the Master Servicer and the Trustee may consider necessary
or desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06
hereunder and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 8.08
hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer or the Special Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts vested therein pursuant to
the applicable instrument of appointment and this Section 8.10, shall vest in
and be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
Section 8.11 Appointment of Custodians.
The Trustee may appoint at the Trustee's expense one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking authority, shall have combined capital
and surplus of at least $10,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor,
the 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 Loans within its
control that may be required to be provided by this Agreement or by applicable
law. Such access shall be afforded without charge but only upon reasonable prior
written request and during normal business hours at the offices of the Trustee
designated by it.
(b) The Trustee shall maintain in its possession and, upon
reasonable prior written request and during normal business hours, shall make
available at its offices for review by the Depositor, the Rating Agencies, the
Companion Loan Noteholders and their designees, the Controlling Class Directing
Holder 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; (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 Loan entered
into or consented to by the Special Servicer and delivered to the Trustee
pursuant to Section 3.21; (viii) the most recent appraisal for each Mortgaged
Property and REO Property that has been delivered to the Trustee (each appraisal
obtained hereunder with respect to any Mortgaged Property or REO Property to be
delivered to the Trustee by the Master Servicer or Special Servicer, as
applicable, promptly following its having been obtained); (ix) any and all
Officer's Certificates and other evidence delivered to or by the Trustee to
support its, the Master Servicer's, the Special Servicer's or the Fiscal
Agent's, as the case may be, determination that any Advance was (or, if made,
would be) a Nonrecoverable Advance; (x) any and all information provided to the
Trustee pursuant to Section 6.11(a); (xi) the Schedule of Exceptions to Mortgage
File Delivery prepared by the Trustee pursuant to Section 2.02(a) and any
exception report prepared by the Trustee pursuant to Section 2.02(b); (xii) all
notices of a breach of representation and warranty given by or received by the
Trustee with respect to any party hereto; (xiii) any Officer's Certificate
delivered to the Trustee by the Special Servicer in connection with a Final
Recovery Determination pursuant to Section 3.09(h). 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, upon
receipt, the Trustee shall make such items available to the requesting
Certificateholder or Certificate Owner.
(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 2004 (and with respect
to any subsequent fiscal year for the Trust, if as of the beginning of such
subsequent fiscal year, 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 on behalf
of the Depositor and properly and timely 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, to
the extent delivered to the Trustee, all Servicer Reports and such other
servicing information identified by the Master Servicer or the Special
Servicer, in writing, to be filed with the Commission (such other
servicing information, the "Additional Designated Servicing Information");
(ii) during such fiscal year, (A) 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 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) prepare for filing, execute and promptly file with the Commission
a Current Report on Form 8-K disclosing any such matter;
(iii) at the reasonable request of, and in accordance with the
reasonable directions of, the Certifying Person or any Performing Party
(as defined in Section 8.15(d)), prepare for filing, execute and promptly
file with the Commission an amendment to any Current Report on Form 8-K
previously filed with the Commission with respect to the Trust; and
(iv) within 90 days following the end of such fiscal year, prepare
and properly and timely 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 to such format (other than those items 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, all Servicer Reports and Additional
Designated Servicing Information delivered to the Trustee) contemplated to be
filed with the Commission pursuant to this Section 8.15(a).
All Current Reports on Form 8-K and Annual Reports on Form 10-K that
are to be filed with respect to the Trust pursuant to this Section 8.15(a)
(collectively, including the exhibits thereto, the "Exchange Act Reports"),
exclusive of the initial Current Report on Form 8-K contemplated by clause (y)
of the proviso to the first sentence of the preceding paragraph, which is to be
executed by the Depositor, are (together with the exhibits thereto) herein
referred to as the "Subsequent Exchange Act Reports." The Trustee shall have no
liability to the Certificateholders or the Trust with respect to any failure to
properly prepare or file any of the Subsequent Exchange Act Reports to the
extent that such failure is not the result of any negligence, bad faith or
willful misconduct on its part.
(b) At all times during the Trust's fiscal year 2003 (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 provide notice 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 Distribution Date Statements and/or Servicer 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 Distribution Date Statements and/or Servicer 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 the
next paragraph) 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.
Further, each other party to this agreement shall promptly notify
the Trustee of the occurrence or existence of any of the forgoing matters in
this Section 8.15(b) of which a Servicing Officer (in the case of the Master
Servicer or the Special Servicer) or a senior officer (in the case of the
Depositor) thereof has actual knowledge.
(c) If as of the beginning of any fiscal year for the Trust (other
than fiscal year 2003), 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 suspending all reporting requirements under the
Exchange Act.
(d) The Form 10-K required to be filed by the Trustee shall include
any certification (the "Xxxxxxxx-Xxxxx Certification") required to be included
therewith pursuant to the Xxxxxxxx-Xxxxx Act of 2002, and the rules and
regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff) and a copy of such
Xxxxxxxx-Xxxxx Certification shall be provided to the Rating Agencies. An
officer of the Depositor shall sign the Xxxxxxxx-Xxxxx Certification. The Master
Servicer, the Special Servicer and the Trustee (each, a "Performing Party")
shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the
"Certifying Person") a certification (each, a "Performance Certification"), in
the form set forth on Exhibit M hereto, on which the Certifying Person, the
Depositor (if the Certifying Person is an individual), and the Depositor's
partner, representative, Affiliate, member, manager, director, officer, employee
or agent (collectively with the Certifying Person, "Certification Parties") can
rely. In addition, in the event that any Pari Passu Companion Loan (other than
the Windsor Capital Portfolio Pari Passu Companion Loan, which is serviced under
the 2003-C1 PSA) is deposited into a commercial mortgage securitization, on or
before March 20th of each year with respect to which a Form 10-K is filed by the
related trustee for such commercial mortgage securitization, the Master Servicer
and the Special Servicer, shall provide to the Person who signs the
Xxxxxxxx-Xxxxx certification with respect to such commercial mortgage
securitization a Performance Certification (which shall address the matters
contained in the Performance Certification, but solely with respect to the
related Pari Passu Companion Loan) on which such Person and such Person's
partner, representative, Affiliate, member, manager, director, officer, employee
or agent can rely. Notwithstanding the foregoing, nothing in this paragraph
shall require any Performing Party (i) to certify or verify the accurateness or
completeness of any information provided to such Performing Party by third
parties, (ii) to certify information other than to such Performing Party's
knowledge and in accordance with such Performing Party's responsibilities
hereunder or (iii) with respect to completeness of information and reports, to
certify anything other than as to information in its actual knowledge and that
all fields of information called for in written reports prepared by such
Performing Party have been completed except as they have been left blank on
their face. In the event any Performing Party is terminated or resigns pursuant
to the terms of this Agreement, such Performing Party shall provide a
Performance Certification to the Depositor pursuant to this Section 8.15(d) with
respect to the period of time such Performing Party was subject to this
Agreement.
(e) Each Performing Party shall indemnify and hold harmless each
Certification Party from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses incurred by such Certification Party arising out of
(i) an actual breach by the applicable Performing Party of its obligations under
this Section 8.15 or (ii) any inaccuracy in the applicable Performing Party's
Performance Certification that, in the case of clause (i) or (ii), results from
the negligence, bad faith or willful misfeasance of the Trustee, the Special
Servicer or the Master Servicer, as the case may be, in connection with the
performance by the Trustee, the Special Servicer or the Master Servicer, as the
case may be, of its duties hereunder, and causes the Certification Party to
incur liability under the Securities and Exchange Act of 1934. A Performing
Party shall have no obligation to indemnify any Certification Party for an
inaccuracy in the Performance Certification of any other Performing Party.
Section 8.16 Representations and Warranties of Trustee.
(a) The Trustee hereby represents and warrants to the Master
Servicer, the Special Servicer and the Depositor and for the benefit of the
Certificateholders and the Companion Loan Noteholders, 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 "Aa3" from Xxxxx'x and "AA-" from S&P (or
"A+" from S&P if the Fiscal Agent has a short-term unsecured debt rating of at
least "A-1" by S&P) (or, in the case of any such 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, the
Certificateholders and the Companion Loan Noteholders in writing of the
appointment, resignation or removal of any Fiscal Agent.
Section 8.18 Representations and Warranties of Fiscal Agent.
(a) The Fiscal Agent hereby represents and warrants to each of the
other parties hereto and for the benefit of the Certificateholders and the
Companion Loan Noteholders, 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 Mortgage Loan Seller, the Special Servicer, any Controlling Class
Certificateholder or the Master Servicer of all Mortgage Loans and each REO
Property remaining in the Lower-Tier REMIC 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 the Lower-Tier REMIC,
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 3.12(b) and, in the case of the Master Servicer,
Section 4.03(d) or Section 4.03A(d), and any unpaid servicing compensation
remaining outstanding (which items shall be deemed to have been paid or
reimbursed to the Master Servicer or the Special Servicer, as the case may be,
in connection with such purchase), and (B) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan or
REO Property remaining in the Lower-Tier 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 Mortgage Loan Seller, 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 Lower-Tier 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 1% of the Initial Trust 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 Lower-Tier 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, the Mortgage Loan Seller's
or the Depositor's purchase of all of the Mortgage Loans and each REO Property
remaining in the Lower-Tier REMIC, the Master Servicer, the Special Servicer,
such Controlling Class Certificateholder, the Mortgage Loan Seller or the
Depositor, as applicable, shall deliver to the Trustee not later than the fifth
Business Day preceding the Distribution Date on which the final distribution on
the Certificates is to occur: (x) for deposit in the Pool Custodial Account, an
amount in immediately available funds equal to the above-described purchase
price (provided, however, that if the Loan Pair REO Properties are being
purchased pursuant to the foregoing, the portion of the above-described purchase
price allocable to such REO Property shall initially be deposited into the
related Loan Pair Custodial Account); and (y) an Opinion of Counsel, at the
expense of the party effecting the purchase, stating that the termination of the
Trust satisfies the requirements of a qualified liquidation under Section 860F
of the Code and any regulations thereunder. In addition, the Master Servicer
shall transfer to the Distribution Account all amounts required to be
transferred thereto on such Master Servicer Remittance Date from the Pool
Custodial Account or from the applicable Loan Pair Custodial Account pursuant to
the first paragraph of Section 3.04(b), together with any other amounts on
deposit in the Pool Custodial Account or the applicable Loan Pair Custodial
Account that would otherwise be held for future distribution. Upon confirmation
that such final deposits have been made, subject to Section 3.26, the Trustee
shall release or cause to be released to the Master Servicer, the Special
Servicer, the purchasing Controlling Class Certificateholder, the Mortgage Loan
Seller 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, the Mortgage Loan Seller 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, the Mortgage Loan Seller or
the Depositor (or their respective designees), as applicable. Any transfer of
Mortgage Loans, except in the case of the Trust Mortgage Loans, pursuant to this
paragraph shall be on a servicing-released basis; and, if any Mortgage Loan
purchased pursuant to this Section 9.01 is the Trust Mortgage Loans, the
release, endorsement or assignment of the documents constituting the related
Mortgage File and Servicing File shall be in the manner contemplated by Section
3.26 hereof.
For purposes of this Section 9.01 and any Loan Pair, the Appraised
Value of any REO Property refers to the Appraised Value of the Trust Fund's
interest in such REO Property, which (1) in the case of a Loan Pair that does
not have any Pari Passu Companion Loans shall mean the lesser of (x) the
Purchase Price of the related REO Mortgage Loan and (y) the Appraised Value of
such REO Property and (2) with respect to a Loan Pair comprised of one or more
Pari Passu Companion Loans shall mean the lesser of (x) the Purchase Price of
the related REO Mortgage Loan and (y) the Trust Fund's proportionate share of
the Appraised Value of such REO Property without taking into account the
interest of any related Subordinate Companion Loan.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders and the Split Loan Companion Loan Noteholders
mailed (a) if such notice is given in connection with the Depositor's, the
Master Servicer's, the Special Servicer's, the Mortgage Loan Seller's or a
Controlling Class Certificateholder's purchase of the Mortgage Loans and each
REO Property remaining in the Lower-Tier REMIC, 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 Distribution Account that are allocable to payments on the Class
of Certificates so presented and surrendered. Amounts on deposit in the
Distribution Account as of the final Distribution Date, exclusive of any portion
thereof that would be payable to any Person in accordance with clauses (ii)
through (viii) of Section 3.05(b), and further exclusive of any portion thereof
that represents Prepayment Premiums and/or Yield Maintenance Charges, shall be
allocated in the order of priority set forth in Section 4.01(a), in each case to
the extent of remaining available funds.
Any Prepayment Premiums and Yield Maintenance Charges on deposit in
the Distribution Account as of the final Distribution Date (net of any Workout
Fees and/or Liquidation Fees payable therefrom) shall be distributed among the
Holders of the Class XP, Class XC, Class A-1, Class A-2, Class A-3, Class A-4,
Class B, Class C, Class D, Class E, Class F, Class G and Class H Certificates in
accordance with Section 4.01(b).
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-II Certificateholders all unclaimed funds and other assets which
remain subject hereto.
All actual distributions on the respective Classes of 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 Lower-Tier
REMIC to the Upper-Tier REMIC in accordance with Section 4.01.
Section 9.02 Additional Termination Requirements.
(a) If the Depositor, the Mortgage Loan Seller, any Controlling
Class Certificateholder, the Special Servicer or the Master Servicer purchases
all of the Mortgage Loans and each REO Property remaining in the Lower-Tier
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:
(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 the Lower-Tier REMIC;
(ii) during such 90-day liquidation period and at or prior to the
time of making of the final payment on the Certificates, the Trustee shall
sell all of the assets of the Lower-Tier REMIC to the Master Servicer, the
Mortgage Loan Seller, the purchasing Controlling Class Certificateholder,
the Special Servicer or the Depositor, as applicable, for cash; and
(iii) at the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Certificateholders in accordance with
Section 9.01 all cash on hand (other than cash retained to meet claims),
and each REMIC Pool shall terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the Tax Administrator to specify the 90-day liquidation
period for each REMIC Pool, which authorization shall be binding upon all
successor Certificateholders.
ARTICLE X
ADDITIONAL TAX PROVISIONS
Section 10.01 REMIC Administration.
(a) The Tax Administrator shall elect to treat each REMIC Pool as a
REMIC under the Code and, if necessary, under applicable state law. Such
election will be made on Form 1066 or other appropriate federal or state Tax
Returns for the taxable year ending on the last day of the calendar year in
which the Certificates are issued.
(b) The Uncertificated Lower-Tier Interests and the Regular Interest
Certificates are hereby designated as "regular interests" (within the meaning of
Section 860G(a)(1) of the Code) in the Lower-Tier REMIC and the Upper Tier
REMIC, respectively. The Class R-I Certificates and the Class R-II Certificates
are hereby designated as the single class of "residual interests" (within the
meaning of Section 860G(a)(2) of the Code) in the Lower-Tier REMIC and the Upper
Tier REMIC, 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 Lower-Tier REMIC or the Upper Tier REMIC (within the
meaning of Treasury regulation Section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of
each REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(d) The related Plurality Residual Interest Certificateholder as to
the applicable taxable year is hereby designated as the Tax Matters Person of
each REMIC Pool, and shall act on behalf of the related REMIC in relation to any
tax matter or controversy and shall represent the related REMIC in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority; provided that the Tax Administrator is hereby
irrevocably appointed to act and shall act (in consultation with the Tax Matters
Person for each REMIC Pool) as agent and attorney-in-fact for the Tax Matters
Person for each REMIC Pool in the performance of its duties as such.
(e) For purposes of Treasury Regulations Section
1.860G-1(a)(4)(iii), the Rated Final Distribution Date is hereby designated the
"latest possible maturity date" of each Class of Regular Interest Certificates
and its Corresponding Uncertificated Lower-Tier Interest or Interests.
(f) Except as otherwise provided in Section 3.18(a) and subsections
(i) and (j) below, the Tax Administrator shall pay out of its own funds any and
all routine tax administration expenses of the Trust Fund incurred with respect
to each REMIC Pool (but not including any professional fees or expenses related
to audits or any administrative or judicial proceedings with respect to the
Trust Fund that involve the IRS or state tax authorities which extraordinary
expenses shall be payable or reimbursable to the Tax Administrator from the
Trust Fund, 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 either 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 either REMIC Pool as
a REMIC, or (ii) except as provided in Section 3.18(a), result in the imposition
of a tax upon either REMIC Pool (including, but not limited to, the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code and the tax
on contributions to a REMIC set forth in Section 860G(d) of the Code) or result
in the imposition of a tax on "net income from foreclosure property" as defined
in Section 860G(c) of the Code (any such endangerment of REMIC status or, except
as provided in Section 3.18(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. 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 could result from such action
or failure to act. In addition, prior to taking any action with respect to
either REMIC Pool, or causing either 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. 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 either 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 either 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 3.18(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; or (v) the Trust Fund in all other instances. Any tax
permitted to be incurred by the Special Servicer pursuant to Section 3.18(a)
shall be charged to and paid by the Trust Fund. 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 Distribution 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
either 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 either REMIC Pool, (C) the termination of either REMIC Pool pursuant to
Article IX of this Agreement, or (D) a purchase of Mortgage Loans pursuant to or
as contemplated by Article II or III of this Agreement); (ii) the sale or
disposition of any investments in the Pool Custodial Account or the Pool REO
Account for gain; or (iii) the acquisition of any assets for either REMIC Pool
(other than a Mortgaged Property acquired through foreclosure, deed in lieu of
foreclosure or otherwise in respect of a defaulted Mortgage Loan and other than
Permitted Investments acquired in connection with the investment of funds in the
Pool Custodial Account or the Pool REO Account); in any event unless it has
received an Opinion of Counsel (at the expense of the party seeking to cause
such sale, disposition, or acquisition but in no event at the expense of the
Trust Fund or the Trustee) to the effect that such sale, disposition, or
acquisition will not cause: (x) either 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 either REMIC Pool under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(n) Except as permitted by Section 3.18(a), none of the Trustee, the
Master Servicer and the Special Servicer shall enter into any arrangement by
which either REMIC Pool will receive a fee or other compensation for services
nor permit either 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.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders or the Companion Loan Noteholders, (i) to cure any ambiguity,
(ii) to correct, modify or supplement any provision herein which may be
inconsistent with any other provision herein or with the description thereof in
the Prospectus or the Prospectus Supplement, (iii) to add any other provisions
with respect to matters or questions arising hereunder which shall not be
inconsistent with the existing provisions hereof, (iv) to relax or eliminate any
requirement hereunder imposed by the REMIC Provisions if the REMIC Provisions
are amended or clarified such that any such requirement may be relaxed or
eliminated, (v) to relax or eliminate any requirement imposed by the Securities
Act or the rules thereunder if the Securities Act or those rules are amended or
clarified so as to allow for the relaxation or elimination of that requirement;
(vi) as evidenced by an Opinion of Counsel delivered to the Master Servicer, the
Special Servicer and the Trustee, either (A) to comply with any requirements
imposed by the Code or any successor or amendatory statute or any temporary or
final regulation, revenue ruling, revenue procedure or other written official
announcement or interpretation relating to federal income tax laws or any such
proposed action which, if made effective, would apply retroactively to any of
the REMIC Pools 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
either REMIC Pool; or (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); (viii),
to otherwise modify or delete existing provisions of this Agreement; provided
that such amendment (other than any amendment for any of the specific purposes
described in clauses (i), (ii), (iv), (v), (vi) and (vii) above) shall not
adversely affect in any material respect the interests of any Certificateholder
or the Companion Loan Noteholders, as evidenced by either an Opinion of Counsel
delivered to the Trustee and each other party hereto to such effect or, in the
case of a Class of Certificates or a Class of Companion Loan Securities to which
a rating has been assigned by one or more Rating Agencies, written confirmation
from each applicable Rating Agency to the effect that such amendment shall not
result in an Adverse Rating Event; and provided, further, that such amendment
shall not significantly change the activities of the Trust.
(b) This Agreement may also be amended from time to time by the
agreement of the parties hereto with the consent of the Holders of Certificates
entitled to at least 66-2/3% of the Voting Rights allocated to the affected
Classes for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received or advanced on Loans which are required to be distributed
on any Certificate, without the consent of the Holder of such Certificate, or
which are required to be distributed to the Companion Loan Noteholders, without
the consent of the affected Companion Loan Noteholders, (ii) adversely affect in
any material respect the interests of the Holders of any Class of Certificates
or the interests of the Companion Loan Noteholders in a manner other than as
described in the immediately preceding clause (i) without the consent of the
Holders of all Certificates of such Class or the consent of the affected
Companion Loan Noteholders, as the case may be, (iii) significantly change the
activities of the Trust without the consent of the Holders of Certificates
entitled to 51% of all the Voting Rights (without regard to Certificates held by
the Depositor or any of the Depositor's Affiliates and/or agents), (iv) modify
the provisions of this Section 11.01, without the consent of the Holders of all
Certificates then outstanding and the consent of the affected Companion Loan
Noteholders, (v) modify the provisions of Section 3.21 or the Servicing
Standard, without the consent of the Holders of all Regular Interest
Certificates then outstanding and the consent of the Companion Loan Noteholders,
or (vi) modify the specified percentage of Voting Rights which are required to
be held by Certificateholders to consent or not to object to any particular
action pursuant to any provision of this Agreement without the consent of the
Holders of all Certificates then outstanding. Notwithstanding any other
provision of this Agreement, for purposes of the giving or withholding of
consents pursuant to this Section 11.01(b), Certificates registered in the name
of any party hereto or any Affiliate thereof shall be entitled to the same
Voting Rights with respect to matters described above as they would if any other
Person held such Certificates, so long as the subject amendment does not relate
to increasing its rights or reducing or limiting its obligations hereunder as a
party to this Agreement.
(c) Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
first have obtained or been furnished with an Opinion of Counsel (at the expense
of the party seeking such amendment) addressed to the Trustee and each other
party hereto, to the effect that (i) such amendment or the exercise of any power
granted to the Trustee, the Master Servicer or the Special Servicer in
accordance with such amendment will not result in the imposition of a tax on
either REMIC Pool pursuant to the REMIC Provisions, cause either REMIC Pool to
fail to qualify as a REMIC 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 electronically (and make available on its website) a copy thereof to
each Certificateholder and the Companion Loan Noteholders.
(e) It shall not be necessary for the consent of Certificateholders
or the affected Companion Loan Noteholders 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 or the affected Companion Loan Noteholders shall be subject
to such reasonable regulations as the Trustee may prescribe.
(f) Each of the Master Servicer, the Special Servicer and the
Trustee may but shall not be obligated to enter into any amendment pursuant to
this Section that affects its rights, duties and immunities under this Agreement
or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer, the Special Servicer or the
Trustee requests any amendment of this Agreement that protects or is in
furtherance of the rights and interests of Certificateholders, the cost of any
Opinion of Counsel required in connection therewith pursuant to Section 11.01(a)
or (c) shall be payable out of the Pool Custodial Account, in the case of the
Master Servicer and the Special Servicer, pursuant to Section 3.05(a), or out of
the Distribution 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 Pool Custodial Account pursuant to Section 3.05(a) or, to the extent
that it benefits the Companion Loan Noteholders, out of the related Loan Pair
Custodial Account pursuant to Section 3.05(A)(a)) to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders and/or the Companion Loan Noteholders; provided, however,
that the Trustee shall have no obligation or responsibility to determine whether
any such recordation of this Agreement is required.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 11.03 Limitation on Rights of Certificateholders and the
Companion Loan Noteholders.
(a) The death or incapacity of any Certificateholder or any
Companion Loan Noteholder shall not operate to terminate this Agreement or the
Trust Fund, nor entitle such Certificateholder's or such Companion Loan
Noteholder's legal representatives or heirs to claim an accounting or to take
any action or proceeding in any court for a partition or winding up of the Trust
Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) The Certificateholders and the Companion Loan Noteholders
(except as expressly provided for herein) shall not have any right to vote or in
any manner otherwise control the operation and management of the Trust Fund, or
the obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Certificates, be construed so as to constitute the
Certificateholders and/or the Companion Loan Noteholders from time to time as
partners or members of an association; nor shall any Certificateholder or
Companion Loan Noteholder be under any liability to any third party by reason of
any action taken by the parties to this Agreement pursuant to any provision
hereof.
(c) Neither any of the Certificateholders nor the Companion Loan
Noteholders shall have any right by virtue of any provision of this Agreement to
institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Agreement or any Loan, unless, with respect to any suit,
action or proceeding upon or under or with respect to this Agreement, such
Person previously shall have given to the Trustee a written notice of default
hereunder, and of the continuance thereof, as hereinbefore provided, and unless
also (except in the case of a default by the Trustee) the Holders of
Certificates entitled to at least 25% of the Voting Rights shall have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this section, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 11.04 Governing Law; Consent to Jurisdiction.
This Agreement will be governed by and construed in accordance with
the laws of the State of New York, applicable to agreements negotiated, made and
to be performed entirely in said state. To the fullest extent permitted under
applicable law, the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent each hereby irrevocably (i) submits to the
jurisdiction of any New York State and federal courts sitting in New York City
with respect to matters arising out of or relating to this Agreement; (ii)
agrees that all claims with respect to such action or proceeding may be heard
and determined in such New York State or federal courts; (iii) waives the
defense of an inconvenient forum; and (iv) agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Section 11.05 Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given when delivered to: (i) in the case of the Depositor, Greenwich
Capital Commercial Funding Corp., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, XX 00000,
Attention: Xxxxx Xxxxxxx, Telecopy No.: (000) 000-0000 with a copy to Xxxx
Xxxxxxxxx, Esq., Telecopy No.: (000) 000-0000; (ii) in the case of the Master
Servicer, Wachovia Bank, National Association, NC 1075, 0000 Xxxxxxxx Xxxxx, XXX
0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Greenwich Capital Commercial
Funding Corp., Commercial Mortgage Trust Series 2003-C2; facsimile number: (704)
593-7735; (iii) in the case of the Special Servicer, Lennar Partners, Inc., 000
X.X. 000xx Xxxxxx, Xxxxx, Xxxxxxx 00000, 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-- Greenwich Capital Commercial Funding Corp., Commercial
Mortgage Trust Series 2003-C2, 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--Greenwich Capital Commercial Funding Corp., Commercial Mortgage Trust
Series 2003-C2, facsimile number: (000) 000-0000; (vi) in the case of the
Underwriters, (A) Greenwich Capital Markets, Inc., 000 Xxxxxxxxx Xxxx,
Xxxxxxxxx, XX 00000, Attention: Xxxxx Xxxxxxx, Telecopy No.: (000) 000-0000 with
a copy to Xxxx Xxxxxxxxx, Esq., Telecopy No.: (000) 000-0000; (B) Credit Suisse
First Boston LLC, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx Xxxxxxxxxx, with a copy to Xxxxxx XxXxxxxxx, Esq., Legal Compliance
Department, Telecopy No.: (000) 000-0000; (C) Xxxxxx Xxxxxxx & Co. Incorporated,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx, Telecopy
No.: (000) 000-0000; and (D) X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: RESF Desk, Telecopy No.: (000) 000-0000; and
(vii) in the case of the Rating Agencies, (A) 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 (B) Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, Attention: CMBS-Monitoring, telecopy number: (000) 000-0000; or,
as to each such Person, such other address as may hereafter be furnished by such
Person to the parties hereto in writing. Any communication required or permitted
to be delivered to a Certificateholder shall be deemed to have been duly given
when mailed first class, postage prepaid, to the address of such Holder as shown
in the Certificate Register.
Section 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.07 Grant of a Security Interest.
The Depositor and the Trustee agree that it is their intent that the
conveyance of the Depositor's right, title and interest in and to the Mortgage
Loans pursuant to this Agreement shall constitute a sale and not a pledge of
security for a loan. If such conveyance is deemed to be a pledge of security for
a loan, however, the Depositor and the Trustee agree that it is their intent
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor and the Trustee also
intend and agree that, in such event, (i) in order to secure performance of the
Depositor's obligations hereunder and payment of the Certificates, the Depositor
shall be deemed to have granted, and does hereby grant, to the Trustee (in such
capacity) a first priority security interest in the Depositor's entire right,
title and interest in and to the assets constituting the Trust Fund, including
the Mortgage Loans, all principal and interest received or receivable with
respect to the Mortgage Loans (other than principal and interest payments due
and payable prior to the Cut-off Date and any Principal Prepayments received on
or prior to the Cut-off Date), all amounts held from time to time in the Pool
Custodial Account, the Distribution Account, the Interest Reserve Account, the
Excess Liquidation Proceeds Account and, if established, the Pool REO Account
and the Defeasance Deposit Account and any and all reinvestment earnings on such
amounts, and all of the Depositor's right, title and interest in and to the
proceeds of any title, hazard or other Insurance Policies related to such
Mortgage Loans, and (ii) this Agreement shall constitute a security agreement
under applicable law.
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
3.23(d) and, in the case of the Mortgage Loan Seller, to terminate the Trust
Fund pursuant to Section 9.01.
Each of the Sub-Servicers that is a party to a Sub-Servicing
Agreement in effect on the Closing Date (or being negotiated as of the Closing
Date and in effect within 90 days thereafter) shall be a third party beneficiary
to obligations of a successor Master Servicer under Section 3.23, provided that
the sole remedy for any claim by a Sub-Servicer as a third party beneficiary
pursuant to this Section 11.09 shall be against a successor Master Servicer
solely in its corporate capacity and no Sub-Servicer shall have any rights or
claims against the Trust Fund or any party hereto (other than a successor Master
Servicer in its corporate capacity as set forth in this Section 11.09) as a
result of any rights conferred on such Sub-Servicer as a third party beneficiary
pursuant to this Section 11.09.
The Companion Loan Noteholders and any designees thereof acting on
behalf of or exercising the rights of the Companion Loan Noteholders shall be
third-party beneficiaries to this Agreement with respect to their rights as
specifically provided for herein.
The 2003-C1 Master Servicer, the 2003-C1 Trustee and the 2003-C1
Fiscal Agent shall be third party beneficiaries to this Agreement solely with
respect to the reimbursement of nonrecoverable advances made by such party under
the 0000-X0 XXX, pursuant to Section 3.05 hereof.
This Agreement may not be amended in any manner that would adversely
affect the rights of any such third party beneficiary without its consent. No
other Person, including any Mortgagor, shall be entitled to any benefit or
equitable right, remedy or claim under this Agreement.
Section 11.10 Article and Section Headings.
The article and Section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 11.11 Notices to Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating Agency
with respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Fiscal Agent, the Master
Servicer or the Special Servicer;
(iv) the repurchase of Mortgage Loans by the Mortgage Loan Seller
pursuant to Section 2.03;
(v) any change in the location of the Distribution Account or the
Interest Reserve Account;
(vi) the final payment to any Class of Certificateholders; and
(vii) any sale or disposition of any Mortgage Loan or REO Property.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee; and
(ii) any change in the location of any Custodial Account.
(c) The Special Servicer shall furnish each Rating Agency with
respect to a Specially Serviced Loan such information as the Rating Agency shall
reasonably request and which the Special Servicer can reasonably provide in
accordance with applicable law, with copies to the Trustee.
(d) To the extent applicable, each of the Master Servicer and the
Special Servicer shall promptly furnish to each Rating Agency copies of the
following items:
(i) each of its annual statements as to compliance described in
Section 3.14;
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.15; and
(iii) any Officer's Certificate delivered by it to the Trustee
pursuant to Section 3.12(d), 4.03(c) or 4.03A(c).
(e) The Trustee shall (i) make available to each Rating Agency, upon
reasonable notice, the items described in Section 8.14(b) and (ii) promptly
deliver to each Rating Agency a copy of any notices given pursuant to Section
7.03(a) or Section 7.03(b).
(f) The Trustee shall promptly deliver to each Rating Agency a copy
of each of the statements and reports described in Section 4.02(a) that is
prepared by it.
(g) Each of the Trustee, the Master Servicer and the Special
Servicer shall provide to each Rating Agency such other information with respect
to the Mortgage Loans and the Certificates, to the extent such party possesses
such information, as such Rating Agency shall reasonably request.
Section 11.12 Global Opinions.
Notwithstanding anything herein to the contrary, where any party
hereto is required or permitted to rely upon an Opinion of Counsel with respect
to any particular matter, such Opinion of Counsel need not specifically
reference such particular matter, but rather such Opinion of Counsel may address
general matters of law in respect of nonspecific circumstances which clearly
encompass the facts of such particular matter (any such Opinion of Counsel, a
"Global Opinion"); provided that no Global Opinion may be relied upon if it is
more than 12 months old or if the subject party has reason to believe that such
Global Opinion no longer expresses a correct legal opinion.
Section 11.13 Complete Agreement.
This Agreement embodies the complete agreement among the parties and
may not be varied or terminated except by a written agreement conforming to the
provisions of Section 11.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
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.
GREENWICH CAPITAL COMMERCIAL FUNDING
CORP.,
Depositor
By: /s/ Xxxxxx Xxxx
--------------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
Master Servicer
By: /s/ Xxxxx X.X. Xxxxx
--------------------------------------
Name: Xxxxx X.X. Xxxxx
Title: Associate
LENNAR PARTNERS, INC.,
Special Servicer
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
LASALLE BANK NATIONAL ASSOCIATION,
Trustee
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Name: Xxxxx X. Xxxx
Title: First Vice President
ABN AMRO BANK N.V.,
Fiscal Agent
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Name: Xxxxx X. Xxxx
Title: First Vice President
By: /s/ Xxxxxxx Xxxx
--------------------------------------
Name: Xxxxxxx Xxxx
Title: Sr. Vice President
STATE OF CONNECTICUT )
) ss.:
COUNTY OF FAIRFIELD )
On the 18th day of December, 2003, before me, a notary public in and
for said State, personally appeared Xxxxxx Xxxx, known to me to be a Vice
President of Greenwich Capital Commercial Funding Corp., 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/ Xxxxx X. Xxxxxx
---------------------------------------
Notary Public
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 12th day of December, 2003, before me, a notary public in and
for said State, personally appeared Xxxxx X.X. Xxxxx, known to me to be a
Associate of Wachovia 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/ Xxxxxx X. XxXxxx
---------------------------------------
Notary Public
STATE OF FLORIDA )
) ss.:
COUNTY OF MIAMI-DADE )
On the 23rd day of December, 2003, before me, a notary public in and
for said State, personally appeared Xxxxxxx X. Xxxxxxxx, known to me to be a
President of Lennar Partners, Inc., 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 X. Xxxxx
---------------------------------------
Notary Public
[Notarial Seal]
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On the ______ day of December, 2003, before me, a notary public in
and for said State, personally appeared Xxxxx X. Xxxx, known to me to be the
First 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/ Xxxxx Xxxxxxxx
---------------------------------------
Notary Public
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On the ______ day of December, 2003, before me, a notary public in
and for said State, personally appeared Xxxxx X. Xxxx and Xxxxxxx Xxxx, known to
me to be a First Vice President and Sr. 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 persons who executed it on behalf of such entity, and
acknowledged to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxxxx
---------------------------------------
Notary Public
SCHEDULE I
MORTGAGE LOAN SCHEDULE
GCCFC 03-C2 Loan ID GCFP Control_Number GCFP Loan ID Loan Name
1 13949 00-0000000 U.S. Bank Tower
1-Comp U.S. Bank Tower Companion Loans
2 03-0535 00-0000000 000 Xxxx Xxxxxx
2-Comp 000 Xxxx Xxxxxx Companion Loan
3 28862 00-0000000 0000 X Xxxxxx
0-Xxxx 0000 X Xxxxxx Companion Loan
4 23746 00-0000000 Broadway Mall
5 03-0239 00-0000000 Pinnacle
6 03-0161 00-0000000 000 Xxxxx Xxxxxx
0 00000 00-0000000 Xxxx Xxxxx Xxxx
8 28829 00000 Xxxxxxxxxxx Xxxxxx
8-Comp Independent Square Companion Loan
9 03-0059 00-0000000 Windsor Hotel Portfolio
9-Comp Windsor Hotel Portfolio Companion Loans
9.01 03-0059 00-0000000 Windsor Hotel Portfolio
9.02 03-0059 00-0000000 Windsor Hotel Portfolio
9.03 03-0059 00-0000000 Windsor Hotel Portfolio
9.04 03-0059 00-0000000 Windsor Hotel Portfolio
9.05 03-0059 00-0000000 Windsor Hotel Portfolio
9.06 03-0059 00-0000000 Windsor Hotel Portfolio
9.07 03-0059 00-0000000 Windsor Hotel Portfolio
10 28788 00-0000000 Pin Oak Portfolio
11 28775 00-0000000 Generation Co Hotel Portfolio
11.01 28775 00-0000000 Generation Co Hotel Portfolio
11.02 28775 00-0000000 Generation Co Hotel Portfolio
11.03 28775 00-0000000 Generation Co Hotel Portfolio
11.04 28775 00-0000000 Generation Co Hotel Portfolio
11.05 28775 00-0000000 Generation Co Hotel Portfolio
11.06 28775 00-0000000 Generation Co Hotel Portfolio
11.07 28775 00-0000000 Generation Co Hotel Portfolio
11.08 28775 00-0000000 Generation Co Hotel Portfolio
11.09 28775 00-0000000 Generation Co Hotel Portfolio
12 28956 00-0000000 AmeriVest Portfolio
12.01 28956 00-0000000 AmeriVest Portfolio
12.02 28956 00-0000000 AmeriVest Portfolio
12.03 28956 00-0000000 AmeriVest Portfolio
13 28918 00-0000000 Xxxxx Fargo Tower
13-Comp Xxxxx Fargo Tower Companion Loans
14 28798 00-0000000 Sand Creek Crossing
15 28833 00-0000000 Marketplace at Huntingdon Valley
16 03-0558 03-0558 Scottsdale Marriott
17 03-0244 00-0000000 Xxxxxx Business Campus
17-Comp Xxxxxx Business Campus Companion Loan
18 28810 00-0000000 Preston Forest
19 03-0221 00-0000000 Minnesota Center
20 23737 00-0000000 Greenwich Financial Center
21 03-0546 00-0000000 0000 Xxxxxxxx Xxxxxxxxx
22 03-0119 03-0119 Xxxxx Xxxxxxx Xxxxxxxx Xxxxxx
00 00000 00-0000000 000 Xxxxxxxxx Xxxxxx
24 03-0152 00-0000000 Encino Office Park
25 03-0248 00-0000000 Price Self Storage - West LA
26 03-0525 00-0000000 Xxxxxxxx Xxxxx
00 00000 00-0000000 Xxxxxxx Xxxxx Xxxxxxxx
00 00-0000 000000 Xxxx 2000 II
29 03-0293 00-0000000 Airport Trade Center
30 03-0388 00-0000000 City Center
31 03-0170 03-0170 KLA Retail Pool B
31.01 03-0170 03-0170 KLA Retail Pool B
31.02 03-0170 03-0170 KLA Retail Pool B
31.03 03-0170 03-0170 KLA Retail Pool B
32 03-0238 00-0000000 0000 Xxxxxxxx Xxxxxxxxx
33 03-0373 00-0000000 Fox Chase Apartments
34 03-0487 00-0000000 000 Xxxxxxx Xxxxxx Xxxxxxx
35 03-0158 03-0158 Dominick's Grocery & Garage
36 03-0435 00-0000000 Plaza North Shopping Center
37 03-0243 00-0000000 Chateau des Lions
38 28957 00-0000000 Oak Hills Shopping Center
39 03-0169 03-0169 KLA Retail Pool A
39.01 03-0169 03-0169 KLA Retail Pool A
39.02 03-0169 03-0169 KLA Retail Pool A
39.03 03-0169 03-0169 KLA Retail Pool A
39.04 03-0169 03-0169 KLA Retail Pool A
40 03-0381 00-0000000 College Plaza
41 03-0149 00-0000000 Storage USA
41.01 03-0149 00-0000000 Storage USA
41.02 03-0149 00-0000000 Storage USA
41.03 03-0149 00-0000000 Storage USA
41.04 03-0149 00-0000000 Storage USA
41.05 03-0149 00-0000000 Storage USA
41.06 03-0149 00-0000000 Storage USA
42 03-0384 00-0000 Xxxxxx Xxxxxx
43 03-0582 03-0582 Fairway Xxxxxxx Apartments
44 03-0071 00-0000000 NSS SW Investors, L.P.
44.01 03-0071 00-0000000 NSS SW Investors, L.P.
44.02 03-0071 00-0000000 NSS SW Investors, L.P.
44.03 03-0071 00-0000000 NSS SW Investors, L.P.
44.04 03-0071 00-0000000 NSS SW Investors, L.P.
44.05 03-0071 00-0000000 NSS SW Investors, L.P.
44.06 03-0071 00-0000000 NSS SW Investors, L.P.
44.07 03-0071 00-0000000 NSS SW Investors, L.P.
44.08 03-0071 00-0000000 NSS SW Investors, L.P.
44.09 03-0071 00-0000000 NSS SW Investors, L.P.
45 03-0044 00-0000000 Xxxxx Xxxxxx Xxxxxx
00 00000 00-0000000 440 North Xxxxx
47 03-0438 00-0000000 Foothill Crossing Shopping Center
48 03-0247 00-0000000 Waterfall Towers
49 03-0382 00-0000000 Xx Xxxxx Xxxx
00 00000 00-0000000 Xxxxxxxxxx Xxxxx
51 03-0035 00-0000000 Loma Xxxxx Shopping Center
52 03-0672 03-0672 Orchards Executive
53 03-0641 00-0000000 Chesapeake Center
54 03-0061 00-0000000 The Falls Apartments
55 28925 00-0000000 Belle Meadow Apartments
56 03-0503 00-0000000 441 South Livernois Office
57 03-0378 400063 Park 2000 I
58 03-0151 03-0151 Impressions Building
59 03-0242 00-0000000 Heritage Oaks Square
60 03-0580 00-0000000 Columbia Commons
61 03-0466 00-0000000 840 South Hobart
62 28863 00-0000000 Alamerica Bank Building
63 03-0595 00-0000000 East Prairie Commons
64 03-0245 00-0000000 Xxxxxxxxxxx Xxxxx
00 00-0000 00-0000 Xxxxxxxx Xxxxxxx MHC
66 03-0344 00-0000000 Xxxxxxxx Building
67 23867 00-0000000 Fairway Club Apartments
68 03-0216 00-0000000 0000 Xxxxxxxxx
69 03-0267 00-0000000 0000 Xxxx Xxxx Xxxxxxxxx
70 03-0164 400061 Anclote Corner Shopping Center
71 03-0114 00-0000000 000 Xxxxxx Xxxxx Xxxxx
72 03-0113 00-0000000 0000 Xxxxxxx Xxxxx
73 03-0154 00-0000000 Xxxxxx Parkway
74 03-0380 400065 6185 Xxxxxxxx/6265 XxXxxx, LLC
75 28864 00-0000000 Baybrook Collection
76 03-0077 00-0000000 0000 Xxxxxxx Xxxxx Xxxxxxx
77 23835 400060 Lake Carolina Building
78 03-0165 000000 Xxxxxxxxx Xxxxx
79 23834 400059 Lakeview Gardens
80 03-0339 00-0000000 Big 5
GCCFC 03-C2 Loan ID Property Name General Property Type Detailed Property Type
1 U.S. Bank Tower Office CBD
1-Comp
2 000 Xxxx Xxxxxx Xxxxxx XXX
2-Comp
3 0000 X Xxxxxx Xxxxxx XXX
3-Comp
0 Xxxxxxxx Xxxx Xxxxxx Xxxxxxxxxxxxx Xxxx
5 Pinnacle Office CBD
6 150 Fifth Avenue Office General Urban
7 High Ridge Park Office General Suburban
8 Independent Square Office CBD
8-Comp
9
9-Comp
9.01 Embassy Suites Brea & Embassy Court Brea Hospitality Full Service
9.02 Embassy Suites Orange County Airport Hospitality Full Service
9.03 Marriott Walnut Creek Hospitality Full Service
9.04 Embassy Suites San Xxxx Obispo Hospitality Full Service
9.05 Embassy Suites Temecula Hospitality Full Service
9.06 Embassy Suites Lompoc Hospitality Full Service
9.07 Radisson Suites- Farmington Hills Hospitality Full Service
10 Pin Oak Portfolio Office General Suburban
11
11.01 Durham RTP Candlewood Suites Hospitality Limited Service
11.02 Fairfax Candlewood Suites Hospitality Limited Service
11.03 Richmond West Candlewood Suites Hospitality Limited Service
11.04 Raleigh Candlewood Suites Hospitality Limited Service
11.05 Xxxxxx-Xxxxxxx Candlewood Suites Hospitality Limited Service
11.06 Richmond Suburban Lodge Hospitality Limited Service
11.07 Greensboro Suburban Lodge Hospitality Limited Service
11.08 Fayetteville Suburban Lodge Hospitality Limited Service
11.09 Hampton Suburban Lodge Hospitality Limited Service
12
12.01 AmeriVest - Parkway Office General Suburban
12.02 Amerivest - Centerra Office General Suburban
12.03 Amerivest - SW Gas Office General Suburban
13 Xxxxx Xxxxx Xxxxx Xxxxxx XXX
00-Xxxx
00 Xxxx Xxxxx Crossing Retail Anchored
15 Marketplace at Huntingdon Valley Retail Anchored
16 Scottsdale Marriott Hospitality Full Service
17 Xxxxxx Business Campus Office General Suburban
17-Comp
18 Preston Forest Retail Anchored
19 Minnesota Center Office General Suburban
20 Greenwich Financial Xxxxxx Xxxxxx XXX
00 0000 Xxxxxxxx Xxxxxxxxx Xxxxxx General Urban
00 Xxxxx Xxxxxxx Xxxxxxxx Xxxxxx Retail Anchored
23 000 Xxxxxxxxx Xxxxxx Mixed Use Office / Retail
24 Encino Office Park Office General Suburban
25 Price Self Storage - West LA Self-Storage Xxxx-Xxxxxxx
00 Xxxxxxxx Xxxxx Retail Anchored
27 Hickory Ridge Pavilion Retail Anchored
28 Park 2000 II Office General Suburban
29 Airport Trade Center Industrial Industrial
30 City Center Office CBD
31
31.01 Metairie, LA Retail Big Box
31.02 Franklin, TN Retail Big Box
31.03 Richardson, TX Retail Big Xxx
00 0000 Xxxxxxxx Xxxxxxxxx Office General Urban
33 Fox Chase Apartments Multifamily Garden
00 Xxxxxxx Xxxxxx Xxxxxxx Office General Suburban
35 Dominicks Grocery & Garage Retail Anchored
36 Plaza North Shopping Center Retail Anchored
37 Chateau des Lions Multifamily Garden
38 Oak Hills Shopping Center Retail Anchored
39
39.01 Antioch, TN Retail Big Box
39.02 McAllen, TX Retail Big Box
39.03 North Charleston Retail Big Xxx
00.00 Xxxxxx, XX Retail Big Xxx
00 Xxxxxxx Xxxxx Xxxxxx Xxxxxxxx
00
41.01 0000 Xxxxx Xxxxxx Self-Storage Self-Storage
41.02 000 Xxxx Xxxxxxxxx Xxxxx Self-Storage Self-Storage
41.03 Xxxxxxx Self-Storage Self-Storage
41.04 4705 Winchester Self-Storage Self-Storage
41.05 American Way Self-Storage Self-Storage
41.06 6390 Winchester Self-Storage Self-Storage
00 Xxxxxx Xxxxxx-Xxxxx Mixed Use Office / Multifamily
43 Fairway Xxxxxxx Apartments Multifamily Townhouse
44
44.01 Carlsbad Self-Storage Self-Storage
44.02 Deming Self-Storage Self-Storage
44.03 El Paso #5 & Centraplex Self-Storage Self-Storage
44.04 El Paso #6 Self-Storage Self-Storage
44.05 Green Valley Self-Storage Self-Storage
44.06 Lovington Self-Storage Self-Storage
44.07 Las Cruces Self-Storage Self-Storage
44.08 Silver City Self-Storage Self-Storage
44.09 Truth or Consequences Self-Storage Self-Storage
45 Cabot Office Centre Office General Suburban
46 440 North Xxxxx Office General Urban
00 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxx Retail Anchored
48 Waterfall Towers Office General Suburban
49 La Xxxxx Xxxx Retail Anchored
50 Greenbriar Hills Multifamily Garden
51 Loma Xxxxx Shopping Center Retail Anchored
52 Orchards Executive Office Office General Suburban
53 Chesapeake Center Office General Suburban
54 The Falls Apartments Multifamily Garden
55 Belle Meadow Apartments Multifamily Garden
56 441 South Livernois Office Office Medical
57 Park 2000 I Self-Storage Self-Storage
58 Impressions Building Office General Suburban
00 Xxxxxxxx Xxxx Xxxxxx Retail Anchored
60 Columbia Commons Office General Xxxxxxxx
00 000 Xxxxx Xxxxxx Multifamily Mid rise
62 Alamerica Bank Building Office General Urban
00 Xxxx Xxxxxxx Xxxxxxx Retail Shadow Anchored
00 Xxxxxxxxxxx Xxxxx Xxxxxx Xxxxxxxx
00 Xxxxxxxx Xxxxxxx MHC Mobile Home Park Mobile Home Park
66 Xxxxxxxx Building Office General Suburban
67 Fairway Club Apartments Multifamily Xxxxxx
00 0000 Xxxxxxxxx Office General Suburban
69 4545 East Xxxx Office General Suburban
70 Anclote Corner Shopping Center Retail Anchored
71 595 Double Eagle Court Office General Suburban
72 9785 Gateway Drive Office General Suburban
00 Xxxxxx Xxxxxxx Retail Unanchored
74 6185 Xxxxxxxx, LLC Industrial Industrial
75 Baybrook Collection Retail Shadow Anchored
76 0000 Xxxxxxx Xxxxx Xxxxxxx Retail Unanchored
77 Lake Carolina Building Office General Suburban
00 Xxxxxxxxx Xxxxx Retail Unanchored
79 Lakeview Gardens Multifamily Garden
80 Big 5 Retail Single Tenant
GCCFC 03-C2 Loan ID Address City County State
1 000 Xxxx Xxxxx Xxxxxx Xxx Xxxxxxx Xxx Xxxxxxx XX
1-Comp
2 000 Xxxx Xxxxxx Xxx Xxxx Xxx Xxxx XX
2-Comp
3 0000 X Xxxxxx, XX Xxxxxxxxxx Xxxxxxxxxx XX DC
3-Comp
4 000 Xxxxxxxx Xxxx Xxxxxxxxxx Xxxxxx XX
5 0000 Xxxx Xxxxx Xxxxxx Xxxxxxx Xxx Xxxxxxx XX
6 000 Xxxxx Xxxxxx Xxx Xxxx Xxx Xxxx XX
7 0-0 Xxxx Xxxxx Xxxx Xxxxxxxx Xxxxxxxxx XX
8 0 Xxxxxxxxxxx Xxxxx Xxxxxxxxxxxx Xxxxx XX
8-Comp
9
9-Comp
9.01 900 & 000 Xxxx Xxxxx Xxxxxx Xxxx Xxxxxx XX
9.02 0000 Xxxx Xxxx Xxxx Xxxxx Xxx Xxxxxx XX
9.03 0000 Xxxxx Xxxx Xxxxxx Xxxxxx Xxxxx Xxxxxx Xxxxx XX
9.04 000 Xxxxxxx Xxxx Xxx Xxxx Xxxxxx Xxx Xxxx Xxxxxx XX
9.05 00000 Xxxxxx Xxxxxxxxxx Xxxx Xxxxxxxx Xxxxxxxxx XX
9.06 0000 Xxxxx X Xxxxxx Xxxxxx Xxxxx Xxxxxxx XX
9.07 00000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxxx Xxxxx Xxxxxxx XX
00 Xxxxxxxx Xxxxxxxxx & Xxxx Xxxx Xxxxx Xxxxxxx Xxxxxx TX
11
11.01 0000 Xxxx Xxxxxxx 00 Xxxxxx Xxxxxx XX
11.02 00000 Xxxxxx Xxxxx Xxxx Xxxxxxx Fairfax VA
11.03 0000 Xxxxxxxxxx Xxxxx Xxxx Xxxxx Xxxxxxx XX
11.04 0000 Xxxx Xxxx Xxxx Xxxxxxx Xxxx XX
11.05 00000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxx Xxxxxxx VA
11.06 0000 Xxxxxxxx Xxxx Xxxxxxxx Xxxxxxx XX
11.07 0000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxx XX
11.08 0000 Xxxxx Xxxxxxxxx Xxxxxxxxxxxx Xxxxxxxxxx XX
11.09 0000 Xxxxx Xxxx Xxxxx Xxxxxxx Xxxxxxx Xxxx XX
12
12.01 0000 Xxxxxx Xxxxx Xxxxxxx Xxxxx Xxxxxx XX
12.02 0000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxxx XX
12.03 00000 Xxxxx Xxxxx Xxxxxx Xxxxxxx Xxxxxxx Xxxxxxxx XX
13 000 Xxxxx Xxxxx Xxxxxx Xxx Xxxxxxx Xxx Xxxxxxx XX
13-Comp
14 0000-0000 Xxxx Xxxxx Xxxx Xxxxxxxxx Xxxxxx Xxxxx XX
15 2000 to 0000 Xxxxxx Xxxx Xxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX
16 00000 X. Xxxxxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxx XX
17 1000, 1100 & 0000 Xxx Xxxxxxxx Xxxx Xxxxxx Xxxxxx Xxxxxx XX
17-Comp
18 00000 Xxxxxxx Xxxx Xxxxxx Xxxxxx XX
19 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxxxx Xxxxxxxx XX
20 0 Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxx CT
21 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxx Xxxxx Xxx Xxxxxxx XX
22 0000-0000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxx Xxxxxx XX
23 000 Xxxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxx XX
24 0000 Xxxxxx Xxxxxxxxx Xxxxxx Xxx Xxxxxxx XX
25 0000 Xxxxx Xx Xxxx Xxxxxx Xxx Xxxxxxx Xxx Xxxxxxx XX
26 8305-8343 Sudley Road Manassas Prince Xxxxxxx VA
27 0000-0000 Xxxxxxxxxx Xxxx Xxxxxxx Xxxxxx XX
28 Park 2000 - Sunset Road, Xxxxxxxx Avenue,
Xxxxxxxx Drive and XxXxxx Drive Las Vegas Xxxxx NV
29 550 and 000 Xxxxx Xxxxxx Xxxxxxxx Xxxxxxxx XX
30 000 X. 0xx Xxxxxx Xx. Xxxxxxxxxx Xxxxxxxx XX
31
31.01 0000 Xxxxxxxx Xxxxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxxxxx XX
31.02 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxxxxxx XX
31.03 0000 Xxxx Xxxxxxxx Xxxx Xxxxxxxxxx Xxxxxx XX
32 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxx Xxxxx Xxx Xxxxxxx XX
33 7300 Nightingale Xxxxxxx Xxxxx OH
34 000 Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxx Xxxx Xxx Xxxxx XX
35 0 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx Xxxx XX
36 000-000 Xxxxx XxXxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxx XX
37 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxx XX
38 0000-0000 Xxxxx Xxxxxxxxx Xxxxxxxxxx Xxxxxxx XX
39
39.01 0000 Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxx Xxxxxxxx XX
39.02 000 X XX Xxxxxxxxxx 00 XxXxxxx Xxxxxxx XX
39.03 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxxxx XX
39.04 0000 Xxxxxx Xxxxxx Xxxxxx Xxxxxxxx XX
40 00000 Xxxxxxxxx Xxxx Xxxxxxxxx Xxxxxxxxxx XX
41
41.01 0000 Xxxxx Xxxxxx Xxxxxxxxxxx Xxxxxx XX
41.02 000 Xxxx Xxxxxxxxx Xxxxx Xxx Xxxxxx Xxx Xxxxx XX
41.03 0000 Xxxxxxxx Xxxx Xxxxxxx Xxxxxx XX
41.04 0000 Xxxxxxxxxx Xxxx Xxxxxxx Xxxxxx XX
41.05 0000 Xxxxxxxx Xxx Xxxxxxx Xxxxxx XX
41.06 0000 Xxxxxxxxxx Xxxx Xxxxxxx Xxxxxx XX
42 000 Xxxxxx Xxxxxx Xxx Xxxxx Xxx Xxxxx XX
43 00 Xxxxxx Xxxx Xxxxxx Xxxxxxxxxx XX
44
44.01 000-000 X. 0xx Xxxxxx Xxxxxxxx Eddy NM
44.02 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxx Xxxx XX
44.03 000 Xxxxx Xxxxx & 0000 Xxxxx Xxxxxx Xx Xxxx Xx Xxxx XX
44.04 00000 Xxxxx Xxxx Xxxxx Xx Xxxx Xx Xxxx XX
44.05 000 X. Xxxxxx Xxxx Verde Green Valley Pima AZ
44.06 0000-0000 Xxxxx Xxxx Xxxxxx Xxxxxxxxx Xxx XX
44.07 0000 X. Xxxxxx Xxxxxx Xxx Xxxxxx Xxxx Xxx XX
44.08 11732 Hwy 000 X Xxxxxx Xxxx Xxxxx XX
44.09 000 Xxxxx Xxxxxxx 51 Truth or Consequences Sierra NM
45 28700 & 00000 Xxxxx Xxxxx Xxxx Xxxxxxx XX
46 000 Xxxxx Xxxxx Xxxxxx Xxxxxxx Xxxx XX
47 0000 Xxxxxxxxx Xxxx Xxx Xxxxx Xxxxx Xxxxx XX
48 0000 Xxxxxxx Xxxxxx Xxxx Xxxxx Xxxx Xxxxxx XX
49 0000-0000 Xxxxxxxx Xxxx. Xx Xxxxx Xxx Xxxxxxx XX
50 000 Xxxxx Xxxxxxx Xxxxxxxxx Litchfield CT
51 000-000 Xxxx Xxxxxxxx Xxxx Xxxxxxx Xxxxx Xxxx XX
52 00000 Xxxxxxxx Xxxx Xxxxxxxxxx Xxxxx Xxxxxxx XX
53 0000 Xxxxxxxxxx Xxxxx Xxx Xxxxx Xxx Xxxxx XX
54 0000 Xxxxxxxxx Xxxxxx Xxx Xxxxx Xxxxx XX
55 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxx Xxxxxxxxxx XX
56 000 Xxxxx Xxxxxxxxx Xxxx Xxxxxxxxx Xxxxx Xxxxxxx XX
57 2550 and 0000 Xxxxxxxx Xxxxxx Xxx Xxxxx Xxxxx XX
58 0000 Xxxxxxxxx Xxxxx Xxxx Xxxxxxxx Xxxxxxxx XX
59 0000 Xxxxx Xxxxxxx 00 Xxxxxxx Xxxxx XX
60 000 Xxxxx Xxxxxxxx Xxxxxxx Xx. Xxxxxx Xxxxxxxx OR
61 000 Xxxxx Xxxxxx Xxx Xxxxxxx Xxx Xxxxxxx XX
62 0000 Xxxxxxxx Xxxxxx Xxxxxxxxxx Jefferson AL
63 4249 & 0000 Xxxx Xxxx Xxxxxxx Xxxx XX
64 0000 Xxxxxxxxxxx Xxxx Xxxxxxx Xxxxxx XX
65 0000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxxxx XX
66 00000 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxx XX
67 00 Xxxxx Xxxx Xxxxxxxxxx Xxxxxxxxxx XX
68 0000 Xxxxx. Xxxxxxxxx Xxxxxxxxx Xxx Xxxxxxx Xxx Xxxxxxx XX
69 0000 Xxxx Xxxx Xxxxxxxxx Xxxxxxx Xxxxxxxx XX
70 0000-0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxx Xxxxxxx Pinellas FL
71 000 Xxxxxx Xxxxx Xxxxx Xxxx Washoe NV
72 0000 Xxxxxxx Xxxxx Xxxx Xxxxxx XX
73 315, 319, & 000 Xxxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxx Xxxxxxx XX
74 0000 Xxxxxxxx Xxxxx and 0000 XxXxxx Xxxxx Xxx Xxxxx Xxxxx XX
75 00000 Xxxx Xxxxxxx Xxxxxxx Xxxxxx XX
76 0000 Xxxxxxx Xxxxx Xxxxxxx Xxxxxxxx Xxx Xxxxxxx XX
77 000 Xxxx Xxxxxx Xxxx Xxxxxxxx Xxxxxxxx XX
78 0000-0000 Xxxxx Xxxxxxxxxx Xxxxxxx 00 Xxxx-Xxxxxxxx XxXxxxxx XX
79 000 Xxxxxxxx Xxxxx Xxxxx Xxxxx XX
80 00000 Xxx Xxxxx Xxxxxxxxx Xx Xxxxxxx Xxxxxx Xxxxx XX
Gross
Monthly Debt Interest
GCCFC 03-C2 Loan ID Zip Code Original Balance Cut-off Date Balance Service Rate Seasoning
1 90071 120,240,000 120,240,000.00 963,066.67 4.6600% 5
1-Comp 139,760,000 139,760,000.00 4.6600% 5
2 10017 119,333,334 119,333,334.00 1,745,868.19 5.7860% 1
2-Comp 178,666,666 178,666,666.00 5.7860% 1
3 20006 117,115,625 117,115,625.00 741,565.17 5.5780% 3
3-Comp 12,371,875 12,371,875.00 5.5780% 3
4 11801 97,000,000 97,000,000.00 610,270.90 6.4200% 5
5 91505 86,100,000 86,100,000.00 379,557.50 5.2900% 0
6 10011 66,000,000 66,000,000.00 396,722.30 6.0240% 2
7 06905 58,000,000 58,000,000.00 312,420.82 5.0300% 2
8 32202 55,000,000 55,000,000.00 316,923.62 5.6340% 0
8-Comp 14,000,000 14,000,000.00 5.6340% 0
9 55,000,000 54,630,244.44 773,624.00 6.9980% 6
9-Comp 70,000,000 69,527,577.31 6.9980% 6
9.01 92821
9.02 92705
9.03 94596
9.04 93405
9.05 92591
9.06 93436
9.07 48335
10 77401 40,000,000 40,000,000.00 247,765.92 6.1940% 3
11 39,000,000 39,000,000.00 281,392.35 7.2300% 2
11.01 27713
11.02 22030
11.03 23060
11.04 27612
11.05 20171
11.06 23294
11.07 27407
11.08 28303
11.09 23666
12 39,000,000 38,876,849.16 230,953.76 5.1300% 2
12.01 75093
12.02 80222
12.03 85029
13 90071 38,812,500 38,812,500.00 1,293,590.96 4.6800% 5
13-Comp 211,187,500 211,187,500.00 4.6800% 5
14 94513 36,975,000 36,975,000.00 198,941.99 5.0200% 5
15 19006 36,000,000 36,000,000.00 232,531.22 6.4830% 2
16 85260 33,500,000 33,500,000.00 175,506.50 6.0840% 0
17 07950 31,000,000 30,690,338.52 191,074.00 6.2600% 11
17-Comp 5,500,000 5,445,060.06 6.2600% 11
18 75230 30,700,000 30,516,288.07 177,211.39 5.6500% 6
19 55435 30,000,000 29,971,154.02 183,370.98 6.1810% 1
20 06830 30,000,000 29,919,649.01 185,007.93 6.2650% 3
21 90212 28,500,000 28,469,537.43 164,080.07 5.6260% 1
22 30341 28,000,000 28,000,000.00 182,725.60 6.8100% 1
23 06830 26,350,000 26,272,112.33 154,609.43 5.8000% 3
24 91316 26,000,000 25,973,668.10 154,381.90 5.9100% 1
25 90016 25,000,000 24,957,872.41 155,722.29 6.3600% 2
26 20109 22,000,000 22,000,000.00 129,787.01 5.8500% 0
27 38115 20,300,000 20,257,604.38 148,970.62 6.3000% 1
28 89120 19,000,000 19,000,000.00 118,348.94 6.3600% 0
29 96819 18,000,000 18,000,000.00 111,564.07 6.2000% 0
30 33701 17,000,000 17,000,000.00 108,909.07 6.6300% 0
31 16,940,000 16,924,279.79 105,572.79 6.3650% 1
31.01 70123
31.02 37064
31.03 75080
32 90211 16,000,000 16,000,000.00 95,183.57 5.9275% 0
33 43528 15,000,000 15,000,000.00 92,650.45 6.2800% 2
34 94061 14,500,000 14,500,000.00 87,169.16 5.2825% 0
35 60661 14,000,000 14,000,000.00 91,465.45 6.8210% 0
36 94954 14,000,000 14,000,000.00 81,993.93 5.7830% 0
37 70503 13,600,000 13,517,733.53 78,074.74 5.6000% 6
38 94566 13,500,000 13,500,000.00 78,439.63 5.7100% 0
39 12,750,000 12,750,000.00 78,545.41 6.2550% 0
39.01 37013
39.02 78503
39.03 29406
39.04 30136
40 20850 12,500,000 12,500,000.00 74,006.14 5.8830% 0
41 10,816,000 10,758,204.85 70,649.46 6.1450% 4
41.01 92683
41.02 92069
41.03 38018
41.04 38118
41.05 38115
41.06 38115
42 06510 10,000,000 10,000,000.00 60,793.39 6.1300% 0
43 37167 9,800,000 9,800,000.00 59,450.80 6.1100% 0
44 8,585,000 8,571,856.79 55,796.33 6.7700% 2
44.01 88220
44.02 88030
44.03 79905
44.04 79936
44.05 85614
44.06 88260
44.07 88001
44.08 88022
44.09 87901
45 48377 8,300,000 8,259,013.90 47,700.91 5.6100% 5
46 60610 8,250,000 8,241,821.58 49,579.67 6.0220% 1
47 94024 8,000,000 7,991,227.06 45,372.94 5.4900% 1
48 95404 8,000,000 7,916,922.19 48,360.80 6.0770% 11
49 91750 7,700,000 7,692,346.33 46,205.00 6.0080% 1
50 06779 7,720,000 7,671,261.51 43,350.18 5.4000% 6
51 85621 7,120,000 7,057,721.69 48,329.72 7.2000% 12
52 48335 6,750,000 6,750,000.00 47,198.17 5.7000% 0
53 92123 6,350,000 6,350,000.00 38,018.40 5.9870% 0
54 89119 6,300,000 6,276,008.31 37,126.07 5.8400% 4
55 45426 6,250,000 6,250,000.00 39,874.90 6.5900% 0
56 48307 6,200,000 6,200,000.00 36,576.34 5.8500% 0
57 89102 6,060,000 6,051,295.63 39,155.87 6.0300% 1
58 43214 5,775,000 5,775,000.00 33,657.32 5.7380% 0
59 95948 5,275,000 5,220,670.06 32,020.76 6.1160% 11
60 97051 4,540,000 4,540,000.00 26,057.46 5.5980% 0
61 90005 4,400,000 4,391,383.89 25,509.74 5.6900% 2
62 35205 4,400,000 4,388,657.84 27,643.37 6.4420% 3
63 53704 4,250,000 4,250,000.00 27,071.91 5.8800% 0
64 30311 4,100,000 4,013,629.86 31,688.89 6.9600% 11
65 49221 4,000,000 4,000,000.00 21,964.44 5.2000% 0
66 48126 3,750,000 3,746,616.53 23,727.22 6.5100% 1
67 29615 3,500,000 3,500,000.00 21,006.78 6.0100% 0
68 90045 3,560,000 3,479,577.94 26,100.03 7.4100% 20
69 85028 3,128,000 3,096,590.27 20,810.66 7.0000% 13
70 34689 2,750,000 2,737,566.06 16,487.64 6.0000% 5
71 89511 2,700,000 2,695,471.13 16,853.32 6.3800% 2
72 89511 2,700,000 2,693,049.12 16,973.61 6.4480% 3
73 91105 2,600,000 2,592,719.73 15,683.72 6.0570% 3
74 89120 2,560,000 2,560,000.00 15,762.36 6.2500% 0
75 77546 2,400,000 2,392,019.74 15,078.20 6.4420% 4
76 90505 2,225,000 2,217,750.89 14,107.44 6.5300% 4
77 29229 1,995,000 1,986,488.66 12,283.56 6.2500% 5
78 76705 1,350,000 1,346,819.32 8,846.00 6.8500% 3
79 29379 1,275,000 1,264,447.94 8,207.05 5.9900% 6
80 94530 800,000 796,910.96 6,007.05 6.5900% 2
Stated Remaining Interest
Original Remaining Original Original Interest Remaining Accrual
Term to Term to Interest Amortization Only Amortization Method
Maturity Maturity Only Term Term Period Term (Actual/360
GCCFC 03-C2 Loan ID (mos.) (mos.) (mos.) (mos.) (mos.) (mos.) or 30/360)
1 120 115 120 NA 115 NA Actual/360
1-Comp 120 115 120 NA 115 NA Actual/360
2 84 83 36 360 35 360 Actual/360
2-Comp 84 83 36 360 35 360 Actual/360
3 84 81 24 360 21 360 Actual/360
3-Comp 84 81 24 360 21 360 Actual/360
4 120 115 5 356 0 356 Actual/360
5 120 120 120 NA 120 NA Actual/360
6 102 100 48 360 46 360 Actual/360
7 60 58 12 360 10 360 Actual/360
8 60 60 0 360 0 360 Actual/360
8-Comp 60 60 0 360 0 360 Actual/360
9 84 78 0 300 0 294 Actual/360
9-Comp 84 78 0 300 0 294 Actual/360
9.01
9.02
9.03
9.04
9.05
9.06
9.07
10 120 117 12 348 9 348 Actual/360
11 120 118 11 300 9 300 Actual/360
11.01
11.02
11.03
11.04
11.05
11.06
11.07
11.08
11.09
12 60 58 0 300 0 298 Actual/360
12.01
12.02
12.03
13 84 79 36 360 31 360 Actual/360
13-Comp 84 79 36 360 31 360 Actual/360
14 120 115 24 360 19 360 Actual/360
15 96 94 24 336 22 336 Actual/360
16 60 60 60 NA 60 NA Actual/360
17 120 109 0 360 0 349 Actual/360
17-Comp 120 109 0 360 0 349 Actual/360
18 120 114 0 360 0 354 Actual/360
19 84 83 0 360 0 359 Actual/360
20 120 117 0 360 0 357 Actual/360
21 120 119 0 360 0 359 Actual/360
22 120 119 9 360 8 360 Actual/360
23 120 117 0 360 0 357 Actual/360
24 120 119 0 360 0 359 Actual/360
25 120 118 0 360 0 358 Actual/360
26 144 144 0 360 0 360 Actual/360
27 120 119 0 240 0 239 Actual/360
28 120 120 0 360 0 360 Actual/360
29 120 120 0 348 0 348 Actual/360
30 84 84 0 360 0 360 Actual/360
31 120 119 0 360 0 359 Actual/360
31.01
31.02
31.03
32 120 120 0 360 0 360 Actual/360
33 60 58 5 360 3 360 Actual/360
34 60 60 0 300 0 300 Actual/360
35 120 120 0 360 0 360 Actual/360
36 120 120 0 360 0 360 Actual/360
37 120 114 0 360 0 354 Actual/360
38 120 120 0 360 0 360 Actual/360
39 120 120 0 360 0 360 Actual/360
39.01
39.02
39.03
39.04
40 120 120 0 360 0 360 Actual/360
41 84 80 0 300 0 296 Actual/360
41.01
41.02
41.03
41.04
41.05
41.06
42 120 120 0 360 0 360 Actual/360
43 120 120 0 360 0 360 Actual/360
44 84 82 0 360 0 358 Actual/360
44.01
44.02
44.03
44.04
44.05
44.06
44.07
44.08
44.09
45 120 115 0 360 0 355 Actual/360
46 120 119 0 360 0 359 Actual/360
47 120 119 0 360 0 359 Actual/360
48 120 109 0 360 0 349 Actual/360
49 120 119 0 360 0 359 Actual/360
50 120 114 0 360 0 354 Actual/360
51 120 108 0 360 0 348 Actual/360
52 120 120 0 240 0 240 Actual/360
53 60 60 0 360 0 360 Actual/360
54 120 116 0 360 0 356 Actual/360
55 84 84 0 360 0 360 Actual/360
56 120 120 0 360 0 360 Actual/360
57 120 119 0 300 0 299 Actual/360
58 120 120 0 360 0 360 Actual/360
59 120 109 0 360 0 349 Actual/360
60 60 60 0 360 0 360 Actual/360
61 120 118 0 360 0 358 Actual/360
62 120 117 0 360 0 357 Actual/360
63 120 120 0 300 0 300 Actual/360
64 120 109 0 240 0 229 Actual/360
65 60 60 0 360 0 360 Actual/360
66 120 119 0 360 0 359 Actual/360
67 120 120 0 360 0 360 Actual/360
68 120 100 0 300 0 280 Actual/360
69 120 107 0 360 0 347 Actual/360
70 120 115 0 360 0 355 Actual/360
71 120 118 0 360 0 358 Actual/360
72 120 117 0 360 0 357 Actual/360
73 120 117 0 360 0 357 Actual/360
74 120 120 0 360 0 360 Actual/360
75 120 116 0 360 0 356 Actual/360
76 120 116 0 360 0 356 Actual/360
77 120 115 0 360 0 355 Actual/360
78 120 117 0 360 0 357 Actual/360
79 120 114 0 300 0 294 Actual/360
80 120 118 0 240 0 238 Actual/360
Master Primary Mortgage
Administrative Servicing Servicing Ownership Interest Loan Prepayment
GCCFC 03-C2 Loan ID Fee Rate Fee Fee (Fee/Leasehold) Seller Type
1 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
1-Comp 0.0100% 0.0000% 0.0100%
2 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
2-Comp 0.0100% 0.0000% 0.0100%
3 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
3-Comp 0.0100% 0.0000% 0.0100%
4 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
5 0.0206% 0.0100% 0.0100% Fee Simple GCFP YM / Defeasance
6 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
7 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
8 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
8-Comp 0.0000% 0.0000% 0.0000%
9 0.0206% 0.0100% 0.0100% GCFP Defeasance
9-Comp 0.0000% 0.0000% 0.0000%
9.01 Leasehold GCFP
9.02 Fee Simple GCFP
9.03 Fee Simple GCFP
9.04 Fee Simple GCFP
9.05 Fee Simple GCFP
9.06 Fee Simple GCFP
9.07 Fee Simple GCFP
10 0.0706% 0.0100% 0.0600% Fee Simple GCFP Defeasance
11 0.0206% 0.0100% 0.0100% GCFP Defeasance
11.01 Fee Simple GCFP
11.02 Fee Simple GCFP
11.03 Fee Simple GCFP
11.04 Fee Simple GCFP
11.05 Fee Simple GCFP
11.06 Fee Simple GCFP
11.07 Fee Simple GCFP
11.08 Fee Simple GCFP
11.09 Fee Simple GCFP
12 0.0506% 0.0100% 0.0400% GCFP Defeasance
12.01 Fee Simple GCFP
12.02 Fee Simple GCFP
12.03 Fee Simple GCFP
13 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
13-Comp 0.0100% 0.0000% 0.0100%
14 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
15 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
16 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
17 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
17-Comp 0.0100% 0.0000% 0.0100%
18 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
19 0.0706% 0.0100% 0.0600% Fee Simple GCFP Defeasance
20 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
21 0.0206% 0.0100% 0.0100% Leasehold GCFP Defeasance
22 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
23 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
24 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
25 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
26 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
27 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
28 0.0206% 0.0100% 0.0100% Fee Simple GCFP YM
29 0.0206% 0.0100% 0.0100% Leasehold GCFP Defeasance
30 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
31 0.0206% 0.0100% 0.0100% GCFP Defeasance
31.01 Fee Simple GCFP
31.02 Fee Simple GCFP
31.03 Fee Simple GCFP
32 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
33 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
34 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
35 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
36 0.0206% 0.0100% 0.0100% Fee Simple GCFP YM
37 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
38 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
39 0.0206% 0.0100% 0.0100% GCFP Defeasance
39.01 Fee Simple GCFP
39.02 Fee Simple GCFP
39.03 Fee Simple GCFP
39.04 Fee Simple GCFP
40 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
41 0.1106% 0.0100% 0.1000% GCFP Defeasance
41.01 Fee Simple GCFP
41.02 Fee Simple GCFP
41.03 Fee Simple GCFP
41.04 Fee Simple GCFP
41.05 Fee Simple GCFP
41.06 Fee Simple GCFP
42 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
43 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
44 0.1106% 0.0100% 0.1000% GCFP Defeasance
44.01 Fee Simple GCFP
44.02 Fee Simple GCFP
44.03 Fee Simple GCFP
44.04 Fee Simple GCFP
44.05 Fee Simple GCFP
44.06 Fee Simple GCFP
44.07 Fee Simple GCFP
44.08 Fee Simple GCFP
44.09 Fee Simple GCFP
45 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
46 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
47 0.0206% 0.0100% 0.0100% Fee Simple GCFP YM
48 0.0906% 0.0100% 0.0800% Fee Simple GCFP Defeasance
49 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
50 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
51 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
52 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
53 0.0206% 0.0100% 0.0100% Fee Simple GCFP YM
54 0.0206% 0.0100% 0.0100% Fee Simple GCFP YM
55 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
56 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
57 0.0206% 0.0100% 0.0100% Fee Simple GCFP YM
58 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
59 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
60 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
61 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
62 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
63 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
64 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
65 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
66 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
67 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
68 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
69 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
70 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
71 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
72 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
73 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
74 0.0206% 0.0100% 0.0100% Fee Simple / Leasehold GCFP YM
75 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
76 0.0606% 0.0100% 0.0500% Fee Simple GCFP Defeasance
77 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
78 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
79 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
80 0.0206% 0.0100% 0.0100% Fee Simple GCFP Defeasance
Crossed
With Other
Loans
GCCFC 03-C2 Loan ID (Crossed Group)
1 NAP
1-Comp
2 NAP
2-Comp
3 NAP
3-Comp
4 NAP
5 NAP
6 NAP
7 NAP
8 NAP
8-Comp
9 NAP
9-Comp
9.01
9.02
9.03
9.04
9.05
9.06
9.07
10 NAP
11 NAP
11.01
11.02
11.03
11.04
11.05
11.06
11.07
11.08
11.09
12 NAP
12.01
12.02
12.03
13 NAP
13-Comp
14 NAP
15 NAP
16 NAP
17 NAP
17-Comp
18 NAP
19 NAP
20 NAP
21 NAP
22 NAP
23 NAP
24 NAP
25 NAP
26 NAP
27 NAP
28 NAP
29 NAP
30 NAP
31 NAP
31.01
31.02
31.03
32 NAP
33 NAP
34 NAP
35 NAP
36 NAP
37 NAP
38 NAP
39 NAP
39.01
39.02
39.03
39.04
40 NAP
41 NAP
41.01
41.02
41.03
41.04
41.05
41.06
42 NAP
43 NAP
44 NAP
44.01
44.02
44.03
44.04
44.05
44.06
44.07
44.08
44.09
45 NAP
46 NAP
47 NAP
48 NAP
49 NAP
50 NAP
51 NAP
52 NAP
53 NAP
54 NAP
55 NAP
56 NAP
57 NAP
58 NAP
59 NAP
60 NAP
61 NAP
62 NAP
63 NAP
64 NAP
65 NAP
66 NAP
67 NAP
68 NAP
69 NAP
70 NAP
71 NAP
72 NAP
73 NAP
74 NAP
75 NAP
76 NAP
77 NAP
78 NAP
79 NAP
80 NAP
SCHEDULE II
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
NONE
SCHEDULE III
SCHEDULE OF ENVIRONMENTALLY INSURED MORTGAGE LOANS
---------------------------------------------------------------------------------------
Mortgage Loan Cut-off Date
Number Property Name Address Balance
---------------------------------------------------------------------------------------
0 Xxxxxxxx Xxxx 000 Xxxxxxxx Mall, $120,240,000
Xxxxxxxxxx, Xxx Xxxx 00000
---------------------------------------------------------------------------------------
00 Xxxxxxxxxxx Xxxxx 0000 Xxxxxxxxxx Road, $4,013,630
Xxxxxxx, Xxxxxxx 00000
---------------------------------------------------------------------------------------
SCHEDULE IVA
CLASS XP REFERENCE RATE SCHEDULE
Interest Accrual Period Payment Date Class XP Reference Rate
----------------------- ---------------- -----------------------
1 January 5, 2004 5.95515
2 February 5, 2004 5.76053
3 March 5, 2004 5.76053
4 April 5, 2004 5.95477
5 May 5, 2004 5.76016
6 June 5, 2004 5.95452
7 July 5, 2004 5.75992
8 August 5, 2004 5.95426
9 September 5, 2004 5.95414
10 October 5, 2004 5.75954
11 November 5, 2004 5.95381
12 December 5, 2004 5.75920
13 January 5, 2005 5.75903
14 February 5, 2005 5.75890
15 March 5, 2005 5.75913
16 April 5, 2005 5.95295
17 May 5, 2005 5.75837
18 June 5, 2005 5.95262
19 July 5, 2005 5.75805
20 August 5, 2005 5.95229
21 September 5, 2005 5.95216
22 October 5, 2005 5.75761
23 November 5, 2005 5.95187
24 December 5, 2005 5.75734
25 January 5, 2006 5.75718
26 February 5, 2006 5.75705
27 March 5, 2006 5.75739
28 April 5, 2006 5.95107
29 May 5, 2006 5.75656
30 June 5, 2006 5.95076
31 July 5, 2006 5.75625
32 August 5, 2006 5.95044
33 September 5, 2006 5.95033
34 October 5, 2006 5.75586
35 November 5, 2006 5.95007
36 December 5, 2006 5.75561
37 January 5, 2007 5.75547
38 February 5, 2007 5.75536
39 March 5, 2007 5.75580
40 April 5, 2007 5.94937
41 May 5, 2007 5.75493
42 June 5, 2007 5.94910
43 July 5, 2007 5.75466
44 August 5, 2007 5.94882
45 September 5, 2007 5.94869
46 October 5, 2007 5.75427
47 November 5, 2007 5.96977
48 December 5, 2007 5.77468
49 January 5, 2008 5.96951
50 February 5, 2008 5.77443
51 March 5, 2008 5.77452
52 April 5, 2008 5.96910
53 May 5, 2008 5.77403
54 June 5, 2008 5.96883
55 July 5, 2008 5.77376
56 August 5, 2008 5.96856
57 September 5, 2008 5.96843
58 October 5, 2008 5.77337
59 November 5, 2008 6.01091
60 December 5, 2008 5.81446
61 January 5, 2009 5.81985
62 February 5, 2009 5.82604
63 March 5, 2009 5.82867
64 April 5, 2009 6.02222
65 May 5, 2009 5.82536
66 June 5, 2009 6.02178
67 July 5, 2009 5.82492
68 August 5, 2009 6.02132
69 September 5, 2009 6.02111
70 October 5, 2009 5.82427
71 November 5, 2009 6.02064
72 December 5, 2009 5.82381
73 January 5, 2010 5.82357
74 February 5, 2010 5.82335
75 March 5, 2010 5.82385
76 April 5, 2010 6.01939
77 May 5, 2010 5.82259
78 June 5, 2010 6.01889
79 July 5, 2010 5.78257
80 August 5, 2010 6.01107
81 September 5, 2010 6.00957
82 October 5, 2010 5.84102
83 November 5, 2010 6.03260
84 December 5, 2010 5.84251
SCHEDULE V
SCHEDULE OF INITIAL DIRECTING HOLDER FOR EACH LOAN PAIR
--------------------------------------------------------------------------
Mortgage Loan
Number Property Name Directing Holder
--------------------------------------------------------------------------
U.S. Bank Tower Greenwich Capital Financial
1 Products, Inc. (as holder of
Note A-1B)
--------------------------------------------------------------------------
000 Xxxx Xxxxxx Each of Greenwich Capital
Funding Corp., as depositor,
Commercial Mortgage Trust
2003-C2 (as holder of Note A-1),
2 Greenwich Capital Financial
Products, Inc. (as holder of
Note A-2) and Greenwich Capital
Financial Products, Inc. (as
holder of Note A-3)
--------------------------------------------------------------------------
1801 K Street Greenwich Capital Funding Corp.,
3 as depositor, Commercial
Mortgage Trust 2003-C2
--------------------------------------------------------------------------
0 Xxxxxxxxxxxx Xxxxxx Carbon Capital, Inc.
--------------------------------------------------------------------------
Windsor Capital
9 Portfolio Anthracite Capital, Inc
--------------------------------------------------------------------------
Xxxxx Fargo Tower Greenwich Capital Financial
13 Products, Inc. (as holder of
Note A-1B)
--------------------------------------------------------------------------
Xxxxxx Business Campus Harborview Commercial Holdings
18 I, LLC
--------------------------------------------------------------------------
SCHEDULE VI
SUPPLEMENTAL SERVICER SCHEDULE
GCCFC 03-C2 Loan ID Control_Number Loan ID Loan Name
------------------- -------------- ---------- ---------------------------------
1 13949 00-0000000 U.S. Bank Tower
2 03-0535 00-0000000 000 Xxxx Xxxxxx
3 28862 00-0000000 0000 X Xxxxxx
4 23746 00-0000000 Broadway Mall
5 03-0239 00-0000000 Pinnacle
6 03-0161 00-0000000 000 Xxxxx Xxxxxx
0 00000 00-0000000 Xxxx Xxxxx Xxxx
8 28829 00000 Xxxxxxxxxxx Xxxxxx
9 03-0059 00-0000000 Windsor Hotel Portfolio
9.01 03-0059 00-0000000 Windsor Hotel Portfolio
9.02 03-0059 00-0000000 Windsor Hotel Portfolio
9.03 03-0059 00-0000000 Windsor Hotel Portfolio
9.04 03-0059 00-0000000 Windsor Hotel Portfolio
9.05 03-0059 00-0000000 Windsor Hotel Portfolio
9.06 03-0059 00-0000000 Windsor Hotel Portfolio
9.07 03-0059 00-0000000 Windsor Hotel Portfolio
10 28788 00-0000000 Pin Oak Portfolio
11 28775 00-0000000 Generation Co Hotel Portfolio
11.01 28775 00-0000000 Generation Co Hotel Portfolio
11.02 28775 00-0000000 Generation Co Hotel Portfolio
11.03 28775 00-0000000 Generation Co Hotel Portfolio
11.04 28775 00-0000000 Generation Co Hotel Portfolio
11.05 28775 00-0000000 Generation Co Hotel Portfolio
11.06 28775 00-0000000 Generation Co Hotel Portfolio
11.07 28775 00-0000000 Generation Co Hotel Portfolio
11.08 28775 00-0000000 Generation Co Hotel Portfolio
11.09 28775 00-0000000 Generation Co Hotel Portfolio
12 28956 00-0000000 AmeriVest Portfolio
12.01 28956 00-0000000 AmeriVest Portfolio
12.02 28956 00-0000000 AmeriVest Portfolio
12.03 28956 00-0000000 AmeriVest Portfolio
13 28918 00-0000000 Xxxxx Xxxxx Xxxxx
00 00000 00-0000000 Sand Creek Crossing
15 28833 00-0000000 Marketplace at Huntingdon Valley
16 03-0558 03-0558 Scottsdale Marriott
17 03-0244 00-0000000 Xxxxxx Business Campus
18 28810 00-0000000 Preston Forest
19 03-0221 00-0000000 Minnesota Center
20 23737 00-0000000 Greenwich Financial Center
21 03-0546 00-0000000 0000 Xxxxxxxx Xxxxxxxxx
22 03-0119 03-0119 Xxxxx Xxxxxxx Xxxxxxxx Xxxxxx
00 00000 00-0000000 000 Xxxxxxxxx Xxxxxx
24 03-0152 00-0000000 Encino Office Park
25 03-0248 00-0000000 Price Self Storage - West LA
26 03-0525 00-0000000 Xxxxxxxx Xxxxx
00 00000 00-0000000 Xxxxxxx Xxxxx Xxxxxxxx
00 00-0000 000000 Xxxx 2000 II
29 03-0293 00-0000000 Airport Trade Center
30 03-0388 00-0000000 City Center
31 03-0170 03-0170 KLA Retail Pool B
31.01 03-0170 03-0170 KLA Retail Pool B
31.02 03-0170 03-0170 KLA Retail Pool B
31.03 03-0170 03-0170 KLA Retail Pool B
32 03-0238 00-0000000 0000 Xxxxxxxx Xxxxxxxxx
33 03-0373 00-0000000 Fox Chase Apartments
34 03-0487 00-0000000 000 Xxxxxxx Xxxxxx Xxxxxxx
35 03-0158 03-0158 Dominick's Grocery & Garage
36 03-0435 00-0000000 Plaza North Shopping Center
37 03-0243 00-0000000 Chateau des Lions
38 28957 00-0000000 Oak Hills Shopping Center
39 03-0169 03-0169 KLA Retail Pool A
39.01 03-0169 03-0169 KLA Retail Pool A
39.02 03-0169 03-0169 KLA Retail Pool A
39.03 03-0169 03-0169 KLA Retail Pool A
39.04 03-0169 03-0169 KLA Retail Pool A
40 03-0381 00-0000000 College Plaza
41 03-0149 00-0000000 Storage USA
41.01 03-0149 00-0000000 Storage USA
41.02 03-0149 00-0000000 Storage USA
41.03 03-0149 00-0000000 Storage USA
41.04 03-0149 00-0000000 Storage USA
41.05 03-0149 00-0000000 Storage USA
41.06 03-0149 00-0000000 Storage USA
42 03-0384 00-0000 Xxxxxx Xxxxxx
43 03-0582 03-0582 Fairway Xxxxxxx Apartments
44 03-0071 00-0000000 NSS SW Investors, L.P.
44.01 03-0071 00-0000000 NSS SW Investors, L.P.
44.02 03-0071 00-0000000 NSS SW Investors, L.P.
44.03 03-0071 00-0000000 NSS SW Investors, L.P.
44.04 03-0071 00-0000000 NSS SW Investors, L.P.
44.05 03-0071 00-0000000 NSS SW Investors, L.P.
44.06 03-0071 00-0000000 NSS SW Investors, L.P.
44.07 03-0071 00-0000000 NSS SW Investors, L.P.
44.08 03-0071 00-0000000 NSS SW Investors, L.P.
44.09 03-0071 00-0000000 NSS SW Investors, L.P.
45 03-0044 00-0000000 Xxxxx Xxxxxx Xxxxxx
00 00000 00-0000000 440 North Xxxxx
47 03-0438 00-0000000 Foothill Crossing Shopping Center
48 03-0247 00-0000000 Waterfall Towers
49 03-0382 00-0000000 Xx Xxxxx Xxxx
00 00000 00-0000000 Xxxxxxxxxx Xxxxx
51 03-0035 00-0000000 Loma Xxxxx Shopping Center
52 03-0672 03-0672 Orchards Executive
53 03-0641 00-0000000 Chesapeake Center
54 03-0061 00-0000000 The Falls Apartments
55 28925 00-0000000 Belle Meadow Apartments
56 03-0503 00-0000000 441 South Livernois Office
57 03-0378 400063 Park 2000 I
58 03-0151 03-0151 Impressions Building
59 03-0242 00-0000000 Heritage Oaks Square
60 03-0580 00-0000000 Columbia Commons
61 03-0466 00-0000000 840 South Hobart
62 28863 00-0000000 Alamerica Bank Building
63 03-0595 00-0000000 East Prairie Commons
64 03-0245 00-0000000 Xxxxxxxxxxx Xxxxx
00 00-0000 00-0000 Xxxxxxxx Xxxxxxx MHC
66 03-0344 00-0000000 Xxxxxxxx Building
67 23867 00-0000000 Fairway Club Apartments
68 03-0216 00-0000000 0000 Xxxxxxxxx
69 03-0267 00-0000000 0000 Xxxx Xxxx Xxxxxxxxx
70 03-0164 400061 Anclote Corner Shopping Center
71 03-0114 00-0000000 000 Xxxxxx Xxxxx Xxxxx
72 03-0113 00-0000000 0000 Xxxxxxx Xxxxx
73 03-0154 00-0000000 Xxxxxx Parkway
74 03-0380 400065 6185 Xxxxxxxx/6265 XxXxxx, LLC
75 28864 00-0000000 Baybrook Collection
76 03-0077 00-0000000 0000 Xxxxxxx Xxxxx Xxxxxxx
77 23835 400060 Lake Carolina Building
78 03-0165 000000 Xxxxxxxxx Xxxxx
79 23834 400059 Lakeview Gardens
80 03-0339 00-0000000 Big 5
GCCFC 03-C2 Loan ID Borrower Name
------------------- -----------------------------------------------------------------------------------
0 Xxxxxxx Xxxxxx Associates, LLC
2 237 Max Park Avenue, L.P.
3 1801 K Street Investors, L.L.C.
4 GG&A Broadway Partners, LLC
5 DB Real Estate The Pinnacle, L.P.
6 150 5th Ave, LP
7 AG-GCS High Ridge, LLC
8 Independent Square, LLC
9 Xxxxxxx Partners Brea Venture, Ltd; Xxxxxxx Partners Orange County Vent, Ltd.;
Xxxxxxx Farmington Hills Venture LLC; Xxxxxxx Partners Lompoc Venture Ltd.; Xxxxxxx
Ptn San Xxxx Obispo Vent Ltd.; Xxxxxxx Partners Temecula Venture Ltd.; Xxxxxxx
Partners Walnut Creek, Ltd.
9.01
9.02
9.03
9.04
9.05
9.06
9.07
00 XXX Xxxx Xxxx Associates, #6, Ltd.
11 Generation Properties I, LLC
11.01
11.02
11.03
11.04
11.05
11.06
11.07
11.08
11.09
12 AmeriVest Centerra, Inc.; AmeriVest Parkway Inc.; AmeriVest Black Canyon Inc.
12.01
12.02
12.03
13 North Tower, LLC
14 Sonoma Xxxx Associates; GSG Partners; Waterford Associates II, LLC; Xxxx
Development Corporatin; Xxxxxxx & Xxxx Xxxxx, community property; Xxxx and
Xxxxxxxx Xxxxxxxx, community property
15 NEW CENTURY ASSOCIATES GROUP, L.P.
16 Xxxxxx Scottsdale Hotel Investors I, L.L.C.
17 P.M.W. Associates, L.L.C.
18 PFV Dunhill, LP
00 Xxxxxxxxx Xxxxxxx Xxxxxxxxx TIC II, LLC; Minnesota Center 1, LLC; Minnesota
Center 2, LLC; Minnesota Center 3, LLC; Minnesota Center 5, LLC; Minnesota
Center 6, LLC; Minnesota Center 7, LLC; Minnesota Center 8, LLC; Minnesota
Center 9, LLC; Minnesota Center 10, LLC; Minnesota Center 11, LLC; Minnesota
Center 12, LLC; Minnesota Center 13, LLC; Minnesota Center 14, LLC; Minnesota
Center 15, LLC; Minnesota Center 16, LLC; Minnesota Center 17, LLC; Minnesota
Center 18, LLC; Minnesota Center 19, LLC; Minnesota Center 20, LLC; Minnesota
Center 21, LLC; Minnesota Center 22, LLC
20 GFC-Xxxxxxx, LLC
00 Xxxxxxx Xxxxx Xxxxxxx. L.P.
22 XX Xxxxx of Delaware, LLC
23 200 Greenwich Fee LLC
24 Balboa & Victory
25 PSS West LA, LLC
00 Xxxxxxxx Xxxxx LLC
27 Hickory Ridge Pavillion, LLC
28 Park 2000 II, LLC
00 Xxxxxxx Xxxxx Xxxxxx LLC
30 City Center Associates, Ltd.
31 SM Newco Franklin, LLC; SM Newco Xxxxxxxxxx, XX; SM Newco Metairie, LLC
31.01
31.02
31.03
32 Specialty Healthcare Properties, LLC
33 T-XXX Residential at Holland, LLC
34 Redwood Shores Operating Company LLC
35 One North II, LLC
36 Xxxxx Properties I, LP
37 Chateau des Lions, LLC
00 Xxx Xxxxx Shopping Center, LLC
39 SM Newco Antioch, LLC; SM Newco Duluth, LLC; SM Newco McAllen, L.P.; SM
Newco North Charleston, LLC
39.01
39.02
39.03
39.04
00 Xxxxxxx Xxxxx V Partners Limited Partnership
41 SGMP Equity Fund I, LP
41.01
41.02
41.03
41.04
41.05
41.06
42 CSD Tower, LLC
43 Premier Communities LLC
44 NSS SW Investors
44.01
44.02
44.03
44.04
44.05
44.06
44.07
44.08
44.09
45 Cabot Technology Centre, LLC
46 Xxxxx Xxxxxxx Limited Partnership
47 FXSC, LLC
48 F&F Waterfall Towers Associates, LLC
00 Xx Xxxxx Xxxx Xxxxxx, XXX; La Xxxxx XX Acquisition, LLC; La Verne Oxon Gas, LLC
50 Greenbriar Associates, LLC
51 Loma Xxxxx Shopping Center, LLC; Bentley & Associates, Inc.
52 Xxxxxxxx/Nine Development Co., LLC
53 Chesapeake Center, L.P.; Xxxxx Chesapeake, LLC
54 South Chase, LLC
00 Xxxxx Xxxxxxx Xxxxxx XX
00 Xxxxx Xxxxx Equity Partners, LLC
57 Park 2000 I, LLC
58 Impressions Building, LLC
00 Xxxxxxxx Xxxx Xxxxxxx
00 Xxxxxxxx Commons, LLC
61 Wendover Apartments, LLC
62 First Highland Group, LLC
63 Madison Investments, LLC
64 TCC-Campbellton Limited Partnership
65 Xxxxxx Mobile Home Park, LLC
66 Champion Properties, Inc.
00 Xxxxxxxxx Xxxxxxx Club Apartments, LP
68 0000 X. Xxxxxxxxx Xxxx. Associates, LLC
69 4545 X. Xxxx Limited Partnership II
70 Anclote Corner Associates, L.C.
00 Xxxxxxxx Xxxxx Xxxxxxx IV
00 Xxxxxxxx Xxxxx Xxxxxxx III
00 Xxxxxx Xxxxxxx Shopping Center, Ltd.
74 6185 Xxxxxxxx/6265 XxXxxx, LLC
75 Baybrook 1.1, L.P.
76 Torrance Retail Partners, LLC
77 Overlook Associates, LLC
78 Waco Star Center Income Partners, L.P.
79 Lakeview Gardens, LLC
80 Bavak Land Company
GCCFC 03-C2 Loan ID Property Name General Property Type Detailed Property Type
------------------- ---------------------------------------- ------------------------ --------------------------
1 U.S. Bank Tower Office XXX
0 000 Xxxx Xxxxxx Xxxxxx XXX
0 0000 X Street Office CBD
4 Broadway Mall Retail Superregional Mall
5 Pinnacle Office CBD
6 150 Fifth Avenue Office General Urban
7 High Ridge Park Office General Suburban
8 Independent Square Office CBD
9
9.01 Embassy Suites Brea & Embassy Court Brea Hospitality Full Service
9.02 Embassy Suites Orange County Airport Hospitality Full Service
9.03 Marriott Walnut Creek Hospitality Full Service
9.04 Embassy Suites San Xxxx Obispo Hospitality Full Service
9.05 Embassy Suites Temecula Hospitality Full Service
9.06 Embassy Suites Lompoc Hospitality Full Service
9.07 Radisson Suites- Farmington Hills Hospitality Full Service
10 Pin Oak Portfolio Office General Suburban
11
11.01 Durham RTP Candlewood Suites Hospitality Limited Service
11.02 Fairfax Candlewood Suites Hospitality Limited Service
11.03 Richmond West Candlewood Suites Hospitality Limited Service
11.04 Raleigh Candlewood Suites Hospitality Limited Service
11.05 Xxxxxx-Xxxxxxx Candlewood Suites Hospitality Limited Service
11.06 Richmond Suburban Lodge Hospitality Limited Service
11.07 Greensboro Suburban Lodge Hospitality Limited Service
11.08 Fayetteville Suburban Lodge Hospitality Limited Service
11.09 Hampton Suburban Lodge Hospitality Limited Service
12
12.01 AmeriVest - Parkway Office General Suburban
12.02 Amerivest - Centerra Office General Suburban
12.03 Amerivest - SW Gas Office General Suburban
13 Xxxxx Xxxxx Xxxxx Xxxxxx XXX
00 Xxxx Xxxxx Xxxxxxxx Retail Anchored
15 Marketplace at Huntingdon Valley Retail Anchored
16 Scottsdale Marriott Hospitality Full Service
17 Xxxxxx Business Campus Office General Suburban
18 Preston Forest Retail Anchored
19 Minnesota Center Office General Suburban
20 Greenwich Financial Xxxxxx Xxxxxx XXX
00 0000 Xxxxxxxx Xxxxxxxxx Xxxxxx General Urban
00 Xxxxx Xxxxxxx Xxxxxxxx Xxxxxx Retail Anchored
23 000 Xxxxxxxxx Xxxxxx Mixed Use Office / Retail
24 Encino Office Park Office General Suburban
25 Price Self Storage - West LA Self-Storage Xxxx-Xxxxxxx
00 Xxxxxxxx Xxxxx Retail Anchored
27 Hickory Ridge Pavilion Retail Anchored
28 Park 2000 II Office General Suburban
29 Airport Trade Center Industrial Industrial
30 City Center Office CBD
31
31.01 Metairie, LA Retail Big Box
31.02 Franklin, TN Retail Big Box
31.03 Richardson, TX Retail Big Xxx
00 0000 Xxxxxxxx Xxxxxxxxx Office General Urban
33 Fox Chase Apartments Multifamily Garden
00 Xxxxxxx Xxxxxx Xxxxxxx Office General Suburban
35 Dominicks Grocery & Garage Retail Anchored
36 Plaza North Shopping Center Retail Anchored
37 Chateau des Lions Multifamily Garden
38 Oak Hills Shopping Center Retail Anchored
39
39.01 Antioch, TN Retail Big Box
39.02 McAllen, TX Retail Big Box
39.03 North Charleston Retail Big Xxx
00.00 Xxxxxx, XX Retail Big Xxx
00 Xxxxxxx Xxxxx Xxxxxx Xxxxxxxx
00
41.01 0000 Xxxxx Xxxxxx Self-Storage Self-Storage
41.02 000 Xxxx Xxxxxxxxx Xxxxx Self-Storage Self-Storage
41.03 Xxxxxxx Self-Storage Self-Storage
41.04 4705 Winchester Self-Storage Self-Storage
41.05 American Way Self-Storage Self-Storage
41.06 6390 Winchester Self-Storage Self-Storage
00 Xxxxxx Xxxxxx-Xxxxx Mixed Use Office / Multifamily
43 Fairway Xxxxxxx Apartments Multifamily Townhouse
44
44.01 Carlsbad Self-Storage Self-Storage
44.02 Deming Self-Storage Self-Storage
44.03 El Paso #5 & Centraplex Self-Storage Self-Storage
44.04 El Paso #6 Self-Storage Self-Storage
44.05 Green Valley Self-Storage Self-Storage
44.06 Lovington Self-Storage Self-Storage
44.07 Las Cruces Self-Storage Self-Storage
44.08 Silver City Self-Storage Self-Storage
44.09 Truth or Consequences Self-Storage Self-Storage
45 Cabot Office Centre Office General Suburban
46 440 North Xxxxx Office General Urban
00 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxx Retail Anchored
48 Waterfall Towers Office General Suburban
49 La Xxxxx Xxxx Retail Anchored
50 Greenbriar Hills Multifamily Garden
51 Loma Xxxxx Shopping Center Retail Anchored
52 Orchards Executive Office Office General Suburban
53 Chesapeake Center Office General Suburban
54 The Falls Apartments Multifamily Garden
55 Belle Meadow Apartments Multifamily Garden
56 441 South Livernois Office Office Medical
57 Park 2000 I Self-Storage Self-Storage
58 Impressions Building Office General Suburban
00 Xxxxxxxx Xxxx Xxxxxx Retail Anchored
60 Columbia Commons Office General Xxxxxxxx
00 000 Xxxxx Xxxxxx Multifamily Mid rise
62 Alamerica Bank Building Office General Urban
00 Xxxx Xxxxxxx Xxxxxxx Retail Shadow Anchored
00 Xxxxxxxxxxx Xxxxx Xxxxxx Xxxxxxxx
00 Xxxxxxxx Xxxxxxx MHC Mobile Home Park Mobile Home Park
66 Xxxxxxxx Building Office General Suburban
67 Fairway Club Apartments Multifamily Xxxxxx
00 0000 Xxxxxxxxx Office General Suburban
69 4545 East Xxxx Office General Suburban
70 Anclote Corner Shopping Center Retail Anchored
71 595 Double Eagle Court Office General Suburban
72 9785 Gateway Drive Office General Suburban
00 Xxxxxx Xxxxxxx Retail Unanchored
74 6185 Xxxxxxxx, LLC Industrial Industrial
75 Baybrook Collection Retail Shadow Anchored
76 0000 Xxxxxxx Xxxxx Xxxxxxx Retail Unanchored
77 Lake Carolina Building Office General Suburban
00 Xxxxxxxxx Xxxxx Retail Unanchored
79 Lakeview Gardens Multifamily Garden
80 Big 5 Retail Single Tenant
GCCFC 03-C2 Loan ID Address City County State Zip Code
------------------- ----------------------------------------- --------------------- --------------- ----- --------
1 000 Xxxx Xxxxx Xxxxxx Xxx Xxxxxxx Xxx Xxxxxxx XX 00000
2 000 Xxxx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
3 0000 X Xxxxxx, XX Xxxxxxxxxx Xxxxxxxxxx XX XX 00000
4 000 Xxxxxxxx Xxxx Xxxxxxxxxx Xxxxxx XX 00000
5 0000 Xxxx Xxxxx Xxxxxx Xxxxxxx Xxx Xxxxxxx XX 00000
6 000 Xxxxx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
7 0-0 Xxxx Xxxxx Xxxx Xxxxxxxx Xxxxxxxxx XX 00000
8 0 Xxxxxxxxxxx Xxxxx Xxxxxxxxxxxx Xxxxx XX 00000
9
9.01 900 & 000 Xxxx Xxxxx Xxxxxx Xxxx Xxxxxx XX 00000
9.02 0000 Xxxx Xxxx Xxxx Xxxxx Xxx Xxxxxx XX 00000
9.03 0000 Xxxxx Xxxx Xxxxxx Xxxxxx Xxxxx Xxxxxx Xxxxx XX 00000
9.04 000 Xxxxxxx Xxxx Xxx Xxxx Xxxxxx Xxx Xxxx Xxxxxx XX 00000
9.05 00000 Xxxxxx Xxxxxxxxxx Xxxx Xxxxxxxx Xxxxxxxxx XX 00000
9.06 0000 Xxxxx X Xxxxxx Xxxxxx Xxxxx Xxxxxxx XX 00000
9.07 00000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxxx Xxxxx Xxxxxxx XX 00000
00 Xxxxxxxx Xxxxxxxxx & Xxxx Xxxx Xxxxx Xxxxxxx Xxxxxx XX 00000
11
11.01 0000 Xxxx Xxxxxxx 00 Xxxxxx Xxxxxx XX 00000
11.02 00000 Xxxxxx Xxxxx Xxxx Xxxxxxx Xxxxxxx XX 00000
11.03 0000 Xxxxxxxxxx Xxxxx Xxxx Xxxxx Xxxxxxx XX 00000
11.04 0000 Xxxx Xxxx Xxxx Xxxxxxx Xxxx XX 00000
11.05 00000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxx Xxxxxxx XX 00000
11.06 0000 Xxxxxxxx Xxxx Xxxxxxxx Xxxxxxx XX 00000
11.07 0000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxx XX 00000
11.08 0000 Xxxxx Xxxxxxxxx Xxxxxxxxxxxx Xxxxxxxxxx XX 00000
11.09 0000 Xxxxx Xxxx Xxxxx Xxxxxxx Xxxxxxx Xxxx XX 00000
12
12.01 0000 Xxxxxx Xxxxx Xxxxxxx Xxxxx Xxxxxx XX 00000
12.02 0000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxxx XX 00000
12.03 00000 Xxxxx Xxxxx Xxxxxx Xxxxxxx Xxxxxxx Xxxxxxxx XX 00000
13 000 Xxxxx Xxxxx Xxxxxx Xxx Xxxxxxx Xxx Xxxxxxx XX 00000
14 0000-0000 Xxxx Xxxxx Xxxx Xxxxxxxxx Xxxxxx Xxxxx XX 00000
15 2000 to 0000 Xxxxxx Xxxx Xxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
16 00000 X. Xxxxxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxx XX 00000
17 1000, 1100 & 0000 Xxx Xxxxxxxx Xxxx Xxxxxx Xxxxxx Xxxxxx XX 00000
18 00000 Xxxxxxx Xxxx Xxxxxx Xxxxxx XX 00000
19 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxxxx Xxxxxxxx XX 00000
20 0 Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
21 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxx Xxxxx Xxx Xxxxxxx XX 00000
22 3497-3633 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxx Xxxxxx XX 00000
23 000 Xxxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
24 0000 Xxxxxx Xxxxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000
25 3430 South La Brea Avenue Los Angeles Xxx Xxxxxxx XX 00000
26 0000-0000 Xxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxxxx XX 00000
27 0000-0000 Xxxxxxxxxx Xxxx Xxxxxxx Xxxxxx XX 00000
28 Park 2000 - Sunset Road, Xxxxxxxx Xxxxxx, Xxx Xxxxx Xxxxx XX 00000
Xxxxxxxx Drive and XxXxxx Drive
29 550 and 000 Xxxxx Xxxxxx Xxxxxxxx Xxxxxxxx XX 00000
30 000 X. 0xx Xxxxxx Xx. Xxxxxxxxxx Xxxxxxxx XX 00000
31
31.01 0000 Xxxxxxxx Xxxxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxxxxx XX 00000
31.02 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxxxxxx XX 00000
31.03 0000 Xxxx Xxxxxxxx Xxxx Xxxxxxxxxx Xxxxxx XX 00000
32 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxx Xxxxx Xxx Xxxxxxx XX 00000
33 0000 Xxxxxxxxxxx Xxxxxxx Xxxxx XX 00000
34 000 Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxx Xxxx Xxx Xxxxx XX 00000
35 0 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx Xxxx XX 00000
36 000-000 Xxxxx XxXxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxx XX 00000
37 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
38 0000-0000 Xxxxx Xxxxxxxxx Xxxxxxxxxx Xxxxxxx XX 00000
39
39.01 0000 Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxx Xxxxxxxx XX 00000
39.02 000 X XX Xxxxxxxxxx 00 XxXxxxx Xxxxxxx XX 00000
39.03 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxxxx XX 00000
39.04 0000 Xxxxxx Xxxxxx Xxxxxx Xxxxxxxx XX 00000
40 00000 Xxxxxxxxx Xxxx Xxxxxxxxx Xxxxxxxxxx XX 00000
41
41.01 0000 Xxxxx Xxxxxx Xxxxxxxxxxx Xxxxxx XX 00000
41.02 000 Xxxx Xxxxxxxxx Xxxxx Xxx Xxxxxx Xxx Xxxxx XX 00000
41.03 0000 Xxxxxxxx Xxxx Xxxxxxx Xxxxxx XX 00000
41.04 0000 Xxxxxxxxxx Xxxx Xxxxxxx Xxxxxx XX 00000
41.05 0000 Xxxxxxxx Xxx Xxxxxxx Xxxxxx XX 00000
41.06 0000 Xxxxxxxxxx Xxxx Xxxxxxx Xxxxxx XX 00000
42 000 Xxxxxx Xxxxxx Xxx Xxxxx Xxx Xxxxx XX 00000
43 00 Xxxxxx Xxxx Xxxxxx Xxxxxxxxxx XX 00000
44
44.01 000-000 X. 0xx Xxxxxx Xxxxxxxx Xxxx XX 00000
44.02 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxx Xxxx XX 00000
44.03 000 Xxxxx Xxxxx & 0000 Xxxxx Xxxxxx Xx Xxxx Xx Xxxx XX 00000
44.04 00000 Xxxxx Xxxx Xxxxx Xx Xxxx Xx Xxxx XX 00000
44.05 000 X. Xxxxxx Xxxx Xxxxx Xxxxx Xxxxxx Xxxx XX 00000
44.06 0000-0000 Xxxxx Xxxx Xxxxxx Xxxxxxxxx Xxx XX 00000
44.07 0000 X. Xxxxxx Xxxxxx Xxx Xxxxxx Xxxx Xxx XX 00000
44.08 11732 Hwy 000 X Xxxxxx Xxxx Xxxxx XX 00000
44.09 000 Xxxxx Xxxxxxx 00 Xxxxx xx Xxxxxxxxxxxx Xxxxxx XX 00000
45 28700 & 00000 Xxxxx Xxxxx Xxxx Xxxxxxx XX 00000
46 000 Xxxxx Xxxxx Xxxxxx Xxxxxxx Xxxx XX 00000
47 0000 Xxxxxxxxx Xxxx Xxx Xxxxx Xxxxx Xxxxx XX 00000
48 0000 Xxxxxxx Xxxxxx Xxxx Xxxxx Xxxx Xxxxxx XX 00000
49 0000-0000 Xxxxxxxx Xxxx. Xx Xxxxx Xxx Xxxxxxx XX 00000
50 000 Xxxxx Xxxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000
51 000-000 Xxxx Xxxxxxxx Xxxx Xxxxxxx Xxxxx Xxxx XX 00000
52 00000 Xxxxxxxx Xxxx Xxxxxxxxxx Xxxxx Xxxxxxx XX 00000
53 0000 Xxxxxxxxxx Xxxxx Xxx Xxxxx Xxx Xxxxx XX 00000
54 0000 Xxxxxxxxx Xxxxxx Xxx Xxxxx Xxxxx XX 00000
55 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxx Xxxxxxxxxx XX 00000
56 000 Xxxxx Xxxxxxxxx Xxxx Xxxxxxxxx Xxxxx Xxxxxxx XX 00000
57 2550 and 0000 Xxxxxxxx Xxxxxx Xxx Xxxxx Xxxxx XX 00000
58 0000 Xxxxxxxxx Xxxxx Xxxx Xxxxxxxx Xxxxxxxx XX 00000
59 0000 Xxxxx Xxxxxxx 00 Xxxxxxx Xxxxx XX 00000
60 000 Xxxxx Xxxxxxxx Xxxxxxx Xx. Xxxxxx Xxxxxxxx XX 00000
61 000 Xxxxx Xxxxxx Xxx Xxxxxxx Xxx Xxxxxxx XX 00000
62 0000 Xxxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxxx XX 00000
63 4249 & 0000 Xxxx Xxxx Xxxxxxx Xxxx XX 00000
64 0000 Xxxxxxxxxxx Xxxx Xxxxxxx Xxxxxx XX 00000
65 0000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxxxx XX 00000
66 00000 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxx XX 00000
67 00 Xxxxx Xxxx Xxxxxxxxxx Xxxxxxxxxx XX 00000
68 0000 Xxxxx. Xxxxxxxxx Xxxxxxxxx Xxx Xxxxxxx Xxx Xxxxxxx XX 00000
69 0000 Xxxx Xxxx Xxxxxxxxx Xxxxxxx Xxxxxxxx XX 00000
70 0000-0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxx Xxxxxxx Xxxxxxxx XX 00000
71 000 Xxxxxx Xxxxx Xxxxx Xxxx Xxxxxx XX 00000
72 0000 Xxxxxxx Xxxxx Xxxx Xxxxxx XX 00000
73 315, 319, & 000 Xxxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxx Xxxxxxx XX 00000
74 0000 Xxxxxxxx Xxxxx and 0000 XxXxxx Xxxxx Xxx Xxxxx Xxxxx XX 00000
75 00000 Xxxx Xxxxxxx Xxxxxxx Xxxxxx XX 00000
76 0000 Xxxxxxx Xxxxx Xxxxxxx Xxxxxxxx Xxx Xxxxxxx XX 00000
77 000 Xxxx Xxxxxx Xxxx Xxxxxxxx Xxxxxxxx XX 00000
78 0000-0000 Xxxxx Xxxxxxxxxx Xxxxxxx 00 Xxxx-Xxxxxxxx XxXxxxxx XX 00000
79 000 Xxxxxxxx Xxxxx Xxxxx Xxxxx XX 00000
80 00000 Xxx Xxxxx Xxxxxxxxx Xx Xxxxxxx Xxxxxx Xxxxx XX 00000
GCCFC 03-C2 Loan ID Original Balance Cut-off Date Balance Allocated Cut-off Date Balance (multi-property) Seasoning
------------------- ---------------- -------------------- ----------------------------------------------- ---------
1 120,240,000 120,240,000.00 5
2 119,333,334 119,333,334.00 1
3 117,115,625 117,115,625.00 3
4 97,000,000 97,000,000.00 5
5 86,100,000 86,100,000.00 0
6 66,000,000 66,000,000.00 2
7 58,000,000 58,000,000.00 2
8 55,000,000 55,000,000.00 0
9 55,000,000 54,630,244.44 6
9.01 11,890,691.04
9.02 10,335,451.65
9.03 9,449,555.79
9.04 8,858,958.56
9.05 8,091,182.15
9.06 6,004,405.24
9.07 0.00
10 40,000,000 40,000,000.00 3
11 39,000,000 39,000,000.00 2
11.01 3,500,000.00
11.02 7,000,000.00
11.03 3,700,000.00
11.04 4,400,000.00
11.05 8,000,000.00
11.06 4,300,000.00
11.07 1,500,000.00
11.08 3,300,000.00
11.09 3,300,000.00
12 39,000,000 38,876,849.16 2
12.01 15,152,002.75
12.02 12,560,212.81
12.03 11,164,633.61
13 38,812,500 38,812,500.00 5
14 36,975,000 36,975,000.00 5
15 36,000,000 36,000,000.00 2
16 33,500,000 33,500,000.00 0
17 31,000,000 30,690,338.52 11
18 30,700,000 30,516,288.07 6
19 30,000,000 29,971,154.02 1
20 30,000,000 29,919,649.01 3
21 28,500,000 28,469,537.43 1
22 28,000,000 28,000,000.00 1
23 26,350,000 26,272,112.33 3
24 26,000,000 25,973,668.10 1
25 25,000,000 24,957,872.41 2
26 22,000,000 22,000,000.00 0
27 20,300,000 20,257,604.38 1
28 19,000,000 19,000,000.00 0
29 18,000,000 18,000,000.00 0
30 17,000,000 17,000,000.00 0
31 16,940,000 16,924,279.79 1
31.01 7,832,724.53
31.02 5,494,896.04
31.03 3,596,659.22
32 16,000,000 16,000,000.00 0
33 15,000,000 15,000,000.00 2
34 14,500,000 14,500,000.00 0
35 14,000,000 14,000,000.00 0
36 14,000,000 14,000,000.00 0
37 13,600,000 13,517,733.53 6
38 13,500,000 13,500,000.00 0
39 12,750,000 12,750,000.00 0
39.01 4,370,000.00
39.02 3,950,000.00
39.03 2,370,000.00
39.04 2,060,000.00
40 12,500,000 12,500,000.00 0
41 10,816,000 10,758,204.85 4
41.01 4,137,771.09
41.02 1,909,740.51
41.03 1,336,818.35
41.04 1,312,946.60
41.05 1,153,801.56
41.06 907,126.74
42 10,000,000 10,000,000.00 0
43 9,800,000 9,800,000.00 0
44 8,585,000 8,571,856.79 2
44.01 1,054,383.32
44.02 758,836.48
44.03 2,596,019.53
44.04 976,502.73
44.05 738,867.10
44.06 325,500.91
44.07 1,397,856.67
44.08 583,105.92
44.09 140,784.14
45 8,300,000 8,259,013.90 5
46 8,250,000 8,241,821.58 1
47 8,000,000 7,991,227.06 1
48 8,000,000 7,916,922.19 11
49 7,700,000 7,692,346.33 1
50 7,720,000 7,671,261.51 6
51 7,120,000 7,057,721.69 12
52 6,750,000 6,750,000.00 0
53 6,350,000 6,350,000.00 0
54 6,300,000 6,276,008.31 4
55 6,250,000 6,250,000.00 0
56 6,200,000 6,200,000.00 0
57 6,060,000 6,051,295.63 1
58 5,775,000 5,775,000.00 0
59 5,275,000 5,220,670.06 11
60 4,540,000 4,540,000.00 0
61 4,400,000 4,391,383.89 2
62 4,400,000 4,388,657.84 3
63 4,250,000 4,250,000.00 0
64 4,100,000 4,013,629.86 11
65 4,000,000 4,000,000.00 0
66 3,750,000 3,746,616.53 1
67 3,500,000 3,500,000.00 0
68 3,560,000 3,479,577.94 20
69 3,128,000 3,096,590.27 13
70 2,750,000 2,737,566.06 5
71 2,700,000 2,695,471.13 2
72 2,700,000 2,693,049.12 3
73 2,600,000 2,592,719.73 3
74 2,560,000 2,560,000.00 0
75 2,400,000 2,392,019.74 4
76 2,225,000 2,217,750.89 4
77 1,995,000 1,986,488.66 5
78 1,350,000 1,346,819.32 3
79 1,275,000 1,264,447.94 6
80 800,000 796,910.96 2
GCCFC 03-C2 Loan ID Original Term to Maturity (mos.) Stated Remaining Term to Maturity (mos.)
------------------- -------------------------------- ----------------------------------------
1 120 115
2 84 83
3 84 81
4 120 115
5 120 120
6 102 100
7 60 58
8 60 60
9 84 78
9.01
9.02
9.03
9.04
9.05
9.06
9.07
10 120 117
11 120 118
11.01
11.02
11.03
11.04
11.05
11.06
11.07
11.08
11.09
12 60 58
12.01
12.02
12.03
13 84 79
14 120 115
15 96 94
16 60 60
17 120 109
18 120 114
19 84 83
20 120 117
21 120 119
22 120 119
23 120 117
24 120 119
25 120 118
26 144 144
27 120 119
28 120 120
29 120 120
30 84 84
31 120 119
31.01
31.02
31.03
32 120 120
33 60 58
34 60 60
35 120 120
36 120 120
37 120 114
38 120 120
39 120 120
39.01
39.02
39.03
39.04
40 120 120
41 84 80
41.01
41.02
41.03
41.04
41.05
41.06
42 120 120
43 120 120
44 84 82
44.01
44.02
44.03
44.04
44.05
44.06
44.07
44.08
44.09
45 120 115
46 120 119
47 120 119
48 120 109
49 120 119
50 120 114
51 120 108
52 120 120
53 60 60
54 120 116
55 84 84
56 120 120
57 120 119
58 120 120
59 120 109
60 60 60
61 120 118
62 120 117
63 120 120
64 120 109
65 60 60
66 120 119
67 120 120
68 120 100
69 120 107
70 120 115
71 120 118
72 120 117
73 120 117
74 120 120
75 120 116
76 120 116
77 120 115
78 120 117
79 120 114
80 120 118
GCCFC 03-C2 Loan ID Original Interest Only Term (mos.) Original Amortization Term (mos.) Remaining Interest Only Period (mos.)
------------------- ---------------------------------- --------------------------------- -------------------------------------
1 120 NA 115
2 36 360 35
3 24 360 21
4 5 356 0
5 120 NA 120
6 48 360 46
7 12 360 10
8 0 360 0
9 0 300 0
9.01
9.02
9.03
9.04
9.05
9.06
9.07
10 12 348 9
11 11 300 9
11.01
11.02
11.03
11.04
11.05
11.06
11.07
11.08
11.09
12 0 300 0
12.01
12.02
12.03
13 36 360 31
14 24 360 19
15 24 336 22
16 60 NA 60
17 0 360 0
18 0 360 0
19 0 360 0
20 0 360 0
21 0 360 0
22 9 360 8
23 0 360 0
24 0 360 0
25 0 360 0
26 0 360 0
27 0 240 0
28 0 360 0
29 0 348 0
30 0 360 0
31 0 360 0
31.01
31.02
31.03
32 0 360 0
33 5 360 3
34 0 300 0
35 0 360 0
36 0 360 0
37 0 360 0
38 0 360 0
39 0 360 0
39.01
39.02
39.03
39.04
40 0 360 0
41 0 300 0
41.01
41.02
41.03
41.04
41.05
41.06
42 0 360 0
43 0 360 0
44 0 360 0
44.01
44.02
44.03
44.04
44.05
44.06
44.07
44.08
44.09
45 0 360 0
46 0 360 0
47 0 360 0
48 0 360 0
49 0 360 0
50 0 360 0
51 0 360 0
52 0 240 0
53 0 360 0
54 0 360 0
55 0 360 0
56 0 360 0
57 0 300 0
58 0 360 0
59 0 360 0
60 0 360 0
61 0 360 0
62 0 360 0
63 0 300 0
64 0 240 0
65 0 360 0
66 0 360 0
67 0 360 0
68 0 300 0
69 0 360 0
70 0 360 0
71 0 360 0
72 0 360 0
73 0 360 0
74 0 360 0
75 0 360 0
76 0 360 0
77 0 360 0
78 0 360 0
79 0 300 0
80 0 240 0
GCCFC 03-C2 Loan ID Remaining Amortization Term (mos.) Guarantor Letter of Credit
------------------- ---------------------------------- ------------------------------ ----------------
1 NA Non-recourse carveout No
2 360 Non-recourse carveout No
3 360 Non-recourse carveout No
4 356 Non-recourse carveout No
5 NA Non-recourse carveout No
6 360 Non-recourse carveout Yes
7 360 Non-recourse carveout No
8 360 Non-recourse carveout No
9 294 Non-recourse carveout No
9.01
9.02
9.03
9.04
9.05
9.06
9.07
10 348 Non-recourse carveout No
11 300 Non-recourse carveout No
11.01
11.02
11.03
11.04
11.05
11.06
11.07
11.08
11.09
12 298 Non-recourse carveout No
12.01
12.02
12.03
13 360 Non-recourse carveout; Partial No
14 360 Non-recourse carveout No
15 336 Non-recourse carveout No
16 NA Non-recourse carveout No
17 349 Non-recourse carveout No
18 354 Non-recourse carveout No
19 359 Non-recourse carveout No
20 357 Non-recourse carveout No
21 359 Non-recourse carveout No
22 360 Non-recourse carveout No
23 357 Non-recourse carveout No
24 359 Non-recourse carveout Yes
25 358 Non-recourse carveout No
26 360 Non-recourse carveout No
27 239 Non-recourse carveout No
28 360 Non-recourse carveout No
29 348 Non-recourse carveout No
30 360 Non-recourse carveout No
31 359 Non-recourse carveout No
31.01
31.02
31.03
32 360 Non-recourse carveout No
33 360 Non-recourse carveout No
34 300 Non-recourse carveout No
35 360 Non-recourse carveout No
36 360 Non-recourse carveout No
37 354 Non-recourse carveout No
38 360 Non-recourse carveout No
39 360 Non-recourse carveout No
39.01
39.02
39.03
39.04
40 360 Non-recourse carveout No
41 296 Non-recourse carveout No
41.01
41.02
41.03
41.04
41.05
41.06
42 360 Non-recourse carveout No
43 360 Non-recourse carveout No
44 358 Non-recourse carveout No
44.01
44.02
44.03
44.04
44.05
44.06
44.07
44.08
44.09
45 355 Non-recourse carveout No
46 359 Non-recourse carveout No
47 359 Non-recourse carveout Yes
48 349 Non-recourse carveout No
49 359 Non-recourse carveout No
50 354 Non-recourse carveout No
51 348 Non-recourse carveout No
52 240 Non-recourse carveout No
53 360 Non-recourse carveout No
54 356 Non-recourse carveout No
55 360 Non-recourse carveout No
56 360 Non-recourse carveout No
57 299 Non-recourse carveout No
58 360 Non-recourse carveout No
59 349 Non-recourse carveout No
60 360 Non-recourse carveout No
61 358 Non-recourse carveout No
62 357 Non-recourse carveout No
63 300 Non-recourse carveout No
64 229 Non-recourse carveout No
65 360 Non-recourse carveout No
66 359 Non-recourse carveout Yes
67 360 Non-recourse carveout No
68 280 Non-recourse carveout No
69 347 Non-recourse carveout No
70 355 Non-recourse carveout No
71 358 Non-recourse carveout No
72 357 Non-recourse carveout No
73 357 Non-recourse carveout No
74 360 Non-recourse carveout No
75 356 Non-recourse carveout No
76 356 Non-recourse carveout No
77 355 Non-recourse carveout No
78 357 Non-recourse carveout No
79 294 Non-recourse carveout No
80 238 Non-recourse carveout No
GCCFC 03-C2 Loan ID Upfront Actual Repair Reserve Upfront Actual Replacement Reserves Ongoing Actual Replacement Reserves
------------------- ----------------------------- ----------------------------------- -----------------------------------
1 6,250 0 0
2 26,250 2,914,533 0
3 1,078,176 0 9,397
4 205,000 9,383 9,383
5 0 0 0
6 330,087 253,495 3,495
7 470,713 10,377 10,377
8 53,188 0 10,823
9 422,562 1,833,992 217,953
9.01
9.02
9.03
9.04
9.05
9.06
9.07
10 0 0 8,417
11 17,363 49,012 49,012
11.01
11.02
11.03
11.04
11.05
11.06
11.07
11.08
11.09
12 249,625 8,100 8,100
12.01
12.02
12.03
13 59,272 0 0
14 0 1,404 1,404
15 0 98,800 4,101
16 0 0 0
17 6,375 0 5,498
18 0 0 2,100
19 132,375 30,000 10,365
20 0 1,297 1,297
21 16,320 0 30,214
22 0 50,000 2,696
23 0 960 960
24 43,000 0 3,986
25 0 4,026 4,026
26 231,783 0 6,031
27 0 0 3,965
28 0 58,767 0
29 21,125 0 7,187
30 0 0 3,979
31 2,125 0 2,693
31.01
31.02
31.03
32 2,500 0 891
33 330,088 282,360 6,333
34 0 0 1,244
35 0 0 1,597
36 0 0 0
37 0 3,000 3,000
38 112,173 1,855 1,855
39 10,625 0 2,873
39.01
39.02
39.03
39.04
40 76,738 0 2,023
41 400,000 4,654 4,654
41.01
41.02
41.03
41.04
41.05
41.06
42 12,500 0 2,350
43 1,875 0 4,334
44 41,525 9,780 4,890
44.01
44.02
44.03
44.04
44.05
44.06
44.07
44.08
44.09
45 29,000 0 1,398
46 489,575 19,302 1,609
47 7,500 740 740
48 31,250 0 1,512
49 28,500 0 809
50 177,625 0 4,869
51 11,125 4,940 2,470
52 0 0 1,211
53 28,238 0 1,057
54 46,138 8,146 8,146
55 6,881 40,320 3,333
56 14,285 0 740
57 0 6,439 2,146
58 0 0 1,272
59 3,750 2,460 1,230
60 4,906 0 1,460
61 18,125 5,738 2,869
62 0 1,603 802
63 0 0 610
64 1,257,344 0 1,423
65 9,513 0 1,233
66 4,969 0 1,049
67 127,490 0 4,800
68 33,750 36,000 1,100
69 0 0 709
70 0 3,883 1,294
71 0 626 313
72 0 618 309
73 0 456 228
74 0 2,100 700
75 0 276 138
76 0 192 96
77 0 1,010 337
78 0 397 132
79 0 7,800 2,600
80 0 0 0
GCCFC 03-C2 Loan ID Upfront TI/LC Monthly TI/LC Monthly Tax Escrow Monthly Insurance Escrow Late Grace Period
------------------- ------------- ------------- ------------------ ------------------------ -----------------
1 7,176,113 208,333 264,752 226,367 0
2 16,441,190 0 1,400,000 140,000 0
3 166,667 166,667 217,725 19,936 0
4 3,350,000 41,667 478,800 34,200 0
5 2,769,932 0 0 0 0
6 150,000 11,526 69,050 14,580 0
7 22,829 22,829 98,444 10,242 0
8 4,000,000 40,587 0 0 0
9 3,334 1,667 90,243 29,238 0
9.01
9.02
9.03
9.04
9.05
9.06
9.07
10 750,000 52,607 81,541 20,120 0
11 0 0 53,984 13,577 0
11.01
11.02
11.03
11.04
11.05
11.06
11.07
11.08
11.09
12 55,102 55,102 110,933 4,670 0
12.01
12.02
12.03
13 17,358,838 0 296,954 205,944 0
14 0 6,019 50,667 7,506 0
15 300,000 10,252 52,262 7,982 0
16 0 0 0 0 0
17 1,750,000 29,000 44,062 0 5
18 151,451 6,950 77,666 4,529 0
19 1,570,000 23,035 103,727 5,168 0
20 496,352 8,758 12,023 0 0
21 0 197,225 30,243 6,250 0
22 75,000 5,000 19,463 4,302 0
23 5,360 5,360 15,825 0 0
24 0 21,750 29,807 4,898 0
25 0 0 8,264 4,884 0
26 0 0 25,224 3,856 0
27 2,000,000 6,609 56,182 0 0
28 201,615 0 17,316 0 0
29 62,500 10,412 18,122 5,510 0
30 1,200,000 29,840 29,978 9,457 0
31 0 4,488 15,873 3,075 0
31.01
31.02
31.03
32 452,638 7,083 19,571 4,406 0
33 0 0 22,959 8,360 0
34 0 7,500 22,986 8,332 0
35 1,323,321 0 4,167 3,333 0
36 517,824 8,912 18,539 6,096 0
37 0 0 11,200 9,400 0
38 35,000 5,158 14,738 2,210 0
39 0 4,788 25,060 3,054 0
39.01
39.02
39.03
39.04
40 0 3,678 17,179 2,113 0
41 0 0 22,850 1,910 0
41.01
41.02
41.03
41.04
41.05
41.06
42 0 0 5,587 3,336 0
43 0 0 8,390 0 0
44 0 0 14,375 2,474 0
44.01
44.02
44.03
44.04
44.05
44.06
44.07
44.08
44.09
45 0 8,736 19,184 1,917 0
46 450,000 0 36,086 1,683 0
47 0 0 11,979 2,500 0
48 75,000 5,662 7,858 3,893 0
49 0 3,236 9,375 4,076 0
50 0 0 10,508 4,605 5
51 100,000 4,171 11,400 624 0
52 250,000 6,057 13,476 0 0
53 500,000 5,083 8,103 1,288 0
54 0 0 6,517 3,192 0
55 0 0 12,501 2,520 0
56 200,000 0 8,670 760 0
57 0 0 5,243 0 0
58 0 0 6,812 967 0
59 11,300 5,650 4,248 0 0
60 0 4,944 5,240 0 0
61 0 0 3,455 3,559 0
62 4,755 2,378 2,161 707 0
63 50,000 0 0 0 0
64 0 4,255 3,710 2,596 0
65 0 0 6,578 938 0
66 750,000 0 9,191 3,124 0
67 0 0 6,865 2,915 0
68 30,000 4,105 2,673 583 0
69 0 3,803 5,866 500 0
70 0 2,179 5,629 1,130 0
71 3,236 1,618 2,064 524 0
72 42,988 1,495 2,028 524 0
73 75,000 0 3,287 611 0
74 55,000 0 2,244 0 0
75 1,210 605 1,250 581 0
76 1,076 0 2,675 377 0
77 1,135 1,135 2,925 418 0
78 698 698 1,661 417 0
79 0 0 2,252 1,772 0
80 1,698 849 0 0 0
GCCFC 03-C2 Loan ID Default Grace Period Environmental Insurance Lockbox Cash Management O&M in Place Size
------------------- -------------------- ----------------------- ------- --------------- ------------ ---------
1 0 NAP Hard In Place No 1,371,483
2 0 NAP Hard In Place No 1,149,789
3 0 NAP Hard In Place Yes 563,795
4 0 Yes Hard Springing Yes 1,050,620
5 0 NAP Hard Springing No 392,899
6 0 NAP Hard Springing Yes 209,683
7 0 NAP Hard Springing No 498,091
8 0 NAP Hard In Place No 649,346
9 0 NAP Hard In Place 1,531
9.01 No 229
9.02 No 300
9.03 No 338
9.04 Yes 196
9.05 No 176
9.06 No 155
9.07 No 137
10 0 NAP Hard Springing Yes 505,023
11 0 NAP Hard Springing 1,193
11.01 No 122
11.02 No 122
11.03 No 122
11.04 No 122
11.05 No 133
11.06 No 143
11.07 No 144
11.08 No 144
11.09 No 141
12 0 NAP Hard Springing 486,027
12.01 No 151,989
12.02 No 186,377
12.03 No 147,661
13 0 NAP Hard In Place No 1,379,703
14 0 NAP Soft Springing No 240,753
15 0 NAP Hard Springing No 245,887
16 0 NAP Soft Springing No 270
17 0 NAP Soft Springing Yes 329,850
18 0 NAP Hard Springing No 166,567
19 0 NAP Hard In Place No 280,835
20 0 NAP Soft Springing No 77,849
21 0 NAP Hard Springing No 131,483
22 0 NAP Soft Springing No 215,709
23 0 NAP Hard Springing No 57,286
24 0 NAP Soft Springing No 207,990
25 0 NAP Hard In Place No 2,225
26 0 NAP Hard Springing Yes 249,547
27 0 NAP Hard Springing No 317,656
28 0 NAP No NAP Yes 279,844
29 0 NAP Hard In Place Yes 222,045
30 0 NAP Hard Springing Yes 238,722
31 0 NAP Hard Springing 215,455
31.01 No 92,992
31.02 No 60,000
31.03 No 62,463
32 0 NAP Hard Springing No 53,981
33 0 NAP Soft In Place No 304
34 0 NAP Hard Springing No 99,535
35 0 NAP Hard Springing No 173,387
36 0 NAP No NAP No 185,302
37 0 NAP Soft Springing No 180
38 0 NAP No NAP No 119,614
39 0 NAP Hard Springing 229,825
39.01 No 60,100
39.02 No 63,500
39.03 No 50,000
39.04 No 56,225
40 0 NAP No NAP Yes 110,343
41 0 NAP No NAP 2,475
41.01 Yes 681
41.02 Yes 253
41.03 No 387
41.04 No 474
41.05 No 355
41.06 No 325
42 0 NAP Hard Springing No 102,480
43 0 NAP No NAP No 208
44 0 NAP No NAP 2,700
44.01 No 348
44.02 No 263
44.03 No 428
44.04 No 272
44.05 No 283
44.06 No 260
44.07 No 405
44.08 No 261
44.09 No 180
45 0 NAP No NAP No 83,862
46 0 NAP No NAP No 96,512
47 0 NAP No NAP No 58,763
48 0 NAP Hard Springing No 90,494
49 0 NAP No NAP Yes 64,727
50 0 NAP No NAP Yes 182
51 0 NAP No NAP No 107,246
52 0 NAP No NAP No 72,680
53 0 NAP No NAP No 58,811
54 0 NAP No NAP No 230
55 0 NAP Soft Springing No 160
56 0 NAP No NAP No 44,340
57 0 NAP No NAP Yes 1,100
58 0 NAP No NAP No 76,331
59 0 NAP No NAP Yes 98,129
60 0 NAP No NAP Yes 87,500
61 0 NAP Soft Springing Yes 101
62 0 NAP No NAP Yes 32,850
63 0 NAP No NAP No 48,800
64 0 Yes No NAP No 113,473
65 0 NAP No NAP Yes 296
66 0 NAP No NAP Yes 62,947
67 0 NAP No NAP Yes 192
68 0 NAP No NAP Yes 38,946
69 0 NAP Hard In Place No 41,777
70 0 NAP No NAP No 56,120
71 0 NAP No NAP No 18,784
72 0 NAP No NAP No 18,800
73 0 NAP Hard Springing Yes 18,266
74 0 NAP No NAP No 42,005
75 0 NAP No NAP No 11,060
76 0 NAP No NAP No 5,740
77 0 NAP No NAP No 17,557
78 0 NAP No NAP No 7,947
79 0 NAP No NAP Yes 96
80 0 NAP No NAP No 16,551
GCCFC 03-C2 Loan ID Units of Measure
------------------- ----------------
1 sf
2 sf
3 sf
4 sf
5 sf
6 sf
7 sf
8 sf
9 Rooms
9.01 Rooms
9.02 Rooms
9.03 Rooms
9.04 Rooms
9.05 Rooms
9.06 Rooms
9.07 Rooms
10 sf
11 Rooms
11.01 Rooms
11.02 Rooms
11.03 Rooms
11.04 Rooms
11.05 Rooms
11.06 Rooms
11.07 Rooms
11.08 Rooms
11.09 Rooms
12 sf
12.01 sf
12.02 sf
12.03 sf
13 sf
14 sf
15 sf
16 Rooms
17 sf
18 sf
19 sf
20 sf
21 sf
22 sf
23 sf
24 sf
25 Units
26 sf
27 sf
28 sf
29 sf
30 sf
31 sf
31.01 sf
31.02 sf
31.03 sf
32 sf
33 Units
34 sf
35 sf
36 sf
37 Units
38 sf
39 sf
39.01 sf
39.02 sf
39.03 sf
39.04 sf
40 sf
41 Units
41.01 Units
41.02 Units
41.03 Units
41.04 Units
41.05 Units
41.06 Xxxxx
00 xx
00 Xxxxx
00 Units
44.01 Units
44.02 Units
44.03 Units
44.04 Units
44.05 Units
44.06 Units
44.07 Units
44.08 Units
44.09 Units
45 sf
46 sf
47 sf
48 sf
49 sf
50 Units
51 sf
52 sf
53 sf
54 Xxxxx
00 Xxxxx
00 sf
57 sf
58 sf
59 sf
60 sf
61 Units
62 sf
63 sf
64 sf
65 Pads
66 sf
67 Units
68 sf
69 sf
70 sf
71 sf
72 sf
73 sf
74 sf
75 sf
76 sf
77 sf
78 sf
79 Units
80 sf
EXHIBIT A-1
FORM OF CLASS [A-1] [A-2] [A-3] [A-4] CERTIFICATE
COMMERCIAL MORTGAGE TRUST 2003-C2
CLASS [A-1] [A-2] [A-3] [A-4] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
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
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
Pass-Through Rate: [___]% Initial Certificate Principal Balance of
this Certificate as of the Closing Date:
Pass-Through Rate: [___]% Initial Certificate Principal Balance of this Certificate
as of the Closing Date:
$____________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class [A-1] [A-2] [A-3]
December 23, 2003 [A-4] Certificates as of the Closing Date:
$____________
Cut-off Date: December 1, 0000 Xxxxxxxxx unpaid principal balance of the Mortgage Pool as
of the Cut-off Date, after deducting payments of principal
Closing Date: December 23, 2003 due on or before such date: $____________
First Distribution Date: January 5, 2004
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
Special Servicer: Lennar Partners, Inc. Fiscal Agent: ABN AMRO Bank N.V.
Certificate No. [A-1] [A-2] [A-3] [A-4]-___ 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"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, 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 GREENWICH
CAPITAL COMMERCIAL FUNDING CORP., WACHOVIA BANK, NATIONAL ASSOCIATION, LENNAR
PARTNERS, INC., 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 Greenwich
Capital Commercial Funding Corp. as depositor (the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Lennar Partners, Inc. 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
monthly, commencing in January 2004. During any given month, the payment date
will be the 5th day of the month, or if such 5th day is not a Business Day, then
the Business Day immediately following such 5th day, provided that the payment
date will be at least 4 Business Days following the Determination Date (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 Distribution 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, and (ii) the purchase by
the Depositor, the Mortgage Loan Seller, 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
Mortgage Loan Seller, 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 1% of the Initial Trust 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 either 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] [A-3] [A-4] Certificates
referred to in the within-mentioned Agreement.
Dated: _____________
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 [XP] [XC]CERTIFICATE
COMMERCIAL MORTGAGE TRUST 2003-C2
CLASS [XP] [XC] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
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
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
Pass-Through Rate: [____]% Variable Initial Certificate Notional Amount of this Certificate as
of the Closing Date:
$_____________
Date of Pooling and Servicing Agreement: Class Notional Amount of all the Class [XP] [XC]
December 23, 2003 Certificates as of the Closing Date:
$_____________
Cut-off Date: December 1, 0000 Xxxxxxxxx unpaid principal balance of the Mortgage Pool as
of the Cut-off Date, after deducting payments of principal
Closing Date: December 23, 2003 due on or before such date: $_____________
First Distribution Date: January 5, 2004
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
Special Servicer: Lennar Partners, Inc. Fiscal Agent: ABN AMRO Bank N.V.
Certificate No. [XP] [XC]-___ 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"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, 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 GREENWICH
CAPITAL COMMERCIAL FUNDING CORP., WACHOVIA BANK, NATIONAL ASSOCIATION, LENNAR
PARTNERS, INC., 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 TO
PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S UNDER THE SECURITIES
ACT, AND (B) THE DATE OF CLOSING OF THE OFFERING, THIS CERTIFICATE MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENTS HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT
TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Closing Date by the aggregate notional principal amount of
all the Certificates of the same Class as this Certificate (their "Class
Notional Amount") as of the Closing Date) in that certain beneficial ownership
interest in the Trust evidenced by all the Certificates of the same Class as
this Certificate. The Trust was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Greenwich Capital Commercial Funding Corp. as depositor (the
"Depositor", which term includes any successor entity under the Agreement),
Wachovia Bank, National Association as master servicer (the "Master Servicer",
which term includes any successor entity under the Agreement), Lennar Partners,
Inc. 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
monthly, commencing in January 2004. During any given month, the payment date
will be the 5th day of the month, or if such 5th day is not a Business Day, then
the Business Day immediately following such 5th day, provided that the payment
date will be at least 4 Business Days following the Determination Date (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 Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with a Transfer of a Global Certificate for any Class
of Book-Entry Non Registered Certificates 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 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.
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, a Transferee of an interest herein that takes
delivery for a Class of Book-Entry Non-Registered Certificates 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.
Any interest in a Rule 144A 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 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, provided that no
Regulation S Restricted Certificate may be transferred to a Person who wishes to
take delivery under Regulation S. A Regulation S Restricted Certificate is any
Certificate that is not rated in one of the four highest generic ratings
categories by a Rating Agency.
Also notwithstanding the second preceding paragraph, any interest in
a Rule 144A Global Certificate with respect to any Class of Book-Entry
Non-Registered Certificates may be transferred by any Certificate Owner holding
such interest to any Institutional Accredited Investor (other than a Qualified
Institutional Buyer) that takes delivery in the form of a Definitive Certificate
of the same Class as such Rule 144A Global Certificate upon delivery to the
Certificate Registrar and the Trustee of (i) such certifications and/or opinions
as are contemplated by the second paragraph of Section 5.02(b) of the Agreement
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 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.
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, provided
that no Regulation S Restricted Certificate may be transferred to a Person who
wishes to take delivery under Regulation S.
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 being
transferred 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, Credit Suisse First Boston LLC, Xxxxxx Xxxxxxx &
Co. Incorporated, X.X. Xxxxxx Securities Inc. and Greenwich Capital Markets,
Inc. the Trustee, the Master Servicer, the Special Servicer, the Fiscal Agent,
the Tax Administrator, 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 Title I ERISA, Section 4975 of the Code or any materially similar
provision ("Similar Law") of applicable federal, state or local law (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
or any similar violation of Similar Law. Except in connection with 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 a Definitive Non-Registered
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) 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) a certification and/or Opinion of Counsel as required by
the preceding sentence, then such Transferee (and in any event any owner of a
Book-Entry Certificate that is not an Investment Grade Certificate) 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
(or similar violation of Similar Law). Any Transferee of a Book-Entry
Certificate that is an Investment Grade Certificate that is being acquired by or
on behalf of a Plan in reliance on the Prohibited Transaction Exemption shall be
deemed to have represented and warranted that such Plan (X) is an accredited
investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act, and
(Y) is not sponsored (within the meaning of Section 3(16)(B) of ERISA) by the
Trustee, the Depositor, the 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.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, and (ii) the purchase by
the Depositor, the Mortgage Loan Seller, 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
Mortgage Loan Seller, 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 1% of the Initial Trust 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 either 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 [XP] [XC] Certificates referred to in the
within-mentioned Agreement.
Dated: _____________
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-3
FORM OF CLASS [B] [C] CERTIFICATE
COMMERCIAL MORTGAGE TRUST 2003-C2
CLASS [B] [C] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
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
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
Pass-Through Rate: [____]%, Subject to the Weighted Initial Certificate Principal Balance of this Certificate as
Average Net Mortgage Rate of the Closing Date:
$_______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class [B] [C]
December 23, 2003 Certificates as of the Closing Date:
$_______________
Cut-off Date: December 1, 0000 Xxxxxxxxx unpaid principal balance of the Mortgage Pool as
of the Cut-off Date, after deducting payments of principal
Closing Date: December 23, 2003 due on or before such date: $_______________
First Distribution Date: January 5, 2004
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
Special Servicer: Lennar Partners, Inc. Fiscal Agent: ABN AMRO Bank N.V.
Certificate No. [B] [C] -___ 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"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, 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 GREENWICH
CAPITAL COMMERCIAL FUNDING CORP., WACHOVIA BANK, NATIONAL ASSOCIATION, LENNAR
PARTNERS, INC., 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 Greenwich
Capital Commercial Funding Corp. as depositor (the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Lennar Partners, Inc. 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
monthly, commencing in January 2004. During any given month, the payment date
will be the 5th day of the month, or if such 5th day is not a Business Day, then
the Business Day immediately following such 5th day, provided that the payment
date will be at least 4 Business Days following the Determination Date (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 Distribution 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, and (ii) the purchase by
the Depositor, the Mortgage Loan Seller, 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
Mortgage Loan Seller, 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 1% of the Initial Trust 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 either 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] Certificates referred to in the
within-mentioned Agreement.
Dated: _____________
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 [D] [E] [F] [G] [H] CERTIFICATE
COMMERCIAL MORTGAGE TRUST 2003-C2
CLASS [D] [E] [F] [G] [H] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
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
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
Pass-Through Rate: [____]%, Subject to the Initial Certificate Principal Balance of this Certificate
Weighted Average Net Mortgage Rate as of the Closing Date:
$________________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class [D] [E] [F] [G]
December 23, 2003 [H] Certificates as of the Closing Date:
$________________
Cut-off Date: December 1, 0000 Xxxxxxxxx unpaid principal balance of the Mortgage Pool as
of the Cut-off Date, after deducting payments of principal
Closing Date: December 23, 2003 due on or before such date: $________________
First Distribution Date: January 5, 2004
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
Special Servicer: Lennar Partners, Inc. Fiscal Agent: ABN AMRO Bank N.V.
Certificate No. [D] [E] [F] [G] [H] 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"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, 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 GREENWICH
CAPITAL COMMERCIAL FUNDING CORP., WACHOVIA BANK, NATIONAL ASSOCIATION, LENNAR
PARTNERS, INC., 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 TO
PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S UNDER THE SECURITIES
ACT, AND (B) THE DATE OF CLOSING OF THE OFFERING, THIS CERTIFICATE MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED 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 Greenwich
Capital Commercial Funding Corp. as depositor (the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Lennar Partners, Inc. 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
monthly, commencing in January 2004. During any given month, the payment date
will be the 5th day of the month, or if such 5th day is not a Business Day, then
the Business Day immediately following such 5th day, provided that the payment
date will be at least 4 Business Days following the Determination Date (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 Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with a Transfer of a Global Certificate for any Class
of Book-Entry Non-Registered Certificates 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 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.
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, a Transferee of an interest herein that takes
delivery for a Class of Book-Entry Non-Registered Certificates 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.
Any interest in a Rule 144A 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 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, provided that no
Regulation S Restricted Certificate may be transferred to a Person who wishes to
take delivery under Regulation S. A Regulation S Restricted Certificate is any
Certificate that is not rated in one of the four highest generic ratings
categories by a Rating Agency.
Also notwithstanding the second preceding paragraph, any interest in
a Rule 144A Global Certificate with respect to any Class of Book-Entry
Non-Registered Certificates may be transferred by any Certificate Owner holding
such interest to any Institutional Accredited Investor (other than a Qualified
Institutional Buyer) that takes delivery in the form of a Definitive Certificate
of the same Class as such Rule 144A Global Certificate upon delivery to the
Certificate Registrar and the Trustee of (i) such certifications and/or opinions
as are contemplated by the second paragraph of Section 5.02(b) of the Agreement
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 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.
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, provided
that no Regulation S Restricted Certificate may be transferred to a Person who
wishes to take delivery under Regulation S.
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 being
transferred 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, Credit Suisse First Boston LLC, Xxxxxx Xxxxxxx &
Co. Incorporated, X.X. Xxxxxx Securities Inc. and Greenwich Capital Markets Inc.
the Trustee, the Master Servicer, the Special Servicer, the Fiscal Agent, the
Tax Administrator, 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 Title I ERISA, Section 4975 of the Code or any materially similar
provision ("Similar Law") of applicable federal, state or local law (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
or any similar violation of Similar Law. Except in connection with 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 a Definitive Non-Registered
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) 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) a certification and/or Opinion of Counsel as required by
the preceding sentence, then such Transferee (and in any event any owner of a
Book-Entry Certificate that is not an Investment Grade Certificate) 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
(or similar violation of Similar Law). Any Transferee of a Book-Entry
Certificate that is an Investment Grade Certificate that is being acquired by or
on behalf of a Plan in reliance on the Prohibited Transaction Exemption shall be
deemed to have represented and warranted that such Plan (X) is an accredited
investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act, and
(Y) is not sponsored (within the meaning of Section 3(16)(B) of ERISA) by the
Trustee, the Depositor, the 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.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, and (ii) the purchase by
the Depositor, the Mortgage Loan Seller, 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
Mortgage Loan Seller, 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 1% of the Initial Trust 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 either 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 [D] [E] [F] [G] [H] Certificates referred
to in the within-mentioned Agreement.
Dated: _____________
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-5
FORM OF CLASS [J] [K] [L] [M] [N] [O] [P] CERTIFICATE
COMMERCIAL MORTGAGE TRUST 2003-C2
CLASS [J] [K] [L] [M] [N] [O] [P] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
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
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
Pass-Through Rate: [____]%, Subject to the Initial Certificate Principal Balance of this Certificate
Weighted Average Net Mortgage Rate as of the Closing Date:
$_______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class [J] [K] [L] [M]
December 23, 2003 [N] [O] [P] Certificates as of the Closing Date:
$_______________
Cut-off Date: December 1, 0000 Xxxxxxxxx unpaid principal balance of the Mortgage Pool as
of the Cut-off Date, after deducting payments of principal
Closing Date: December 23, 2003 due on or before such date: $___________
First Distribution Date: January 5, 2004
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
Special Servicer: Lennar Partners, Inc. Fiscal Agent: ABN AMRO Bank N.V.
Certificate No. [J] [K] [L] [M] [N] [O] [P] 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"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, 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 GREENWICH
CAPITAL COMMERCIAL FUNDING CORP., WACHOVIA BANK, NATIONAL ASSOCIATION, LENNAR
PARTNERS, INC., 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 Greenwich
Capital Commercial Funding Corp. as depositor (the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Lennar Partners, Inc. 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
monthly, commencing in January 2004. During any given month, the payment date
will be the 5th day of the month, or if such 5th day is not a Business Day, then
the Business Day immediately following such 5th day, provided that the payment
date will be at least 4 Business Days following the Determination Date (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 Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with a Transfer of a Global Certificate for any Class
of Book-Entry Non-Registered Certificates 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 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.
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, a Transferee of an interest herein that takes
delivery for a Class of Book-Entry Non-Registered Certificates 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.
Also notwithstanding the second preceding paragraph, any interest in
a Rule 144A Global Certificate with respect to any Class of Book-Entry
Non-Registered Certificates may be transferred by any Certificate Owner holding
such interest to any Institutional Accredited Investor (other than a Qualified
Institutional Buyer) that takes delivery in the form of a Definitive Certificate
of the same Class as such Rule 144A Global Certificate upon delivery to the
Certificate Registrar and the Trustee of (i) such certifications and/or opinions
as are contemplated by the second paragraph of Section 5.02(b) of the Agreement
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 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.
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, Credit Suisse First Boston LLC, Xxxxxx Xxxxxxx &
Co. Incorporated, X.X. Xxxxxx Securities Inc. and Greenwich Capital Markets Inc.
the Trustee, the Master Servicer, the Special Servicer, the Fiscal Agent, the
Tax Administrator, 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 Title I ERISA, Section 4975 of the Code or any materially similar
provision ("Similar Law") of applicable federal, state or local law (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
or any similar violation of Similar Law. Except in connection with 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 a Definitive Non-Registered
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) 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) a certification and/or Opinion of Counsel as required by
the preceding sentence, then such Transferee (and in any event any owner of a
Book-Entry Certificate that is not an Investment Grade Certificate) 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
(or similar violation of Similar Law). Any Transferee of a Book-Entry
Certificate that is an Investment Grade Certificate that is being acquired by or
on behalf of a Plan in reliance on the Prohibited Transaction Exemption shall be
deemed to have represented and warranted that such Plan (X) is an accredited
investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act, and
(Y) is not sponsored (within the meaning of Section 3(16)(B) of ERISA) by the
Trustee, the Depositor, the 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.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, and (ii) the purchase by
the Depositor, the Mortgage Loan Seller, 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
Mortgage Loan Seller, 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 1% of the Initial Trust 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 either 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 [J] [K] [L] [M] [N] [O] [P] Certificates
referred to in the within-mentioned Agreement.
Dated: _____________
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] CERTIFICATES
COMMERCIAL MORTGAGE TRUST 2003-C2
CLASS [R-I] [R-II] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2003-C2
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
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this Certificate in the
December 23, 2003 related Class: ___%
Cut-off Date: December 1, 0000 Xxxxxxxxx unpaid principal balance of the Mortgage Pool as
of the Cut-off Date, after deducting payments of principal
Closing Date: December 23, 2003 due on or before such date: $[ ]
---------
First Distribution Date: January 5, 2004
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
Special Servicer: Lennar Partners, Inc. Fiscal Agent: ABN AMRO Bank N.V.
Certificate No. [R-I] [R-II]-___ 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"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, 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 THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GREENWICH
CAPITAL COMMERCIAL FUNDING CORP., WACHOVIA BANK, NATIONAL ASSOCIATION, LENNAR
PARTNERS, INC., 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 Greenwich
Capital Commercial Funding Corp. as depositor (the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Lennar Partners, Inc. 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
monthly, commencing in January 2004. During any given month, the payment date
will be the 5th day of the month, or if such 5th day is not a Business Day, then
the Business Day immediately following such 5th day, provided that the payment
date will be at least 4 Business Days following the Determination Date (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 Distribution 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, 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 as Exhibit F-2A to the Agreement; or (ii) an
Opinion of Counsel satisfactory to the Trustee to the effect that such
Transferee is 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.
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, Credit Suisse First Boston LLC, Xxxxxx Xxxxxxx & Co.
Incorporated, X.X. Xxxxxx Securities Inc. and Greenwich Capital Markets Inc.,
the Trustee, the Master Servicer, the Special Servicer, the Fiscal Agent, the
Tax Administrator, 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 Title I ERISA, Section 4975 of the Code or any materially similar
provision ("Similar Law") of applicable federal, state or local law (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
or any similar violation of Similar Law. The Certificate Registrar shall refuse
to register the Transfer of a Definitive Non-Registered 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 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 Regulations 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 confirmation 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 either 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 either REMIC Pool to fail to qualify as a REMIC, (iii) a
Disqualified Non-United States Tax Person, (iv) a Disqualified Partnership or
(v) a United States Tax Person with respect to whom income is attributable to a
foreign permanent establishment or fixed base (within the meaning of any
applicable income tax treaty between the United States and any foreign
jurisdiction) of a United States Tax Person.
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
(unless such organization is subject to the tax imposed by Section 511 of the
Code on unrelated business taxable income), (iii) rural electric and telephone
cooperatives described in Section 1381 of the Code and (iv) any other Person so
designated by the Trustee or 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.
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 primary supervision over the administration of the trust and one or
more United States persons have the authority to control all substantial
decisions of the trust (or to the extent provided in the Treasury regulations,
if the trust was in existence on August 20, 1996 and elected to be treated as a
United States Person), all within the meaning of Section 7701(a)(30) of the
Code.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, and (ii) the purchase by
the Depositor, the Mortgage Loan Seller, 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
Mortgage Loan Seller, 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 1% of the Initial Trust 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 either 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] Certificates referred to in
the within-mentioned Agreement.
Dated: _____________
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
ABN AMRO [LOGO] Statement Date: 01/05/2004
LaSalle Bank N.A. GREENWICH CAPITAL COMMERCIAL FUNDING CORP. Payment Date: 01/05/2004
000 X. XxXxxxx Xxxxxx Xxxxx 0000 XXXXXXXXXX MORTGAGE PASS-THROUGH CERTIFICATES Prior Payment: X/X
Xxxxxxx, XX 00000 SERIES 2003-C2 Next Payment: 02/05/2004
USA Record Date: 12/31/2003
ABN AMRO ACCT: XX-XXXX-XX-X
Administrator: Analyst:
REPORTING PACKAGE TABLE OF CONTENTS
====================================================================================================================================
==================================== ================================================== ========================================
Page(s)
-------
Issue Id: GCCF03C2 REMIC Certificate Report Closing Date: 12/31/2003
Monthly Data File Bond Interest Reconciliation First Payment Date: 01/05/2004
Name: GCCF03C2_YYYYMM_3.ZIP Cash Reconciliation Summary Related Final Payment Date: 01/05/2034
15 Month Historical Loan Status Summary
==================================== 15 Month Historical Payoff/Loss Summary =======================================
Historical Collateral Level Prepayment Report
Delinquent Loan Detail
Mortgage Loan Characteristics
Loan Level Detail
Specially Serviced Report
Modified Loan Detail
Realized Loss Detail
Appraisal Reduction Detail
==================================================
=============================================================================================
PARTIES TO THE TRANSACTION
---------------------------------------------------------------------------------------------
DEPOSITOR: Greenwich Capital Commercial Funding Corp.
UNDERWRITER: Greenwich Capital Markets, Inc./Credit Suisse First Boston LLC/Xxxxxx Xxxxxxx &
Co. Incorporated/X.X. Xxxxxx Securities Inc.
MASTER SERVICER: Wachovia Bank, National Association
SPECIAL SERVICER: Lennar Partners, Inc.
RATING AGENCY: Xxxxx'x Investors Service, Inc. / Standard & Poor's Ratings Services
=============================================================================================
==================================================================
INFORMATION IS AVAILABLE FOR THIS ISSUE FROM THE FOLLOWING SOURCES
------------------------------------------------------------------
LaSalle Web Site xxx.xxxxxxxx.xxx
Servicer Web Site
LaSalle Factor Line (000) 000-0000
==================================================================
====================================================================================================================================
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
ABN AMRO [LOGO] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Statement Date: 01/05/2004
LaSalle Bank N.A. SERIES 2003-C2 Payment Date: 01/05/2004
Prior Payment: N/A
WAC: Next Payment: 02/05/2004
WA Life Term: Record Date: 12/31/2003
WA Amort Term: ABN AMRO ACCT: XX-XXXX-XX-X
Current Index:
Next Index: REMIC CERTIFICATE REPORT
====================================================================================================================================
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 Per 1,000 Per 1,000 Per 1,000 Per 1,000 Per 1,000 Per 1,000 Per 1,000 Per 1,000 Next Rate (3)
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
100 0.00 0.00 0.00 0.00 0.00 0.00 0.00
====================================================================================================================================
Total P&I Payment 0.00
==============================
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.
ABN AMRO [LOGO] GREENWICH CAPITAL COMMERCIAL FUNDING CORP. Statement Date: 01/05/2004
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 01/05/2004
SERIES 2003-C1 Prior Payment: N/A
Next Payment: 02/05/2004
Record Date: 12/31/2003
ABN AMRO ACCT: XX-XXXX-XX-X
BOND INTEREST RECONCILIATION
====================================================================================================================================
Deductions Additions
------------------------------ ----------------------------------------------
Accrual Pass Accrued Deferred & Prior Int Accrual Prepay- Other Distributable
------------ Thru Certificate Allocable Accretion Interest Int. Short- on prior ment Interest Certificate
Class Method Days Rate Interest PPIS Interest Loss/Exp falls Due Shortfall(3) Penalties Proceeds(1) Interest(2)
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
====================================================================================================================================
===============================================================
Remaining
Interest Current Period Outstanding Credit Support
Payment (Shortfall)/ Interest ----------------------
Amount Recovery Shortfalls Original Current(4)
---------------------------------------------------------------
---------------------------------------------------------------
0.00 0.00
===============================================================
(1) Other Interest Proceeds are additional amounts specifically allocated to the bond(s) and used in determining the Distributable
Interest of the bonds.
(2) Accrued - Deductions + Additional Interest.
(3) Where applicable.
(4) 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).
ABN AMRO [LOGO] GREENWICH CAPITAL COMMERCIAL FUNDING CORP. Statement Date: 01/05/2004
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 01/05/2004
SERIES 2003-C2 Prior Payment: N/A
Next Payment: 02/05/2004
Record Date: 12/31/2003
ABN AMRO ACCT: XX-XXXX-XX-X
CASH RECONCILIATION SUMMARY
====================================================================================================================================
------------------------------------------- ------------------------------------------ -------------------------------------------
INTEREST SUMMARY PRINCIPAL SUMMARY SERVICING FEE SUMMARY
------------------------------------------- ------------------------------------------ -------------------------------------------
Current Scheduled Interest SCHEDULED PRINCIPAL: Current Servicing Fees
Less Deferred Interest Current Scheduled Principal Plus Fees Advanced for PPIS
Less PPIS Reducing Scheduled Int Advanced Scheduled Principal Less Reduction for PPIS
Plus Gross Advance Interest ------------------------------------------ Plus Delinquent Servicing Fees
Less ASER Interest Adv Reduction Scheduled Principal -------------------------------------------
Less Other Interest Not Advanced ------------------------------------------ Total Servicing Fees
Less Other Adjustment UNSCHEDULED PRINCIPAL: -------------------------------------------
------------------------------------------- Curtailments
Total Advanced Scheduled Principal
------------------------------------------- Liquidation Proceeds
UNSCHEDULED INTEREST: Repurchase Proceeds
------------------------------------------- Other Principal Proceeds
Prepayment Penalites ------------------------------------------
Yield Maintenance Penalties Total Unscheduled Principal
Other Interest Proceeds ------------------------------------------
------------------------------------------- Remittance Principal
Total ------------------------------------------
------------------------------------------- Remittance P&I Due Trust
Less Fees Paid to Servicer ------------------------------------------
Less Fee Strips Paid by Servicer Remittance P&I Due Certs
------------------------------------------- ------------------------------------------
LESS FEES & EXPENSES PAID BY/TO SERVICER
------------------------------------------- ------------------------------------------ -------------------------------------------
Special Servicing Fees POOL BALANCE SUMMARY PPIS SUMMARY
Workout Fees ------------------------------------------ -------------------------------------------
Liquidation Fees Balance Count Gross PPIS
Interest Due Serv on Advances ------------------------------------------ Reduced by PPIE
Non Recoverable Advances Beginning Pool Reduced by Shortfalls in Fees
Misc. Fees & Expenses Scheduled Principal Reduced by Other Amounts
------------------------------------------- Unscheduled Principal -------------------------------------------
Plus Trustee Fees Paid by Servicer Deferred Interest PPIS Reducing Scheduled Interest
------------------------------------------- Liquidations -------------------------------------------
Total Uncheduled Fees & Expenses Repurchases PPIS Reducing Servicing Fee
------------------------------------------- ------------------------------------------ -------------------------------------------
Total Interest Due Trust Ending Pool PPIS Due Certificate
------------------------------------------- ------------------------------------------ -------------------------------------------
LESS FEES & EXPENSES PAID BY/TO TRUST
------------------------------------------- -------------------------------------------
Trustee Fee ADVANCE SUMARY (ADVANCE MADE BY SERVICER)
Fee Strips -------------------------------------------
Misc. Fees Principal Interest
Interest Reserve Withholding -------------------------------------------
Plus Interest Reserve Deposit Prior Outstanding
------------------------------------------- Plus Current Period
Total Less Recovered
------------------------------------------- Less Non Recovered
Total Interest Due Certs -------------------------------------------
------------------------------------------- Ending Outstanding
-------------------------------------------
====================================================================================================================================
ABN AMRO [LOGO] GREENWICH CAPITAL COMMERCIAL FUNDING CORP. Statement Date: 01/05/2004
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 01/05/2004
SERIES 2003-C2 Prior Payment: N/A
Next Payment: 02/05/2004
Record Date: 12/31/2003
ABN AMRO ACCT: XX-XXXX-XX-X
ASSET-BACKED FACTS ~ 15 MONTH HISTORICAL LOAN STATUS SUMMARY
============ ============================================================================== ======================================
Delinquency Aging Categories Special Event Categories (1)
------------------------------------------------------------------------------ --------------------------------------
Specially
Delinq 1 Month Delinq 2 Months Delinq 3+ Months Foreclosure REO Modifications Serviced Bankruptcy
Distribution -------------- --------------- ---------------- ------------- ----------- ------------- ---------- -----------
Date # Balance # Balance # Balance # Balance # Balance # Balance # Balance # Balance
============ ============================================================================== ======================================
01/05/04
------------ ------------------------------------------------------------------------------ --------------------------------------
============ ============================================================================== ======================================
(1) Modification, Specially Serviced & Bankruptcy Totals are Included in the Appropriate Delinquency Aging Category.
ABN AMRO [LOGO] GREENWICH CAPITAL COMMERCIAL FUNDING CORP. Statement Date: 01/05/2004
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 01/05/2004
SERIES 2003-C2 Prior Payment: N/A
Next Payment: 02/05/2004
Record Date: 12/31/2003
ABN AMRO ACCT: XX-XXXX-XX-X
ASSET-BACKED FACTS ~ 15 MONTH HISTORICAL PAYOFF/LOSS SUMMARY
============ ================================================================================== ==================================
Appraisal Realized
Ending Pool (1) Payoffs (2) Penalties Reduct. (2) Liquidations (2) Losses (2) Remaining Term Curr Weighted Avg.
Distribution ---------------------------------------------------------------------------------- ----------------------------------
Date # Balance # Balance # Amount # Balance # Balance # Amount Life Amort. Coupon Remit
============ ================================================================================== ==================================
01/05/04
------------ ---------------------------------------------------------------------------------- ----------------------------------
============ ================================================================================== ==================================
(1) Percentage based on pool as of cutoff.
(2) Percentage based on pool as of beginning of period.
ABN AMRO [LOGO] GREENWICH CAPITAL COMMERCIAL FUNDING CORP. Statement Date: 01/05/2004
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 01/05/2004
SERIES 2003-C2 Prior Payment: N/A
Next Payment: 02/05/2004
Record Date: 12/31/2003
ABN AMRO ACCT: XX-XXXX-XX-X
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 0
CUMULATIVE
==================
ABN AMRO [LOGO] GREENWICH CAPITAL COMMERCIAL FUNDING CORP. Statement Date: 01/05/2004
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 01/05/2004
SERIES 2003-C2 Prior Payment: N/A
Next Payment: 02/05/2004
Record Date: 12/31/2003
ABN AMRO ACCT: XX-XXXX-XX-X
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
====================================================================================================================================
====================================================================================================================================
A. P&I Advance-Loan in Grace Period 1. P&I Advance-Loan delinquent 1 month 7. P&I Advance (Foreclosure)
B. P&I Advance-Late Payment but 2. P&I Advance-Loan delinquent 2 months 9. P&I Advance (REO)
(less than) 1 month delinq 3. P&I Advance-Loan delinquent 3 months or More
4. Matured Ballon/Assumed Scheduled Payment
====================================================================================================================================
** Outstanding P&I Advances include the current period P&I Advance
ABN AMRO [LOGO] GREENWICH CAPITAL COMMERCIAL FUNDING CORP. Statement Date: 01/05/2004
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 01/05/2004
SERIES 2003-C2 Prior Payment: N/A
Next Payment: 02/05/2004
Record Date: 12/31/2003
ABN AMRO ACCT: XX-XXXX-XX-X
MORTGAGE LOAN CHARACTERISTICS
DISTIRBUTION OF PRINCIPAL BALANCES
====================================================================================================================================
Weighted Average
Current Scheduled # of Scheduled % of ----------------------------------
Balances Loans Balance Balance Term Coupon DSCR
====================================================================================================================================
====================================================================================================================================
0 0 0.00%
====================================================================================================================================
Average Scheduled Balance
Maximum Scheduled Balance
Minimum Scheduled Balance
DISTRIBUTION OF MORTGAGE INTEREST RATES
====================================================================================================================================
Weighted Average
Current Mortgage # of Scheduled % of ----------------------------------
Interest Rate Loans Balance Balance Term Coupon DSCR
====================================================================================================================================
====================================================================================================================================
0 0 0.00%
====================================================================================================================================
Minimum Mortgage Interest Rate 10.0000%
Maximum Mortgage Interest Rate 10.0000%
DISTRIBUTION OF REMAINING TERM (FULLY AMORTIZING)
====================================================================================================================================
Weighted Average
Fully Amortizing # of Scheduled % of ----------------------------------
Mortgage Loans Loans Balance Balance Term Coupon DSCR
====================================================================================================================================
====================================================================================================================================
0 0 0.00%
====================================================================================================================================
Minimum Remaining Term
Maximum Remaining Term
DISTRIBUTION OF REMAINING TERM (BALLOON)
====================================================================================================================================
Weighted Average
Balloon # of Scheduled % of ----------------------------------
Mortgage Loans Loans Balance Balance Term Coupon DSCR
====================================================================================================================================
0 to 60
61 to 120
121 to 180
181 to 240
241 to 360
====================================================================================================================================
0 0 0.00%
====================================================================================================================================
Minimum Remaining Term 0
Maximum Remaining Term 0
ABN AMRO [LOGO] GREENWICH CAPITAL COMMERCIAL FUNDING CORP. Statement Date:
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date:
SERIES 2003-C2 Prior Payment:
Next Payment:
Record Date:
ABN AMRO ACCT: XX-XXXX-XX-X
MORTGAGE LOAN CHARACTERISTICS
DISTRIBUTION OF DSCR (CURRENT)
====================================================================================================================================
Debt Service # of Scheduled % of
Coverage Ratio Loans Balance Balance WAMM WAC DSCR
====================================================================================================================================
====================================================================================================================================
0 0 0.00%
====================================================================================================================================
Maximum DSCR 0.000
Minimum DSCR 0.000
GEOGRAPHIC DISTRIBUTION
====================================================================================================================================
Geographic # of Scheduled % of
Location Loans Balance Balance WAMM WAC DSCR
====================================================================================================================================
====================================================================================================================================
0 0.00%
====================================================================================================================================
DISTRIBUTION OF DSCR (CUTOFF)
====================================================================================================================================
Debt Service # of Scheduled % of
Coverage Ratio Loans Balance Balance WAMM WAC DSCR
====================================================================================================================================
====================================================================================================================================
0 0 0.00%
====================================================================================================================================
Maximum DSCR 0.00
Minimum DSCR 0.00
ABN AMRO [LOGO] GREENWICH CAPITAL COMMERCIAL FUNDING CORP. Statement Date:
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date:
SERIES 2003-C2 Prior Payment:
Next Payment:
Record Date:
ABN AMRO ACCT: XX-XXXX-XX-X
MORTGAGE LOAN CHARACTERISTICS
DISTRIBUTION OF PROPERTY TYPES
====================================================================================================================================
# of Scheduled % of
Property Types Loans Balance Balance WAMM WAC DSCR
====================================================================================================================================
====================================================================================================================================
0 0 0.00%
====================================================================================================================================
DISTRIBUTION OF LOAN SEASONING
====================================================================================================================================
# of Scheduled % of
Number of Years Loans Balance Balance WAMM WAC DSCR
====================================================================================================================================
====================================================================================================================================
0 0 0.00%
====================================================================================================================================
DISTRIBUTION OF AMORTIZATION TYPE
====================================================================================================================================
# of Scheduled % of
Amortization Type Loans Balance Balance WAMM WAC DSCR
====================================================================================================================================
====================================================================================================================================
0 0 0.00%
====================================================================================================================================
DISTRIBUTION OF YEAR LOANS MATURING
====================================================================================================================================
# of Scheduled % of
Year Loans Balance Balance WAMM WAC DSCR
====================================================================================================================================
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014 & Longer
====================================================================================================================================
0 0 0.00%
====================================================================================================================================
ABN AMRO [LOGO] GREENWICH CAPITAL COMMERCIAL FUNDING CORP. Statement Date: 01/05/2004
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 01/05/2004
SERIES 2003-C2 Prior Payment: N/A
Next Payment: 02/05/2004
Record Date: 12/31/2003
ABN AMRO ACCT: XX-XXXX-XX-X
LOAN LEVEL DETAIL
====================================================================================================================================
Operating Ending Spec. Loan
Disclosure Property Statement Maturity Principal Note Scheduled Mod. Serv ASER Status
Control # Grp Type State DSCR NOI Date Date Balance Rate P&I Flag Flag Flag Code(1)
====================================================================================================================================
====================================================================================================================================
W/Avg 0.00 0 0 0
====================================================================================================================================
======================================
Prepayment
--------------------------------------
Amount Penalty Date
======================================
======================================
0 0
======================================
* NOI and DSCR, if available and reportable under the terms of the Pooling and Servicing 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 1. P&I Adv-delinquent 1 month 6. Specially Serviced 11. Modification
B. P&I Adv-(less than) one 2. P&I Adv-delinquent 2 months 7. Foreclosure
month delinq 3. P&I Adv-delinquent 3+ months 8. Bankruptcy
4. Mat. Balloon/Assumed P&I 9. REO
5. Prepaid in Full 10. DPO
====================================================================================================================================
ABN AMRO [LOGO] GREENWICH CAPITAL COMMERCIAL FUNDING CORP. Statement Date: 01/05/2004
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 01/05/2004
SERIES 2003-C2 Prior Payment: N/A
Next Payment: 02/05/2004
Record Date: 12/31/2003
ABN AMRO ACCT: XX-XXXX-XX-X
SPECIALLY SERVICED (PART I) ~ LOAN DETAIL
======================== ========= ================================ ========================================= ==================
Loan Balance Remaining Term
Disclosure Transfer Status -------------------------------- Note Maturity ------------------- Property
Control # Date Code(1) Scheduled Actual Rate Date Life Amort. Type
======================== ========= ================================ ========================================= ==================
======================== ========= ================================ ========================================= ==================
========= ==================================================
NOI
State NOI DSCR Date
========= =================================================
========= =================================================
(1) Legend: A. P&I Adv - in Grace Period 1. P&I Adv - delinquent 1 month
B. P&I Adv - (less than) 1 month delinq 2. P&I Adv - delinquent 2 months
3. P&I Adv - delinquent 3+ months
4. Mat. Balloon/Assumed P&I
7. Foreclosure
9. REO
ABN AMRO [LOGO] GREENWICH CAPITAL COMMERCIAL FUNDING CORP. Statement Date: 01/05/2004
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 01/05/2004
SERIES 2003-C2 Prior Payment: N/A
Next Payment: 02/05/2004
Record Date: 12/31/2003
ABN AMRO ACCT: XX-XXXX-XX-X
SPECIALLY SERVICED LOAN DETAIL (PART II) ~ SERVICER COMMENTS
========================================================== =======================================================================
Disclosure Resolution
Control # Strategy Comments
========================================================== =======================================================================
========================================================== =======================================================================
ABN AMRO [LOGO] GREENWICH CAPITAL COMMERCIAL FUNDING CORP. Statement Date: 01/05/2004
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 01/05/2004
SERIES 2003-C2 Prior Payment: N/A
Next Payment: 02/05/2004
Record Date: 12/31/2003
ABN AMRO ACCT: XX-XXXX-XX-X
MODIFIED LOAN DETAIL
========================================================================== ========================================================
Cutoff Modified
Disclosure Modification Maturity Maturity Modification
Control # Date Date Date Description
-------------------------------------------------------------------------- --------------------------------------------------------
========================================================================== ========================================================
ABN AMRO [LOGO] GREENWICH CAPITAL COMMERCIAL FUNDING CORP. Statement Date: 01/05/2004
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 01/05/2004
SERIES 2003-C2 Prior Payment: N/A
Next Payment: 02/05/2004
Record Date: 12/31/2003
ABN AMRO ACCT: XX-XXXX-XX-X
REALIZED LOSS DETAIL
==========================================================================================================================
Beginning Gross Proceeds Aggregate
Disclosure Appraisal Appraisal Scheduled Gross as a % of Liquidation
Period Control # Date Value Balance Proceeds Sched. Principal Expenses*
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
CURRENT TOTAL 0.00 0.00 0.00
CUMULATIVE 0.00 0.00 0.00
==========================================================================================================================
======================================================================
Net Net Proceeds
Liquidation as a % of Realized
Proceeds Sched. Balance Loss
----------------------------------------------------------------------
----------------------------------------------------------------------
0.00 0.00
0.00 0.00
======================================================================
* Aggregate liquidation expenses also include outstanding P&I advances and
unpaid servicing fees, unpaid trustee fees, etc.
ABN AMRO [LOGO] GREENWICH CAPITAL COMMERCIAL FUNDING CORP. Statement Date: 01/05/2004
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date: 01/05/2004
SERIES 2003-C2 Prior Payment: N/A
Next Payment: 02/05/2004
Record Date: 12/31/2003
ABN AMRO ACCT: XX-XXXX-XX-X
APPRAISAL REDUCTION DETAIL
======================== ================================================= ==========================================
Remaining Term
Disclosure Appraisal Scheduled ARA Current P&I Note Maturity --------------------
Control # Red. Date Balance Amount Advance ASER Rate Date Life Amort.
======================== ================================================= ==========================================
======================== =============================================== ==========================================
============================= ========= ==================================
Appraisal
Property ----------------------------------
Type State DSCR Value Date
============================= ========= ==================================
============================= ========= ==================================
EXHIBIT C
FORM OF CUSTODIAL CERTIFICATION
To the parties listed on the attached Schedule A
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C2, Commercial Mortgage Pass
Through Certificates, Series 2003-C2 (the "Certificates")
-----------------------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement
dated as of December 23, 2003, relating to the above-referenced Certificates
(the "Agreement"), LaSalle Bank National Association, in its capacity as trustee
(the "Trustee"), hereby certifies as to each Mortgage Loan subject as of the
date hereof to the Agreement (except as identified in the exception report
attached hereto) that: (i) all documents specified in clauses (a)(i) through
(a)(v), (a)(vii) and (a)(viii) (without regard to the second parenthetical in
such clause (a)(viii)) of the definition of "Mortgage File", 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 Mortgage 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
Greenwich Capital Commercial Funding Corp.
Greenwich Capital Financial Products, Inc.
Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Standard & Poor's Rating Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Wachovia Bank, National Association
Structured Products Servicing
0000 Xxxxxxxx Xxxxx - XXX0
Xxxxxxxxx, XX 00000-0000
Lennar Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
-------------------------
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
Greenwich Capital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 2003-C2
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C2, Commercial Mortgage
Pass-Through Certificates, Series 2003-C2
---------------------------------------------------------
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 December 23, 2003 (the "Pooling and Servicing Agreement"),
by and among Greenwich Capital Commercial Funding Corp. as depositor, the
undersigned as master servicer (the "Master Servicer"), Lennar Partners, Inc. 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.
WACHOVIA BANK, NATIONAL ASSOCIATION
By: ________________________________
Name:
Title:
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
-----------
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
Greenwich Capital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 2003-C2
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C2, Commercial Mortgage
Pass-Through Certificates, Series 2003-C2
---------------------------------------------------------
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 December 23, 2003 (the "Pooling and Servicing Agreement"), by and
among Greenwich Capital Commercial Funding Corp. as depositor, Wachovia Bank,
National Association 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 or otherwise liquidated, 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.
LENNAR PARTNERS, INC.
By: ________________________________
Name:
Title:
EXHIBIT E
FORM OF LOAN PAYOFF NOTIFICATION REPORT
LOAN PAYMENT NOTIFICATION REPORT
as of _____________________
------------------------------------------------------------------------------------------------------------------------------------
X0 X00 X00 X00 X0 X0 X00 X00 X00 X00
------------------------------------------------------------------------------------------------------------------------------------
Preceding
Short Name Scheduled Paid Current Fiscal Yr.
Prospectus (When Property Loan Thru Interest Maturity DSCR Most Recent
ID Appropriate) Type State Balance Date Rate Date NCR DSCR NCF
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Scheduled Payments
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Unscheduled Payment
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Total: $
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------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
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-------------------------------------------------------------
S4 Servicer Estimated Information
-------------------------------------------------------------
Expected Expected
Prospectus Yield Payment Distribution
ID Maintenance Date Date
-------------------------------------------------------------
-------------------------------------------------------------
Scheduled Payments
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
Unscheduled Payment
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
Total:
-------------------------------------------------------------
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-------------------------------------------------------------
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-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
The Borrower has only requested the information to pay-off. This does not
indicate a definite payment.
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--
Greenwich Capital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 2003-C2
Re: Greenwich Capital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 2003-C2, Commercial Mortgage Pass-Through
Certificates, Series 2003-C2, Class _____, [having an initial
aggregate [Certificate Principal Balance] [Certificate Notional
Amount] as of December 23, 2003 (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 December 23, 2003, between Greenwich
Capital Commercial Funding Corp., as Depositor, Wachovia Bank, National
Association, as Master Servicer, Lennar Partners, Inc., 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--
Greenwich Capital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 2003-C2
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C2, Commercial Mortgage
Pass-Through Certificates, Series 2003-C2, Class ___, [having
an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of December 23, 2003 (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 December 23, 2003, among Greenwich Capital Commercial Funding Corp., as
Depositor, Wachovia Bank, National Association, as Master Servicer, Lennar
Partners, Inc., 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 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:
ANNEX 1 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates (the
"Transferred Certificates") described in the Transferee certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificates (the
"Transferee").
2. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended, because (i) [the Transferee] [each of the Transferee's equity
owners] owned and/or invested on a discretionary basis
$______________________(1) in securities (other than the excluded
securities referred to below) as of the end of such entity's most recent
fiscal year (such amount being calculated in accordance with Rule 144A)
and (ii) the Transferee satisfies the criteria in the category marked
below.
_____ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
_____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
state or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. bank, and not more than 18 months preceding
such date of sale in the case of a foreign bank or equivalent
institution.
_____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a state or federal authority having
supervision over any such institutions, or is a foreign
savings and loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy
of which is attached hereto, as of a date not more than 16
months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings 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
Yes No Transferred Certificates only for the Transferee's own
account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the "qualified
institutional buyer" status of such third party has been established by
the Transferee through one or more of the appropriate methods contemplated
by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the
Transferred Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the
Transferee is a bank or savings and loan as provided above, the Transferee
agrees that it will furnish to such parties any updated annual financial
statements that become available on or before the date of such purchase,
promptly after they become available.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant
to which the Transferred Certificates were issued.
______________________________________
Print Name of Transferee
By: ________________________________
Name:
Title:
Date:
-------------
(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.
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--
Greenwich Capital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 2003-C2
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C2, Commercial Mortgage
Pass-Through Certificates, Series 2003-C2, Class _____,[having
an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of December 23, 2003 (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 December 23, 2003, between Greenwich
Capital Commercial Funding Corp., as Depositor, Wachovia Bank, National
Association, as Master Servicer, Lennar Partners, Inc., 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 THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security to any person in any manner, (b) solicited any
offer to buy or accept a pledge, disposition or other transfer of any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security with
any person in any manner, (d) made any general solicitation with respect
to any Transferred Certificate, any interest in any Transferred
Certificate or any other similar security by means of general advertising
or in any other manner, or (e) taken any other action with respect to any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security, which (in the case of any of the acts
described in clauses (a) through (e) above) would constitute a
distribution of the Transferred Certificates under the Securities Act,
would render the disposition of the Transferred Certificates a violation
of Section 5 of the Securities Act or any state securities law or would
require registration or qualification of the Transferred Certificates
pursuant thereto. The Transferee will not act, nor has it authorized or
will it authorize any person to act, in any manner set forth in the
foregoing sentence with respect to any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security.
5. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the Pooling and Servicing Agreement and the Trust Fund
created pursuant thereto, (d) the nature, performance and servicing of the
Mortgage Loans, and (e) all related matters, that it has requested.
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 OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN RULE 144A GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C2, Commercial Mortgage
Pass-Through Certificates, Series 2003-C2, Class _____, having
an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of December 23, 2003 (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 December 23, 2003, between Greenwich Capital Commercial
Funding Corp., as Depositor, Wachovia Bank, National Association, as Master
Servicer, Lennar Partners, Inc., 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"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986 (THE "CODE"), OR ANY MATERIALLY SIMILAR PROVISION OF
APPLICABLE FEDERAL, STATE OR LOCAL LAW 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 Greenwich Capital Commercial Funding
Corp. 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.
_____ 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:
-------------
(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.
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 Greenwich Capital Commercial Funding
Corp. 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 OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: Greenwich Capital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 2003-C2, Commercial Mortgage Pass-Through
Certificates, Series 2003-C2, Class _____, having an initial
aggregate [Certificate Principal Balance] [Certificate Notional
Amount] as of December 23, 2003 (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 December 23, 2003, between Greenwich Capital Commercial
Funding Corp., as Depositor, Wachovia Bank, National Association, as Master
Servicer, Lennar Partners, Inc., 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: __________, _____
By:
-----------------------------------------
As, or agent for, the beneficial owner(s)
of the Certificates to which this
certificate relates.
EXHIBIT G
FORM I OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA (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--
Greenwich Capital Commercial Funding Corp., Series 2003-C2
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C2, Commercial Mortgage
Pass-Through Certificates, Series 2003-C2, Class _____, having
an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of December 23, 2003 (the
"Issue Date") of $__________
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 December 23, 2003, between Greenwich
Capital Commercial Funding Corp., as Depositor, Wachovia Bank, National
Association, as Master Servicer, Lennar Partners, Inc., 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 not (a) an employee benefit plan subject to the fiduciary
responsibility provisions of the Employee Retirement Income Security Act of
1974, as amended ("ERISA") or Section 4975 of the Internal Revenue Code of 1986,
as amended (the "Code"), or a governmental plan (as defined in Section 3(32) of
ERISA) subject to any federal, state or local law ("Similar Law") which is, to a
material extent, similar to the foregoing provisions of ERISA or the Code (each
a "Plan") or (b) a person acting on behalf of or using the assets of any such
Plan (including an entity whose underlying assets include Plan assets by reason
of investment in the entity by such a Plan or Plans and the application of
Department of Labor Regulation ss. 2510.3-101), other than, except in the case
of a Residual Interest Certificate, an insurance company using the assets of its
general account under circumstances whereby the purchase and holding of
Privately Offered Certificates by such insurance company would be exempt from
the prohibited transaction provisions of ERISA and the Code under Sections I and
III of Prohibited Transaction Class Exemption 95-60.
2. Except in the case of the Residual Interest Certificates, which may not be
transferred to a Plan or any person acting on behalf of or using the assets of a
Plan, the Transferee understands that if the Transferee is a Person referred to
in 1(a) or (b) above, such Transferee is required to provide to the Certificate
Registrar an opinion of counsel in form and substance satisfactory to the
Certificate Registrar and the Depositor to the effect that the acquisition and
holding of such Certificate by such Transferee or transferee will not result in
the assets of the Trust Fund being deemed to be plan assets (by reason of the
application of Department of Labor Regulation ss. 2510.3-101) and subject to the
fiduciary responsibility provisions of ERISA, the prohibited transaction
provisions of the Code or the provisions of any Similar Law, will not constitute
or result in a "prohibited transaction" within the meaning of ERISA, Section
4975 of the Code or any Similar Law, and will not subject the Trustee, the
Certificate Registrar, the Master Servicer, the Special Servicer, the Initial
Purchaser or the Depositor to any obligation or liability (including obligations
or liabilities under ERISA, Section 4975 of the Code or any such Similar Law) in
addition to those set forth in the Pooling and Servicing Agreement, which
Opinion of Counsel shall not be at the expense of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Initial Purchaser, the
Certificate Registrar or the Trust Fund.
IN WITNESS WHEREOF, the Transferee hereby executes this ERISA representation
letter on the ___ day of [______________], 20[__].
Very truly yours,
_________________________________________
[The 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: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C2, Commercial Mortgage
Pass-Through Certificates, Series 2003-C2 (the
"Certificates"), issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of
December 23, 2003, among Greenwich Capital Commercial Funding
Corp. as Depositor, Wachovia Bank, National Association as
Master Servicer, Lennar Partners, Inc. 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] 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"], [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]
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 is not a foreign permanent establishment or a fixed
base (within the meaning of any applicable income tax treaty between the United
States and any foreign jurisdiction) of a United States Tax Person.
5. The Purchaser will not cause the income from the [Class R-I]
[Class R-II] Certificates to be attributable to a foreign permanent
establishment or fixed base (within the meaning of any applicable income tax
treaty between the United States and any foreign jurisdiction) of a United
States Tax Person.
6. The Purchaser acknowledges that Section 860E(e) of the Code would
impose a substantial tax on the transferor or, in certain circumstances, on an
agent for the transferee, with respect to any transfer of any interest in any
[Class R-I] [Class R-II] Certificates to a Disqualified Organization.
7. No purpose of the acquisition of the [Class R-I] [Class R-II]
Certificates is to impede the assessment or collection of tax.
8. Check one of the following:
[ ] The present value of the anticipated tax liabilities associated with holding
the [Class R-I] [Class R-II] Certificate does not exceed the sum of:
(i) the present value of any consideration given to the Purchaser
to acquire such [Class R-I] [Class R-II] Certificate;
(ii) the present value of the expected future distributions on such
[Class R-I] [Class R-II] Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such [Class R-I] [Class R-II] Certificate as the
related REMIC generates losses.
For purposes of this calculation, (i) the Purchaser is assumed to pay tax at the
highest rate currently specified in Section 11(b) of the Code (but the tax rate
in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b) of the Code if the Purchaser has been subject to the
alternative minimum tax under Section 55 of the Code in the preceding two years
and will compute its taxable income in the current taxable year using the
alternative minimum tax rate) and (ii) present values are computed using a
discount rate equal to the short-term Federal rate prescribed by Section 1274(d)
of the Code for the month of the transfer and the compounding period used by the
Purchaser.
[ ] The transfer of the [Class R-I] [Class R-II] Certificate complies with U.S.
Treasury Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Purchaser is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which
income from the [Class R-I] [Class R-II] Certificate will only
be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Purchaser's two fiscal years preceding the year of the
transfer, the Purchaser had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Purchaser within the meaning of U.S. Treasury
Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Purchaser will transfer the [Class R-I] [Class R-II]
Certificate only to another "eligible corporation," as defined
in U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), in a
transaction that satisfies the requirements of Sections
1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5)
of the U.S. Treasury Regulations; and
(iv) the Purchaser determined the consideration paid to it to
acquire the [Class R-I] [Class R-II] Certificate based on
reasonable market assumptions (including, but not limited to,
borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates
and other factors specific to the Purchaser) that it has
determined in good faith.
[ ] None of the above.
9. [Check the statement that applies]
[ ] 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
[ ] 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] 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] Certificate;
(c) intends to pay the taxes associated with holding a [Class
R-I] [Class R-II] Certificate;
(d) is not classified as a partnership under the Code (or, if
so classified, all of its beneficial owners either satisfy clauses
(a), (b) and (c) of this sentence or are United States persons); and
(e) has furnished the Transferor and the Trustee with an
effective IRS Form W-8ECI or successor form and will update such
form as may be required under the applicable Treasury regulations.
9. The Purchaser historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future and
the Purchaser intends to pay taxes associated with holding the [Class R-I]
[Class R-II] Certificates as they become due.
10. The Purchaser understands that it may incur tax
liabilities with respect to the [Class R-I] [Class R-II] Certificates in
excess of any cash flows generated by such Certificates.
11. The Purchaser will not transfer the [Class R-I] [Class
R-II] Certificates to any person or entity as to which the Purchaser has
not received an affidavit substantially in the form of this affidavit or
to any person or entity as to which the Purchaser has actual knowledge
that the requirements set forth in paragraphs 3, 4, 5, 7 or 9 hereof are
not satisfied, or to any person or entity with respect to which the
Purchaser has not (at the time of such transfer) satisfied the
requirements under the Code to conduct a reasonable investigation of the
financial condition of such person or entity (or its current beneficial
owners if such person or entity is classified as a partnership under the
Code).
12. The Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the
prohibition against transferring the [Class R-I] [Class R-II] Certificates
to a Disqualified Organization, an agent thereof or a person that does not
satisfy the requirements of paragraphs 4, 5, 7 and 9.
13. The Purchaser consents to the designation of the Trustee
as the agent of the Tax Matters Person of [REMIC I] [REMIC II] 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, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
Greenwich Capital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 2003-C2
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C2, Commercial Mortgage
Pass-Through Certificates, Series 2003-C2 (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] 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 December 23, 2003 (the "Pooling and Servicing
Agreement"), among Greenwich Capital Commercial Funding Corp., as depositor,
Wachovia Bank, National Association as master servicer, Lennar Partners, Inc. 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,
______________________________________
(Transferor)
By: ________________________________
Name:
Title:
EXHIBIT I-1
FORM OF NOTICE AND ACKNOWLEDGEMENT
[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: Commercial Surveillance Department
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the
Pooling and Servicing Agreement, dated as of December 23, 2003 and relating to
Greenwich Capital Commercial Funding Corp., Commercial Mortgage Trust 2003-C2,
Commercial Mortgage Pass-Through Certificates, Series 2003-C2 (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:
Date:
XXXXX'X INVESTORS SERVICE, INC.
By: ________________________________
Name:
Title:
Date:
EXHIBIT I-2
FORM OF ACKNOWLEDGEMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[MASTER SERVICER]
[DEPOSITOR]
[FISCAL AGENT]
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C2, Commercial Mortgage
Pass-Through Certificates, Series 2003-C2
Ladies and Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement,
dated as of December 23, 2003, relating to Greenwich Capital Commercial Funding
Corp., Commercial Mortgage Trust 2003-C2, Commercial Mortgage Pass-Through
Certificates, Series 2003-C2 (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
RESERVED
EXHIBIT K
SUB-SERVICERS IN RESPECT OF WHICH SUB-SERVICING AGREEMENTS ARE IN
EFFECT OR BEING NEGOTIATED AS OF THE CLOSING DATE
GMAC Commercial Mortgage Corporation
Northmarq Capital, Inc.
Xxxxxxxx Xxxxxxxx Xxxxx
EXHIBIT L
FORM OF DEFEASANCE CERTIFICATION
FORM OF NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
For loans (a) having a balance of $20,000,000 or less or a balance of less
than 5% of outstanding pool balance, whichever is less) or (b) that are
not then one of the ten largest (measured by
unpaid principal balance) in the mortgage pool
To: Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: _____________________________________, in its capacity as master servicer
(the "Master Servicer") under the Pooling and Servicing Agreement dated as
of December 23, 2003 (the "Pooling and Servicing Agreement"), among
Greenwich Capital Commercial Funding Corp. as Depositor, the Master
Servicer, Lennar Partners, Inc. as special servicer, LaSalle Bank National
Association as trustee (the "Trustee"), and ABN AMRO Bank N.V. as fiscal
agent.
Date: _________, 20___
Re: Greenwich Capital Commercial Funding Corp., Commercial
Mortgage Trust 2003-C2, Commercial Mortgage Pass-Through
Certificates Series 2003-C2
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 or on the date when
any open prepayment period set forth in the related Mortgage Loan
documents commences), (ii) the revenues received in any month from the
defeasance collateral will be applied to make Scheduled Payments within
four (4) months after the date of receipt, and (iii) interest income from
the defeasance collateral to the Defeasance Obligor in any calendar or
fiscal year will not exceed such Defeasance Obligor's interest expense for
the Mortgage Loan (or the allocated portion thereof in a partial
defeasance) for such year.
i. The Master Servicer received opinions from counsel, who
were approved by the Master Servicer in accordance with the Servicing
Standard, that (i) the agreements executed by the Mortgagor and/or the
Defeasance Obligor in connection with the defeasance are enforceable
against them in accordance with their terms, and (ii) the Trustee will
have a perfected, first priority security interest in the defeasance
collateral described above.
j. The agreements executed in connection with the defeasance
(i) permit reinvestment of proceeds of the defeasance collateral only in
Permitted Investments (as defined in the S&P Criteria), (ii) permit
release of surplus defeasance collateral and earnings on reinvestment to
the Defeasance Obligor or the Mortgagor only after the Mortgage Loan has
been paid in full, if any such release is permitted, (iii) prohibit any
subordinate liens against the defeasance collateral, and (iv) provide for
payment from sources other than the defeasance collateral or other assets
of the Defeasance Obligor of all fees and expenses of the securities
intermediary for administering the defeasance and the securities account
and all fees and expenses of maintaining the existence of the Defeasance
Obligor.
k. The entire unpaid principal balance of the Mortgage Loan as
of the date of defeasance was $___________. Such Mortgage Loan (a) has a
balance of $20,000,000 or less or a balance of less than 5% of outstanding
pool balance or (b) is not then one of the ten largest (measured by unpaid
principal balance) in the mortgage pool, in each such case, as of the date
of the most recent Distribution Date Statement received by us (the
"Current Report").
3. The defeasance described herein, together with all prior and
simultaneous defeasances of Mortgage Loans, brings the total of all fully and
partially defeased Mortgage Loans to $__________________, which is _____% of the
aggregate unpaid principal balance of the Mortgage Pool as of the date of the
Current Report.
4. Certify that Exhibit B hereto is a list of the material
agreements, instruments, organizational documents for the Defeasance Obligor,
and opinions of counsel and independent accountants executed and delivered in
connection with the defeasance described above and that originals or copies of
such agreements, instruments and opinions have been transmitted to the Trustee
for placement in the related Mortgage File or, to the extent not required to be
part of the related Mortgage File, are in the possession of the Master Servicer
as part of the Master Servicer's servicing file.
5. Certify and confirm that the determinations and certifications
described above were rendered in accordance with the Servicing Standard set
forth in, and the other applicable terms and conditions of, the Pooling and
Servicing Agreement; and
6. Certify that the individual under whose hand the Master Servicer
has caused this Notice and Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance described above.
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 M
FORM OF BACKUP CERTIFICATION TO BE PROVIDED TO THE DEPOSITOR
EXHIBIT M-1
FORM OF TRUSTEE BACKUP CERTIFICATION
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C2 (the "Trust") Commercial
Mortgage Pass-Through Certificates, Series 2003-C2 (the
"Certificates")
----------------------------------------------------------
Pursuant to Section 8.15 of the Pooling and Servicing Agreement,
dated as of December 23, 2003 (the "Pooling and Servicing Agreement"), between
Greenwich Capital Commercial Funding Corp. as depositor (the "Depositor"),
LaSalle Bank National Association as trustee (the "Trustee"), Wachovia Bank,
National Association as master servicer (the "Master Servicer"), Lennar
Partners, Inc. as special servicer (the "Special Servicer") and ABN AMRO Bank
N.V. as fiscal agent, relating to the Certificates, the undersigned, a
____________________ of the Trustee and on behalf of the Trustee, hereby
certifies to the ____________________ as the officer executing the subject
certification pursuant to the Xxxxxxxx-Xxxxx Act of 2002 (the "Certifying
Person") and its partners, representatives, affiliates, members, managers,
directors, officers, employees and agents, to the extent that the following
information is within our normal area of responsibilities and duties under the
Pooling and Servicing Agreement, and with the knowledge and intent that they
will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the
fiscal year _______, and all reports on Form 8-K filed in respect of
periods included in the year covered by that annual report, of the Trust;
2. To the best of my knowledge, and assuming the accuracy of
the statements required to be made in the Master Servicer Backup
Certification and in the Special Servicer Backup Certification (in each
case, to the extent that such statements are relevant to the statements
made in this Trustee Backup Certification), that the information in such
reports relating to distributions on and/or characteristics (including
Certificate Principal Balances, Notional Amounts and Pass-Through Rates)
of the Certificates, taken as a whole, does not contain any untrue
statement of material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading as of the last day of the period
covered by the subject annual report on Form 10-K;
3. To the best of my knowledge, the information in such
reports relating to distributions on and/or characteristics (including
Certificate Principal Balances, Notional Amounts and Pass-Through Rates)
of the Certificates includes all information of such type required to be
included in the Distribution Date Statement for the relevant period
covered by the subject annual report on Form 10-K; and
4. To the best of my knowledge, such information includes all
Servicer Reports and Additional Designated Servicing Information provided
to the Trustee by the Master Servicer and/or the Special Servicer
hereunder.
Capitalized terms used herein and not defined shall have the
respective meanings given to them in the Pooling and Servicing Agreement.
Date:
[NAME OF TRUSTEE]
By: _________________________________
Name:
Title:
EXHIBIT M-2
FORM OF MASTER SERVICER BACKUP CERTIFICATION
TO BE PROVIDED TO DEPOSITOR
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C2 (the "Trust") Commercial
Mortgage Pass-Through Certificates, Series 2003-C2 (the
"Certificates")
----------------------------------------------------------
Pursuant to Section 8.15 of the Pooling and Servicing Agreement,
dated as of December 23, 2003 (the "Pooling and Servicing Agreement"), between
Greenwich Capital Commercial Funding Corp., as depositor (the "Depositor"),
LaSalle Bank National Association as trustee (the "Trustee"), Wachovia Bank,
National Association as master servicer (the "Master Servicer"), Lennar
Partners, Inc. as special servicer (the "Special Servicer") and ABN AMRO Bank
N.V. as fiscal agent, relating to the Certificates, the undersigned, a
____________________ of the Master Servicer and on behalf of the Master
Servicer, hereby certifies to the ____________________ as the officer executing
the subject certification pursuant to the Xxxxxxxx-Xxxxx Act of 2002 (the
"Certifying Person") and its partners, representatives, affiliates, members,
managers, directors, officers, employees and agents, to the extent that the
following information is within our normal area of responsibilities and duties
under the Pooling and Servicing Agreement, and with the knowledge and intent
that they will rely upon this certification, that:
1. I have reviewed all the Servicer Reports and Additional
Designated Servicing Information delivered by the Master Servicer to the
Trustee for the fiscal year [___];
2. Based on my knowledge, and assuming the accuracy of the
statements required to be made in the Special Servicer Backup
Certification (to the extent that such statements are relevant to the
statements made in this Master Servicer Backup Certification), the
information in the Servicer Reports and Additional Designated Servicing
Information delivered by the Master Servicer to the Trustee for such year
relating to servicing information, including information relating to
actions of the Master Servicer and/or payments and other collections on
and characteristics of the Mortgage Loans and REO Properties, taken as a
whole, does not contain any untrue statement of material fact or omit to
state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading as
of the last day of such fiscal year;
3. Based on my knowledge, and assuming the accuracy of the
statements required to be made in the Special Servicer Backup
Certification (to the extent that such statements are relevant to the
statements made in this Master Servicer Backup Certification), the
information in the Servicer Reports and Additional Designated Servicing
Information delivered by the Master Servicer to the Trustee for such year
relating to servicing information, including information relating to
actions of the Master Servicer and/or payments and other collections on
and characteristics of the Mortgage Loans and REO Properties, includes all
information of such type required to be provided by the Master Servicer to
the Trustee under the Pooling and Servicing Agreement for such year;
4. I am responsible for reviewing the activities performed by
the Master Servicer under the Pooling and Servicing Agreement and, based
upon the review required under the Pooling and Servicing Agreement, and
except as disclosed in the Annual Performance Certification delivered by
the Master Servicer for such year, the Master Servicer has fulfilled its
obligations under the Pooling and Servicing Agreement; and
5. I have disclosed to the accountants that are to deliver the
Annual Accountants' Report in respect of the Master Servicer with respect
to such year all significant deficiencies relating to the Master
Servicer's compliance with the minimum servicing standards in accordance
with a review conducted in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or similar standard as set forth in the
Pooling and Servicing Agreement.
The foregoing certifications under clauses 2. and 3. above assume
that the following sections and parts of the Prospectus Supplement did not, as
of the date thereof or as of the Closing Date, contain any untrue statement of a
material fact regarding the Mortgage Loan Seller Matters (as defined below) or
omit to state any material fact regarding the Mortgage Loan Seller Matters
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading: "Summary of Prospectus
Supplement--The Underlying Mortgage Loans and the Mortgaged Real Properties,"
"Risk Factors--Risks Related to the Underlying Mortgage Loans" and "Description
of the Mortgage Pool" and Annex A and Annex B to the Prospectus Supplement.
"Mortgage Loan Seller Matters" as used in the preceding sentence shall mean the
description of the Mortgage Loans, the Mortgaged Properties and the Mortgagors.
In addition, notwithstanding the foregoing certifications under
clauses 2. and 3. above, the Master Servicer does not make any certification
under such clauses 2. and 3. above with respect to the information in the
Servicer Reports and Additional Designated Servicing Information delivered by
the Master Servicer to the Trustee referred to in such clauses 2. and 3. above
that is in turn dependent upon information provided by the Special Servicer
under the Pooling and Servicing Agreement, beyond the certification actually
provided by the Special Servicer pursuant to Section 8.15(d) of the Pooling and
Servicing Agreement. In addition, notwithstanding the foregoing certifications
under clauses 2. and 3. above, the Master Servicer does not make any
certification under such clauses 2. and 3. above with respect to the information
in the Servicer Reports and Additional Designated Servicing Information
delivered by the Master Servicer to the Trustee referred to in such clauses 2.
and 3. above that is in turn dependent upon information provided by the 2003-C1
Master Servicer under the 0000-X0 XXX, beyond any certification actually
provided by the 2003-C1 Master Servicer.
Further, notwithstanding the foregoing certifications, the Master
Servicer does not make any certification under the foregoing clauses 1. through
5. that is in turn dependent upon information required to be provided by any
Sub-Servicer identified on Exhibit K to the Pooling and Servicing Agreement,
acting under a Sub-Servicing Agreement that the Master Servicer entered into in
connection with the issuance of the Certificates, or upon the performance by any
such Sub-Servicer of its obligations pursuant to any such Sub-Servicing
Agreement, in each case beyond the respective backup certifications actually
provided by such Sub-Servicer to the Master Servicer with respect to the
information that is the subject of such certification.
Capitalized terms used herein and not defined shall have the
respective meanings given to them in the Pooling and Servicing Agreement.
Date:
[NAME OF MASTER SERVICER]
By: _________________________________
Name:
Title:
EXHIBIT M-3
FORM OF SPECIAL SERVICER BACKUP CERTIFICATION
TO BE PROVIDED TO DEPOSITOR
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C2 (the "Trust") Commercial
Mortgage Pass-Through Certificates, Series 2003-C2 (the
"Certificates")
----------------------------------------------------------
I, ________________ a ____________________ of [NAME OF SPECIAL
SERVICER] ("[INSERT SHORT NAME]") on behalf of [INSERT SHORT NAME], as Special
Servicer, hereby certify to [Greenwich Capital Commercial Funding Corp. (the
"Depositor")] [or, if certifying person is not the Depositor, INSERT NAME OF
CERTIFYING PERSON] and its affiliates, members, managers, directors and
officers, to the extent that the following information is within the Special
Servicer's area of responsibilities and duties under the Pooling and Servicing
Agreement, and with the knowledge and intent that they will rely upon this
certification, that:
1. I am responsible for reviewing the activities performed by
the Special Servicer under the pooling and servicing agreement, dated as
of December 23, 2003, relating to Greenwich Capital Commercial Funding
Corp., as depositor, Commercial Mortgage Trust 2003-C2, Commercial
Mortgage Pass-Through Certificates, Series 2003-C2 (the "Pooling and
Servicing Agreement"), and, based upon the review performed as required
under Section 3.13 of the Pooling and Servicing Agreement, and except as
disclosed on Schedule I hereto, the Special Servicer, to my knowledge, has
fulfilled its material obligations under the Pooling and Servicing
Agreement, including the provision of all reports, if any, required to be
submitted by the Special Servicer to the Master Servicer and the Trustee
thereunder, and that, to the knowledge of the Special Servicer, such
reports do not contain any material misstatements or omissions; and
2. I have disclosed to the Special Servicer's certified public
accountants all significant deficiencies, to my knowledge, relating to the
compliance by the Special Servicer with the minimum servicing standards in
accordance with a review conducted in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or similar standard as set forth
in the Pooling and Servicing Agreement.
Capitalized terms used herein and not defined shall have the
respective meanings given to them in the Pooling and Servicing Agreement.
Date:
[NAME OF SPECIAL SERVICER]
By: _________________________________
Name:
Title:
