EXHIBIT 4.2
Form of Pooling and Servicing Agreement for Commercial
Mortgage Pass-Through Certificates
XXXXXX XXXXXXX CAPITAL I INC.,
as Depositor,
_______,
as Master Servicer,
_________,
as Special Servicer,
and
_______,
as Trustee, Paying Agent and Certificate Registrar.
POOLING AND SERVICING AGREEMENT
Dated as of _____, 20__
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 20__-___
This form of Pooling and Servicing Agreement is representative of the form of
pooling and servicing agreement that may typically be used in a particular
transaction. The provisions of the pooling and servicing agreement will vary
from transaction to transaction, whether or not the provisions are bracketed in
this form, to reflect the specific parties, the structure of the certificates,
servicing provisions, asset pool, and other matters.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Definitions....................................................7
Section 1.2 Calculations Respecting Mortgage Loans........................82
Section 1.3 Calculations Respecting Accrued Interest......................83
Section 1.4 Interpretation................................................83
Section 1.5 ARD Loan......................................................84
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans..................................84
Section 2.2 Acceptance by Trustee.........................................87
Section 2.3 Repurchase of Mortgage Loans for Material Document
Defects and Material Breaches of Representations and
Warranties...................................................89
Section 2.4 Representations and Warranties................................95
Section 2.5 Conveyance of Interests.......................................96
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates..............................................96
Section 3.2 Registration..................................................98
Section 3.3 Transfer and Exchange of Certificates.........................98
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates............104
Section 3.5 Persons Deemed Owners........................................104
Section 3.6 Access to List of Certificateholders' Names and Addresses....104
Section 3.7 Book-Entry Certificates......................................105
Section 3.8 Notices to Clearing Agency...................................108
Section 3.9 Definitive Certificates......................................108
ARTICLE IV
ADVANCES
Section 4.1 P&I Advances by the Master Servicer..........................109
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Section 4.2 Servicing Advances...........................................110
Section 4.3 Advances by the Trustee......................................111
Section 4.4 Evidence of Nonrecoverability................................112
Section 4.5 Interest on Advances; Calculation of Outstanding Advances
with Respect to a Mortgage Loan.............................113
Section 4.6 Reimbursement of Advances and Advance Interest...............114
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections..................................................115
Section 5.2 Application of Funds in the Certificate Accounts and
Interest Reserve Accounts...................................118
Section 5.3 Distribution Account, Excess Interest Sub-account,
Reserve Account and Floating Rate Account...................126
Section 5.4 Paying Agent Reports.........................................129
Section 5.5 Paying Agent Tax Reports.....................................131
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally......................................131
Section 6.2 REMIC I......................................................132
Section 6.3 REMIC II.....................................................133
Section 6.4 Reserved.....................................................135
Section 6.5 REMIC III....................................................135
Section 6.6 Allocation of Realized Losses, Expense Losses and
Shortfalls Due to Nonrecoverability.........................146
Section 6.7 Net Aggregate Prepayment Interest Shortfalls.................148
Section 6.8 Adjustment of Servicing Fees.................................149
Section 6.9 Appraisal Reductions.........................................149
Section 6.10 Compliance with Withholding Requirements.....................150
Section 6.11 Prepayment Premiums and Yield Maintenance Charges............151
Section 6.12 Other Distributions..........................................152
ARTICLE VII
CERTAIN MATTERS CONCERNING THE TRUSTEE AND THE PAYING AGENT
Section 7.1 Duties of the Trustee and the Paying Agent...................154
Section 7.2 Certain Matters Affecting the Trustee and the Paying Agent...156
Section 7.3 The Trustee and the Paying Agent Not Liable for
Certificates or Interests or Mortgage Loans.................158
Section 7.4 The Trustee and the Paying Agent May Own Certificates........159
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Section 7.5 Eligibility Requirements for the Trustee and the Paying
Agent.......................................................159
Section 7.6 Resignation and Removal of the Trustee or the Paying Agent...160
Section 7.7 Successor Trustee or Paying Agent............................162
Section 7.8 Merger or Consolidation of Trustee or Paying Agent...........162
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or
Custodian...................................................163
Section 7.10 Authenticating Agents........................................165
Section 7.11 Indemnification of the Trustee and the Paying Agent..........166
Section 7.12 Fees and Expenses of Trustee and the Paying Agent............168
Section 7.13 Collection of Moneys.........................................168
Section 7.14 Trustee to Act; Appointment of Successor.....................168
Section 7.15 Notification to Holders......................................171
Section 7.16 Representations and Warranties of the Trustee and the
Paying Agent................................................171
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Trustee and the Paying Agent..............173
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties.........................173
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Master Servicer...........................174
Section 8.3 Master Servicer's General Power and Duties...................174
Section 8.4 Primary Servicing and Sub-Servicing..........................180
Section 8.5 [Master] [Primary] Servicer May Own Certificates.............183
Section 8.6 Maintenance of Hazard Insurance, Other Insurance and Taxes...183
Section 8.7 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Due-On-Encumbrance Clause.......................186
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files......190
Section 8.9 Documents, Records and Funds in Possession of the Master
Servicer to Be Held for the Trustee for the Benefit of
the Certificateholders......................................191
Section 8.10 Servicing Compensation.......................................191
Section 8.11 Master Servicer Reports; Account Statements..................193
Section 8.12 [Reserved]...................................................194
Section 8.13 [Reserved]...................................................194
Section 8.14 Operating Statement Analysis Reports Regarding the
Mortgaged Properties........................................194
Section 8.15 Other Available Information and Certain Rights of the
Master Servicer.............................................196
Section 8.16 Rule 144A Information........................................198
Section 8.17 Inspections..................................................198
Section 8.18 Modifications, Waivers, Amendments, Extensions and
Consents....................................................199
Section 8.19 Specially Serviced Mortgage Loans............................202
Section 8.20 Representations, Warranties and Covenants of the Master
Servicer....................................................202
Section 8.21 Merger or Consolidation......................................204
Section 8.22 Resignation of the Master Servicer...........................204
Section 8.23 Assignment or Delegation of Duties by the Master Servicer....205
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Section 8.24 Limitation on Liability of the Master Servicer and Others....205
Section 8.25 Indemnification; Third-Party Claims..........................208
Section 8.26 [Reserved]...................................................210
Section 8.27 Compliance with REMIC Provisions and Grantor Trust
Provisions..................................................210
Section 8.28 Termination..................................................211
Section 8.29 Procedure Upon Termination...................................213
Section 8.30 Swap Contract................................................215
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS BY THE
SPECIAL SERVICER
Section 9.1 Duties of the Special Servicer...............................217
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy
of the Special Servicer.....................................218
Section 9.3 Sub-Servicers................................................219
Section 9.4 Special Servicer's General Powers and Duties.................219
Section 9.5 "Due-On-Sale" Clauses; Assignment and Assumption
Agreements; Modifications of Specially Serviced Mortgage
Loans; Due-On-Encumbrance Clauses...........................220
Section 9.6 Release of Mortgage Files....................................225
Section 9.7 Documents, Records and Funds in Possession of the Special
Servicer to Be Held for the Trustee.........................226
Section 9.8 Representations, Warranties and Covenants of the Special
Servicer....................................................227
Section 9.9 Standard Hazard, Flood and Comprehensive General
Liability Insurance Policies................................228
Section 9.10 Presentment of Claims and Collection of Proceeds.............230
Section 9.11 Compensation to the Special Servicer.........................230
Section 9.12 Realization Upon Defaulted Mortgage Loans....................231
Section 9.13 Foreclosure..................................................233
Section 9.14 Operation of REO Property....................................233
Section 9.15 Sale of REO Property.........................................236
Section 9.16 Realization on Collateral Security...........................238
Section 9.17 [Reserved]...................................................238
Section 9.18 [Reserved]...................................................238
Section 9.19 [Reserved]...................................................238
Section 9.20 Merger or Consolidation......................................238
Section 9.21 Resignation of the Special Servicer..........................239
Section 9.22 Assignment or Delegation of Duties by the Special Servicer...240
Section 9.23 Limitation on Liability of the Special Servicer and Others...240
Section 9.24 Indemnification; Third-Party Claims..........................243
Section 9.25 Reserved.....................................................244
Section 9.26 Special Servicer May Own Certificates........................244
Section 9.27 Tax Reporting................................................244
Section 9.28 Application of Funds Received................................244
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Section 9.29 Compliance with REMIC Provisions and Grantor Trust
Provisions..................................................245
Section 9.30 Termination..................................................245
Section 9.31 Procedure Upon Termination...................................247
Section 9.32 Certain Special Servicer Reports.............................248
Section 9.33 Special Servicer to Cooperate with the Master Servicer
and Paying Agent............................................250
Section 9.34 Reserved.....................................................251
Section 9.35 Reserved.....................................................251
Section 9.36 Sale of Defaulted Mortgage Loans.............................251
Section 9.37 Operating Adviser; Elections.................................254
Section 9.38 Limitation on Liability of Operating Adviser.................255
Section 9.39 Rights of Operating Adviser..................................255
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of
All Mortgage Loans..........................................257
Section 10.2 Procedure Upon Termination of Trust..........................259
Section 10.3 Additional Trust Termination Requirements....................260
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
Section 11.1 Limitation on Rights of Holders..............................262
Section 11.2 Access to List of Holders....................................263
Section 11.3 Acts of Holders of Certificates..............................263
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
Section 12.1 REMIC Administration.........................................264
Section 12.2 Prohibited Transactions and Activities.......................269
Section 12.3 Modifications of Mortgage Loans..............................270
Section 12.4 Liability with Respect to Certain Taxes and Loss of REMIC
Status......................................................270
Section 12.5 Grantor Trust Administration.................................271
ARTICLE XIII
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 13.1 Intent of the Parties; Reasonableness........................271
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Section 13.2 Additional Representations and Warranties of the Master
Servicer, the Special Servicer, the Primary Servicer and
the Paying Agent............................................272
Section 13.3 Information to be Provided by the Master Servicer, the
Special Servicer, the Primary Servicer and the Paying
Agent.......................................................273
Section 13.4 Information to be Provided by the Trustee....................276
Section 13.5 Filing Obligations...........................................277
Section 13.6 Form 10-D Filings............................................277
Section 13.7 Form 10-K Filings............................................278
Section 13.8 Xxxxxxxx-Xxxxx Certification.................................280
Section 13.9 Form 8-K Filings.............................................281
Section 13.10 Form 15 Filing; Incomplete Exchange Act Filings;
Amendments to Exchange Act Reports..........................282
Section 13.11 Annual Compliance Statements.................................283
Section 13.12 Annual Reports on Assessment of Compliance with Servicing
Criteria....................................................284
Section 13.13 Annual Independent Public Accountants' Servicing Report......285
Section 13.14 Indemnification..............................................286
Section 13.15 Amendments...................................................288
Section 13.16 Exchange Act Report Signatures...............................288
Section 13.17 Termination of the Paying Agent and Sub-Servicers............288
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 14.1 Binding Nature of Agreement..................................289
Section 14.2 Entire Agreement.............................................289
Section 14.3 Amendment....................................................289
Section 14.4 GOVERNING LAW................................................292
Section 14.5 Notices......................................................292
Section 14.6 Severability of Provisions...................................292
Section 14.7 Indulgences; No Waivers......................................292
Section 14.8 Headings Not to Affect Interpretation........................293
Section 14.9 Benefits of Agreement........................................293
Section 14.10 Special Notices to the Rating Agencies.......................293
Section 14.11 Counterparts.................................................295
Section 14.12 Intention of Parties.........................................295
Section 14.13 Recordation of Agreement.....................................296
Section 14.14 Rating Agency Monitoring Fees................................296
EXHIBITS AND SCHEDULES
EXHIBIT A-1 Form of Class [A-1] Certificate
EXHIBIT A-2 Form of Class [A-1A] Certificate
EXHIBIT A-3 Form of Class [A-2] Certificate
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EXHIBIT A-4 Form of Class [A-3-1FL] Certificate
EXHIBIT A-5 Form of Class [A-3-1] Certificate
EXHIBIT A-6 Form of Class [A-3-2] Certificate
EXHIBIT A-7 Form of Class [A-AB] Certificate
EXHIBIT A-8 Form of Class [A-4A] Certificate
EXHIBIT A-9 Form of Class [A-4B] Certificate
EXHIBIT A-10 Form of Class X-2 Certificate
EXHIBIT A-11 Form of Class [A-J] Certificate
EXHIBIT A-12 Form of Class [B] Certificate
EXHIBIT A-13 Form of Class [C] Certificate
EXHIBIT A-14 Form of Class [D] Certificate
EXHIBIT A-15 Form of Class [E] Certificate
EXHIBIT A-16 Form of Class [F] Certificate
EXHIBIT A-17 Form of Class [G] Certificate
EXHIBIT A-18 Form of Class [H] Certificate
EXHIBIT A-19 Form of Class [J] Certificate
EXHIBIT A-20 Form of Class [K] Certificate
EXHIBIT A-21 Form of Class [L] Certificate
EXHIBIT A-22 Form of Class [M] Certificate
EXHIBIT A-23 Form of Class [N] Certificate
EXHIBIT A-24 Form of Class [O] Certificate
EXHIBIT A-25 Form of Class [P] Certificate
EXHIBIT A-26 Form of Class [EI] Certificate
EXHIBIT A-27 Form of Class [R-I] Certificate
EXHIBIT A-28 Form of Class [R-II] Certificate
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EXHIBIT A-29 Form of Class [R-III] Certificate
EXHIBIT A-30 Form of Class [X-1] Certificate
EXHIBIT A-31 Form of Class [X-Y] Certificate
EXHIBIT B-1 Form of Initial Certification of Trustee
(Section 2.2)
EXHIBIT B-2 Form of Final Certification of Trustee
(Section 2.2)
EXHIBIT C Form of Request for Release
EXHIBIT D-1 Form of Transferor Certificate for Transfers to
Definitive Privately Offered Certificates
(Section 3.3(c))
EXHIBIT D-2A Form I of Transferee Certificate for Transfers
of Definitive Privately Offered Certificates
(Section 3.3(c))
EXHIBIT D-2B Form II of Transferee Certificate for Transfers
of Definitive Privately Offered Certificates
(Section 3.3(c))
EXHIBIT D-3A Form I of Transferee Certificate for Transfers
of Interests in Book-Entry Privately Offered
Certificates (Section 3.3(c))
EXHIBIT D-3B Form II of Transferee Certificate for Transfers
of Interests in Book-Entry Privately Offered
Certificates (Section 3.3(c))
EXHIBIT E-1 Form of Transfer Affidavit and Agreement for
Transfers of REMIC Residual Certificates
(Section 3.3(e))
EXHIBIT E-2 Form of Transferor Certificate for Transfers of
REMIC Residual Certificates (Section 3.3(e))
EXHIBIT F Form of Transferor Certificate for Transfers of
Regulation S Certificates
EXHIBIT G Form of Exchange Certification
EXHIBIT H Form of EUROCLEAR or Clearstream Certificate
(Section 3.7(d))
EXHIBIT I Investor Certification (Section 5.4(a))
EXHIBIT J Form of Notice and Certification regarding
Defeasance of Mortgage Loan (Section 8.3(h))
EXHIBIT K Form of Xxxxxxxx-Xxxxx Certification
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EXHIBIT K-1 Form of Performance Certification
SCHEDULE I Loan Schedule
SCHEDULE II Rates Used in Determination of Class X
Pass-Through Rates ("Class X-1 Strip Rate" and
"Class X-2 Strip Rate")
SCHEDULE III Class A-AB Planned Principal Balance
SCHEDULE IV Servicing Criteria to be Addressed in
Assessment of Compliance
SCHEDULE V Additional Form 10-D Disclosure
SCHEDULE VI Additional Form 10-K Disclosure
SCHEDULE VII Form 8-K Disclosure Information
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THIS POOLING AND SERVICING AGREEMENT is dated as of _____, 20__
(this "Agreement") among XXXXXX XXXXXXX CAPITAL I INC., a Delaware corporation,
as depositor (the "Depositor"), _______, as master servicer (the "Master
Servicer"), _______, as special servicer (the "Special Servicer") and _______,
as trustee of the Trust, as paying agent and as certificate registrar (the
"Trustee," "Paying Agent" and "Certificate Registrar").
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage Loans
from [Xxxxxx Xxxxxxx Mortgage Capital Inc., as seller ("MSMC")], [and] [insert
names of other sellers]. On the Closing Date, the Depositor will acquire (i) the
REMIC I Regular Interests and the Class [R-I] Certificates as consideration for
its transfer to the Trust of the Mortgage Loans (other than any Excess Interest
payable thereon) and the other property constituting REMIC I; (ii) the REMIC II
Regular Interests and the Class [R-II] Certificates as consideration for its
transfer of the REMIC I Regular Interests to the Trust; (iii) the REMIC III
Certificates and the Class A-3-1FL Regular Interest as consideration for its
transfer of the REMIC II Regular Interests to the Trust; (iv) the Class
[A-3-1FL] Certificates as consideration for its transfer of the Class A-3-1FL
Regular Interest to the Trust and for the Trustee, on behalf of the Trust,
entering into the Swap Contract and (v) the Class [EI] Certificates as
consideration for its transfer of the Excess Interest to the Trust. The
Depositor has duly authorized the execution and delivery of this Agreement to
provide for the foregoing and the issuance of (A) the REMIC I Regular Interests
and the Class [R-I] Certificates representing in the aggregate the entire
beneficial ownership of REMIC I, (B) the REMIC II Regular Interests and the
Class [R-II] Certificates representing in the aggregate the entire beneficial
ownership of REMIC II, (C) the REMIC III Certificates and the Class A-3-1FL
Regular Interest representing in the aggregate the entire beneficial ownership
of REMIC III, (D) the Class [A-3-1FL] Certificates representing in the aggregate
the entire beneficial ownership of the Class A-3-1FL Grantor Trust and (E) the
Class [EI] Certificates representing in the aggregate the entire beneficial
ownership of the Class EI Grantor Trust.
Excess Interest received on the Mortgage Loans shall be held in the
Class EI Grantor Trust for the benefit of the Class [EI] Certificates. All
covenants and agreements made by the Depositor and the Trustee herein with
respect to the Mortgage Loans and the other property constituting the Trust are
for the benefit of the Holders of the REMIC I Regular Interests, the REMIC II
Regular Interests, the REMIC Regular Certificates, the Class [EI] Certificates,
the Residual Certificates, the Class A-3-1FL Regular Interest and the Swap
Counterparty. The parties hereto are entering into this Agreement, and the
Trustee is accepting the trusts created hereby, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged.
The Class [A-1], Class [A-1A], Class [A-2], Class [A-3-1FL], Class
[A-3-1], Class [A-3-2], Class [A-AB], Class [A-4A], Class [A-4B], Class [X-2],
Class [A-J], Class [B], Class [C] and Class [D] Certificates will be offered for
sale pursuant to the prospectus (the "Prospectus") dated _____, 20__, as
supplemented by the free writing prospectus dated _____, 20__ (together with the
Prospectus, the "Free Writing Prospectus"), and as further
supplemented by the final prospectus supplement dated _____, 20__ (the
"Prospectus Supplement," and, together with the Prospectus, the "Final
Prospectus Supplement") and the Class [X-1], Class [X-Y], Class [E], Class [F],
Class [G], Class [H], Class [J], Class [K], Class [L], Class [M], Class [N],
Class [O], Class [P] and Class [EI] Certificates will be offered for sale
pursuant to a Private Placement Memorandum dated _____, 20__.
REMIC I
Each REMIC I Regular Interest (a "Corresponding REMIC I Regular
Interest") will relate to a specific Mortgage Loan. Each Corresponding REMIC I
Regular Interest (other than the Group X-Y REMIC I Regular Interests) will have
a pass-through rate equal to the REMIC I Net Mortgage Rate of the related
Mortgage Loan, an initial principal amount (the initial "Certificate Balance")
equal to the Scheduled Principal Balance as of the Cut-Off Date (as herein
defined) of the Mortgage Loan to which the Corresponding REMIC I Regular
Interest relates, and a latest possible maturity date set to the Final Rated
Distribution Date (as defined herein). Each Group X-Y REMIC I Regular Interest
will relate to a specific Specially Designated Co-op Loan. Each Group X-Y REMIC
I Regular Interest will have a Pass-Through Rate equal to the Class X-Y Strip
Rate, an initial notional amount equal to the Scheduled Principal Balance as of
the Cut-Off Date of the Specially Designated Co-op Loan to which such Group X-Y
REMIC I Regular Interest relates, and a latest possible maturity date set to the
Final Rated Distribution Date. Excess Interest shall be included as an asset of
REMIC I. The Class [R-I] Certificates will be designated as the sole Class of
residual interests in REMIC I and will have no Certificate Balance and no
Pass-Through Rate, but will be entitled to receive the proceeds of any assets
remaining in REMIC I after all Classes of REMIC I Regular Interests have been
paid in full.
REMIC II
The REMIC II Regular Interests have the pass-through rates and
Certificate Balances or Notional Amount set forth in the definition thereof. The
Class [R-II] Certificates will be designated as the sole Class of residual
interests in REMIC II and will have no Certificate Balance and no Pass-Through
Rate, but will be entitled to receive the proceeds of any assets remaining in
REMIC II after all Classes of REMIC II Regular Interests have been paid in full.
The following table sets forth the Class or Component designation,
the corresponding REMIC II Regular Interest (the "Corresponding REMIC II Regular
Interest"), the Corresponding Components of the Class [X-1] or Class [X-2]
Certificates (the "Corresponding Components") and the Original Class REMIC II
Certificate Balance for each Class of Principal Balance Certificates (and in the
case of the Class [A-3-1FL] Certificates, the Class A-3-1FL Regular Interest)
(the "Corresponding Certificates").
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Original Corresponding
Original REMIC II Components of
Class Certificate Corresponding Certificate Class [X-1] or
Corresponding Balance or Notional REMIC II Regular Balance or Class [X-2]
Certificates Balance Interests (1) Notional Balance Certificates (1)
------------- ------------------- ---------------- ---------------- ----------------
Class [A-1] $ A-1-1 $ X-0-0
X-0-0 $ A-1-2
A-1-3 $ A-1-3
Class [A-1A] $ A-1A-1 $ A-1A-1
A-1A-2 $ A-1A-2
A-1A-3 $ A-1A-3
A-1A-4 $ A-1A-4
A-1A-5 $ A-1A-5
A-1A-6 $ A-1A-6
A-1A-7 $ A-1A-7
A-1A-8 $ A-1A-8
A-1A-9 $ A-1A-9
Class [A-2] $ A-2 $ A-2
Class [A-3-1FL] $ A-3-1FL-1(2) $ A-3-1FL-1
A-3-1FL-2(2) $ A-3-1FL-2
A-3-1FL-3(2) $ A-3-1FL-3
A-3-1FL-4(2) $ A-3-1FL-4
Class [A-3-1] $ A-3-1-1 $ A-3-1-1
A-3-1-2 $ A-3-1-2
A-3-1-3 $ A-3-1-3
A-3-1-4 $ A-3-1-4
Class [A-3-2] $ A-3-2-1 $ A-3-2-1
A-3-2-2 $ A-3-2-2
Class [A-AB] $ A-AB-1 $ A-AB-1
A-AB-2 $ A-AB-2
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Class [A-4A] A-4A-1 $ A-4A-1
A-4A-2 $ A-4A-2
A-4A-3 $ A-4A-3
Class [A-4B] $ A-4B $ A-4B
Class [A-J] $ A-J $ A-J
Class [X-Y] $ X-Y $ N/A
Class [B] $ B-1 $ B-1
B-2 $ B-2
B-3 $ B-3
Class [C] $ C-1 $ C-1
C-2 $ C-2
Class [D] $ D-1 $ X-0
X-0 $ D-2
Class [E] $ E $ E
Class [F] $ F-1 $ F-1
F-2 $ F-2
Class [G] $ G $ G
Class [H] $ H-1 $ H-1
H-2 $ H-2
Class [J] $ J $ J
Class [K] $ K $ K
Class [L] $ L $ L
Class [M] $ M $ M
Class [N] $ N $ N
Class [O] $ O $ O
Class [P] $ P $ P
------------
(1) The REMIC II Regular Interests and the Components of the Class [X-1] and
Class [X-2] Certificates that correspond to any particular Class of
Principal Balance Certificates also correspond to each other and,
accordingly, constitute the "Corresponding REMIC II Regular Interest" and
the "Corresponding Components," respectively, with respect to each other.
(2) REMIC II Regular Interests X-0-0XX-0, X-0-0XX-0, X-0-0XX-0 and A-3-1FL-4
correspond, in the aggregate, to the Class A-3-1FL Regular Interest,
having an initial Certificate Balance of $_____.
REMIC III
The following sets forth the Class designation, Pass-Through Rate,
initial Aggregate Certificate Balance (or initial Notional Amount) and Final
Scheduled Distribution Date for each Class of REMIC III Certificates comprising
the interests in REMIC III created hereunder.
Initial Aggregate
REMIC III Regular Approximate Initial Certificate Balance Final Scheduled
Interest Designation Pass-Through Rate (a) or Notional Amount Distribution Date (b)
-------------------- --------------------- -------------------- ---------------------
Class A-1 % $
Class A-1A % $
Class A-2 % $
Class A-3-1FL % $
Class A-3-1 % $
Class A-3-2 % $
Class A-AB % $
Class A-4A % $
Class A-4B % $
Class A-J % $
Class X-1 % $
Class X-2 % $
Class X-Y % $
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-III (c) N/A N/A N/A
------------
(a) On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates will be determined as
described herein under the definition of "Pass-Through Rate."
(b) The Final Scheduled Distribution Date for each Class of Certificates
assigned a rating is the Distribution Date on which such Class is expected
to be paid in full, assuming that timely payments (and no prepayments)
will be made on the Mortgage Loans in accordance with their terms (except
that each ARD Loan will be prepaid in full on its Anticipated Repayment
Date) in the case of the REMIC III Regular Interests.
(c) The Class [R-III] Certificates will be entitled to receive the proceeds of
any remaining assets in REMIC III after the principal amounts of all REMIC
III Regular Interests have been reduced to zero and any Realized Losses
previously allocated thereto (and any interest thereon) have been
reimbursed.
Class EI Grantor Trust
Each Class [EI] Certificate will be entitled to Excess Interest
(which will not be a part of any REMIC Pool). The parties intend that (i) the
portions of the Trust representing the Excess Interest and the Excess Interest
Sub-account shall be treated as a grantor trust under
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subpart E of Part 1 of subchapter J of Chapter 1 of Subtitle A of the Code and
(ii) the Class [EI] Certificates shall represent undivided beneficial interests
in the portion of the Trust consisting of the entitlement to receive Excess
Interest (collectively, the "Class EI Grantor Trust").
As of the Cut-Off Date, the Mortgage Loans had an Aggregate
Principal Balance of $_____.
Class A-3-1FL Grantor Trust
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will treat the segregated pool of assets consisting of (i)
the Class A-3-1FL Regular Interest (bearing a fixed rate of interest at ___% per
annum subject to a cap equal to the Weighted Average REMIC I Net Mortgage Rate)
and the Swap Contract and all payments under the Class A-3-1FL Regular Interest
and the Swap Contract and (ii) all funds and assets on deposit from time to time
in the Floating Rate Account as a separate grantor trust within the meaning of
subpart E, part I of Subchapter J of Chapter 1 of Subtitle A of the Code. The
Class [A-3-1FL] Certificates will be treated as undivided beneficial interests
in the Class A-3-1FL Grantor Trust.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the first paragraph of Section 12.1(a) hereof (including the
Mortgage Loans (other than the Excess Interest payable with respect to such
Mortgage Loans)) to be treated for federal income tax purposes as a real estate
mortgage investment conduit ("REMIC I"). The REMIC I Regular Interests will be
designated as the "regular interests" in REMIC I and the Class [R-I]
Certificates will be designated as the sole Class of "residual interests" in
REMIC I for purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the second paragraph of Section 12.1(a) hereof consisting of the
REMIC I Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC II"). The REMIC II Regular
Interests will be designated as the "regular interests" in REMIC II and the
Class [R-II] Certificates will be designated as the sole Class of "residual
interests" in REMIC II for purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the third paragraph of Section 12.1(a) hereof consisting of the
REMIC II Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC III"). The REMIC III Regular
Interests (including, in the case of the Class [A-3-1FL] Certificates, the Class
A-3-1FL Regular Interest represented by the Class [A-3-1FL] Certificates) will
be designated as the "regular interests" in REMIC III and the Class [R-III]
Certificates (together with the REMIC Regular Certificates, the "REMIC III
Certificates") will be designated as the sole Class of "residual interests" in
REMIC III for purposes of the REMIC Provisions.
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
"Accountant" means a Person engaged in the practice of accounting
who is Independent.
"Accrued Certificate Interest" means, with respect to each
Distribution Date and any Class of Interests or Principal Balance Certificates,
interest accrued during the Interest Accrual Period relating to such
Distribution Date on the Aggregate Certificate Balance of such Class or Interest
as of the close of business on the immediately preceding Distribution Date at
the respective rates per annum set forth in the definition of the applicable
Pass-Through Rate for each such Class. Accrued Certificate Interest on the Class
[X-1] and Class [X-2] Certificates for each Distribution Date will equal the
Accrued Component Interest for the related Interest Accrual Period for all of
their respective Components for such Distribution Date. Accrued Certificate
Interest on the Class [X-Y] Certificates for each Distribution Date will equal
the Class X-Y Interest Amount.
"Accrued Component Interest" With respect to each Component of the
Class [X-1] and Class [X-2] Certificates for any Distribution Date, one month's
interest at the Class X-1 Strip Rate or Class X-2 Strip Rate applicable to such
Component for such Distribution Date, accrued on the Component Notional Amount
of such Component outstanding immediately prior to such Distribution Date.
Accrued Component Interest shall be calculated on a 30/360 basis and, with
respect to any Component and any Distribution Date, shall be deemed to accrue
during the calendar month preceding the month in which such Distribution Date
occurs.
"Acquisition Date" means the date upon which, under the Code (and in
particular the REMIC Provisions and Section 856(e) of the Code), the Trust or a
REMIC Pool is deemed to have acquired a Mortgaged Property (or an interest
therein, in the case of each Mortgaged Property securing any Loan Group).
"Additional Form 10-D Disclosure" has the meaning set forth in
Section 13.3.
"Additional Form 10-K Disclosure" has the meaning set forth in
Section 13.4.
"Additional Servicer" means each Affiliate of the [Master Servicer],
MSMC, [names of other sponsors], the Depositor [or any of the Underwriters] that
Services any of the Mortgage Loans and each Person, other than the Special
Servicer, who is not an Affiliate of the [Master Servicer], [Primary Servicer],
MSMC, [names of other sponsors], the Depositor [or any of the Underwriters], and
who Services 10% or more of the Mortgage Loans (based on their Principal
Balance).
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"Additional Trust Expense" means any of the following items: (i)
Special Servicing Fees, Work-Out Fees and Liquidation Fees (to the extent not
collected from the related Mortgagor or paid from Late Fees or default interest
as provided in Section 4.5, (ii) Advance Interest that cannot be paid from Late
Fees and default interest in accordance with Section 4.6(c); (iii) amounts paid
to indemnify the Master Servicer, the Special Servicer, any Primary Servicer,
the Certificate Registrar, the Trustee, the Paying Agent (or any other Person)
pursuant to the terms of this Agreement; (iv) to the extent not otherwise paid,
any federal, state, or local taxes imposed on the Trust or its assets and paid
from amounts on deposit in the Certificate Accounts or Distribution Account, (v)
the amount of any Advance plus interest due thereon and Unliquidated Advances
that are not recovered from the proceeds of a Mortgage Loan or Loan Group upon a
Final Recovery Determination and (vi) to the extent not included in the
calculation of a Realized Loss and not covered by indemnification by one of the
parties hereto or otherwise, any other unanticipated cost, liability, or expense
(or portion thereof) of the Trust (including costs of collecting such amounts or
other Additional Trust Expenses) which the Trust has not recovered, and in the
judgment of the Master Servicer (or the Special Servicer, in the case of a
Specially Serviced Mortgage Loan) will not, recover from the related Mortgagor
or Mortgaged Property or otherwise, including a Modification Loss described in
clause (ii) of the definition thereof. Notwithstanding anything in this
Agreement to the contrary, "Additional Trust Expenses" shall not include
allocable overhead of the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent or the Certificate Registrar such as costs for office space,
office equipment, supplies and related expenses, employee salaries and related
expenses, and similar internal costs and expenses, except to the extent
specifically allowed in this Agreement.
"Adjusted Mortgage Rate" means, with respect to any Mortgage Loan
that accrues interest on the basis of a 360-day year consisting of twelve 30-day
months ("30/360 basis"), and with respect to any Distribution Date, the Mortgage
Rate thereof minus the Administrative Cost Rate. For any Mortgage Loan that
accrue(s) interest on a basis other than that of a 30/360 basis and with respect
to any Distribution Date, the rate that, when applied to the Principal Balance
of the related Mortgage Loan (on the day prior to the Due Date preceding such
Distribution Date) on a 30/360 basis for the related loan accrual period, yields
the amount of interest actually due on such Mortgage Loan on the Due Date
preceding such Distribution Date (less the Administrative Cost Rate for such
Mortgage Loan); provided that for purposes of this definition, (i) the Adjusted
Mortgage Rate for the loan accrual period relating to the Due Dates in both
January and February in any year that is not a leap year and in February in any
year that is a leap year, shall be determined net of any amounts transferred to
the Interest Reserve Accounts and (ii) the Adjusted Mortgage Rate for the loan
accrual period relating to the Due Date in March (commencing in March 20__)
shall be determined taking into account the addition of any amounts withdrawn
from the Interest Reserve Accounts, provided, further, that if the Maturity Date
on any Mortgage Loan in January or February or if there is a Principal
Prepayment on any Mortgage Loan in January or February, then the Adjusted
Mortgage Rate shall be determined taking into account the addition of any
amounts withdrawn from the Interest Reserve Account for such month.
"Administrative Cost Rate" means the sum of the Master Servicing Fee
Rate, the Primary Servicing Fee Rate, the Excess Servicing Fee Rate and the
Trustee Fee Rate.
"Advance" means either a P&I Advance or a Servicing Advance.
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"Advance Interest" means interest payable to the Master Servicer,
the Special Servicer or the Trustee on outstanding Advances (other than
Unliquidated Advances) pursuant to Section 4.5 of this Agreement.
"Advance Rate" means a per annum rate equal to the Prime Rate as
published in the "Money Rates" section of The Wall Street Journal from time to
time or, if no longer so published, such other publication as determined by the
Trustee in its reasonable discretion.
"Advance Report Date" means the third Business Day prior to each
Distribution Date.
"Adverse Grantor Trust Event" shall mean any action taken by a
Person or the failure of a Person to take any action that, under the Grantor
Trust Provisions, if taken or not taken, as the case may be, could endanger the
status of the Class EI Grantor Trust or the Class A-3-1FL Grantor Trust as a
grantor trust under the Grantor Trust Provisions or result in the imposition of
a tax upon the Class EI Grantor Trust or the Class A-3-1FL Grantor Trust or its
assets or transactions.
"Adverse REMIC Event" means any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, would either (i) endanger
the status of any REMIC Pool as a REMIC or (ii) subject to Section 9.14(e),
result in the imposition of a tax upon the income of any REMIC Pool or any of
their respective assets or transactions, including (without limitation) the tax
on prohibited transactions as defined in Section 860F(a)(2) of the Code and the
tax on prohibited contributions set forth in Section 860G(d) of the Code.
"Affiliate" means, 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.
"Aggregate Certificate Balance" means the aggregate of the
Certificate Balances of the Principal Balance Certificates, the REMIC I Regular
Interests (other than the Group X-Y REMIC I Regular Interests), the REMIC II
Regular Interests (other than REMIC II Regular Interest X-Y) or the REMIC III
Regular Interests, as the case may be, at any date of determination. With
respect to a Class of Principal Balance Certificates, REMIC I Regular Interests
(other than the Group X-Y REMIC I Regular Interests) or REMIC II Regular
Interests (other than REMIC II Regular Interest X-Y), Aggregate Certificate
Balance shall mean the aggregate of the Certificate Balances of all Certificates
or Interests, as the case may be, of that Class at any date of determination.
"Aggregate Principal Balance" means, at the time of any
determination and as the context may require, the aggregate of the Scheduled
Principal Balances for all Mortgage Loans.
"Agreement" means this Pooling and Servicing Agreement and all
amendments and supplements hereto.
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"Anticipated Repayment Date" means, with respect to the ARD Loans,
the date on which a substantial principal payment on an ARD Loan is anticipated
to be made, as set forth in the related Mortgage Note.
"Appraisal" means an appraisal by an Independent state certified MAI
appraiser having at least five years' experience in appraising property of the
same type as, and in the same geographic area as, the Mortgaged Property being
appraised, which appraisal complies with the Uniform Standards of Professional
Appraisal Practices and states the "market value" of the subject property as
defined in 12 C.F.R. ss. 225.62.
"Appraisal Event" means, with respect to any Mortgage Loan, not
later than the earliest of (i) the date 120 days after the occurrence of any
delinquency in payment with respect to such Mortgage Loan if such delinquency
remains uncured, (ii) the date 30 days after receipt of notice that the related
Mortgagor has filed a bankruptcy petition or the related Mortgagor has become
the subject of involuntary bankruptcy proceedings or the related Mortgagor has
consented to the filing of a bankruptcy proceeding against it or a receiver is
appointed in respect of the related Mortgaged Property, provided such petition
or appointment is still in effect, (iii) the date that is 30 days following the
date the related Mortgaged Property becomes an REO Property and (iv) the
effective date of any modification to a Money Term of such Mortgage Loan, other
than an extension of the date that a Balloon Payment is due for a period of less
than six months from the original due date of such Balloon Payment.
"Appraisal Reduction" means, with respect to any Required Appraisal
Loan with respect to which an Appraisal or internal valuation is performed
pursuant to Section 6.9, an amount equal to the excess of (A) the sum, as of the
first Determination Date that is at least 15 days after the date on which the
Appraisal or internal valuation is obtained or performed, of (i) the Scheduled
Principal Balance of such Mortgage Loan (or, in the case of an REO Property, the
related REO Mortgage Loan) less the undrawn principal amount of any letter of
credit or debt service reserve, if applicable, that is then securing such
Mortgage Loan, (ii) to the extent not previously advanced by the Master Servicer
or the Trustee, all accrued and unpaid interest on such Mortgage Loan (or, in
the case of an REO Property, the related REO Mortgage Loan), at a per annum rate
equal to the Mortgage Rate, (iii) all unreimbursed Advances (including
Unliquidated Advances) and interest on Advances (other than Unliquidated
Advances) at the Advance Rate with respect to such Mortgage Loan (or, in the
case of an REO Property, the related REO Mortgage Loan) and (iv) to the extent
funds on deposit in any applicable Escrow Accounts are not sufficient therefor,
and to the extent not previously advanced by the Master Servicer, the Special
Servicer or the Trustee, all currently due and unpaid real estate taxes and
assessments, insurance premiums and, if applicable, ground rents and other
amounts which were required to be deposited in any Escrow Account (but were not
deposited) in respect of such Mortgaged Property or REO Property, as the case
may be, over (B) 90% of the Appraised Value (net of any prior mortgage liens) of
such Mortgaged Property or REO Property as determined by such Appraisal or
internal valuation, as the case may be, plus the full amount of any escrows held
by or on behalf of the Trustee as security for the Mortgage Loan (less the
estimated amount of the obligations anticipated to be payable in the next twelve
months to which such escrows relate). With respect to each Mortgage Loan that is
cross-collateralized with any other Mortgage Loan, the value of each Mortgaged
Property that is security for each Mortgage Loan in such cross-collateralized
group, as well as the outstanding amounts under each such Mortgage Loan
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shall be taken into account when calculating such Appraisal Reduction. Each
Appraisal or internal valuation for a Required Appraisal Loan shall be updated
annually, for so long as an Appraisal Reduction exists, from the date of such
Appraisal or internal valuation. In addition, the Operating Adviser may at any
time request the Special Servicer to obtain (at the Operating Adviser's expense)
an updated Appraisal, with a corresponding adjustment to the amount of the
Appraisal Reduction. The Appraisal Reduction for each Required Appraisal Loan
will be recalculated based on subsequent Appraisals, internal valuations or
updates. Any Appraisal Reduction for any Mortgage Loan shall be reduced to
reflect any Realized Principal Losses on the Required Appraisal Loan. Each
Appraisal Reduction will be reduced to zero as of the date the related Mortgage
Loan is brought current under the then current terms of the Mortgage Loan for at
least three consecutive months, and no Appraisal Reduction will exist as to any
Mortgage Loan after it has been paid in full, liquidated, repurchased or
otherwise disposed of.
"Appraised Value" means (i) with respect to any Mortgaged Property
(other than the Mortgaged Property securing a Co-op Mortgage Loan), the
appraised value thereof determined by an Appraisal of the Mortgaged Property
securing such Mortgage Loan made by an Independent appraiser selected by the
Master Servicer or the Special Servicer, as applicable or, in the case of an
internal valuation performed by the Special Servicer pursuant to Section 6.9,
the value of the Mortgaged Property determined by such internal valuation and
(ii) with respect to each Mortgaged Property securing a Co-op Mortgage Loan, the
appraised value thereof determined by an Appraisal of the Mortgaged Property
securing such Co-op Mortgage Loan made by an Independent appraiser selected by
the Master Servicer or the Special Servicer, as applicable, or in the case of an
internal valuation performed by the Special Servicer pursuant to Section 6.9,
the value of the Mortgaged Property determined by such internal valuation, each
determined as if such property were operated as a cooperatively owned
multifamily residential building (rather than a multifamily rental apartment
building).
"ARD Loan" means the Mortgage Loans designated on the Mortgage
Loan Schedule as Mortgage Loan No. __ and Mortgage Loan No. __, collectively.
"Assignment of Leases" means, with respect to any Mortgage Loan, any
assignment of leases, rents and profits or equivalent instrument, whether
contained in the related Mortgage or executed separately, assigning to the
holder or holders of such Mortgage all of the related Mortgagor's interest in
the leases, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of the related Mortgaged Property as security
for repayment of such Mortgage Loan.
"Assignment of Mortgage" means an assignment of the Mortgage, notice
of transfer or equivalent instrument, in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the transfer of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties located
in the same jurisdiction, if permitted by law.
"Assumed Scheduled Payment" means: (i) with respect to any Balloon
Mortgage Loan for its Maturity Date (provided that such Mortgage Loan has not
been paid in full, and no Final Recovery Determination or other sale or
liquidation has occurred in respect
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thereof, on or before the end of the Collection Period in which such Maturity
Date occurs) and for any subsequent Due Date therefor as of which such Mortgage
Loan remains outstanding and part of the Trust, if no Scheduled Payment (other
than the related delinquent Balloon Payment) is due for such Due Date, the
scheduled monthly payment of principal and/or interest deemed to be due in
respect thereof on such Due Date equal to the Scheduled Payment that would have
been due in respect of such Mortgage Loan on such Due Date, if it had been
required to continue to accrue interest in accordance with its terms, and to pay
principal in accordance with the amortization schedule in effect immediately
prior to, and without regard to the occurrence of, its most recent Maturity Date
(as such may have been extended in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Master Servicer or
the Special Servicer pursuant to the terms hereof) and (ii) with respect to any
REO Mortgage Loan for any Due Date therefor as of which the related REO Property
remains part of the Trust, the scheduled monthly payment of principal and
interest deemed to be due in respect thereof on such Due Date equal to the
Scheduled Payment (or, in the case of a Balloon Mortgage Loan described in the
preceding clause of this definition, the Assumed Scheduled Payment) that was due
in respect of the related Mortgage Loan on the last Due Date prior to its
becoming an REO Mortgage Loan.
"Authenticating Agent" means any authenticating agent serving in
such capacity pursuant to Section 7.10.
"Authorized Officer" means any Person that may execute an Officer's
Certificate on behalf of the Depositor.
"Available Advance Reimbursement Amount" has the meaning set forth
in Section 4.6(a) hereof.
"Available Distribution Amount" means, with respect to any
Distribution Date and the Mortgage Loans, an amount equal to the aggregate of
the following amounts (a) all amounts on deposit in the Distribution Account as
of the commencement of business on such Distribution Date that represent
payments and other collections on or in respect of the Mortgage Loans and any
REO Properties that were (x) received by the Master Servicer or the Special
Servicer through the end of the related Collection Period (other than any
portion thereof that constituted a portion of the Available Distribution Amount
for a prior Distribution Date as described in clause (a)(y) below) or (y)
remitted by the Master Servicer on the related Master Servicer Remittance Date
pursuant to Section 5.1(h), exclusive of (i) any such amounts that were
deposited in the Distribution Account in error, (ii) amounts that are payable or
reimbursable to any Person other than the Certificateholders (including amounts
payable to the Master Servicer in respect of unpaid Master Servicing Fees, the
Primary Servicers in respect of unpaid Primary Servicing Fees, the Special
Servicer in respect of unpaid Special Servicer Compensation, the Trustee in
respect of unpaid Trustee Fees or to the parties entitled thereto in respect of
the unpaid Excess Servicing Fees), (iii) amounts that constitute Prepayment
Premiums or Yield Maintenance Charges, (iv) if such Distribution Date occurs
during January, other than in a leap year, or February of any year, the Interest
Reserve Amounts with respect to Interest Reserve Loans deposited in the Interest
Reserve Accounts, (v) Excess Interest and (vi) Scheduled Payments collected but
due on a Due Date subsequent to the related Collection Period (other than any
portion thereof described in clause (a)(y) above) and (b) if and to the extent
not already
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among the amounts described in clause (a), (i) the aggregate amount of any P&I
Advances made by the Master Servicer or the Trustee for such Distribution Date
pursuant to Section 4.1 and/or Section 4.3, (ii) the aggregate amount of any
Compensating Interest payments made by the Master Servicer for such Distribution
Date pursuant to the terms hereof, and (iii) if a Distribution Date occurs in
March of any year, commencing March 20__ or if a Maturity Date or Principal
Prepayment falls on a January or February of any year, the aggregate of the
Interest Reserve Amounts then held on deposit in the Interest Reserve Accounts
in respect of the related Interest Reserve Loan or Interest Reserve Loans.
"Balloon Mortgage Loan" means a Mortgage Loan that provides for
Scheduled Payments based on an amortization schedule that is significantly
longer than its term to maturity and that is expected to have a remaining
principal balance equal to or greater than 5% of its original principal balance
as of its stated maturity date, unless prepaid prior thereto.
"Balloon Payment" means, with respect to any Balloon Mortgage Loan,
the Scheduled Payment payable on the Maturity Date of such Mortgage Loan.
"Banking Day" means any day on which commercial banks are open for
business (including dealings in foreign exchange and foreign currency) in
London, England.
"Bankruptcy Loss" means a loss arising from a proceeding under the
United States Bankruptcy Code or any other similar state law or other proceeding
with respect to the Mortgagor of, or Mortgaged Property under, a Mortgage Loan,
including, without limitation, any Deficient Valuation Amount or losses, if any,
resulting from any Debt Service Reduction Amount for the month in which the
related Remittance Date occurs.
"Base Interest Fraction" means, with respect to any Principal
Prepayment of any Mortgage Loan that provides for payment of a Prepayment
Premium or Yield Maintenance Charge, and with respect to any Class of
Certificates (except for Class [A-3-1FL] Certificates) and the Class A-3-1FL
Regular Interest, a fraction (A) whose numerator is the greater of (x) zero and
(y) the difference between (i) the Pass-Through Rate on that Class of
Certificates or the Class A-3-1FL Regular Interest and (ii) the Discount Rate
used in calculating the Prepayment Premium or Yield Maintenance Charge with
respect to the Principal Prepayment (or the current Discount Rate if not used in
such calculation) and (B) whose denominator is the difference between (i) the
Mortgage Rate on the related Mortgage Loan and (ii) the Discount Rate used in
calculating the Prepayment Premium or Yield Maintenance Charge with respect to
that Principal Prepayment (or the current Discount Rate if not used in such
calculation), provided, however, that under no circumstances will the Base
Interest Fraction be greater than one. If the Discount Rate referred to above is
greater than the Mortgage Rate on the related Mortgage Loan, then the Base
Interest Fraction will equal zero.
"Book-Entry Certificates" means certificates evidencing a beneficial
interest in a Class of Certificates, ownership and transfer of which shall be
made through book entries as described in Section 3.7; provided that after the
occurrence of a condition whereupon book-entry registration and transfer are no
longer authorized and Definitive Certificates are to be issued to the
Certificate Owners, such certificates shall no longer be "Book-Entry
Certificates."
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"Business Day" means (i) with respect to any matter not involving
the payment of the Net Swap Payment, any day other than a Saturday, a Sunday or
a day on which banking institutions in the states where the Certificate Account,
Distribution Account, Trustee, the Master Servicer, a Primary Servicer or the
Special Servicer are located and are authorized or obligated by law or executive
order to remain closed or (ii) with respect to the payment of the Net Swap
Payment, any day other than a Saturday, a Sunday or a day on which banking
institutions in the states where the Trustee or the Swap Counterparty are
located and are authorized or obligated by law or executive order to remain
closed. With respect to clause (i) of the foregoing definition, upon the request
of any party to this Agreement or the Operating Adviser, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer and each Primary Servicer shall
provide such party a list of the legal holidays observed by such entity;
provided that each Primary Servicer shall be required to provide the Operating
Adviser and the Master Servicer on or before the first day of January of each
calendar year with a list of each day that will not be a "Business Day" in the
jurisdiction of such Primary Servicer during such calendar year
"Cash Liquidation" means, as to any Defaulted Mortgage Loan other
than a Mortgage Loan with respect to which the related Mortgaged Property became
REO Property, the sale of such Defaulted Mortgage Loan. The Master Servicer
shall maintain records in accordance with the Servicing Standard (and, in the
case of Specially Serviced Mortgage Loans, based on the written reports with
respect to such Cash Liquidation delivered by the Special Servicer to the Master
Servicer), of each Cash Liquidation.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et
seq.).
"Certificate Account" means one or more separate accounts
established and maintained by the Master Servicer (or any Sub-Servicer or
Primary Servicer on behalf of the Master Servicer) pursuant to Section 5.1(a),
each of which shall be an Eligible Account.
"Certificate Balance" means, with respect to any Certificate (other
than the Class [X] Certificates, the Class [EI] Certificates and the Residual
Certificates) or Interest (other than the Group X-Y REMIC I Regular Interests
and the REMIC II Regular Interest X-Y) as of any Distribution Date, the maximum
specified dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the initial principal amount set
forth on the face of such Certificate (in the case of a Certificate), or as
ascribed thereto in the Preliminary Statement hereto (in the case of an
Interest), minus (A)(i) the amount of all principal distributions previously
made with respect to such Certificate pursuant to Section 6.5(a) or deemed to
have been made with respect to such Interest pursuant to Section 6.2(a) or
Section 6.3(a), as the case may be and (ii) all Realized Losses allocated or
deemed to have been allocated to such Interest or Certificate pursuant to
Section 6.6, plus (B) an amount equal to the amounts identified in clause (I)(C)
of the definition of Principal Distribution Amount, such increases to be
allocated to the Principal Balance Certificates or Interests in sequential order
(i.e., to the most senior Class first), in each case up to the amount of
Realized Losses previously allocated thereto and not otherwise reimbursed
hereunder.
"Certificate Owner" means, with respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Book-Entry Certificate, as may be
reflected on the books of
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the Clearing Agency, or on the books of a Person maintaining an account with
such Clearing Agency (directly or as an indirect participant, in accordance with
the rules of such Clearing Agency).
"Certificate Register" has the meaning provided in Section 3.2.
"Certificate Registrar" means the registrar appointed pursuant to
Section 3.2 and initially shall be the Paying Agent.
"Certificateholders" has the meaning provided in the definition of
"Holder."
"Certificates" means, collectively, the REMIC III Certificates, the
Class [A-3-1FL] Certificates, the Class [EI] Certificates, the Class [R-I]
Certificates, the Class [R-II] Certificates and the Class [R-III] Certificates.
"Certification Parties" has the meaning set forth in Section 13.8.
"Certifying Person" has the meaning set forth in Section 13.8.
"Certifying Servicer" has the meaning set forth in Section 13.11.
"Class" means, with respect to the REMIC I Regular Interests, REMIC
II Regular Interests, REMIC III Certificates, Class A-3-1FL Regular Interest,
Class [A-3-1FL] Certificates and Class [EI] Certificates, any class of such
Certificates or Interests.
"Class [A] Certificates" means the Class [A-1] Certificates, Class
[A-1A] Certificates, Class [A-2] Certificates, Class [A-3-1FL] Certificates (or,
as the context requires, the Class A-3-1FL Regular Interest), Class [A-3-1]
Certificates, Class [A-3-2] Certificates, Class [A-AB] Certificates, Class
[A-4A] Certificates and Class [A-4B] Certificates, collectively.
"Class A-3-1FL Available Funds" means, in respect of each
Distribution Date, (i) the sum of all previously undistributed payments or other
receipts on account of principal and interest and other sums on or in respect of
the Class A-3-1FL Regular Interest received by the Paying Agent (or the Master
Servicer on the Paying Agent's behalf) after the Cut-off Date and on or prior to
such Distribution Date and (ii) the sum of all previously undistributed amounts
received from the Swap Counterparty in respect of the Class A-3-1FL Regular
Interest pursuant to the Swap Contract, including, but not limited to, any
termination payment, but in the case of both (i) and (ii) excluding the
following: (a) all amounts of Prepayment Premiums allocated to the Class A-3-1FL
Regular Interest for so long as the Swap Contract is in effect; (b) all amounts
required to be paid to the Swap Counterparty in respect of the Class A-3-1FL
Regular Interest pursuant to the Swap Contract; and (c) all amounts incurred by
the Trustee in connection with enforcing the rights of the Trust under the Swap
Contract.
"Class A-3-1FL Grantor Trust" means the segregated pool of assets
consisting of (i) the Class A-3-1FL Regular Interest and the Swap Contract and
all payments under the Class A-3-1FL Regular Interest and the Swap Contract,
(ii) all funds and assets from time to time on deposit in the Floating Rate
Account and (iii) proceeds of all of the foregoing.
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"Class A-3-1FL Interest Distribution Amount" means, in respect of
any Distribution Date, the sum of (i) for so long as the Swap Contract is in
effect, the aggregate amount of interest received by the Paying Agent from the
Swap Counterparty in respect of the Class A-3-1FL Regular Interest pursuant to
the terms of the Swap Contract during the related Interest Accrual Period and
(ii) amounts in respect of interest (including reimbursement of any Prepayment
Interest Shortfalls) received on the Class A-3-1FL Regular Interest not required
to be paid to the Swap Counterparty (which will arise due to the netting
provisions of the Swap Contract or upon the termination or expiration of the
Swap Contract). If the Swap Counterparty defaults on its obligation to pay such
interest to the Paying Agent, or if a Swap Default occurs and is continuing or
if the Swap Contract is terminated, the Class A-3-1FL Interest Distribution
Amount will equal the Distributable Certificate Interest Amount in respect of
the Class A-3-1FL Regular Interest, until such time as the Swap Default is
cured, or such obligation is paid, as the case may be, or until a replacement
Swap Contract is obtained.
"Class A-3-1FL Principal Distribution Amount" means, in respect of
any Distribution Date, an amount equal to the aggregate amount of the principal
payments made on the Class A-3-1FL Regular Interest on such Distribution Date.
"Class A-3-1FL Regular Interest" means the uncertificated interest
designated as a "regular interest" in REMIC III, which shall consist of an
Interest having a Certificate Balance equal to the Certificate Balance of the
Class [A-3-1FL] Certificates, and which has a Pass-Through Rate equal to the per
annum rate of the lesser of 5.251% and the Weighted Average REMIC I Net Mortgage
Rate in respect of each Distribution Date.
"Class [A-4] Certificates" means the Class [A-4A] Certificates and
Class [A-4B] Certificates, collectively.
"Class [A-1] Certificates," "Class [A-1A] Certificates," "Class
[A-2] Certificates," "Class [A-3-1FL] Certificates," "Class [A-3-1]
Certificates," "Class [A-3-2] Certificates," "Class [A-AB] Certificates," "Class
[A-4A] Certificates," "Class [A-4B] Certificates," "Class [A-J] Certificates,"
"Class [X-1] Certificates," "Class [X-2] Certificates," "Class [X-Y]
Certificates," "Class [B] Certificates," "Class [C] Certificates," "Class [D]
Certificates," "Class [E] Certificates," "Class [F] Certificates," "Class [G]
Certificates," "Class [H] Certificates," "Class [J] Certificates," "Class [K]
Certificates," "Class [L] Certificates," "Class [M] Certificates," "Class [N]
Certificates," "Class [O] Certificates," "Class [P] Certificates," "Class [EI]
Certificates," "Class [R-I] Certificates," "Class [R-II] Certificates," or
"Class [R-III] Certificates" mean the Certificates designated as "Class [A-1],"
"Class A-1A," "Class A-2," "Class A-3-1FL," "Class A-3-1," "Class A-3-2," "Class
A-AB," "Class A-4A," "Class X-0X," "Xxxxx X-X," "Class X-1," "Class X-2," "Class
X-Y," "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
EI," "Class R-I," "Class R-II" and "Class R-III," respectively, on the face
thereof, in substantially the form attached hereto as Exhibits A-1 through A-31.
"Class A-1-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class [A-1] Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1-1.
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"Class A-1-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class [A-1] Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1-2.
"Class A-1-3 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class [A-1] Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1-3.
"Class A-1A-1 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class [A-1A] Certificates, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-1A-1.
"Class A-1A-2 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class [A-1A] Certificates, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-1A-2.
"Class A-1A-3 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class [A-1A] Certificates, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-1A-3.
"Class A-1A-4 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class [A-1A] Certificates, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-1A-4.
"Class A-1A-5 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class [A-1A] Certificates, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-1A-5.
"Class A-1A-6 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class [A-1A] Certificates, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-1A-6.
"Class A-1A-7 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class [A-1A] Certificates, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-1A-7.
"Class A-1A-8 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class [A-1A] Certificates, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-1A-8.
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"Class A-1A-9 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class [A-1A] Certificates, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-1A-9.
"Class A-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class [A-2] Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-2.
"Class A-3-1FL-1 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-3-1FL Regular Interest, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-3-1FL-1.
"Class A-3-1FL-2 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-3-1FL Regular Interest, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-3-1FL-2.
"Class A-3-1FL-3 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-3-1FL Regular Interest, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-3-1FL-3.
"Class A-3-1FL-4 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-3-1FL Regular Interest, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-3-1FL-4.
"Class A-3-1-1 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class [A-3-1] Certificates, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-3-1-1.
"Class A-3-1-2 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class [A-3-1] Certificates, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-3-1-2.
"Class A-3-1-3 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class [A-3-1] Certificates, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-3-1-3
"Class A-3-1-4 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class [A-3-1] Certificates, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-3-1-4.
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"Class A-3-2-1 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class [A-3-2] Certificates, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-3-2-1.
"Class A-3-2-2 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class [A-3-2] Certificates, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-3-2-2.
"Class A-AB-1 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class [A-AB] Certificates, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-AB-1.
"Class A-AB-2 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class [A-AB] Certificates, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-AB-2.
"Class A-4A-1 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class [A-4A] Certificates, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-4A-1.
"Class A-4A-2 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class [A-4] Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-4A-2.
"Class A-4A-3 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class [A-4] Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-4A-3.
"Class A-4B Component" means a component of the beneficial interest
in REMIC III evidenced by the Class [A-4B] Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-4B.
"Class A-J Component" means a component of the beneficial interest
in REMIC III evidenced by the Class [A-J] Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-J.
"Class B-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class [B] Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest B-1.
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"Class B-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class [B] Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest B-2.
"Class B-3 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class [B] Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest B-3.
"Class C-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class [C] Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest C-1.
"Class C-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class [C] Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest C-2.
"Class D-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class [D] Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest D-1.
"Class D-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class [D] Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest D-2.
"Class E Component" means a component of the beneficial interest in
REMIC III evidenced by the Class [E] Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest E.
"Class EI Grantor Trust" means that portion of the Trust consisting
of Excess Interest and the Excess Interest Sub-account.
"Class F-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class [F] Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest F-1.
"Class F-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class [F] Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest F-2.
"Class G Component" means a component of the beneficial interest in
REMIC III evidenced by the Class [G] Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest G.
"Class H-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class [H] Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest H-1.
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"Class H-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class [H] Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest H-2.
"Class J Component" means a component of the beneficial interest in
REMIC III evidenced by the Class [J] Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest J.
"Class K Component" means a component of the beneficial interest in
REMIC III evidenced by the Class [K] Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest K.
"Class L Component" means a component of the beneficial interest in
REMIC III evidenced by the Class [L] Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest L.
"Class M Component" means a component of the beneficial interest in
REMIC III evidenced by the Class [M] Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest M.
"Class N Component" means a component of the beneficial interest in
REMIC III evidenced by the Class [N] Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest N.
"Class O Component" means a component of the beneficial interest in
REMIC III evidenced by the Class [O] Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest O.
"Class P Component" means a component of the beneficial interest in
REMIC III evidenced by the Class [P] Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest P.
"Class [X] Certificates" means the Class [X-1] Certificates, the
Class [X-2] Certificates and the Class [X-Y] Certificates, collectively.
"Class [X-1] Notional Amount" means, with respect to the Class [X-1]
Certificates and any date of determination, the aggregate of the outstanding
Certificate Balances of the Principal Balance Certificates.
"Class X-1 Strip Rate" means, with respect to any Class of
Components (other than Components that are also Class X-2 Components) for any
Distribution Date, a rate per annum equal to (i) the Weighted Average REMIC I
Net Mortgage Rate for such Distribution Date, minus (ii) the Pass-Through Rate
for the Corresponding Certificates. In the case of any Class of Components that
are also Class X-2 Components, (i) for any Distribution Date occurring on or
before the related Class X-2 Component Crossover Date, a rate per annum equal
to, (x) the Weighted Average REMIC I Net Mortgage Rate for such Distribution
Date, minus (y) the greater of (1) the rate per annum corresponding to such
Distribution Date as set forth in Schedule III attached hereto and (2) the Pass
Through Rate for the Class of Corresponding
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Certificates, and (ii) for any Distribution Date occurring after the related
Class X-2 Component Crossover Date, a rate per annum equal to (x) the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, minus (y) the
Pass-Through Rate for the Corresponding Certificates (provided that in no event
shall any Class X-1 Strip Rate be less than zero).
"Class X-2 Component Crossover Date" means, (i) with respect to
the Class A-1-2 Component and the Class A-1A-2 Component, the Distribution
Date in ______,
(ii) with respect to the Class A-1-3 Component, Class A-1A-3
Component, Class A-2 Component, Class A-3-1FL-1 Component, Class A-3-1-1
Component, Class H-1 Component, Class J Component, Class K Component and Class L
Component the Distribution Date occurring in ___;
(iii) with respect to the Class A-1A-4 Component, Class A-3-1FL-2
Component, Class A-3-1-2 Component, Class F-1 Component, Class G Component and
Class H-2 Component, the Distribution Date occurring in ____;
(iv) with respect to the Class A-1A-5 Component, Class A-3-1FL-3
Component, Class A-3-1-3 Component, Class D-1 Component, Class F-2 Component and
Class E Component, the Distribution Date occurring in _____;
(v) with respect to the Class A-1A-6 Component, Class A-3-1FL-4
Component, Class A-3-1-4 Component, Class A-3-2-1 Component, Class A-AB-1
Component, Class C-1 Component and Class D-2 Component, the Distribution Date
occurring in ______;
(vi) with respect to the Class A-1A-7 Component, Class A-3-2-2
Component, Class A-AB-2 Component, Class A-4A-1 Component, Class B-1 Component
and Class C-2 Component, the Distribution Date occurring in ______;
(vii) with respect to the Class A-1A-8 Component, Class A-4A-2
Component and Class B-2 Component, the Distribution Date occurring in ______;
and
(viii), with respect to the Class A-1A-9 Component, Class A-4A-3
Component, Class A-4B Component, Class A-J Component and Class B-3 Component,
the Distribution Date occurring in ______.
"Class X-2 Components" means each of the Class A-1-2 Component,
Class A-1-3 Component, Class A-1A-2 Component, Class A-1A-3 Component, Class
A-1A-4 Component, Class A-1A-5 Component, Class A-1A-6 Component, Class A-1A-7
Component, Class A-1A-8 Component, Class A-1A-9 Component, Class A-2 Component,
Class A-3-1FL-1 Component, Class A-3-1FL-2 Component, Class A-3-1FL-3 Component,
Class A-3-1FL-4 Component, Class A-3-1-1 Component, Class A-3-1-2 Component,
Class A-3-1-3 Component, Class A-3-1-4 Component, Class A-3-2-1 Component, Class
A-3-2-2 Component, Class A-AB-1 Component, Class A-AB-2 Component, Class A-4A-1
Component, Class A-4A-2 Component, Class A-4A-3 Component, Class A-4B Component,
Class A-J Component, Class B-1 Component, Class B-2 Component, Class C-1
Component, Class C-2 Component, Class D-1 Component, Class D-2 Component, Class
E Component, Class F-1 Component, Class F-2 Component, Class G
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Component, Class H-1 Component, Class H-2 Component, Class J-1 Component, Class
J-2 Component, Class K Component and Class L Component.
"Class X-2 Notional Amount" means as of any date of determination,
the sum of the then Component Notional Amounts of the Class X-2 Components
excluding the Class X-2 Components for which the Class X-2 Crossover Date has
been previously passed.
"Class X-2 Strip Rate" means, with respect to each of the Class X-2
Components for any Distribution Date, a rate per annum equal to (i) for any
Distribution Date occurring on or before the related Class X-2 Component
Crossover Date, the excess, if any, of (x) the lesser of (i) the rate per annum
corresponding to such Distribution Date as set forth in Schedule III attached
hereto and (ii) the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date over (y) the Pass Through Rate for the Class of Corresponding
Certificates (provided that, in no event shall any Class X-2 Strip Rate be less
than zero), and (ii) for any Distribution Date occurring after the related Class
X-2 Component Crossover Date, 0% per annum.
"Class X-Y Interest Amount" means, with respect to any Distribution
Date and the related Interest Accrual Period, interest accrued on the Class X-Y
Notional Amount during the related Interest Accrual Period at a rate equal to
one twelfth of a per annum rate equal to the Weighted Average Class X-Y Strip
Rate.
"Class X-Y Notional Amount" means, with respect to any Distribution
Date, the aggregate of the Principal Balances of the Specially Designated Co-op
Mortgage Loans (or any successor REO Mortgage Loans), reduced by any Advances of
principal on such Specially Designated Co-op Mortgage Loans (or any successor
REO Mortgage Loans) and losses on those Specially Designated Co-op Mortgage
Loans previously allocated to the Certificateholders.
"Class X-Y Strip Rate" means, with respect to any Specially
Designated Co-op Mortgage Loan (and any successor REO Mortgage Loan with respect
thereto), for any Distribution Date, a rate per annum equal to either: (1) if
such Mortgage Loan accrues interest on a 30/360 basis, ____%; and (2) if such
Mortgage Loan accrues interest on a basis other than that of a 30/360 basis, the
product of (a) ____%, multiplied by (b) a fraction, the numerator of which is
the number of days in the Interest Accrual Period that corresponds to such
Distribution Date, and the denominator of which 30.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the 1934 Act, which initially shall be the
Depository.
"Clearstream" means Clearstream Banking Luxembourg, societe
anonyme.
"Closing Date" means on or about ____, 20__.
"CMSA" means the Commercial Mortgage Securities Association.
"CMSA Bond Level File" means a 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
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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, as applicable.
"CMSA Collateral Summary File" means a 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, as applicable.
"CMSA Comparative Financial Status Report" means a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Comparative Financial Status Report" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be 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 "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" means a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Delinquent Loan Status Report" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be 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 "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" means 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.
"CMSA Historical Liquidation Report" means 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
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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" means 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 Loan Level Reserve/LOC Report" means 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" means a monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Periodic Update File" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed 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.
"CMSA Loan Setup File" means a 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.
"CMSA NOI Adjustment Worksheet" means a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "NOI Adjustment
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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 Work" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Operating Statement Analysis Report" means a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Operating Statement Analysis Report" available as of
the 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 "Operating Statement Analysis
Report" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Property File" means 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 Reconciliation of Funds" means a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Reconciliation of Funds" 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 "Reconciliation of Funds" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Trustee.
"CMSA REO Status Report" means 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
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 Reports" means the Restricted Servicer Reports and the
Unrestricted Servicer Reports, collectively, as the forms thereof are modified,
expanded or otherwise changed from time to time by the CMSA. With respect to new
reports created and approved by the
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CMSA, such new reports will be used in this transaction (provided, however, that
insofar as any such new report requires the presentation of information in
addition to that called for by the current CMSA reports, such new report is
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable) and the Depositor shall direct the Trustee as to whether such
reports will be Restricted Servicer Reports or Unrestricted Servicer Reports.
The Trustee shall provide the Master Servicer and Special Servicer with a copy
of such direction within two Business Days after its receipt. In the case of
each Mortgaged Property securing a Co-op Mortgage Loan, the respective files and
reports comprising the CMSA Reports shall present the Projected Net Cash Flow
for such Mortgaged Property and the Debt Service Coverage Ratio for such Co-op
Mortgage Loan, as such terms apply to residential cooperative properties, if and
to the extent that such file or report requires preparation and/or submission of
data concerning net cash flow or debt service coverage.
"CMSA Servicer Watch List" means a report substantially in the form
of, and containing the information called for in, the downloadable form of
"Servicer Watch List" 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 "Servicer Watch List" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable; provided, however, that, notwithstanding the foregoing,
the Master Servicer shall not be required to include a Co-op Mortgage Loan on
the Servicer Watch List on account of the Debt Service Coverage Ratio of such
Co-op Mortgage Loan, unless such Debt Service Coverage Ratio shall fall below
0.90x (for purposes of the calculation of the Debt Service Coverage Ratio of a
Co-op Mortgage Loan for this definition only, the Projected Net Cash Flow of the
related Mortgaged Property shall be adjusted to reflect the actual expenses
incurred by the Mortgagor).
"CMSA Special Servicer Loan File" means a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Special Servicer Loan 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 "Special Servicer Loan File" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Special Servicer, as
applicable.
"CMSA Website" means the CMSA's website located at "xxx.xxxx.xxx" or
such other primary website as the CMSA may establish for dissemination of its
report forms.
"Code" means the Internal Revenue Code of 1986, as amended, any
successor statutes thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form and proposed
regulations thereunder, to the extent that, by reason of their proposed
effective date, such proposed regulations would apply to the Trust.
"Collection Period" means, with respect to any Distribution Date,
the period beginning on the day after the Determination Date in the month
preceding the month of such
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Distribution Date (or in the case of the first Distribution Date, the Cut-Off
Date) and ending on the Determination Date in the month in which the
Distribution Date occurs.
"Commission" means the Securities and Exchange Commission.
"Compensating Interest" means, with respect to any Distribution Date
and the Master Servicer, an amount equal to the excess of (A) Prepayment
Interest Shortfalls incurred in respect of the Mortgage Loans serviced by the
Master Servicer resulting from Principal Prepayments on such Mortgage Loans
during the related Collection Period, over (B) the aggregate of the Prepayment
Interest Excesses received in respect of the Mortgage Loans serviced by the
Master Servicer resulting from Principal Prepayments on such Mortgage Loan
during the same related Collection Period. Notwithstanding the foregoing, such
Compensating Interest shall not (i) exceed the portion of the aggregate Master
Servicing Fee accrued at a rate per annum equal to [__] basis points for the
related Collection Period calculated in respect of the Master Servicer's
Mortgage Loans, including REO Mortgage Loans, if the Master Servicer applied the
subject Principal Prepayment in accordance with the terms of the related
Mortgage Loan documents and (ii) be required to be paid on any Net Aggregate
Prepayment Interest Shortfalls to the extent incurred in respect of any
Specially Serviced Mortgaged Loans.
"Component" means each of the Class A-1-1 Component, Class A-1-2
Component, Class A-1-3 Component, Class A-1A-1 Component, Class A-1A-2
Component, Class A-1A-3 Component, Class A-1A-4 Component, Class A-1A-5
Component, Class A-1A-6 Component, Class A-1A-7 Component, Class A-1A-8
Component, Class A-1A-9 Component, Class A-2 Component, Class A-3-1FL-1
Component, Class A-3-1FL-2 Component, Class A-3-1FL-3 Component, Class A-3-1FL-4
Component, Class A-3-1-1 Component, Class A-3-1-2 Component, Class A-3-1-3
Component, Class A-3-1-4 Component, Class A-3-2-1 Component, Class A-3-2-2
Component, Class A-AB-1 Component, Class A-AB-2 Component, Class A-4A-1
Component, Class A-4A-2 Component, Class A-4A-3 Component, Class A-4B Component,
Class A-J Component, Class B-1 Component, Class B-2 Component, Class B-3
Component, Class C-1 Component, Class C-2 Component, Class D-1 Component, Class
D-2 Component, Class E Component, Class F-1 Component, Class F-2 Component,
Class G Component, Class H-1 Component, Class H-2 Component, Class J Component,
Class K Component, Class L Component, Class M Component, Class N Component,
Class O Component and Class P Component.
"Component Notional Amount" means with respect to each Component and
any date of determination, an amount equal to the then Certificate Balance of
its Corresponding REMIC II Regular Interest.
"Condemnation Proceeds" means any awards resulting from the full or
partial condemnation or any eminent domain proceeding or any conveyance in lieu
or in anticipation thereof with respect to a Mortgaged Property by or to any
governmental, quasi-governmental authority or private entity with condemnation
powers (other than amounts to be applied to the restoration, preservation or
repair of such Mortgaged Property or released to the related Mortgagor in
accordance with the terms of the Mortgage Loan.
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"Controlling Class" means the most subordinate Class of REMIC
Regular Certificates or Class [A-3-1FL] Certificates outstanding at any time of
determination; provided that, if the aggregate Certificate Balance of such Class
is less than 25% of the initial Certificate Balance of such Class as of the
Closing Date, the Controlling Class shall be the next most subordinate Class of
REMIC Regular Certificates or Class [A-3-1FL] Certificates outstanding. As of
the Closing Date, the Controlling Class will be the Class [P] Certificates.
"Controlling Person" means, with respect to any Person, any other
Person who "controls" such Person within the meaning of the 1933 Act.
"Co-op Mortgage Loan" means any Mortgage Loan that, as of the date
it is first included in the Trust, is secured by a Mortgage that encumbers a
residential cooperative property.
"Co-op Trust Assets" means the Co-op Mortgage Loans, any REO
Properties acquired by the Trust with respect to the Co-op Mortgage Loans and
any and all other related assets of the Trust.
"Corporate Trust Office" means, with respect to the presentment and
surrender of Certificates for the final distribution thereon or the presentment
and surrender of Certificates for any other purpose, the principal corporate
trust office of the Certificate Registrar. The principal corporate trust office
of the Trustee is presently located at [insert address] with respect to
certificate transfers and at [insert address] with respect to other trustee and
securities administration services, or at such other address as the Trustee or
Certificate Registrar may designate from time to time by notice to the
Certificateholders, the Depositor, the Master Servicer and the Special Servicer.
"Corresponding Certificate" means the Class of Certificates (or, in
the case of the Class [A-3-1FL] Certificates, the Class A-3-1FL Regular
Interest) as set forth in the Preliminary Statement with respect to any
Corresponding Component or any Corresponding REMIC II Regular Interest.
"Corresponding Component" means the Component as set forth in the
Preliminary Statement with respect to any Corresponding Certificate (or, in the
case of the Class [A-3-1FL] Certificates, the Class A-3-1FL Regular Interest) or
any Corresponding REMIC II Regular Interest.
"Corresponding REMIC I Regular Interest" means, with respect to each
Mortgage Loan, the REMIC I Regular Interest or Interests having an initial
Certificate Balance (in the case of the Group PB REMIC Regular Interests) or
initial Notional Amount (in the case of the Group X-Y REMIC I Regular
Interests), equal to the Principal Balance of such Mortgage Loan outstanding as
of the Cut-Off Date, after taking into account all principal and interest
payments made or due prior to the Cut-Off Date.
"Corresponding REMIC II Regular Interest" means the REMIC II Regular
Interest as defined in the Preliminary Statement with respect to any Class of
Corresponding Certificates or any Corresponding Component.
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"Credit Support Provider" shall have the meaning assigned in the
Swap Contract.
"Cross-Collateralized Loan" has the meaning set forth in Section
2.3(a) hereof.
"Custodian" means the Trustee or any Person who is appointed by the
Trustee at any time as custodian pursuant to Section 7.9 and who is unaffiliated
with the Depositor and each Seller and satisfies the eligibility requirements of
the Trustee as set forth in Section 7.5.
"Customer" means a broker, dealer, bank, other financial institution
or other Person for whom the Clearing Agency effects book-entry transfers and
pledges of securities deposited with the Clearing Agency.
"Cut-Off Date" means the end of business on ____1, 20__. The Cut-Off
Date for any Mortgage Loan that has a Due Date on a date other than the first
day of each month shall be the end of business on ___1, 20__ and Scheduled
Payments due in ____ 20__ with respect to Mortgage Loans not having Due Dates on
the first of each month have been deemed received on ____1, 20__, not the actual
day on which such Scheduled Payments were due.
"Debt Service Coverage Ratio" means either, (a) with respect to any
Mortgage Loan (other than a Co-op Mortgage Loan), as of any date of
determination, the ratio of (1) the annual, year-end net cash flow of the
related Mortgaged Property or Mortgaged Properties, determined as provided in
the NOI Adjustment Worksheet based on the most recent annual, year-end operating
statements provided by the Mortgagor (or if no annual, year-end operating
statements have been provided, based on such information provided by the
Mortgagor, including without limitation rent rolls and other unaudited financial
information, as the Master Servicer shall determine in accordance with the
Servicing Standard) to (2) the annualized amount of debt service payable on that
Mortgage Loan or, in the case of Mortgage Loans that are interest-only, where
periodic payments are interest-only for a certain amount of time after
origination after which date the Mortgage Loan amortizes principal for the
remaining term of the Mortgage Loan, the annualized amount of debt service that
will be payable under the Mortgage Loan after the beginning of the amortization
term of the Mortgage Loan, or (b) with respect to any Co-op Mortgage Loan, as of
any date of determination, the ratio of (1) the Projected Net Cash Flow for the
related Mortgaged Property on an annualized basis to (2) the annualized amount
of debt service payable on that Co-op Mortgage Loan.
"Debt Service Reduction Amount" means, with respect to a Due Date
and the related Determination Date, the amount of the reduction of the Scheduled
Payment which a Mortgagor is obligated to pay on such Due Date with respect to a
Mortgage Loan as a result of any proceeding under bankruptcy law or any similar
proceeding (other than a Deficient Valuation Amount); provided, however, that in
the case of an amount that is deferred as a result of any such proceeding, but
not forgiven, the amount of the reduction shall include only the net present
value (calculated at the related Mortgage Rate) of the reduction.
"Defaulted Mortgage Loan" means a Mortgage Loan that is in default
under the terms of the applicable Mortgage Loan documentation and for which any
applicable grace period has expired.
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"Defeasance Collateral" means, with respect to any Defeasance Loan,
"government securities" as defined in Section 2(a)(16) of the Investment Company
Act of 1940 required to be pledged in lieu of prepayment pursuant to the terms
thereof.
"Defeasance Loan" means any Mortgage Loan which requires or permits
the related Mortgagor (or permits the holder of such Mortgage Loan to require
the related Mortgagor) to pledge Defeasance Collateral to such holder in lieu of
prepayment.
"Deficient Valuation" means, with respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property
relating to such Mortgage Loan in an amount less than the then outstanding
indebtedness under such Mortgage Loan, which valuation results from a proceeding
initiated under the United States Bankruptcy Code, as amended from time to time,
and that reduces the amount the Mortgagor is required to pay under such Mortgage
Loan.
"Deficient Valuation Amount" means with respect to each Mortgage
Loan, the amount by which the total amount due with respect to such Mortgage
Loan or (excluding interest not yet accrued), including the Principal Balance of
such Mortgage Loan plus any accrued and unpaid interest thereon and any other
amounts recoverable from the Mortgagor with respect thereto pursuant to the
terms thereof, is reduced in connection with a Deficient Valuation.
"Definitive Certificates" means Certificates of any Class issued in
definitive, fully registered, certificated form without interest coupons.
"Deleted Mortgage Loan" means a Mortgage Loan which is repurchased
from the Trust pursuant to the terms hereof or as to which one or more
Qualifying Substitute Mortgage Loans are substituted.
"Depositor" means Xxxxxx Xxxxxxx Capital I Inc., a Delaware
corporation, and its successors in interest.
"Depository" has the meaning set forth in Section 3.7(a).
"Depository Agreement" means the Blanket Letter of Representations
dated the Closing Date between the Depositor and the Depository.
"Determination Date" means, with respect to any Distribution Date
and any of the Mortgage Loans, the earlier of (i) the [10th] day of the month in
which such Distribution Date occurs or, if such day is not a Business Day, the
immediately preceding Business Day, and (ii) the [5th] Business Day prior to the
related Distribution Date, commencing _____, 20__.
"Directly Operate" means, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management of
such REO Property, the holding of such REO Property primarily for sale to
customers (other than a sale of an REO Property pursuant to and in accordance
with Section 9.15) or the performance of any construction work thereon, in each
case other than through an Independent Contractor; provided, however, that the
Trustee (or the Special Servicer on behalf of the
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Trustee) shall not be considered to Directly Operate an REO Property solely
because the Trustee (or the Special Servicer on behalf of the Trustee)
establishes rental terms, chooses tenants, enters into or renews leases, deals
with taxes and insurance, or makes decisions as to repairs, tenant improvements
or capital expenditures with respect to such REO Property (including, without
limitation, construction activity to effect repairs or in connection with
leasing activity) or undertakes any ministerial action incidental thereto.
"Disclosure Documents" means [insert description of disclosure
documents].
"Discount Rate" means the rate which, when compounded monthly, is
equivalent to the Treasury Rate when compounded semi-annually. The "Treasury
Rate," unless otherwise set forth in the Mortgage Loan documents, is the yield
calculated by the linear interpolation of the yields, as reported in Federal
Reserve Statistical Release H.15--Selected Interest Rates under the heading
"U.S. government securities/Treasury constant maturities" for the week ending
prior to the date of the relevant principal prepayment, of U.S. Treasury
constant maturities with a maturity date (one longer and one shorter) most
nearly approximating the maturity date (or the Anticipated Repayment Date, if
applicable) of the Mortgage Loan prepaid. If Release H.15 is no longer
published, the Master Servicer will select a comparable publication to determine
the Treasury Rate.
"Disqualified Organization" means any of (i) the United States, any
State or any political subdivision thereof, or any agency or instrumentality of
any of the foregoing (other than an instrumentality which is a corporation if
all of its activities are subject to tax and, except for FHLMC, a majority of
its board of directors is not selected by any such governmental unit), (ii) a
foreign government, international organization or any agency or instrumentality
of either of the foregoing, (iii) an organization (except certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from 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), (iv)
rural electric and telephone cooperatives described in Section 1381 of the Code,
and (v) any other Person so designated by the Master Servicer based upon an
Opinion of Counsel that the holding of an ownership interest in a Residual
Certificate by such Person may cause any of the REMIC Pools, 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 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.
"Distributable Certificate Interest" means, with respect to any
Distribution Date and any Class of Certificates (other than the Class [A-3-1FL]
Certificates, Class [EI] Certificates and the Residual Certificates) or
Interests (including the Class A-3-1FL Regular Interest), the sum of (A) Accrued
Certificate Interest in respect of such Class or Interest, reduced (to not less
than zero) by (i) any Net Aggregate Prepayment Interest Shortfalls for such
Class of Certificates or Interests, allocated on such Distribution Date to such
Class or Interest pursuant to Section 6.7, and (ii) Realized Losses allocated on
such Distribution Date to reduce the Distributable Certificate Interest payable
to such Class or Interest pursuant to Section 6.6, plus (B) the Unpaid Interest,
plus (C) if the Aggregate Certificate Balance is reduced because of a diversion
of principal in accordance with Section 5.2(a)(II)(iv), and there is a
subsequent recovery of amounts as described in Section 6.6(c)(i), then interest
at the applicable Pass-
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Through Rate that would have accrued and been distributable with respect to the
amount by which the Aggregate Certificate Balance was so reduced, which interest
shall accrue from the date that the related Realized Loss is allocated through
the end of the Interest Accrual Period related to the Distribution Date on which
such amounts are subsequently recovered.
"Distribution Account" means the Distribution Account maintained by
the Paying Agent on behalf of the Trustee, in accordance with the provisions of
Section 5.3, which account shall be an Eligible Account.
"Distribution Date" means the [15th] day of each month or, if such
day is not a Business Day, the next succeeding Business Day, commencing ____,
20__.
"Due Date" means, with respect to a Mortgage Loan, the date on which
a Scheduled Payment is first due without the application of grace periods.
"Eligible Account" means an account (or accounts) that is any of the
following: (i) maintained with a depository institution or trust company whose
(A) commercial paper, short-term unsecured debt obligations or other short-term
deposits are rated at least ["P-1" by Moody's and "A-1" by S&P], if the deposits
are to be held in the account for 30 days or less, or (B) long term unsecured
debt obligations are rated at least ["Aa3" by Moody's and "AA-" (or "A" (without
regard to any plus or minus), if the short-term unsecured debt obligations are
rated at least "A-1") by S&P], if the deposits are to be held in the account
more than 30 days, (ii) a segregated trust account or accounts maintained in the
trust department of the Trustee, the Paying Agent or other financial institution
having a combined capital and surplus of at least $50,000,000 and subject to
regulations regarding fiduciary funds on deposit similar to Title 12 of the Code
of Federal Regulations Section 9.10(b) or (iii) an account or accounts of a
depository institution acceptable to the Rating Agencies, as evidenced by Rating
Agency Confirmation with respect to the use of any such account as a Certificate
Account or the Distribution Account.
"Eligible Investments" means any one or more of the following
financial assets or other property:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America,
FNMA, FHLMC or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and credit
of the United States of America; provided that any obligation of FNMA or
FHLMC, other than an unsecured senior debt obligation of FNMA or FHLMC,
shall be an Eligible Investment only if Rating Agency Confirmation is
obtained with respect to such investment;
(ii) demand or time deposits in, unsecured certificates of deposit
of, money market deposit accounts of, or bankers' acceptances issued by,
any depository institution or trust company (including the Trustee, the
Master Servicer, the Special Servicer, the Paying Agent or any Affiliate
of the Master Servicer, the Special Servicer, the Paying Agent or the
Trustee, acting in its commercial capacity) incorporated or organized
under the laws of the United States of America or any State thereof and
subject to supervision and examination by federal or state banking
authorities, so long as the commercial paper
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or other short-term debt obligations of such depository institution or
trust company are rated ["Prime-1" by Moody's and "A-1" (without regard to
any plus or minus) by S&P] or the long-term unsecured debt obligations of
such depository institution or trust company have been assigned a rating
by each Rating Agency at least equal to ["Aa2" by Moody's and "AA-" by
S&P] or its equivalent or, in each case, if not rated by a Rating Agency,
then such Rating Agency has issued a Rating Agency Confirmation;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a remaining
maturity of one year or less and where such repurchase obligation has been
entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above and where such repurchase
obligation will mature prior to the Business Day preceding the next date
upon which, as described in this Agreement, such amounts are required to
be withdrawn from a Certificate Account and which meets the minimum rating
requirement for such entity described above (or for which Rating Agency
Confirmation is obtained with respect to such ratings);
(iv) debt obligations (other than stripped bonds or stripped
coupons) bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States of America or any state
thereof, which securities are rated in one of the [two highest rating
categories by Moody's and at least "AA" by S&P], unless otherwise
specified in writing by the Rating Agency; provided that securities issued
by any particular corporation will not be Eligible Investments to the
extent that investment therein will cause the then-outstanding principal
amount of securities issued by such corporation and held in a Certificate
Account to exceed 5% of the sum of the aggregate Certificate Principal
Balance of the Principal Balance Certificates and the aggregate principal
amount of all Eligible Investments in the Certificate Account;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof)
rated ["Prime-1" by Moody's and "A-1" (without regard to any plus or
minus) by S&P] (or for which Rating Agency Confirmation is obtained with
respect to such ratings);
(vi) units of investment funds (including money market funds) that
are rated in [the highest long-term category by Moody's and "AAAm" by S&P]
(or if not rated by any such Rating Agency, then such Rating Agency has
issued a Rating Agency Confirmation);
(vii) guaranteed reinvestment agreements maturing within 365 days or
less issued by any bank, insurance company or other corporation whose
long-term unsecured debt rating is not less than ["Aa2" by Moody's and
"AA" (or its equivalent) by S&P], or for which Rating Agency Confirmation
is obtained with respect to such ratings; provided that, with respect to
S&P, such agreements state that funds may be withdrawn at par without
penalty;
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(viii) any money market funds (including those managed or advised by
the Paying Agent or its Affiliates) that maintain a constant asset value
and that are rated ["Aaa" (or its equivalent) by Moody's (if so rated by
Moody's) and "AAAm" or "AAAm-G" (or its equivalent) by S&P], and any other
demand, money-market or time deposit, or any other obligation, security or
investment, with respect to which Rating Agency Confirmation has been
obtained; and
(ix) such other investments bearing interest or sold at a discount,
earning a return "in the nature of interest" within the meaning of
Treasury Regulation Section 1.860G-2(g)(1)(i) (as evidenced by an Opinion
of Counsel delivered to the Trustee and the Paying Agent by the Master
Servicer or Special Servicer at the Master Servicer's or Special
Servicer's expense), as are acceptable to the Rating Agencies (as
evidenced by Rating Agency Confirmation) and treated as "permitted
investments" that are "cash flow investments" under Section 860G(a)(5) of
the Code;
provided (A) such investment is held for a temporary period pursuant to Section
1.860G-2(g)(i) of the Treasury Regulations, (B) such investment is payable by
the obligor in U.S. dollars, and (C) that no such instrument shall be an
Eligible Investment (1) if such instrument evidences either (a) a right to
receive only interest payments or only principal payments with respect to the
obligations underlying such instrument or (b) a right to receive both principal
and interest payments derived from obligations underlying such instrument and
the principal and interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (2) if it may be redeemed at a price below the
purchase price or (3) if it is not treated as a "permitted investment" that is a
"cash flow investment" under Section 860G(a)(5) of the Code; and provided,
further, that any such instrument shall have a maturity date no later than the
date such instrument is required to be used to satisfy the obligations under
this Agreement, and, in any event, shall not have a maturity in excess of one
year; any such instrument must have a predetermined fixed dollar of principal
due at maturity that cannot vary or change; if rated, the obligation must not
have an "r" highlighter affixed to its rating; interest on any variable rate
instrument shall be tied to a single interest rate index plus a single fixed
spread (if any) and move proportionally with that index; and provided, further,
that no amount beneficially owned by any REMIC Pool (including any amounts
collected by the Master Servicer but not yet deposited in the Certificate
Accounts) may be invested in investments treated as equity interests for Federal
income tax purposes. No Eligible Investments shall be purchased at a price in
excess of par. For the purpose of this definition, units of investment funds
(including money market funds) shall be deemed to mature daily.
"Environmental Insurance Policy" shall mean, with respect to any
Mortgage Loan or the related 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 Mortgage Loan, Mortgaged
Property or REO Property, as the case may be, for the benefit of, among others,
the Trustee on behalf of the Certificateholders.
"Environmental Laws" means any and all federal, state and local
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions, now or hereafter in effect, relating to health or the
environment or to emissions, discharges or releases of chemical
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substances, including, without limitation, any and all pollutants, contaminants,
petroleum or petroleum products, asbestos or asbestos-containing materials,
polychlorinated biphenyls, urea-formaldehyde insulation, radon, industrial,
toxic or hazardous substances or wastes, into the environment, including,
without limitation, ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use, labeling,
registration, treatment, storage, disposal, transport or handling of any of the
foregoing substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Escrow Account" means an account established by or on behalf of the
Master Servicer pursuant to Section 8.3(e).
"Escrow Amount" means any amount payable with respect to a Mortgage
Loan for taxes, assessments, water rates, Standard Hazard Insurance Policy
premiums, ground lease payments, reserves for capital improvements, deferred
maintenance, repairs, tenant improvements, leasing commissions, rental
achievements, environmental matters and other reserves or comparable items.
"Euroclear" means the Euroclear system.
"Event of Default" has the meaning set forth in Section 8.28(b).
"Excess Interest" means, with respect to an ARD Loan if such ARD
Loan is not prepaid in full on or before its Anticipated Repayment Date, the
excess, if any of (i) interest accrued at the rate of interest applicable to
such Mortgage Loan after such Anticipated Repayment Date (plus any interest on
such interest as may be provided for under the Mortgage Loan documents) over
(ii) interest accrued at the rate of interest applicable to such Mortgage Loan
before such Anticipated Repayment Date. Excess Interest on an ARD Loan is an
asset of the Trust, but shall not be an asset of any REMIC Pool formed
hereunder.
"Excess Interest Sub-account" means an administrative account deemed
to be a sub-account of the Distribution Account, in accordance with the
provisions of Section 5.3. The Excess Interest Sub-account shall not be an asset
of any REMIC Pool formed hereunder.
"Excess Liquidation Proceeds" means, with respect to any Mortgage
Loan, the excess of (i) Liquidation Proceeds of a Mortgage Loan or related REO
Property, over (ii) the amount that would have been received if a Principal
Prepayment in full had been made with respect to such Mortgage Loan on the date
such proceeds were received plus accrued and unpaid interest with respect to
such Mortgage Loan and all expenses (including Additional Trust Expenses and
Unliquidated Advances) with respect to such Mortgage Loan.
"Excess Servicing Fee" means, with respect to the Mortgage Loans for
which an "excess servicing fee rate" is designated on the Mortgage Loan
Schedule, the monthly fee payable to the parties set forth on Exhibit J hereto
or their successors and assigns, as holders of excess servicing rights, which
fee shall accrue on the Scheduled Principal Balance of each such Mortgage Loan
immediately prior to the Due Date occurring in each month at the per annum rate
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(determined in the same manner as the applicable Mortgage Rate for such Mortgage
Loan is determined for such month) specified on the Mortgage Loan Schedule (the
"Excess Servicing Fee Rate"). Each holder of a right to receive Excess Servicing
Fees is entitled to Excess Servicing Fees only with respect to the Mortgage
Loans as indicated on Exhibit J hereto.
"Exchange Certification" means an Exchange Certification
substantially in the form set forth in Exhibit G hereto executed by a holder of
an interest in a Regulation S Global Certificate or a Rule 144A IAI Global
Certificate, as applicable.
"Expense Loss" means a loss realized upon payment by the Trust of an
Additional Trust Expense.
"Extension" has the meaning set forth in Section 9.15(a).
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or any
successor thereto.
"Final Certification" has the meaning set forth in Section 2.2.
"Final Prospectus Supplement" has the meaning set forth in the
Preliminary Statement hereto.
"Final Rated Distribution Date" means, with respect to each rated
Class of Certificates, the Distribution Date in ______________.
"Final Recovery Determination" means a determination with respect
to: (i) any Mortgage Loan other than a Specially Serviced Mortgage Loan, by the
Master Servicer in consultation with the Special Servicer and (ii) with respect
to any Specially Serviced Mortgage Loan (including a Mortgage Loan that became
an REO Property) by the Special Servicer, in each case, in its good faith
discretion, consistent with the Servicing Standard, that all Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds, Purchase Proceeds and other
payments or recoveries which the Master Servicer or the Special Servicer, as the
case may be, expects to be finally recoverable on such Mortgage Loan, without
regard to any obligation of the Master Servicer or the Trustee, as the case may
be, to make payments from its own funds pursuant to Article IV hereof, have been
recovered. With respect to each Mortgage Loan that is cross-collateralized by
Mortgaged Properties securing other Mortgage Loans, all of the Mortgaged
Properties and other security must be considered in connection with any such
Final Recovery Determination. The Special Servicer shall be required to provide
the Master Servicer with prompt written notice of any Final Recovery
Determination with respect to any Specially Serviced Mortgage Loan or REO
Mortgage Loan upon making such determination. The Master Servicer shall promptly
notify the Trustee and the Paying Agent of such determination and the Paying
Agent shall deliver a copy of such notice to each Rating Agency.
"Final Scheduled Distribution Date" means, for each Class of rated
Certificates, the Distribution Date on which such Class would be paid in full if
payments were made on the
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Mortgage Loans in accordance with their terms, except that the ARD Loan is
assumed to be repaid on its Anticipated Repayment Date.
"Fitch" means Fitch Ratings, Inc. or its successor in interest.
"Fixed Interest Distribution" means with respect to the Class
A-3-1FL Regular Interest, the payments of interest required to be made in
respect of each Distribution Date, commencing in ____20__, by the Trustee to the
Swap Counterparty pursuant to the Swap Contract at a rate equal to the
Pass-Through Rate of the Class A-3-1FL Regular Interest on the Floating Rate
Certificate Notional Amount subject to reduction in accordance with the Swap
Contract.
"Floating Rate Account" means the Eligible Account or Accounts
established and maintained by the Paying Agent on behalf of the Trustee with
respect to the Class [A-3-1FL] Certificates, which shall be entitled "_______,
as Trustee, in trust for Holders of Xxxxxx Xxxxxxx Capital I Trust 20__-____,
Floating Rate Account, Class A-3-1FL" and "[Name of Master Servicer], as Master
Servicer for _______, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I
Trust 20__-___, Floating Rate Account, Class A-3-1FL"; provided, that the
Floating Rate Account may be a subaccount of the Distribution Account or the
Certificate Account. The Floating Rate Account shall be an asset of the Class
A-3-1FL Grantor Trust.
"Floating Rate Certificate Notional Amount" means a notional amount
equal to the Certificate Balance of the Class A-3-1FL Regular Interest.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"Form 8-K Disclosure Information" has the meaning set forth in
Section 13.9.
"Global Certificate" means any Rule 144A IAI Global Certificate,
Regulation S Temporary Global Certificate or Regulation S Permanent Global
Certificate.
"Grantor Trust Provisions" shall mean those provisions of the Code
relating to grantor trusts, which appear in subpart E, Part I of subchapter J,
and related provisions, and proposed, temporary and final Treasury regulations,
including Treasury Regulations Section 301.7701-4(c)(2), and any published
rulings, notice and announcements promulgated thereunder, as the foregoing may
be in effect from time to time.
"Group PB REMIC I Regular Interests" means, collectively, all of the
REMIC I Regular Interests other than the Group X-Y REMIC I Regular Interests,
which are the REMIC I Regular Interests with principal balances.
"Group X-Y REMIC I Regular Interests" means, collectively, the REMIC
I Regular Interests, which represent interests in the Class X-Y Strip Rates with
respect to the Specially Designated Co-op Mortgage Loans, which are the REMIC I
Regular Interests without principal balances (but have notional amounts for
purposes of accruing interest).
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"Holder" means the Person in whose name a Certificate is registered
on the Certificate Register.
"IAI Definitive Certificate" means, with respect to any Class of
Certificates sold to Institutional Accredited Investors who are not Qualified
Institutional Buyers, a Certificate in definitive, fully registered certificated
form without interest coupons.
"Independent" means, when used with respect to any Accountants, a
Person who is "independent" within the meaning of Rule 2-01(B) of the
Commission's Regulation S-X. Independent means, when used with respect to any
other Person, a Person who (A) is in fact independent of another specified
Person and any Affiliate of such other Person, (B) does not have any material
direct or indirect financial interest in such other Person or any Affiliate of
such other Person, (C) is not connected with such other Person or any Affiliate
of such other Person as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions and (D) is not a member
of the immediate family of a Person defined in clause (B) or (C) above.
"Independent Contractor" means, either (i) with respect to any
Mortgage Loan (A) that is not a Specially Serviced Mortgage Loan, any Person
designated by the Master Servicer (other than the Master Servicer, but which may
be an Affiliate of the Master Servicer), or (B) that is a Specially Serviced
Mortgage Loan, any Person designated by the Special Servicer that would be an
"independent contractor" with respect to a REMIC Pool within the meaning of
Section 856(d)(3) of the Code if such REMIC Pool were a real estate investment
trust (except that the ownership test set forth in such Section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of the Aggregate Certificate Balance or Notional Amount, as the case may
be, of any Class of the Certificates (other than the Residual Certificates), a
Percentage Interest of 35% or more in the Residual Certificates or such other
interest in any Class of the Certificates or of the applicable REMIC Pool as is
set forth in an Opinion of Counsel, which shall be at no expense to the Trustee
or the Trust) so long as such REMIC Pool does not receive or derive any income
from such Person and provided that the relationship between such Person and such
REMIC is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5), or (ii) any other Person (including the Master Servicer or the
Special Servicer) upon receipt by the Trustee of an Opinion of Counsel, which
shall be at the expense of the Person delivering such opinion to the Trustee, to
the effect that the taking of any action in respect of any REO Property by such
Person, subject to any conditions therein specified, that is otherwise herein
contemplated to be taken by an Independent Contractor will not cause such REO
Property to cease to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code (determined without regard to the exception
applicable for purposes of Section 860D(a) of the Code), or cause any income
realized in respect of such REO Property to fail to qualify as Rents from Real
Property.
"Initial Certification" has the meaning set forth in Section 2.2.
"Initial Deposit" means the amount of all collections made on the
Mortgage Loans from the Cut-Off Date to and excluding the Closing Date.
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"Initial LTV Co-op Basis" shall mean, with respect to any Co-op
Mortgage Loan, the related loan-to-value ratio specified under the heading
"Cut-Off Date LTV" in Appendix II to the Final Prospectus Supplement.
"Inspection Report" means a report substantially in the form of, and
containing the information called for in, the downloadable form of the "Property
Inspection Form" available as of ____, 20__ 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 Inspection Form" available as of the Closing Date on the CMSA Website,
is reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"Institutional Accredited Investor" means an institutional
accredited investor qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the 1933 Act.
"Insurance Policies" means, collectively, any Standard Hazard
Insurance Policy, flood insurance policy, title insurance policy, terrorism
insurance policy or Environmental Insurance Policy relating to the Mortgage
Loans or the Mortgaged Properties in effect as of the Closing Date or thereafter
during the term of this Agreement.
"Insurance Proceeds" means amounts paid by the insurer under any
Insurance Policy (other than amounts required to be paid over to the Mortgagor
(or used to restore the related Mortgaged Property) pursuant to law, the related
Mortgage Loan or the Servicing Standard).
"Insured Environmental Event" has the meaning set forth in Section
9.1(f).
"Interest" means a REMIC I Regular Interest, a REMIC II Regular
Interest or the Class A-3-1FL Regular Interest, as applicable.
"Interest Accrual Period" means, with respect to each Distribution
Date, (i) for each Class of REMIC Regular Certificates (other than the Class
[A-3-1FL] Certificates), the Class A-3-1FL Regular Interest and, if the Swap
Contract or any replacement swap contract is no longer in effect or if a Swap
Default has occurred and is continuing, with respect to the Class [A-3-1FL]
Certificates, the calendar month immediately preceding the month in which such
Distribution Date occurs or (ii) for the Class [A-3-1FL] Certificates, for so
long as the Swap Contract or any replacement swap contract is in effect and no
Swap Default has occurred and is continuing, the period from (and including) the
prior Distribution Date (or the Closing Date, in the case of the first such
period) and ending on (and including) the day before the current Distribution
Date.
"Interest Reserve Account" means that Interest Reserve Account
maintained by the Master Servicer pursuant to Section 5.1(a), which account
shall be an Eligible Account.
"Interest Reserve Amount" has the meaning set forth in Section
5.1(d).
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"Interest Reserve Loans" shall mean the Mortgage Loans which bear
interest other than on the basis of a 360-day year consisting of twelve 30-day
months.
"Interest Reset Date" means the day that is two Banking Days prior
to the start of the related Interest Accrual Period.
"Interested Person" means, as of any date of determination, the
Master Servicer, the Special Servicer, the Depositor, the holder of any related
Junior Indebtedness (with respect to any particular Mortgage Loan), a holder of
50% or more of the Controlling Class, the Operating Adviser, any Independent
Contractor engaged by the Master Servicer or the Special Servicer pursuant to
this Agreement, or any Person actually known to a Responsible Officer of the
Trustee to be an Affiliate of any of them.
"Investor-Based Exemption" means any of Prohibited Transaction Class
Exemption ("PTCE") 84-14 (for transactions by independent "qualified
professional asset managers"), PTCE 90-1 (for transactions by insurance company
pooled separate accounts), PTCE 91-38 (for transactions by bank collective
investment funds), PTCE 95-60 (for transactions by insurance company general
accounts) or PTCE 96-23 (for transactions effected by "in-house asset
managers"), or any comparable exemption available under Similar Laws.
"ISDA" means the International Swap Dealers Association.
"Junior Indebtedness" means any indebtedness of any Mortgagor that
is secured by a lien that is junior in right of payment to the lien of the
Mortgage securing the related Mortgage Note.
"Late Collections" means, with respect to any Mortgage Loan, all
amounts received during any Collection Period, whether as late payments or as
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, Purchase
Proceeds or otherwise, that represent payments or collections of Scheduled
Payments due but delinquent for a previous Collection Period and not previously
recovered.
"Late Fees" means a fee payable to the Master Servicer or the
Special Servicer, as the case may be, to the extent actually collected from the
Mortgagor as provided in the related Mortgage Loan, if applicable, in connection
with a late payment made by such Mortgagor.
"LIBOR" means with respect to each Interest Accrual Period, the per
annum rate for deposits in U.S. dollars for a period of one month, which appears
on the Telerate page 3750 as the "London Interbank Offering Rate" as of 11:00
a.m., London time, on the Interest Reset Date. If such rate does not appear on
said Telerate page 3750, LIBOR shall be the arithmetic mean of the offered
quotations obtained by the Swap Counterparty from the principal London office of
four major banks in the London interbank market selected by the Swap
Counterparty in its sole discretion (each, a "Reference Bank") for rates at
which deposits in U.S. dollars are offered to prime banks in the London
interbank market for a period of one month in an amount that is representative
for a single transaction in the relevant market at the relevant time as of
approximately 11:00 a.m., London time, on the Interest Reset Date. If fewer than
two Reference Banks provide the Swap Counterparty with such quotations, LIBOR
shall be the rate per annum which the Swap Counterparty determines to be the
arithmetic mean of the rates quoted by major
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banks in New York City, New York selected by the Swap Counterparty at
approximately 11:00 a.m. New York City time on the first day of the Interest
Accrual Period for loans in U.S. dollars to leading European banks for a period
of one month in an amount that is representative for a single transaction in the
relevant market at the relevant time. LIBOR for the initial Interest Accrual
Period is ___%.
"Liquidation Expenses" means reasonable and direct expenses incurred
by the Special Servicer on behalf of the Trust in connection with the
enforcement and liquidation of any Specially Serviced Mortgage Loan or REO
Property acquired in respect thereof including, without limitation, reasonable
legal fees and expenses, appraisal fees, committee or referee fees, property
manager fees, and, if applicable, brokerage commissions and conveyance taxes for
such Specially Serviced Mortgage Loan. All Liquidation Expenses relating to
enforcement and disposition of the Specially Serviced Mortgage Loan shall be (i)
paid out of income from the related REO Property, to the extent available, (ii)
paid out of related proceeds from liquidation or (iii) advanced by the Master
Servicer or Special Servicer, subject to Section 4.4 and Section 4.6(d) hereof,
as a Servicing Advance.
"Liquidation Fee" means a fee equal to the product of (x) [1.00]%
and (y) the Liquidation Proceeds received in connection with full or partial
liquidation of a Specially Serviced Mortgage Loan or related REO Property and
any Condemnation Proceeds or Insurance Proceeds received by the Trust; provided,
however, that (A) in the case of a final disposition consisting of the
repurchase of a Mortgage Loan or REO Property by a Seller pursuant to Section
2.3, such fee will only be paid by such Seller and due to the Special Servicer
if repurchased after the date that is [180] days or more after the applicable
Seller receives notice of the breach or defect causing the repurchase and (B) in
the case of a repurchase of a Mortgage Loan by a related B note holder or
mezzanine lender, such fee will only be due to the Special Servicer if
repurchased [60] days after the Master Servicer, Special Servicer or Trustee
receives notice of the default causing the repurchase.
"Liquidation Proceeds" means (i) with respect to the sale or
liquidation of a Mortgage Loan or related REO Property (other than pursuant to
Section 2.3), the proceeds of such sale or liquidation net of Liquidation
Expenses (to the extent not otherwise paid pursuant to Section 4.6(c)) and (ii)
with respect to the repurchase of a Mortgage Loan or an REO Mortgage Loan
pursuant to Section 2.3, the Purchase Price of such Mortgage Loan or REO
Mortgage Loan (or such allocable portion) at the time of such repurchase.
"Liquidation Realized Loss" means, with respect to each Mortgage
Loan or REO Property, as the case may be, as to which a Cash Liquidation or REO
Disposition has occurred, an amount equal to the sum, without duplication, of
(A) the Principal Balance of the Mortgage Loan (or deemed Principal Balance, in
the case of an REO Mortgage Loan) as of the date of the Cash Liquidation or REO
Disposition (adjusted in accordance with Section 6.6(c)(i)), plus (B) unpaid
interest and interest accrued thereon at the applicable Mortgage Rate (including
interest accrued and unpaid on the portion of the Principal Balance added in
accordance with Section 6.6(c)(i), which interest shall accrue from the date of
the reduction in the Principal Balance resulting from the allocation of a
Realized Loss incurred pursuant to Section 6.6(b)(i)), plus (C) any expenses
(including Additional Trust Expenses) incurred in connection with such Mortgage
Loan that are payable or reimbursable to any Person, other than amounts
previously
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treated as Expense Losses or included in the definition of Liquidation Expenses
minus the sum of (i) REO Income allocated as recoveries of principal or interest
on the related Mortgage Loan, and (ii) with respect to any Mortgage Loan,
Liquidation Proceeds, Late Collections and all other amounts received from the
related Mortgagor and received during the Collection Period in which such Cash
Liquidation or REO Disposition occurred. REO Income and Liquidation Proceeds
shall be applied in accordance with Section 1.2(b) hereof.
"Loan Group" means either Loan Group 1 or Loan Group 2, as the case
may be.
"Loan Group 1" means all of the Mortgage Loans that are Loan Group 1
Mortgage Loans and any successor REO Mortgage Loans with respect thereto.
"Loan Group 1 Mortgage Loan" means any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 1.
"Loan Group 1 Principal Distribution Amount" means, for any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Mortgage Loans included in Loan Group 1.
"Loan Group Principal Distribution Amount" means the Loan Group 1
Principal Distribution Amount or the Loan Group 2 Principal Distribution Amount,
as applicable.
"Loan Group 2" means all of the Mortgage Loans that are Loan Group 2
Mortgage Loans and any successor REO Mortgage Loans with respect thereto.
"Loan Group 2 Mortgage Loan" means any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 2.
"Loan Group 2 Principal Distribution Amount" means, for any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Mortgage Loans included in Loan Group 2.
"Loan-to-Value Ratio" means, as of any date with respect to a
Mortgage Loan, the fraction, expressed as a percentage, the numerator of which
is the Principal Balance of such Mortgage Loan at the date of determination and
the denominator of which is the Appraised Value of the Mortgaged Property as
shown on the most recent Appraisal or valuation of the Mortgaged Property which
is available as of such date.
"Lock-Box Account" has the meaning set forth in Section 8.3(g).
"Lock-Box Agreement" means, with respect to any Mortgage Loan, any
lock box agreement relating to such Mortgage Loan among the related Mortgagor, a
depositary institution and the Master Servicer (or a Primary Servicer or Sub
Servicer on its behalf) pursuant to which a Lock-Box Account is created.
"Losses" has the meaning set forth in Section 12.4.
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"MAI" means Member of the Appraisal Institute.
"Master Servicer" means the master servicer identified in the first
paragraph of this Agreement and its permitted successors and assigns.
"Master Servicer Consent Matter" has the meaning set forth in
Section 8.3(a).
"Master Servicer Remittance Date" means, for each Distribution Date,
the Business Day immediately preceding such Distribution Date.
"Master Servicing Fee" means for each calendar month, as to each
Mortgage Loan, an amount equal to the Master Servicing Fee Rate applicable to
such month (determined in the same manner (other than the rate of accrual) as
the applicable Mortgage Rate is determined for such Mortgage Loan for such
month) multiplied by the Scheduled Principal Balance of such Mortgage Loan
immediately before the Due Date occurring in such month, subject to reduction in
respect of Compensating Interest, as set forth in Section 8.10(c). For the
avoidance of doubt, Master Servicing Fees are in addition to Primary Servicing
Fees.
"Master Servicing Fee Rate" means, with respect to each Mortgage
Loan, the rate per annum specified as such on the Mortgage Loan Schedule.
"Material Breach" has the meaning set forth in Section 2.3(a).
"Material Document Defect" has the meaning set forth in Section
2.3(a).
"Maturity Date" means, with respect to any Mortgage Loan as of any
date of determination, the date on which the last payment of principal is due
and payable under the related Mortgage Loan, after taking into account all
Principal Prepayments received and any Deficient Valuation, Debt Service
Reduction Amount or modification of the Mortgage Loan occurring prior to such
date of determination, but without giving effect to (i) any acceleration of the
principal of such Mortgage Loan or (ii) any grace period permitted by the
related Mortgage Loan.
"Modification Fee" means a fee, if any, (i) collected from a
Mortgagor by the Master Servicer in connection with a modification of a Mortgage
Loan other than a Specially Serviced Mortgage Loan or (ii) collected by the
Special Servicer in connection with the modification of a Specially Serviced
Mortgage Loan.
"Modification Loss" means, with respect to each Mortgage Loan (i) a
decrease in the Principal Balance of such Mortgage Loan, as a result of a
modification thereof in accordance with the terms hereof, (ii) any expenses
connected with such modification, to the extent (x) reimbursable to the Trustee,
the Special Servicer or the Master Servicer and (y) not recovered from the
Mortgagor or (iii) in the case of a modification of such Mortgage Loan that
reduces the Mortgage Rate thereof, the excess, on each Due Date, of the amount
of interest that would have accrued at a rate equal to the original Mortgage
Rate, over interest that actually accrued on such Mortgage Loan during the
preceding Collection Period.
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"Money Term" means, with respect to any Mortgage Loan, the Maturity
Date, Mortgage Rate, Principal Balance, amortization term or payment frequency
thereof, or the amount of the scheduled payment thereof, or any provision
thereof requiring the payment of a prepayment premium, yield maintenance payment
or percentage premium in connection with a principal prepayment (and shall not
include late fees or default interest provisions).
"Monthly Certificateholders Report" means a report provided pursuant
to Section 5.4 by the Paying Agent monthly as of the related Determination Date
which sets forth, to the extent applicable: [(i) the date of such Distribution
Date, and of the Record Date, Interest Accrual Period, and Determination Date
for such Distribution Date; (ii) the Available Distribution Amount for the
Distribution Date, and any other cash flows received on the Mortgage Loans and
applied to pay fees and expenses (including the components of the Available
Distribution Amount or such other cash flows); (iii) the aggregate amount of
servicing fees, Special Servicing Fees, other special servicing compensation and
Trustee Fees paid to the Master Servicer, the Primary Servicer, the Special
Servicer, the holders of the rights to Excess Servicing Fees, the Trustee and
the Paying Agent with respect to the Mortgage Loans; (iv) the amount of other
fees and expenses accrued and paid from the Trust Fund, including without
limitation Advance reimbursement and interest on Advances, and specifying the
purpose of such fees or expenses and the party receiving payment of those
amounts, if applicable; (v) the amount, if any, of such distributions to the
Holders of each Class of Principal Balance Certificates applied to reduce the
respective Certificate Balances thereof; (vi) the amount of such distribution to
holders of each Class of Certificates allocable to (A) interest accrued
(including Excess Interest) at the respective Pass-Through Rates, less any Net
Aggregate Prepayment Interest Shortfalls and (B) Prepayment Premiums; (vii) the
amount of any shortfall in principal distributions and any shortfall in interest
distributions to each applicable Class of Certificates; (viii) the amount of
excess cash flow, if any distributed to the holder of the Residual Certificates;
(ix) the aggregate Certificate Balance or Notional Amount of each Class of
Certificates before and after giving effect to the distribution made on such
Distribution Date; (x) the Pass-Through Rate applicable to each Class of
Certificates for such Distribution Date; (xi) the Weighted Average Mortgage Rate
(and interest rates by distributional groups or ranges) of the Mortgage Loans as
of the related Determination Date; (xii) [the amount on deposit in certain
accounts established pursuant to this Agreement before and after giving effect
to the distribution made on such Distribution Date (and any material account
activity since the prior Distribution Date)]; (xiii) the number of outstanding
Mortgage Loans and the aggregate Principal Balance and Scheduled Principal
Balance of the Mortgage Loans and the weighted average remaining term at the
close of business on such Determination Date, with respect to the Mortgage
Loans; (xiv) the number and aggregate Scheduled Principal Balance of Mortgage
Loans (A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90 or
more days, (D) as to which foreclosure proceedings have been commenced, or (E)
as to which bankruptcy proceedings have been commenced; (xv) the aggregate
amount and general purpose of Servicing Advances and P&I Advances outstanding,
separately stated, that have been made by the Master Servicer, the Special
Servicer and the Trustee with respect to the Mortgage Loans; (xvi) the number
and related Principal Balances of any Mortgage Loans modified, extended or
waived on a loan-by-loan basis since the previous Determination Date (including
a description of any material modifications, extensions or waivers to mortgage
loan
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terms, fees, penalties or payments during the distribution period or that have
cumulatively become material over time; provided, that the Paying Agent shall
include each description provided to it of any modifications, extensions or
waivers to mortgage loan terms, fees, penalties or payments during the
distribution period with respect to any Specially Servicer Mortgage Loan);
(xvii) with respect to any REO Property included in the Trust, the Principal
Balance of the related Mortgage Loan as of the date of acquisition of the REO
Property and the Scheduled Principal Balance thereof; (xviii) as of the related
Determination Date (A) as to any REO Property sold during the related Collection
Period, the date of the related determination by the Special Servicer that it
has recovered all payments which it expects to be finally recoverable and the
amount of the proceeds of such sale deposited into the Certificate Account, and
(B) the aggregate amount of other revenues collected by the Special Servicer
with respect to each REO Property during the related Collection Period and
credited to the Certificate Account, in each case identifying such REO Property
by the loan number of the related Mortgage Loan; (xix) the aggregate amount of
Principal Prepayments made during the related Collection Period with respect to
the Mortgage Loans; (xx) the amount of Unpaid Interest and Realized Losses, if
any, incurred with respect to the Mortgage Loans, including a breakout by type
of such Realized Losses; (xxi) any Material Breaches of Mortgage Loan
representations and warranties of which the Trustee, the Master Servicer or the
Special Servicer has received written notice; (xxii) the amount of any Appraisal
Reductions effected during the related Collection Period on a loan-by-loan basis
and the total Appraisal Reductions in effect as of such Distribution Date];
[(xxiii) the amounts received in respect of the Swap Contract or the amounts
paid in respect of the Swap Contract and, if any of such amounts are less than
the full amount required to be paid under the Swap Contract, the amount of the
shortfall; (xxiv) the identification of any Rating Agency Trigger Event or Swap
Default as of the close of business on the last day of the immediately preceding
calendar month with respect to the Swap Contract (including, if applicable, the
notice required by Section 6.12); (xxv) the amount of any (x) payment by the
Swap Counterparty as a termination payment, (y) payment to any successor
interest rate swap counterparty to acquire a replacement interest rate swap
agreement, and (z) collateral posted in connection with any Rating Agency
Trigger Event; and (xxvi) the amount of and identification of any payments on
the Class [A-3-1FL] Certificates in addition to the amount of principal and
interest due thereon, such as any payment received in connection with the Swap
Contract or any payment of a Prepayment Premium after the termination of the
Swap Contract that is required to be distributed on the Class [A-3-1FL]
Certificates pursuant to the terms of this Agreement]. In the case of
information furnished pursuant to subclauses (i), (ii) and (vii) above, the
amounts shall be expressed in the aggregate and as a dollar amount per $1,000 of
original principal amount of the Certificates for all Certificates of each
applicable Class.
"Moody's" means Xxxxx'x Investors Service, Inc. or its successor
in interest.
"Mortgage" means the mortgage, deed of trust or other instrument
securing a Mortgage Note.
"Mortgage File" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all intervening endorsements,
endorsed in blank or endorsed "Pay to the order of _______, as Trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 20__-___, without recourse, representation or
warranty" or if the original Mortgage Note is not included therein, then a
lost note affidavit and indemnity with a copy of the Mortgage Note
attached thereto;
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(ii) the original Mortgage, with evidence of recording thereon, and,
if the Mortgage was executed pursuant to a power of attorney, a certified
true copy of the power of attorney certified by the public recorder's
office, with evidence of recording thereon (if recording is customary in
the jurisdiction in which such power of attorney was executed) or
certified by a title insurance company or escrow company to be a true copy
thereof; provided that if such original Mortgage cannot be delivered with
evidence of recording thereon on or prior to the 90th day following the
Closing Date because of a delay caused by the public recording office
where such original Mortgage has been delivered for recordation or because
such original Mortgage has been lost, the Depositor shall deliver or cause
to be delivered to the Trustee a true and correct copy of such Mortgage,
together with (A) in the case of a delay caused by the public recording
office, an Officer's Certificate of the applicable Seller stating that
such original Mortgage has been sent to the appropriate public recording
official for recordation or (B) in the case of an original Mortgage that
has been lost after recordation, a certification by the appropriate county
recording office where such Mortgage is recorded that such copy is a true
and complete copy of the original recorded Mortgage;
(iii) the originals of all agreements modifying a Money Term or
other material modification, consolidation and extension agreements, if
any, with, if applicable, evidence of recording thereon (which are
reflected in the Mortgage Loan Schedule), or if such original
modification, consolidation and extension agreements have been delivered
to the appropriate recording office for recordation and either have not
yet been returned on or prior to the 90th day following the Closing Date
with evidence of recordation thereon or have been lost after recordation,
true copies of such modifications, consolidations and extensions certified
by the applicable Seller together with (A) in the case of a delay caused
by the public recording office, an Officer's Certificate of the applicable
Seller stating that such original modification, consolidation or extension
agreement has been dispatched or sent to the appropriate public recording
official for recordation or (B) in the case of an original modification,
consolidation or extension agreement that has been lost after recordation,
a certification by the appropriate county recording office where such
document is recorded that such copy is a true and complete copy of the
original recorded modification, consolidation or extension agreement, and
the originals of all assumption agreements, if any;
(iv) an original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording, signed by the holder of
record in blank or in favor of "_______, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
20__-____;
(v) originals of all intervening assignments of Mortgage, if any,
with evidence of recording thereon or, if such original assignments of
Mortgage have been delivered to the appropriate recorder's office for
recordation, certified true copies of such assignments of Mortgage
certified by the applicable Seller, or in the case of an original blanket
intervening assignment of Mortgage retained by the applicable Seller, a
copy thereof certified by the applicable Seller or, if any original
intervening assignment of Mortgage has not yet been returned on or prior
to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with
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(A) in the case of a delay caused by the public recording office, an
Officer's Certificate of the applicable Seller stating that such original
intervening assignment of Mortgage has been sent to the appropriate public
recording official for recordation or (B) in the case of an original
intervening assignment of Mortgage that has been lost after recordation, a
certification by the appropriate county recording office where such
assignment is recorded that such copy is a true and complete copy of the
original recorded intervening assignment of Mortgage;
(vi) if the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of
recording thereon or certified by a title insurance company or escrow
company to be a true copy thereof; provided that or, if such Assignment of
Leases has not been returned on or prior to the 90th day following the
Closing Date because of a delay caused by the applicable public recording
office where such Assignment of Leases has been delivered for recordation
or because such original Assignment of Leases has been lost, the Seller
shall deliver or cause to be delivered to the Trustee a true and correct
copy of such Assignment of Leases submitted for recording, together with,
(A) in the case of a delay caused by the public recording office, an
Officer's Certificate (as defined below) of the Seller stating that such
Assignment of Leases has been sent to the appropriate public recording
official for recordation or (B) in the case of an original Assignment of
Leases that has been lost after recordation, a certification by the
appropriate county recording office where such Assignment of Leases is
recorded that such copy is a true and complete copy of the original
recorded Assignment of Leases, in each case together with an original
assignment of such Assignment of Leases, in recordable form, signed by the
holder of record in favor of "_______, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
20__-____," which assignment may be effected in the related Assignment of
Mortgage;
(vii) the original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(viii) the original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder, actual
"marked-up" title commitment, pro forma policy, or an agreement to provide
any of the foregoing pursuant to binding escrow instructions executed by
the title company or its authorized agent with one of the foregoing
attached thereto and, in each case, with the original Title Insurance
Policy to follow within 180 days of the Closing Date, or a copy of any of
the foregoing certified by the title company with the original Title
Insurance Policy to follow within 180 days of the Closing Date, or a
preliminary title report with the original Title Insurance Policy to
follow within 180 days of the Closing Date;
(ix) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and (B)
UCC-2 or UCC-3 financing statements assigning such UCC financing
statements to the Trustee executed and delivered in connection with the
Mortgage Loan;
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(x) copies of the related ground lease(s), if any, related to any
Mortgage Loan where the Mortgagor is the lessee under such ground lease
and there is a lien in favor of the mortgagee in such lease;
(xi) copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan;
(xii) either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than
letters of credit representing tenant security deposits which have been
collaterally assigned to the lender), which shall be assigned and
delivered to the Trustee on behalf of the Trust, and applied, drawn,
reduced or released in accordance with documents evidencing or securing
the applicable Mortgage Loan, this Agreement and the applicable Primary
Servicing Agreement or, (B) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than
letters of credit representing tenant security deposits which have been
collaterally assigned to the lender), which shall be held by the
applicable Primary Servicer (or the Master Servicer) on behalf of the
Trustee and applied, drawn, reduced or released in accordance with
documents evidencing or securing the applicable Mortgage Loan, this
Agreement and the applicable Primary Servicing Agreement (it being
understood that each Seller has agreed (a) that the proceeds of such
letter of credit belong to the Trust, (b) to notify, on or before the
Closing Date, the bank issuing the letter of credit that the letter of
credit and the proceeds thereof belong to the Trust, and to use reasonable
efforts to obtain within 30 days (but in any event to obtain within 90
days) following the Closing Date, an acknowledgement thereof by the bank
(with a copy of such acknowledgement to be sent to the Trustee) and (c) to
indemnify the Trust for any liabilities, charges, costs, fees or other
expenses accruing from the failure of the Seller to assign the letter of
credit hereunder). In the case of clause (B) above, each Primary Servicer
(and the Master Servicer) acknowledges that any letter of credit held by
it shall be held in its capacity as agent of the Trust, and if a Primary
Servicer or the Master Servicer, as applicable, sells its rights to
service the applicable Mortgage Loan, the applicable Primary Servicer or
the Master Servicer, as applicable, will assign the applicable letter of
credit to the Trust or at the direction of the Special Servicer to such
party as the Special Servicer may instruct, in each case, at the expense
of the Primary Servicer or the Master Servicer, as applicable. The Primary
Servicer (or the Master Servicer) shall indemnify the Trust for any loss
caused by the ineffectiveness of such assignment;
(xiii) the original or a copy of the environmental indemnity
agreement, if any, related to any Mortgage Loan;
(xiv) copies of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties securing Mortgage Loans
with a Cut-Off Date Principal Balance equal to or greater than
$[20,000,000];
(xv) the original of any Environmental Insurance Policy or (i) if
the original is held by the related borrower, a copy thereof, or (ii) the
binder for such Environmental Insurance Policy;
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(xvi) a copy of any affidavit and indemnification agreement in favor
of the lender; and
(xvii) with respect to hospitality properties, a copy of any
franchise agreement, franchise comfort letter and applicable assignment or
transfer documents.
"Mortgage Loan" means a Mortgage Note secured by a Mortgage, and all
amendments and modifications thereof, identified on the Mortgage Loan Schedule,
as amended from time to time, and conveyed, transferred, sold, assigned to or
deposited with the Trustee pursuant to Section 2.1 or Section 2.3, and Mortgage
Loan shall also include any Defeasance Loan, any REO Mortgage Loan, unless the
context requires otherwise.
"Mortgage Loan Purchase Agreement" means [identify each Mortgage
Loan Purchase Agreement].
"Mortgage Loan Schedule" or "Loan Schedule" means the schedule
attached hereto as Schedule I, as such schedule may be amended from time to time
pursuant to Section 2.3.
"Mortgage Note" means the note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"Mortgage Pool" means all of the Mortgage Loans and any successor
REO Mortgage Loans, collectively.
"Mortgage Rate" means, for a given Mortgage Loan, the per annum rate
at which interest accrues on such Mortgage Loan.
"Mortgaged Property" means the real property, together with
improvements thereto, securing the indebtedness of the Mortgagor under the
related Mortgage Loan.
"Mortgagee" means, with respect to any Mortgage as of any date of
determination, the mortgagee named therein as of such date.
"Mortgagor" means the obligor on a Mortgage Note.
"MSMC" has the meaning assigned in the Preliminary Statement hereto.
"Net Aggregate Prepayment Interest Shortfall" means, for any
Distribution Date and the Master Servicer, the excess of all Prepayment Interest
Shortfalls incurred in respect of all (or, where specified, a portion) of the
Mortgage Loans serviced by the Master Servicer (including Specially Serviced
Mortgage Loans) during any Collection Period over the sum of (A) the
Compensating Interest to be paid by the Master Servicer (or any Primary Servicer
or Sub-Servicer, if applicable according to the related Primary Servicing
Agreement or Sub-Servicing Agreement) on such Distribution Date and (B) the
aggregate Prepayment Interest Excesses during such Collection Period for the
Master Servicer's Mortgage Loans (including Specially Serviced Mortgage Loans).
Prepayment Interest Shortfalls and Prepayment Interest Excesses will be
separately accounted for by the Master Servicer.
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"Net Swap Payment" shall have the meaning specified in Section
8.30(g).
"New Lease" means any lease of any REO Property entered into on
behalf of the Trust, including any lease renewed or extended on behalf of the
Trust if the Trust has the right to renegotiate the terms of such lease.
"1940 Act" means the Investment Company Act of 1940, as amended.
"1933 Act" means the Securities Act of 1933, as amended.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"Non-Investment Grade Certificates" means each Class of Certificates
other than a Residual Certificate or a Class [EI] Certificate that, at the time
of determination, is not rated in one of the four highest generic rating
categories by at least one of Fitch, S&P or Xxxxx'x.
"Non-Registered Certificate" means unless and until registered under
the Securities Act, any Class [X-1], Class [X-Y], Class [E], Class [F], Class
[G], Class [H], Class [J], Class [K], Class [L], Class [M], Class [N], Class
[O], Class [P], Class [EI] or Residual Certificate.
"Nondisqualification Opinion" means a written Opinion of Counsel to
the effect that a contemplated action (i) will neither cause any REMIC Pool to
fail to qualify as a REMIC at any time that any Certificates are outstanding nor
cause a "prohibited transaction," "prohibited contribution" or any other tax
(other than a tax on "net income from foreclosure property" permitted to be
incurred under this Agreement) to be imposed on any REMIC Pool or the Trust,
(ii) will not cause the Class EI Grantor Trust to fail to qualify as a grantor
trust and (iii) will not cause the Class A-3-1FL Grantor Trust to fail to
qualify as a grantor trust.
"Noneconomic Residual Interest" means a residual interest that is a
"noneconomic residual interest" within the meaning of Treasury Regulations
Section 1.860E-1(c).
"Nonrecoverable Advance" means the portion of any Advance (including
interest accrued thereon at the Advance Rate) or Unliquidated Advance (not
including interest thereon) previously made (or, in the case of an Unliquidated
Advance, not reimbursed to the Trust) or proposed to be made by the Master
Servicer, the Special Servicer or the Trustee that, in its respective sole
discretion, exercised in good faith and, with respect to the Master Servicer and
the Special Servicer, in accordance with the Servicing Standard, will not be or,
in the case of a current delinquency, would not be, ultimately recoverable, from
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or Purchase
Proceeds (or from any other collections) with respect to the related Mortgage
Loan or REO Property, as evidenced by an Officer's Certificate delivered
pursuant to Section 4.4. With respect to each Mortgage Loan that is
cross-collateralized by Mortgaged Properties securing other Mortgage Loans, all
of such Mortgaged Properties and other security must be considered in connection
with any determination of whether an Advance or Unliquidated Advance is a
Nonrecoverable Advance. Such Officer's Certificate shall be delivered to the
Trustee (upon which the Trustee may
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conclusively rely) or to the Depositor (if the Trustee is delivering such
Officer's Certificate) and (in either case) to the Special Servicer and the
Paying Agent, in the time periods as specified in Section 4.4 and shall include
the information and reports set forth in Section 4.4. Absent bad faith, the
Master Servicer's determination as to the nonrecoverability of any Advance shall
be conclusive and binding on the Certificateholders and may, in all cases, be
relied on by the Trustee; provided, however, that the Special Servicer may, at
its option, make a determination in accordance with the Servicing Standard that
any P&I Advance or Servicing Advance, if made, would be a Nonrecoverable Advance
and shall deliver to the Master Servicer and the Trustee notice of such
determination. Any such determination shall be conclusive and binding on the
Master Servicer and the Trustee; provided, however, the Special Servicer shall
have no such right to make an affirmative determination that any P&I Advance is
or would be recoverable and, in the absence of a determination by the Special
Servicer that such Advance is or would be a Nonrecoverable Advance, the decision
that a P&I Advance is recoverable shall remain with the Master Servicer or
Trustee, as applicable. Absent bad faith, such determination by the Special
Servicer shall be conclusive and binding on the Certificateholders, the Master
Servicer and the Trustee. None of the Master Servicer, the Special Servicer or
the Trustee will be obligated to make any Advance that, in its judgment in
accordance with the Servicing Standard, would not ultimately be recoverable out
of collections on the related Mortgage Loan. In making any nonrecoverability
determination as described above, the relevant party shall be entitled (i) to
consider (among other things) the obligations of the Mortgagor under the terms
of the Mortgage Loan as it may have been modified, (ii) to consider (among other
things) the related Mortgaged Properties in their "as is" then-current
conditions and occupancies and such party's assumptions (consistent with the
Servicing Standard in the case of the Master Servicer or the Special Servicer)
regarding the possibility and effects of future adverse change with respect to
such Mortgaged Properties, (iii) to estimate and consider, consistent with the
Servicing Standard in the case of the Master Servicer or the Special Servicer
(among other things), future expenses, (iv) to estimate and consider, consistent
with the Servicing Standard in the case of the Master Servicer or the Special
Servicer (among other things), the timing of recovery to such party and (v) to
consider the amount of any deferred Advances outstanding. In addition, the
relevant party may, consistent with the Servicing Standard in the case of the
Master Servicer or the Special Servicer, update or change its nonrecoverability
determinations at any time in accordance with the terms hereof and may,
consistent with the Servicing Standard in the case of the Master Servicer or the
Special Servicer, obtain from the Special Servicer any analysis, appraisals or
other information in the possession of the Special Servicer for such purposes.
"Notional Amount" means, as of any date of determination: (i) with
respect to all of the Class [X-1] Certificates as a Class, the Class X-1
Notional Amount as of such date of determination; (ii) with respect to any Class
[X-1] Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X-1 Notional Amount as of such date of determination;
(iii) with respect to all of the Class [X-Y] Certificates as a Class, the Class
X-Y Notional Amount as of such date of determination; (iv) with respect to any
Class [X-Y] Certificate, the product of the Percentage Interest evidenced by
such Certificate and the Class X-Y Notional Amount; (v) with respect to all of
the Class [X-2] Certificates as a Class, the Class X-2 Notional Amount as of
such date of determination; (vi) with respect to any Class [X-2] Certificate,
the product of the Percentage Interest evidenced by such Certificate and the
Class X-2 Notional Amount of such date of determination; (vii) with respect to
any Group X-Y REMIC I Regular Interest, the Principal Balance of the related
Specially Designated Co-op
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Mortgage Loan (or any successor REO Mortgage Loan), reduced by any Advances of
principal made with respect to such Specially Designated Co-op Mortgage Loan and
losses thereon previously allocated to Certificateholders; and (viii) with
respect to the REMIC II Regular Interest X-Y, the Class X-Y Notional Amount,
which is equal to the aggregate of the Notional Amounts with respect to all
Group X-Y REMIC I Regular Interests.
"Officer's Certificate" means (v) in the case of the Depositor, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Senior Vice President, Vice President or
Assistant Vice President, and by one or more of the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Depositor, or (w) in
the case of the Master Servicer(s) and the Special Servicer(s), any of the
officers referred to above or an employee thereof designated as a Servicing
Officer or Special Servicing Officer pursuant to this Agreement, (x) in the case
of the Trustee, a certificate signed by a Responsible Officer, (y) in the case
of a Seller, a certificate signed by one or more of the Chairman of the Board,
any Vice Chairman, any Managing Director or Director, the President, or any
Executive Vice President; Senior Vice President, Second Vice President, Vice
President or Assistant Vice President, any Treasurer, any Assistant Treasurer or
any Secretary or Assistant Secretary or any other authorized signatory and (z)
in the case of the Paying Agent, a certificate signed by a Responsible Officer,
each with specific responsibilities for the matters contemplated by this
Agreement.
"Operating Adviser" shall have the meaning specified in Section
9.37(a).
"Opinion of Counsel" means a written opinion of counsel addressed to
the Master Servicer (and/or any Primary Servicer acting on behalf of the Master
Servicer), the Special Servicer, or the Trustee and the Paying Agent, as
applicable, reasonably acceptable in form and substance to the Master Servicer
(and/or any Primary Servicer acting on behalf of the Master Servicer), the
Special Servicer, or the Trustee and the Paying Agent, as applicable, and who is
not in-house counsel to the party required to deliver such opinion but who, in
the good faith judgment of the Master Servicer (and/or any Primary Servicer
acting on behalf of the Master Servicer), the Special Servicer, or the Trustee
and the Paying Agent, as applicable, is Independent outside counsel
knowledgeable of the issues occurring in the practice of securitization with
respect to any such opinion of counsel concerning the taxation, or status as a
REMIC for tax purposes, of any REMIC Pool or status as a "grantor trust" under
the Grantor Trust Provisions of the Class A-3-1FL Grantor Trust and the Class EI
Grantor Trust.
"Option" shall have the meaning specified in Section 9.36(a).
"Option Holder" shall have the meaning specified in Section 9.36(a).
"Option Purchase Price" shall have the meaning specified in Section
9.36(b).
"Ownership Interest" means, 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.
"OTS" shall mean the Office of Thrift Supervision or any successor
thereto.
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"P&I Advance" shall mean, (i) with respect to any Mortgage Loan or
Specially Serviced Mortgage Loan as to which all or a portion of the Scheduled
Payment (net of the related Master Servicing Fees, Excess Servicing Fees,
Primary Servicing Fees and other servicing fees payable from such Scheduled
Payment), other than a Balloon Payment or any default interest, due during the
related Collection Period was not received by the Master Servicer as of the
related Determination Date (subject to Section 5.1(h)), the portion of such
Scheduled Payment not received; (ii) with respect to any Balloon Mortgage Loan
(including any REO Mortgage Loan which provided for a Balloon Payment) as to
which a Balloon Payment was due or deemed due during or prior to the related
Collection Period but was delinquent, in whole or in part, as of the related
Determination Date, an amount equal to the excess, if any, of the Assumed
Scheduled Payment (net of the related Master Servicing Fee, Excess Servicing
Fees, Primary Servicing Fees and other master or primary servicing fees payable
from such Assumed Scheduled Payment) for such Balloon Mortgage Loan for the
related Collection Period, over any Late Collections received in respect of such
Balloon Payment during such Collection Period; and (iii) with respect to each
REO Property, an amount equal to the excess, if any, of the Assumed Scheduled
Payment for the REO Mortgage Loan related to such REO Property during the
related Collection Period, over remittances of REO Income to the Master Servicer
by the Special Servicer, reduced by any amounts required to be paid as taxes on
such REO Income (including taxes imposed pursuant to Section 860G(c) of the
Code); provided, however, that the Scheduled Payment or Assumed Scheduled
Payment for any Mortgage Loan or REO Mortgage Loan which has been modified shall
be calculated based on its terms as modified and provided, further, that the
interest portion amount of any P&I Advance with respect to a Mortgage Loan as to
which there has been an Appraisal Reduction shall be an amount equal to the
product of (i) the amount with respect to interest required to be advanced
without giving effect to this proviso and (ii) a fraction, the numerator of
which is the Scheduled Principal Balance of such Mortgage Loan as of the
immediately preceding Determination Date less any Appraisal Reduction applicable
to such Mortgage Loan and the denominator of which is the Scheduled Principal
Balance of such Mortgage Loan as of such Determination Date.
"P&I Advance Amount" means the amount of the P&I Advance computed
for any Distribution Date.
"Participant" means a broker, dealer, bank, other financial
institution or other Person for whom the Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.
"Pass-Through Rate" or "Pass-Through Rates" means with respect to
any Class of REMIC I Regular Interests, REMIC II Regular Interests, REMIC III
Regular Interests or Class [A-3-1FL] Certificates, for the first Distribution
Date, the rate set forth in the Preliminary Statement hereto. For any
Distribution Date occurring thereafter, the Pass-Through Rates for (i)(A) the
Group PB REMIC I Regular Interests shall equal their respective REMIC I Net
Mortgage Rates and (B) the Group X-Y REMIC I Regular Interests, their respective
Class X-Y Strip Rates on the related Mortgage Loan for such Distribution Date,
(ii)(A) the REMIC II Regular Interests (other than REMIC II Regular Interest
X-Y) shall equal the Weighted Average REMIC I Net Mortgage Rate and (B) the
REMIC II Regular Interest X-Y shall equal the Weighted Average Class X-Y Strip
Rate for such Distribution Date, (iii) the Class A-1 and Class [A-2]
Certificates shall equal the fixed rate corresponding to such Class set forth in
the
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Preliminary Statement hereto, (iv) the Class [A-1A] Certificates shall equal a
per annum rate equal to the lesser of ___% and the Weighted Average REMIC I Net
Mortgage Rate for such Distribution Date, (v) the Class [A-3-1FL] Certificates
shall equal the per annum rate equal to LIBOR plus ___%, provided, however, that
under the circumstances set forth in Section 6.12 regarding defaults or
terminations under the Swap Contract, the Pass-Through Rate of the Class A-3-1FL
Regular Interest shall be subject to reduction in accordance with the Swap
Contract and this Agreement, (vi) the Class [A-3-1] Certificates shall equal a
per annum rate equal to the lesser of ___% and the Weighted Average REMIC I Net
Mortgage Rate for such Distribution Date, (vii) the Class [A-3-2] Certificates
shall equal a per annum rate equal to the lesser of ___% and the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, (viii) the Class
[A-AB] Certificates shall equal a per annum rate equal to the lesser of ___% and
the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, (ix)
the Class [A-4A] Certificates shall equal a per annum rate equal to the lesser
of ___% and the Weighted Average REMIC I Net Mortgage Rate for such Distribution
Date, (x) the Class [A-4B] Certificates shall equal a per annum rate equal to
the lesser of ___% and the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (xi) the Class [A-J] Certificates shall equal a per annum
rate equal to the Weighted Average REMIC I Net Mortgage Rate less ___% for such
Distribution Date, (xii) the Class [B] Certificates shall equal a per annum rate
equal to the Weighted Average REMIC I Net Mortgage Rate less ___% for such
Distribution Date, (xiii) the Class C, Class D, Class E, Class F, Class G and
Class [H] Certificates shall equal a per annum rate equal to the Weighted
Average REMIC I Net Mortgage Rate, (xiv) the Class J, Class K, Class L, Class M,
Class N, Class O and Class [P] Certificates shall equal the lesser of (A) ___%
and (B) the Weighted Average REMIC I Net Mortgage Rate for such Distribution
Date, (xv) the Class [X-1] Certificates shall equal the per annum rate equal to
the weighted average of Class X-1 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), (xvi) the Class [X-2] Certificates shall equal the per annum rate equal
to the weighted average of the Class X-2 Strip Rates for the respective Class
X-2 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), (xvii) the Class [X-Y] Certificates shall
equal the Weighted Average Class X-Y Strip Rate and (xviii) the Class A-3-1FL
Regular Interest shall equal a per annum rate equal to the lesser of ___% and
the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date.
"Paying Agent" means _______ and any successor or assign, as
provided herein.
"Paying Agent's Website" has the meaning set forth in Section 5.4(a)
hereof.
"PCAOB" means the Public Company Accounting Oversight Board.
"Percentage Interest" means, with respect to each Class of
Certificates other than the Residual Certificates, the fraction of such Class
evidenced by such Certificate, expressed as a percentage (carried to four
decimal places and rounded, if necessary), the numerator of which is the
Certificate Balance or Notional Amount, as
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applicable, represented by such Certificate determined as of the Closing Date
(as stated on the face of such Certificate) and the denominator of which is the
Aggregate Certificate Balance or Notional Amount, as applicable, of all of the
Certificates of such Class determined as of the Closing Date. With respect to
each Residual Certificate, the percentage interest in distributions (if any) to
be made with respect to the relevant Class, as stated on the face of such
Certificate.
"Performing Party" has the meaning set forth in Section 8.26(b).
"Permitted Transferee" means any Transferee other than (i) a
Disqualified Organization or (ii) a United States Tax Person with respect to
whom income from a Residual Certificate is attributable to a foreign permanent
establishment or fixed base, within the meaning of an applicable income tax
treaty, of such Person or any other United States Tax Person.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Phase I Environmental Report" means a report by an Independent
Person who regularly conducts environmental site assessments in accordance with
then current standards imposed by institutional commercial mortgage lenders and
who has a reasonable amount of experience conducting such assessments.
"Placement Agent" means [Xxxxxx Xxxxxxx & Co. Incorporated or its
successor in interest].
"Plan" has the meaning set forth in Section 3.3(d).
"Planned Principal Balance" means for any Distribution Date, the
balance shown for such Distribution Date on Schedule III.
"Free Writing Prospectus" has the meaning set forth in the
Preliminary Statement hereto.
"Prepayment Interest Excess" means for any Distribution Date and the
related Collection Period, during which a full or partial Principal Prepayment
of a Mortgage Loan (including any payment of an unscheduled Balloon Payment) is
made on or after the Due Date for such Mortgage Loan through and including the
last day of the Collection Period (or, with respect to those Mortgage Loans
listed on Schedule XIII, through and including the first Business Day prior to
the Master Servicer Remittance Date), the amount of interest that accrues on the
amount of such Principal Prepayment or Balloon Payment from such Due Date to the
date such payment was made, plus (if made) any payment by the related Mortgagor
of interest that would have accrued to the next succeeding Due Date (net of the
amount of any Master Servicing Fee, the Primary Servicing Fees, the Excess
Servicing Fees, the Special Servicing Fee and the Trustee Fee in each case, to
the extent payable out of such collection of interest), to the extent collected.
"Prepayment Interest Shortfall" means, with respect to any
Distribution Date, a shortfall in the collection of a full month's interest on
any Mortgage Loan, by reason of a full or partial Principal Prepayment
(including any payment of an unscheduled Balloon Payment) made during any
Collection Period prior to the Due Date for such Mortgage Loan in such
Collection
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Period (including any shortfall resulting from a payment during the grace period
relating to such Due Date). The amount of any Prepayment Interest Shortfall
shall equal the excess of (A) the aggregate amount of interest which would have
accrued at the REMIC I Net Mortgage Rate on the Scheduled Principal Balance of
such Mortgage Loan for the 30 days ending on such Due Date if such Principal
Prepayment or Balloon Payment had not been made (net of the Master Servicing
Fee, the Primary Servicing Fees, the Excess Servicing Fees, the Special
Servicing Fee and the Trustee Fee), plus, with respect to each Specially
Designated Co-op Mortgage Loan, the related Class X-Y Strip Rate over (B) the
aggregate interest that did so accrue at the REMIC I Net Mortgage Rate plus,
with respect to each Specially Designated Co-op Mortgage Loan, the related Class
X-Y Strip Rate, through the date such payment was made.
"Prepayment Premium" means, with respect to any Mortgage Loan for
any Distribution Date, the prepayment premiums or percentage premiums, if any,
received during a related Collection Period in connection with Principal
Prepayments on such Mortgage Loan.
"Primary Collateral" means the portion of the Mortgaged Property
securing the Repurchased Loan or Cross-Collateralized Loan, as applicable, that
is encumbered by a first mortgage lien.
"Primary Servicers" means [specify primary servicers] and each of
their respective permitted successors and assigns.
"Primary Servicing Agreement" means, with respect to each Primary
Servicer, the agreement between such Primary Servicer and the Master Servicer,
dated as of _____, under which such Primary Servicer services the Mortgage Loans
set forth on the schedule attached thereto.
"Primary Servicing Fee" means, for each calendar month, as to each
Mortgage Loan for which a Primary Servicing Fee is payable pursuant to this
Agreement, the Primary Servicing Fee Rate multiplied by the Scheduled Principal
Balance of such Mortgage Loan immediately before the Due Date occurring in such
month, but prorated for the number of days during the calendar month for such
Mortgage Loan for which interest actually accrues on such Mortgage Loan and
payable only from collections on such Mortgage Loan.
"Primary Servicing Fee Rate" means, the rate per annum at which the
monthly Primary Servicing Fee payable to the applicable Primary Servicer (or the
Master Servicer, as applicable) accrues, which rate is the per annum rate
specified on the Mortgage Loan Schedule, as more specifically described, in the
case of the Primary Servicers, in the applicable Primary Servicing Agreement
(determined in the same manner (other than the rate of accrual) as the
applicable Mortgage Rate is determined for such Mortgage Loan for such month).
"Principal Balance" means, with respect to any Mortgage Loan or any
REO Mortgage Loan, for purposes of performing calculations with respect to any
Distribution Date, the principal balance of such Mortgage Loan or the related
REO Mortgage Loan outstanding as of the Cut Off Date after taking into account
all principal and interest payments made or due prior to the Cut Off Date
(assuming, for any Mortgage Loan with a Cut Off Date that is not the first day
of the month of the Closing Date, that principal and interest payments for such
month
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were paid on the first day of such month), reduced (to not less than zero) by
(i) any payments or other collections of amounts allocable to principal on such
Mortgage Loan or any related REO Mortgage Loan that have been collected or
received during any preceding Collection Period, other than any Scheduled
Payments due in any subsequent Collection Period, and (ii) any Realized
Principal Loss incurred in respect of such Mortgage Loan or related REO Mortgage
Loan, in each case, during any related and preceding Collection Period.
"Principal Balance Certificates" means, collectively, the Class
[A-1], Class [A-1A], Class [A-2], Class [A-3-1FL], Class [A-3-1], Class [A-3-2],
Class [A-AB], Class [A-4A], Class [A-4B], Class [A-J], Class [B], Class [C],
Class [D], Class [E], Class [F], Class [G], Class [H], Class [J], Class [K],
Class [L], Class [M], Class [N], Class [O] and Class [P] Certificates.
"Principal Distribution Amount" means, on any Distribution Date, the
amount equal to the excess, if any, of (I) the sum of:
(A) the aggregate (without duplication) of the following amounts
received with respect to the Mortgage Loans: (i) the principal portion of
all Scheduled Payments (other than the principal portion of Balloon
Payments) and any Assumed Scheduled Payments, in each case, to the extent
received or advanced, as the case may be, in respect of the Mortgage Loans
and any REO Mortgage Loans for their respective Due Dates occurring during
the related Collection Period; and (ii) all payments (including Principal
Prepayments and the principal portion of Balloon Payments) and any other
collections (including Liquidation Proceeds (other than the portion
thereof, if any, constituting Excess Liquidation Proceeds), Condemnation
Proceeds, Insurance Proceeds, Purchase Proceeds and REO Income) received
on or in respect of the Mortgage Loans during the related Collection
Period that were identified and applied by the Master Servicer as
recoveries of principal thereof;
(B) the aggregate amount of any collections received on or in
respect of the Mortgage Loans that represents a delinquent amount as to
which an Advance had been made, which Advance or interest thereon was
previously reimbursed during the Collection Period for a prior
Distribution Date as part of a Workout-Delayed Reimbursement Amount for
which a deduction was made under clause (II)(A) below with respect to such
Distribution Date (with respect to each such Mortgage Loan, allocated
first to the Loan Group Principal Distribution Amount related to the Loan
Group that does not include such Mortgage Loan, and then to the Loan Group
Principal Distribution Amount related to the Loan Group that includes such
Mortgage Loan); and
(C) the aggregate amount of any collections identified and applied
by the Master Servicer as recoveries of principal and received on or in
respect of the Mortgage Loans during the related Collection Period that,
in each case, represents a recovery of an amount previously determined (in
a Collection Period for a prior Distribution Date) to have been a
Nonrecoverable Advance and any interest thereon and for which a deduction
was made under clause (II)(B) below with respect to a prior Distribution
Date (with respect to each such Mortgage Loan, allocated first to the Loan
Group Principal Distribution Amount related to the Loan Group that does
not include such Mortgage
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Loan, and then to the Loan Group Principal Distribution Amount related to
the Loan Group that includes such Mortgage Loan), and which are applied
pursuant to Section 6.6(c)(i); over
(ii) the sum of (with respect to each such Mortgage Loan, allocated
first to the Loan Group Principal Distribution Amount applicable to such
Mortgage Loan, and then to the other Loan Group Principal Distribution Amount):
(A) the aggregate amount of Workout-Delayed Reimbursement Amounts
(and Advance Interest thereon) that was reimbursed or paid during the
related Collection Period to one or more of the Master Servicer, the
Special Servicer and the Trustee from principal collections on the
Mortgage Loans pursuant to subsection (iii) of Section 5.2(a)(II); and
(B) the aggregate amount of Nonrecoverable Advances (and Advance
Interest thereon) that was reimbursed or paid during the related
Collection Period to one or more of the Master Servicer, the Special
Servicer and the Trustee during the related Collection Period from
principal collections on the Mortgage Loans pursuant to subsection (iv) of
Section 5.2(a)(II).
"Principal Prepayment" means any voluntary or involuntary payment or
collection of principal on a Mortgage Loan which is received or recovered in
advance of its scheduled Due Date and applied to reduce the Principal Balance of
the Mortgage Loan in advance of its scheduled Due Date, including, without
limitation, all proceeds, to the extent allocable to principal, received from
the payment of cash in connection with a substitution shortfall pursuant to
Section 2.3; provided that the pledge by a Mortgagor of Defeasance Collateral
with respect to a Defeasance Loan shall not be deemed to be a Principal
Prepayment.
"Private Placement Memorandum" means the Private Placement
Memorandum dated ____, 20__, pursuant to which the Class [X-1], Class [X-Y],
Class [E], Class [F], Class [G], Class [H], Class [J], Class [K], Class [L],
Class [M], Class [N], Class [O] and Class [P] Certificates will be offered for
sale.
"Projected Net Cash Flow" shall mean, with respect to any Mortgaged
Property that is a residential cooperative property, projected net operating
income at such Mortgaged Property, as set forth in the Appraisal obtained with
respect to such Mortgaged Property in connection with the origination of the
related Mortgage Loan (or an updated Appraisal, if required hereunder), assuming
such Mortgaged Property was operated as a rental property with rents set at
prevailing market rates taking into account the presence of existing rent
controlled or rent stabilized occupants, reduced by underwritten capital
expenditures, property operating expenses, a market rate vacancy assumption and
projected reserves.
"Prospectus" has the meaning set forth in the Preliminary Statement
hereto.
"PTCE" has the meaning set forth in Section 3.3(d).
"Purchase Price" means, with respect to (i) the repurchase, pursuant
to Article II of this Agreement, by the applicable Seller of a Mortgage Loan
sold by such Seller, (ii) the
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determination of fair value of an REO Mortgage Loan with respect to a
liquidation by the Special Servicer pursuant to Section 9.15 or (iii) the
determination of fair value of a Mortgage Loan in connection with a purchase by
the Option Holder pursuant to Section 9.36 under the circumstances described
therein, a price equal to the sum of (A) 100% of the unpaid Principal Balance of
such Mortgage Loan (or deemed Principal Balance, in the case of an REO Mortgage
Loan), plus (B) accrued but unpaid interest thereon calculated at the Mortgage
Rate to, but not including, the Due Date in the Collection Period in which such
purchase or liquidation occurs, plus (C) the amount of any expenses related to
such Mortgage Loan or the related REO Property (including any Servicing Advances
and Advance Interest (which have not been paid by the Mortgagor or out of Late
Fees or default interest paid by the related Mortgagor on the related Mortgage
Loan) and all unpaid Special Servicing Fees and Liquidation Fees paid or payable
with respect to the Mortgage Loan) that are reimbursable or payable to the
Master Servicer, the Special Servicer, the Paying Agent or the Trustee, plus (D)
if such Mortgage Loan or REO Mortgage Loan is being repurchased or substituted
for by a Seller pursuant to the related Mortgage Loan Purchase Agreement, all
expenses reasonably incurred or to be incurred by the Primary Servicer, the
Master Servicer, the Special Servicer, the Depositor, the Paying Agent or the
Trustee in respect of the Material Breach or Material Document Defect giving
rise to the repurchase or substitution obligation (and that are not otherwise
included in (C) above).
"Purchase Proceeds" means any cash amounts received by the Master
Servicer in connection with: (i) the repurchase of a Mortgage Loan or an REO
Mortgage Loan by a Seller pursuant to Section 2.3, (ii) the purchase by the
Option Holder of a Mortgage Loan pursuant to Section 9.36 or (iii) the purchase
of the Mortgage Loans and REO Properties by the Depositor, the Master Servicer,
the Special Servicer or the holders of the Class [R-I] Certificates pursuant to
Section 10.1(b).
"Qualified Bidder" means as used in section 8.29(c), a Person
qualified to act as successor Master Servicer hereunder pursuant to Section
8.22(b) (including the requirement set forth in Section 8.22(b) that Rating
Agency Confirmation shall have been obtained from each Rating Agency with
respect to such Person).
"Qualified Institutional Buyer" means a qualified institutional
buyer qualifying pursuant to Rule 144A.
"Qualified Insurer" means, (i) with respect to any Mortgage Loan, an
insurance company duly qualified as such under the laws of the state in which
the related Mortgaged Property is located, duly authorized and licensed in such
state to transact the applicable insurance business and to write the insurance,
but in no event rated lower than ["A2" by Moody's, or if not so rated by
Moody's, then Moody's has issued a Rating Agency Confirmation, and "A" by S&P,
or if not so rated by S&P, then S&P has issued a Rating Agency Confirmation],
and (ii) with respect to the Servicer Errors and Omissions Insurance Policy or
Servicer Fidelity Bond an insurance company that has a claim paying ability no
lower than ["A" by S&P if rated by S&P, or if not so rated by S&P, then A:IX by
A. M. Best or S&P has issued a Rating Agency Confirmation and "A2" by Moody's
(or if such company is not rated by Xxxxx'x, is rated at least A:IX by A.M.
Best's Key Rating Guide)] or (iii) in either case, a company not satisfying
clause (i) or (ii) but with respect to which Rating Agency Confirmation is
obtained from [Moody's and S&P]. "Qualified Insurer" shall also mean any entity
that satisfies all of the
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criteria, other than the ratings criteria, set forth in one of the foregoing
clauses and whose obligations under the related insurance policy are guaranteed
or backed by an entity that satisfies the ratings criteria set forth in such
clause (construed as if such entity were an insurance company referred to
therein).
"Qualifying Substitute Mortgage Loan" means, in the case of a
Mortgage Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan which, on
the date of substitution, (i) has an outstanding principal balance, after
deduction of the principal portion of the Scheduled Payment due in the month of
substitution, not in excess of the Principal Balance of the Deleted Mortgage
Loan; provided, however, that, to the extent that the principal balance of such
Mortgage Loan is less than the Principal Balance of the Deleted Mortgage Loan,
then such differential in principal amount, together with interest thereon at
the Mortgage Rate on the related Mortgage Loan from the date as to which
interest was last paid through the last day of the month in which such
substitution occurs, shall be paid by the party effecting such substitution to
the Master Servicer for deposit into the applicable Certificate Account, and
shall be treated as a Principal Prepayment hereunder; (ii) is accruing interest
at a rate of interest at least equal to that of the Deleted Mortgage Loan; (iii)
has a remaining term to stated maturity not greater than, and not more than two
years less than, that of the Deleted Mortgage Loan; (iv) has (A) an original
Loan-to-Value Ratio not higher than the lesser of (x) the current Loan-to-Value
Ratio of the Deleted Mortgage Loan and (y) 75.0% and (B) has a current Debt
Service Coverage Ratio equal to the greater of (x) the current Debt Service
Coverage Ratio of the Deleted Mortgage Loan and (y) 1.25x; (v) will comply with
all of the representations and warranties relating to Mortgage Loans set forth
herein, as of the date of substitution; (vi) has a Phase I Environmental Report
relating to the related Mortgaged Property in the related Mortgage File and such
Phase I Environmental Report does not, in the good faith reasonable judgment of
the Special Servicer, exercised in a manner consistent with the Servicing
Standard, raise material issues that have not been adequately addressed; (vii)
has an engineering report relating to the related Mortgaged Property in its
Mortgage Files and such engineering report does not, in the good faith
reasonable judgment of the Special Servicer, exercised in a manner consistent
with the Servicing Standard, raise material issues that have not been adequately
addressed; (viii) is secured by a residential cooperative property if the
Mortgage Loan substituted for a Deleted Mortgage Loan is a Co-op Mortgage Loan;
and (ix) as to which the Trustee and the Paying Agent have received an Opinion
of Counsel, at the related Seller's expense, that such Mortgage Loan is a
"qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the
Code; provided that no Mortgage Loan may have a Maturity Date after the date
three years prior to the Final Rated Distribution Date, and provided, further,
that no such Mortgage Loan shall be substituted for a Deleted Mortgage Loan
unless Rating Agency Confirmation is obtained, and provided, further, that no
such Mortgage Loan shall be substituted for a Deleted Mortgage Loan unless the
Operating Adviser shall have approved of such substitution (provided, however,
that such approval of the Operating Adviser may not be unreasonably withheld).
In the event that either one mortgage loan is substituted for more than one
Deleted Mortgage Loan or more than one mortgage loan is substituted for one or
more Deleted Mortgage Loans, then (A) the Principal Balance referred to in
clause (i) above shall be determined on the basis of aggregate Principal
Balances and (B) the rates referred to in clause (i) above and the remaining
term to stated maturity referred to in clause (ii) above shall be determined on
a weighted average basis; provided, however, that no individual interest rate,
minus the Administrative Cost Rate, shall be lower than the highest Pass-Through
Rate of any Class of Principal Balance Certificates then outstanding having a
fixed rate.
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Whenever a Qualifying Substitute Mortgage Loan is substituted for a Deleted
Mortgage Loan pursuant to this Agreement, the party effecting such substitution
shall certify that such Mortgage Loan meets all of the requirements of this
definition and shall send such certification to the Paying Agent, which shall
deliver a copy of such certification to the Master Servicer, the Special
Servicer, the Trustee and the Operating Adviser promptly, and in any event
within five Business Days following the Paying Agent's receipt of such
certification.
"Rating Agencies" means [Moody's and S&P] [specify other agencies].
"Rating Agency Confirmation" means, with respect to any matter,
confirmation in writing by each Rating Agency (or such Rating Agency as is
specified herein) that a proposed action, failure to act, or other event
specified herein will not in and of itself result in the withdrawal, downgrade,
or qualification, as applicable, of the then-current rating assigned by such
Rating Agency to any Class of Certificates then rated by such Rating Agency.
"Rating Agency Trigger Event" means, with respect to the Swap
Contract, a reduction in the Swap Counterparty's Credit Support Provider's
short-term unsecured debt rating (or its equivalent) or long-term unsecured debt
rating (or its equivalent) below the ratings specified in the Swap Contract.
"Realized Interest Loss" means, with respect to each Mortgage Loan
(i) in the case of a Liquidation Realized Loss, the portion of any Liquidation
Realized Loss that exceeds the Realized Principal Loss on the related Mortgage
Loan, (ii) in the case of a Bankruptcy Loss, the portion of such Realized Loss
attributable to accrued interest on the related Mortgage Loan, (iii) in the case
of an Expense Loss, an Expense Loss resulting in any period from the payment of
the Special Servicing Fee and any Expense Losses set forth in the last sentence
of the definition of "Realized Principal Loss" or (iv) in the case of a
Modification Loss, a Modification Loss described in clause (iii) of the
definition thereof.
"Realized Loss" means a Liquidation Realized Loss, a Modification
Loss, a Bankruptcy Loss or an Expense Loss with respect to a Mortgage Loan.
Realized Losses on a Mortgage Loan are allocated first to the Principal Balance
of, and then to interest on such Mortgage Loan.
"Realized Principal Loss" means, with respect to each Mortgage Loan,
(i) in the case of a Liquidation Realized Loss, the amount of such Realized
Loss, to the extent that it does not exceed the Principal Balance of the
Mortgage Loan (or deemed Principal Balance, in the case of REO Property), (ii)
in the case of a Modification Loss, the amount of such Modification Loss
described in clause (i) of the definition thereof, (iii) in the case of a
Bankruptcy Loss, the portion of such Realized Loss attributable to the reduction
in the Principal Balance of the related Mortgage Loan, (iv) in the case of an
Expense Loss, the portion thereof not treated as a Realized Interest Loss and
(v) the amounts in respect thereof that are withdrawn from the Certificate
Account pursuant to Section 6.6(b)(i). Notwithstanding clause (iv) of the
preceding sentence, to the extent that Expense Losses (exclusive of Expense
Losses resulting from payment of the Special Servicing Fee) exceed amounts with
respect to a Mortgage Loan that were identified as allocable to principal, such
excess shall be treated as a Realized Interest Loss.
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"Record Date" means, for each Distribution Date and each Class of
Certificates, the close of business on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs.
"Recoveries" means, as of any Distribution Date, any amounts
recovered with respect to a Mortgage Loan or REO Property following the period
in which a Final Recovery Determination occurs plus other amounts defined as
"Recoveries" herein.
"Regulation AB" means Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
"Regulation S" means Regulation S under the 1933 Act.
"Regulation S Certificate" means a written certification
substantially in the form set forth in Exhibit F hereto certifying that a
beneficial owner of an interest in a Regulation S Temporary Global Certificate
is not a U.S. Person (as defined in Regulation S).
"Regulation S Global Certificates" means the Regulation S Permanent
Global Certificates together with the Regulation S Temporary Global
Certificates.
"Regulation S Permanent Global Certificate" means any single
permanent global Certificate, in definitive, fully registered form without
interest coupons received in exchange for a Regulation S Temporary Global
Certificate.
"Regulation S Temporary Global Certificate" means, with respect to
any Class of Certificates offered and sold outside of the United States in
reliance on Regulation S, a single temporary global Certificate, in definitive,
fully registered form without interest coupons.
"Rehabilitated Mortgage Loan" means any Specially Serviced Mortgage
Loan with respect to which (i) three consecutive Scheduled Payments have been
made (in the case of any such Mortgage Loan that was modified, based on the
modified terms), or a complete defeasance shall have occurred, (ii) no other
Servicing Transfer Event has occurred and is continuing (or with respect to
determining whether a Required Appraisal Loan is a Rehabilitated Mortgage Loan
for applying Appraisal Reductions, no other Appraisal Event has occurred and is
continuing) and (iii) one of the following statements is true with respect to
any cost incurred as a result of the occurrence of the Servicing Transfer Event:
(a) the cost has been reimbursed to the Trust, (b) the Mortgagor's obligation to
pay the cost has been forgiven, (c) the Mortgagor has agreed in writing to
reimburse such costs or (d) the cost represents an amount that has been the
subject of an Advance made with respect to the Mortgage Loan following default,
the mortgage loan has been worked out under terms that do not provide for the
repayment of such Advance in full upon the execution of the workout arrangement
but the Mortgagor is nonetheless obligated under the terms of the workout
arrangement to reimburse such Advance in the future.
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"Release Date" means the date 40 days after the later of (i) the
commencement of the offering of the Certificates and (ii) the Closing Date.
"Relevant Servicing Criteria" means the Servicing Criteria
applicable to, each Reporting Servicer (as set forth, with respect to the Master
Servicer, the Special Servicer, the Primary Servicer, the Paying Agent and the
Trustee, on Schedule IV attached hereto). For clarification purposes, multiple
Reporting Servicers can have responsibility for the same Relevant Servicing
Criteria and some of the Servicing Criteria will not be applicable to certain
Reporting Servicers. With respect to a Servicing Function Participant engaged by
the Trustee, the Master Servicer, the Special Servicer, the Primary Servicer,
the Paying Agent or any Sub-Servicer, the term "Relevant Servicing Criteria" may
refer to a portion of the Relevant Servicing Criteria applicable to the Trustee,
the Master Servicer, the Special Servicer, the Primary Servicer, the Paying
Agent or any Sub-Servicer.
"REMIC" means a real estate mortgage investment conduit within the
meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of the
Mortgage Loans (other than any Excess Interest payable thereon), such amounts
related thereto as shall from time to time be held in the Certificate Accounts,
the Interest Reserve Accounts, the Reserve Account and the Distribution Account
(other than the portion thereof constituting the Floating Rate Account or Excess
Interest Sub-account or funds held with respect to REMIC II or REMIC III), the
related Insurance Policies and any related REO Properties, for which a REMIC
election has been made pursuant to Section 12.1(a) hereof.
"REMIC I Interests" means, collectively, the REMIC I Regular
Interests and the Class [R-I] Certificates.
"REMIC I Net Mortgage Rate" means, with respect to any Distribution
Date and any REMIC I Regular Interest, a rate per annum equal to the Adjusted
Mortgage Rate for the related Mortgage Loan for such Distribution Date (based on
the Mortgage Rate thereof (without taking into account any increase therein
after the Anticipated Repayment Date in respect of an ARD Loan or any default
interest rate), as of the Cut-Off Date and without regard to any modification,
waiver or amendment of the terms thereof following the Cut-Off Date) minus, with
respect to each Specially Designated Co-op Mortgage Loan, the Class X-Y Strip
Rate.
"REMIC I Regular Interests" means, collectively, the uncertificated
interests designated as "regular interests" in REMIC I, which shall consist of,
with respect to (i) each Mortgage Loan (other than a Specially Designated Co-op
Mortgage Loan), an interest having an initial Certificate Balance equal to the
Cut-Off Date Scheduled Principal Balance of such Mortgage Loan, and which has a
Pass-Through Rate equal to the REMIC I Net Mortgage Rate of such Mortgage Loan
and (ii) with respect to each Specially Designated Co-op Mortgage Loan, one
interest having an initial Certificate Balance equal to the Cut-Off Date
Scheduled Principal Balance of such Specially Designated Co-op Mortgage Loan,
and which has a Pass-Through Rate equal to the REMIC I Net Mortgage Rate of such
Specially Designated Co-op Mortgage Loan and one interest having an initial
Notional Amount equal to the Cut-Off Date Scheduled Principal Balance of such
Specially Designated Co-op Mortgage Loan, and which has a Pass-
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Through Rate equal to the Class X-Y Strip Rate of such Specially Designated
Co-op Mortgage Loan.
"REMIC II" means the segregated pool of assets consisting of the
REMIC I Regular Interests and related amounts in the Distribution Account for
which a REMIC election has been made pursuant to Section 12.1(a) hereof.
"REMIC II Interests" means, collectively, the REMIC II Regular
Interests and the Class [R-II] Certificates.
"REMIC II Regular Interest A-1-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-4" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-5" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial
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Certificate Balance as set forth in the Preliminary Statement, and which has a
Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-6" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-7" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-8" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-9" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3-1FL-1" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3-1FL-2" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3-1FL-3" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3-1FL-4" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
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"REMIC II Regular Interest A-3-1-1" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3-1-2" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3-1-3" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3-1-4" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3-2-1" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3-2-2" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-AB-1" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-AB-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-4A-1" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance as set forth in the
Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted
Average REMIC I Net Mortgage Rate.
"REMIC II Regular Interest A-4A-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial
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Certificate Balance as set forth in the Preliminary Statement, and which has a
Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II Regular Interest A-4A-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-4B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest B-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest B-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest B-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest C-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest C-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest D-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
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"REMIC II Regular Interest D-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest E" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest F-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest F-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest G" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest H-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest H-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest K" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest L" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate
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Balance as set forth in the Preliminary Statement, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II Regular Interest M" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest N" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest O" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest P" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest X-Y" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial notional amount equal to the initial Class X-Y
Notional Amount, and which has a Pass-Through Rate equal to the Weighted Average
Class X-Y Strip Rate.
"REMIC II Regular Interests" means, collectively, the REMIC II
Regular Interest A-1-1, REMIC II Regular Interest A-1-2, REMIC II Regular
Interest A-1-3, REMIC II Regular Interest A-1A-1, REMIC II Regular Interest
A-1A-2, REMIC II Regular Interest A-1A-3, REMIC II Regular Interest A-1A-4,
REMIC II Regular Interest A-1A-5, REMIC II Regular Interest A-1A-6, REMIC II
Regular Interest A-1A-7, REMIC II Regular Interest A-1A-8, REMIC II Regular
Interest A-1A-9, REMIC II Regular Interest A-2, REMIC II Regular Interest
A-3-1FL-1, REMIC II Regular Interest A-3-1FL-2, REMIC II Regular Interest
A-3-1FL-3, REMIC II Regular Interest A-3-1FL-4, REMIC II Regular Interest
A-3-1-1, REMIC II Regular Interest A-3-1-2, REMIC II Regular Interest A-3-1-3,
REMIC II Regular Interest A-3-1-4, REMIC II Regular Interest A-3-2-1, REMIC II
Regular Interest A-3-2-2, REMIC II Regular Interest A-AB-1, REMIC II Regular
Interest A-AB-2, REMIC II Regular Interest A-4A-1, REMIC II Regular Interest
A-4A-2, REMIC II Regular Interest A-4B, REMIC II Regular Interest A-J, REMIC II
Regular Interest B-1, REMIC II Regular Interest B-2, REMIC II Regular Interest
B-3, REMIC II Regular Interest C-1, REMIC II Regular Interest C-2, REMIC II
Regular Interest D-1, REMIC II Regular Interest D-2, REMIC II Regular Interest
E, REMIC II Regular Interest F-1, REMIC II Regular Interest F-2, REMIC II
Regular Interest G, REMIC II Regular Interest H-1, REMIC II Regular Interest
H-2, REMIC II Regular Interest J, REMIC II Regular Interest K, REMIC II Regular
Interest L, REMIC II Regular Interest M, REMIC II Regular
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Interest N, REMIC II Regular Interest O, REMIC II Regular Interest P and REMIC
II Regular Interest X-Y.
"REMIC III" means the segregated pool of assets consisting of the
REMIC II Regular Interests and related amounts in the Distribution Account for
which a REMIC election has been made pursuant to Section 12.1(a) hereof.
"REMIC III Certificates" has the meaning set forth in the final
paragraph of the Preliminary Statement hereto.
"REMIC III Regular Interests" means, collectively, the Class [A-1]
Certificates, Class [A-1A] Certificates, Class [A-2] Certificates, Class A-3-1FL
Regular Interest, Class [A-3-1] Certificates, Class [A-3-2] Certificates, Class
[A-AB] Certificates, Class [A-4A] Certificates, Class [A-4B] Certificates, Class
[A-J] Certificates, Class [X-1] Certificates, Class [X-2] Certificates, Class
[X-Y] Certificates, Class [B] Certificates, Class [C] Certificates, Class [D]
Certificates, Class [E] Certificates, Class [F] Certificates, Class [G]
Certificates, Class [H] Certificates, Class [J] Certificates, Class [K]
Certificates, Class [L] Certificates, Class [M] Certificates, Class [N]
Certificates, Class [O] Certificates and Class [P] Certificates.
"REMIC Pool" means each of the three segregated pools of assets
designated as a REMIC pursuant to Section 12.1(b) hereof.
"REMIC Provisions" means the provisions of the federal income tax
law relating to real estate mortgage investment conduits, which appear at
Sections 860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and final, temporary and proposed regulations and rulings
promulgated thereunder, as the foregoing may be in effect from time to time and
taking account, as appropriate, of any proposed legislation or regulations
which, as proposed, would have an effective date prior to enactment or
promulgation thereof.
"REMIC Regular Certificates" means, collectively, the Class [A-1],
Class [A-1A], Class [A-2], Class [A-3-1], Class [A-3-2], Class [A-AB], Class
[A-4A], Class [A-4B], Class [A-J], Class [X-1], Class [X-2], Class [X-Y], 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.
"Rent Loss Policy" means a policy of insurance generally insuring
against loss of income or rent resulting from hazards or acts of God.
"Rents from Real Property" means, with respect to any REO Property,
income of the character described in Section 856(d) of the Code.
"REO Account" shall have the meaning set forth in Section 9.14(a)
hereof.
"REO Disposition" means the receipt by the Master Servicer or the
Special Servicer of Liquidation Proceeds and other payments and recoveries
(including proceeds of a final sale) from the sale or other disposition of REO
Property.
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"REO Income" means, with respect to any REO Property, except as set
forth below, all income received in connection with such REO Property during
such period less any operating expenses, utilities, real estate taxes,
management fees, insurance premiums, expenses for maintenance and repairs and
any other capital expenses directly related to such REO Property paid during
such period.
"REO Mortgage Loan" means a Mortgage Loan, as to which the related
Mortgaged Property is an REO Property.
"REO Property" means a Mortgaged Property (or the Trust's interest
therein, if the Mortgaged Property securing a Loan Group has been acquired by
the Trust) acquired by the Trust through foreclosure, deed-in-lieu of
foreclosure, abandonment or reclamation from bankruptcy in connection with a
Defaulted Mortgage Loan or otherwise treated as foreclosure property under the
REMIC Provisions.
"Report Date" means the close of business on the third Business Day
before the related Distribution Date.
"Reportable Event" has the meaning set forth in Section 13.9.
"Reporting Servicer" means the Master Servicer, the Special Servicer
and any Servicing Function Participant (including the Primary Servicer, the
Paying Agent, the Trustee and each Sub-Servicer), as the case may be.
"Repurchased Loan" has the meaning set forth in Section 2.3(a)
hereof.
"Request for Release" means a request for release of certain
documents relating to the Mortgage Loans, a form of which is attached hereto as
Exhibit C.
"Required Appraisal Loan" means any Mortgage Loan as to which an
Appraisal Event has occurred. A Mortgage Loan will cease to be a Required
Appraisal Loan at such time as it is a Rehabilitated Mortgage Loan.
"Reserve Account" shall mean the Reserve Account maintained by the
Paying Agent in accordance with the provisions of Section 5.3, which shall be an
Eligible Account, which may be a sub-account of the Distribution Account.
"Residual Certificates" means, with respect to REMIC I, the Class
[R-I] Certificates; with respect to REMIC II, the Class [R-II] Certificates; and
with respect to REMIC III, the Class [R-III] Certificates.
"Responsible Officer" means, when used with respect to the initial
Trustee, any officer assigned to the Global Securitization Trust Services Group,
or with respect to the Paying Agent, any officer assigned to the Corporate Trust
Services Group, each with specific responsibilities for the matters contemplated
by this Agreement and when used with respect to any successor Trustee or Paying
Agent, any Vice President, Assistant Vice President, corporate trust officer or
any assistant corporate trust officer or Persons performing similar roles on
behalf of the Trustee or Paying Agent.
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"Restricted Servicer Reports" means, collectively, to the extent not
filed with the Commission, the CMSA Servicer Watch List, the CMSA Operating
Statement Analysis Report, the CMSA NOI Adjustment Worksheet, CMSA Financial
File and the CMSA Comparative Financial Status Report.
"Reverse Sequential Order" means sequentially to 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], Class [B], Class [A-J]
and finally to the Class [X-1], Class [X-2], Class [X-Y], Class [A-1], Class
[A-1A], Class [A-2], Class [A-3-1], Class [A-3-2], Class [A-AB], Class [A-4A]
and Class [A-4B] Certificates and either the Class A-3-1FL Regular Interest or
Class [A-3-1FL] Certificates, as applicable, on a pro rata basis, as described
herein.
"Rule 144A" means Rule 144A under the 1933 Act.
"Rule 144A IAI Global Certificate" means, with respect to any Class
of Certificates offered and sold in reliance on Rule 144A or to certain
Institutional Accredited Investors, a single, permanent global Certificate, in
definitive, fully registered form without interest coupons.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or its successor in interest.
"Xxxxxxxx-Xxxxx Act" means 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).
"Xxxxxxxx-Xxxxx Certification" has the meaning set forth in Section
13.8.
"Scheduled Payment" means each scheduled payment of principal of,
and/or interest on, a Mortgage Loan required to be paid on its Due Date by the
Mortgagor in accordance with the terms of the related Mortgage Note (excluding
all amounts of principal and interest which were due on or before the Cut Off
Date, whenever received, and taking account of any modifications thereof and the
effects of any Debt Service Reduction Amounts and Deficient Valuation Amounts).
"Scheduled Principal Balance" means, with respect to any Mortgage
Loan or any REO Mortgage Loan, for purposes of performing calculations with
respect to any Distribution Date, the Principal Balance thereof minus the
aggregate amount of any P&I Advances of principal previously made with respect
to such Mortgage Loan or such REO Mortgage Loan.
"Seller" means MSMC or [identify each other seller], as the case may
be.
"Service(s)(ing)" means, in accordance with Regulation AB, the act
of servicing and administering the Mortgage Loans or any other assets of the
Trust by an entity that meets the definition of "servicer" set forth in Item
1101 of Regulation AB and is subject to the disclosure requirements set forth in
Item 1108 of Regulation AB. For clarification purposes, any
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uncapitalized occurrence of this term shall have the meaning commonly understood
by participants in the commercial mortgage-backed securities market.
"Servicer Errors and Omissions Insurance Policy" or "Errors and
Omissions Insurance Policy" means an errors and omissions insurance policy
maintained by the Master Servicer, the Special Servicer, the Trustee or the
Paying Agent, as the case may be, in accordance with Section 8.2, Section 9.2
and Section 7.17, respectively.
"Servicer Fidelity Bond" or "Fidelity Bond" means a bond or
insurance policy under which the insurer agrees to indemnify the Master
Servicer, the Special Servicer, the Trustee or the Paying Agent, as the case may
be, (subject to standard exclusions) for all losses (less any deductible)
sustained as a result of any theft, embezzlement, fraud or other dishonest act
on the part of the Master Servicer's, the Special Servicer's, the Trustee's or
the Paying Agent's, as the case may be, officers or employees and is maintained
in accordance with Section 8.2, Section 9.2 and Section 7.17, respectively.
"Servicer Mortgage File" means (i) with respect to all Mortgage
Loans other than the MSMC Loans, copies of the mortgage documents listed in the
definition of Mortgage File relating to a Mortgage Loan, and (ii) with respect
to the MSMC Loans, copies of the mortgage documents listed in the definition of
Mortgage File relating to a Mortgage Loan and, to the extent required to be (and
actually) delivered to the Master Servicer by the applicable Seller pursuant to
the applicable Mortgage Loan Purchase Agreement, copies of the following items:
the Mortgage Note, any Mortgage, the Assignment of Leases and the Assignment of
Mortgage, any guaranty/indemnity agreement, any loan agreement, any insurance
policies or certificates (as applicable), any property inspection reports, any
financial statements on the property, any escrow analysis, any tax bills, any
Appraisal, any environmental report, any engineering report, any asset summary,
financial information on the Mortgagor/sponsor and any guarantors, any letters
of credit, any intercreditor agreement and any Environmental Insurance Policies.
"Servicing Advance" means any cost or expense of the Master
Servicer, the Special Servicer or the Trustee, as the case may be, designated as
a Servicing Advance pursuant to this Agreement and any other costs and expenses
incurred by or for the Master Servicer, the Special Servicer or the Trustee, as
the case may be, to protect and preserve the security for a Mortgage Loan.
"Servicing Criteria" means the criteria set forth in paragraph (d)
of Item 1122 of Regulation AB, as such may be amended from time to time.
"Servicing Function Participant" means any Person, other than the
Master Servicer and the Special Servicer, that, within the meaning of Item 1122
of Regulation AB, is performing activities addressed by the Servicing Criteria,
unless such Person's activities relate only to 5% or less of the Mortgage Loans
(based on their Principal Balance). For clarification purposes, the Trustee, the
Primary Servicer and the Paying Agent are each Servicing Function Participants.
"Servicing Officer" means, any officer or employee of the Master
Servicer involved in, or responsible for, the administration and servicing of
the Mortgage Loans whose
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name and specimen signature appear on a list of servicing officers or employees
furnished to the Trustee by the Master Servicer, or an Additional Servicer, as
the case may be, and signed by an officer of the Master Service, or an
Additional Servicer, as the case may be, as such list may from time to time be
amended.
"Servicing Standard" means the standard by which the Master Servicer
and Special Servicer will service and administer the Mortgage Loans and/or REO
Properties that it is obligated to service and administer pursuant to this
Agreement in the best interests and for the benefit of the Certificateholders
(as determined by the Master Servicer or the Special Servicer, as applicable, in
its good faith and reasonable judgment), to perform such servicing and
administration in accordance with applicable law, the terms of this Agreement,
and the terms of the respective subject Mortgage Loans and, to the extent
consistent with the foregoing, further as follows:
(i) with the same skill, care and diligence as is normal and usual
in its mortgage servicing activities on behalf of third parties or on
behalf of itself, whichever is higher, and in the case of the Special
Servicer, its REO Property management activities on behalf of third
parties or on behalf of itself, whichever is higher, with respect to
mortgage loans that are comparable to the Mortgage Loans; and
(ii) with a view to the timely collection of all scheduled payments
of principal and interest under the Mortgage Loans and, in the case of the
Special Servicer, if a serviced Mortgage Loan comes into and continues in
default, and if, in the judgment of the Special Servicer, no satisfactory
arrangements can be made for the collection of the delinquent payments,
the maximization of the recovery on that Mortgage Loan to the
Certificateholders (as a collective whole), on a net present value basis;
but without regard to: (I) any relationship that the Master Servicer or Special
Servicer, as the case may be, or any Affiliate thereof may have with the related
Mortgagor; (II) the ownership of any Certificate by the Master Servicer or
Special Servicer, as the case may be, or any Affiliate thereof; (III) the Master
Servicer's obligation to make P&I Advances or Servicing Advances; (IV) the
Special Servicer's obligation to request that the Master Servicer make Servicing
Advances; (V) the right of the Master Servicer (or any Affiliate thereof) or
Special Servicer (or any Affiliate thereof), as the case may be, to receive
reimbursement of costs, or the sufficiency of any compensation payable to it
under this Agreement or with respect to any particular transaction; [and (VI)
any obligation of the Master Servicer or any of its Affiliates (in their
capacity as a Seller) to cure a breach of a representation or warranty or
repurchase any Mortgage Loan].
"Servicing Transfer Event" means the occurrence of any of the
following events: (i) a payment default shall have occurred on a Mortgage Loan
(x) at its Maturity Date (except, if (a) the Mortgagor is making its Assumed
Scheduled Payment, (b) the Mortgagor notifies the Master Servicer of its intent
to refinance such Mortgage Loan and is diligently pursuing such refinancing, (c)
the Mortgagor delivers a firm commitment to refinance acceptable to the
Operating Advisor on or prior to the Maturity Date, and (d) such refinancing
occurs within 60 days of such default, which 60-day period may be extended to
120 days at the Operating Advisor's discretion) or (y) if any other payment is
more than 60 days past due or has not been
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made on or before the second Due Date following the date such payment was due;
(ii) any Mortgage Loan as to which, to the Master Servicer's knowledge, the
Mortgagor has consented to the appointment of a receiver or conservator in any
insolvency or similar proceeding of, or relating to, such Mortgagor or to all or
substantially all of its property, or the Mortgagor has become the subject of a
decree or order issued under a bankruptcy, insolvency or similar law and such
decree or order shall have remained undischarged, undismissed or unstayed for a
period of 30 days; (iii) any Mortgage Loan as to which the Master Servicer shall
have received notice of the foreclosure or proposed foreclosure of any other
lien on the Mortgaged Property; (iv) any Mortgage Loan as to which the Master
Servicer has knowledge of a default (other than a failure by the related
Mortgagor to pay principal or interest) which in the good faith reasonable
judgment of the Master Servicer materially and adversely affects the interests
of the Certificateholders and which has occurred and remains unremedied for the
applicable grace period specified in such Mortgage Loan (or, if no grace period
is specified, 60 days); (v) any Mortgage Loan as to which the Mortgagor admits
in writing its inability to pay its debts generally as they become due, files a
petition to take advantage of any applicable insolvency or reorganization
statute, makes an assignment for the benefit of its creditors or voluntarily
suspends payment of its obligations; and (vi) any Mortgage Loan as to which, in
the good faith reasonable judgment of the Master Servicer, (a) a payment default
is imminent or is likely to occur within 60 days and such default, in the
judgment of the Master Servicer, is reasonably likely to materially and
adversely affect the interests of the Certificateholders or (b) any other
default is imminent or is likely to occur within 60 days and such default, in
the judgment of the Master Servicer, is reasonably likely to materially and
adversely affect the interests of the Certificateholders.
"Similar Laws" has the meaning set forth in Section 3.3(d).
"Single-Purpose Entity" means a Person, other than an individual,
whose organizational documents provide substantially to the effect that it is
formed or organized solely for the purpose of owning and collecting payments
from Defeasance Collateral for the benefit of the Trust and which (i) does not
engage in any business unrelated thereto and the financing thereof; (ii) does
not have any assets other than those related to its interest in Defeasance
Collateral; (iii) maintains its own books, records and accounts, in each case
which are separate and apart from the books, records and accounts of any other
Person; (iv) conducts business in its own name and uses separate stationery,
invoices and checks; (v) does not guarantee or assume the debts or obligations
of any other Person; (vi) does not commingle its assets or funds with those of
any other Person; (vii) transacts business with Affiliates on an arm's length
basis pursuant to written agreements; and (viii) holds itself out as being a
legal entity, separate and apart from any other Person, and otherwise complies
with the single-purpose requirements established by the Rating Agencies. The
entity's organizational documents also provide that any dissolution and winding
up or insolvency filing for such entity requires the unanimous consent of all
partners or members, as applicable, and that such documents may not be amended
with respect to the Single-Purpose Entity requirements.
"Sole Certificateholder" means any Certificateholder (or
Certificateholders provided they act in unanimity) holding 100% of the then
outstanding Class [X-1], Class [X-2], Class [X-Y], Class [J], Class [K], Class
[L], Class [M], Class [N], Class [O] and Class [P] Certificates or an assignment
of the voting rights thereof; provided, however, that the Certificate
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Balances of the Class [A-1], Class [A-1A], Class [A-2], Class [A-3-1FL], Class
[A-3-1], Class [A-3-2], Class [A-AB], Class [A-4A], Class [A-4B], Class [A-J],
Class [B], Class [C], Class [D], Class [E], Class [F], Class [G] and Class [H]
Certificates have been reduced to zero.
"Special Servicer" means the special servicer identified in the
first paragraph of this Agreement and its permitted successors and assigns.
"Special Servicer Compensation" means, with respect to any
applicable period, the sum of the Special Servicing Fees, the Liquidation Fees
and Work-Out Fees and any other amounts to be paid to the Special Servicer
pursuant to the terms of this Agreement.
"Special Servicer Remittance Date" means the Business Day preceding
each Determination Date.
"Special Servicing Fee" means, for each calendar month, as to each
Mortgage Loan that is a Specially Serviced Mortgage Loan (including REO Mortgage
Loans), the fraction or portion of the Special Servicing Fee Rate applicable to
such month (determined using the same interest accrual methodology that is
applied with respect to the Mortgage Rate for such Mortgage Loan for such month)
multiplied by the Scheduled Principal Balance of such Specially Serviced
Mortgage Loan immediately before the Due Date occurring in such month.
"Special Servicing Fee Rate" means [0.25]% per annum.
"Special Servicing Officer" means any officer or employee of the
Special Servicer involved in, or responsible for, the administration and
servicing of the Specially Serviced Mortgage Loans whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Trustee, the Paying Agent and the Master Servicer by the Special Servicer signed
by an officer of the Special Servicer, as such list may from time to time be
amended.
"Specially Designated Co-op Mortgage Loan" means, any Co-op Mortgage
Loan or any successor REO Mortgage Loan.
"Specially Serviced Mortgage Loan" means, as of any date of
determination, any Mortgage Loan with respect to which the Master Servicer has
notified the Special Servicer, the Operating Adviser and the Trustee that a
Servicing Transfer Event has occurred (which notice shall be effective upon
receipt) and the Special Servicer has received all information, documents and
records relating to such Mortgage Loan, as reasonably requested by the Special
Servicer to enable it to assume its duties with respect to such Mortgage Loan. A
Specially Serviced Mortgage Loan shall cease to be a Specially Serviced Mortgage
Loan from and after the date on which the Special Servicer notifies the Master
Servicer, the Operating Adviser, the Paying Agent and the Trustee, in accordance
with Section 8.1(b), that such Mortgage Loan, with respect to such Servicing
Transfer Event, has become a Rehabilitated Mortgage Loan, unless and until the
Master Servicer notifies the Special Servicer, the Paying Agent and the Trustee,
in accordance with Section 8.1(b) that another Servicing Transfer Event with
respect to such Mortgage Loan, exists or occurs.
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"Standard Hazard Insurance Policy" means a fire and casualty
extended coverage insurance policy in such amount and with such coverage as
required by this Agreement.
"Subcontractor" means any vendor, subcontractor or other Person that
is not responsible for the overall servicing of Mortgage Loans but performs one
or more discrete functions identified in Item 1122(d) of Regulation AB with
respect to Mortgage Loans under the direction or authority of the Master
Servicer, the Special Servicer, an Additional Servicer or a Sub-Servicer.
"Sub-Servicer" means any Person that (i) is a Servicing Function
Participant, (ii) Services the assets of the Trust on behalf of the Trust, the
Paying Agent, the Master Servicer, the Special Servicer, any Additional Servicer
or any other Person that otherwise constitutes a "Sub-Servicer", and (iii) is
responsible for the performance (whether directly or through sub-servicers or
Subcontractors) of Servicing functions that are required to be performed by the
Trust, the Paying Agent, the Master Servicer, the Special Servicer or any
Additional Servicer under this Agreement or any sub-servicing agreement and are
identified in Item 1122(d) of Regulation AB.
"Sub-Servicing Agreement" means the [identity].
"Subordinate Certificates" means, collectively, the Class [A-J],
Class [B], Class [C], Class [D], Class [E], Class [F], Class [G], Class [H],
Class [J], Class [K], Class [L], Class [M], Class [N], Class [O] and Class [P]
Certificates.
"Successful Bidder" has the meaning set forth in Section 8.29(d).
"Swap Contract" means that certain ISDA Master Agreement, the
schedule thereto, confirmation (ref# _____) and credit support annex related to
the interest rate swap, each document dated as of _____, 20__, with the Swap
Counterparty.
"Swap Counterparty" shall mean [Xxxxxx Xxxxxxx Capital Services
Inc.], acting in such capacity or its successor in interest.
"Swap Counterparty Collateral Account" has the meaning set forth in
Section 8.30(f).
"Swap Default" shall mean, with respect to the Swap Contract, any
failure on the part of the Swap Counterparty to (i) make a required payment
under the Swap Contract or (ii) either post acceptable collateral or find an
acceptable replacement swap counterparty or credit support provider after a
Rating Agency Trigger Event as required by such Swap Contract.
"Swap Upfront Payment" has the meaning set forth in Section 2.2.
"Tax Matters Person" means the Person designated as the "tax matters
person" of the related REMIC Pool pursuant to Treasury Regulations Section
1.860F-4(d) and Temporary Treasury Regulations Section 301.6231(a)(7)-1T.
"10-K Filing Deadline" has the meaning set forth in Section 13.4.
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"Termination Price" has the meaning set forth in Section 10.1(b)
herein.
"30/360 basis" means any Mortgage Loan that accrues interest on the
basis of a 360-day year consisting of twelve 30-day months.
"Time of Sale" means at or prior to the time when sales to
purchasers of the Certificates were first made, which was approximately _____
[a][p].m. on __________, 20___.
"Title Insurance Policy" means a title insurance policy maintained
with respect to a Mortgage Loan.
"Transfer" means any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferee" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor" means any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Trust" means the trust created pursuant to this Agreement, the
assets of which consist of all the assets of REMIC I (including the related
Mortgage Loans (other than Excess Interest thereon), such related amounts as
shall from time to time be held in the Certificate Accounts, the Distribution
Account (other than the Excess Interest Sub-Account and the Floating Rate
Account), the Interest Reserve Account, the Reserve Account, the REO Accounts,
the Trustee's rights under the Insurance Policies, any REO Properties and other
items referred to in Section 2.1(a) hereof, in each case to the extent allocable
to the related Mortgage Loan), the REMIC I Regular Interests, the REMIC II
Regular Interests, REMIC III, the Swap Contract, the Class A-3-1FL Regular
Interest, the Floating Rate Account, Excess Interest and the Excess Interest
Sub-Account.
"Trustee" means _______, as trustee, or its successor-in-interest,
or if any successor trustee, or any co-trustee shall be appointed as herein
provided, then "Trustee" shall also mean such successor trustee (subject to
Section 7.7 hereof) and such co trustee (subject to Section 7.9 hereof), as the
case may be.
"Trustee Fee" means for each calendar month, as to each Mortgage
Loan (including REO Mortgage Loans and Defeasance Loans), the portion of the
Trustee Fee Rate applicable to such month (determined using the same interest
accrual methodology (other than the rate of accrual) that is applied with
respect to the Mortgage Rate for such Mortgage Loan for such month) multiplied
by the Scheduled Principal Balance of each such Mortgage Loan immediately before
the Due Date occurring in such month.
"Trustee Fee Rate" means _______% per annum.
"Trustee Mortgage File" means the mortgage documents listed in the
definition of Mortgage File hereof pertaining to a particular Mortgage Loan and
any additional documents required to be added to the Mortgage File pursuant to
this Agreement; provided that whenever
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the term "Trustee Mortgage File" is used to refer to documents actually received
by the Trustee or a Custodian on its behalf, such terms shall not be deemed to
include such documents required to be included therein unless they are actually
so received.
"UCC" means the Uniform Commercial Code as in effect from time to
time in the State of New York.
"Underwriter" means each of [Xxxxxx Xxxxxxx & Co. Incorporated] and
[specify other underwriters], or their respective successors-in-interest.
"United States 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 or any state thereof or the District of
Columbia, (iii) any estate of which an executor or administrator is a United
States Person (other than an estate governed by foreign law and of which at
least one executor or administrator is a non-United States Person who has sole
or shared investment discretion with respect to its assets), (iv) any trust of
which any trustee is a United States Person (other than a trust of which at
least one trustee is a non-United States Person and has sole or shared
investment discretion with respect to its assets), (v) any agency or branch of a
foreign entity located in the United States, (vi) any non-discretionary 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 Person, (vii) any
discretionary 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 such an account held for the benefit or account
of a non-United States Person), (viii) any partnership or corporation organized
or incorporated under the laws of a foreign jurisdiction and formed by a United
States Person principally for the purpose of investing in securities not
registered under the 1933 Act (unless it is organized or incorporated, and
owned, by accredited investors within the meaning of Rule 501(A) under the 1933
Act who are not natural persons, estates or trusts); provided, however, that the
term "United States Person" shall not include (A) a branch or agency of a United
States Person that is located and operating outside the United States for valid
business purposes as a locally regulated branch or agency engaged in the banking
or insurance business, (B) any employee benefit plan established and
administered in accordance with the law, customary practices and documentation
of a foreign country and (C) the international organizations set forth in
Section 902(o)(7) of Regulation S under the 1933 Act and any other similar
international organizations, and their agencies, Affiliates and pension plans.
"United States Tax Person" means any of (i) a citizen or resident of
the United States, (ii) corporation or partnership (except to the extent
provided in applicable Treasury Regulations) created or organized in or under
the laws of the United States or any State thereof or the District of Columbia,
including any entity treated as such a corporation or partnership for federal
income tax purposes, (iii) an estate the income of which is includible in gross
income for United States tax purposes, regardless of its source or (iv) a trust
if a court within the United States is able to exercise primary supervision over
the administration of such trust, and one or more United States Tax Persons has
the authority to control all substantial decisions of such trust (or to the
extent provided in applicable Treasury Regulations, a trust in existence on
August 20, 1996, which is eligible to be treated as a United States Tax Person).
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"Unliquidated Advance" means any Advance previously made by a party
hereto that has been previously reimbursed to the Person that made the Advance
by the Trust as part of a Workout-Delayed Reimbursement Amount pursuant to
subsection (iii) of Section 5.2(a)(II), but that has not been recovered from the
Mortgagor or otherwise from collections on or the proceeds of the Mortgage Loan
or REO Property in respect of which the Advance was made.
"Unpaid Interest" means, on any Distribution Date with respect to
any Class of Interests or Certificates (including the Class A-3-1FL Regular
Interest, but excluding the Class [A-3-1FL] Certificates, Residual Certificates
and the Class [EI] Certificates), the portion of Distributable Certificate
Interest for such Class remaining unpaid as of the close of business on the
preceding Distribution Date, plus one month's interest thereon at the applicable
Pass-Through Rate.
"Unrestricted Servicer Reports" means, collectively, the CMSA
Delinquent Loan Status Report, CMSA Historical Loan Modification and Corrected
Mortgage Loan Report, CMSA Historical Liquidation Report and, if and to the
extent filed with the Commission, such reports and files as would, but for such
filing, constitute Restricted Master Servicer Reports.
"Weighted Average Class X-Y Strip Rate" means, with respect to any
Distribution Date, the weighted average of the Class X-Y Strip Rates for each of
the Group X-Y REMIC I Regular Interests, weighted on the basis of their
respective Notional Amounts as of the close of business on the preceding
Distribution Date.
"Weighted Average REMIC I Net Mortgage Rate" means, with respect to
any Distribution Date, the weighted average of the REMIC I Net Mortgage Rates
for the REMIC I Regular Interests, weighted on the basis of their respective
Certificate Balance as of the close of business on the preceding Distribution
Date.
"Workout-Delayed Reimbursement Amount" has the meaning set forth in
subsection (II)(A) of Section 5.2(a).
"Work-Out Fee" means a fee payable with respect to any Rehabilitated
Mortgage Loan, equal to the product of (x) [1.00]% and (y) the amount of each
collection of interest (other than default interest, Excess Interest) and
principal received (including any Condemnation Proceeds received and applied as
a collection of such interest and principal) on such Mortgage Loan so long as it
remains a Rehabilitated Mortgage Loan or otherwise payable as set forth in
Section 9.21(d).
"Yield Maintenance Charges" means, with respect to any Distribution
Date, the aggregate of all yield maintenance charges, if any, received during
the related Collection Period in connection with Principal Prepayments.
"Yield Maintenance Minimum Amount" means, with respect to a Mortgage
Loan that provides for a Yield Maintenance Charge to be paid in connection with
any Principal Prepayment thereon or other early collection of principal thereof,
any specified amount or specified percentage of the amount prepaid which
constitutes the minimum amount that such Yield Maintenance Charge may be.
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Section 1.2 Calculations Respecting Mortgage Loans
(a) Calculations required to be made by the Paying Agent pursuant to
this Agreement with respect to any Mortgage Loan shall be made based upon
current information as to the terms of such Mortgage Loan and reports of
payments received from the Master Servicer on such Mortgage Loan and payments to
be made to the Paying Agent as supplied to the Paying Agent by the Master
Servicer. The Paying Agent shall not be required to recompute, verify or
recalculate the information supplied to it by the Master Servicer and may
conclusively rely upon such information in making such calculations. If,
however, a Responsible Officer of the Paying Agent has actual knowledge of an
error in the calculations, the Paying Agent shall inform the Master Servicer of
such error.
(b) Unless otherwise required by law or the applicable Mortgage Loan
documents, any amounts (other than escrow and reserve deposits and
reimbursements of Servicing Advances and expenses) received in respect of a
Mortgage Loan as to which a default has occurred and is continuing (other than
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, Purchase
Proceeds and REO Income) shall be applied as follows: first, to overdue interest
due with respect to such Mortgage Loan at the Mortgage Rate thereof, second, to
current interest due with respect to such Mortgage Loan at the Mortgage Rate
thereof, third, to the reduction of the Principal Balance of such Mortgage Loan
to zero if such Mortgage Loan has been accelerated, and in respect of any
scheduled payments of principal then due to the extent that such Mortgage Loan
has not yet been accelerated, fourth, to any default interest and other amounts
due on such Mortgage Loan and fifth, to Late Fees due with respect to such
Mortgage Loan.
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds,
Purchase Proceeds and REO Income shall be applied as follows: first, as a
recovery of any related and unreimbursed Advances (together with interest
thereon) and Unliquidated Advances (to the Trust), and if applicable, unpaid
Liquidation Expenses; second, as a recovery of unpaid servicing compensation;
third, as a recovery of any Additional Trust Expenses; fourth, as a recovery of
any Nonrecoverable Advances and interest thereon, except with respect to any
Unliquidated Advance previously reimbursed from principal pursuant to Section
5.2(a)(II)(iv); fifth, 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); sixth, 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); seventh, 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 real estate taxes, assessments, insurance premiums (including premiums on any
Environmental Insurance Policy), ground rents (if applicable) and similar items;
eighth, as a recovery of any Late Fees and default interest then due and owing
under such Mortgage Loan; ninth, as a recovery of any Prepayment Premium or
Yield Maintenance Charge 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; and eleventh, as a recovery of any other
amounts then due and owing under such Mortgage Loan.
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(c) Notwithstanding the foregoing applications of amounts received
by or on behalf of the Trust in respect of any Mortgage Loan, any amounts due
and owing under the related Mortgage Note and Mortgage (including for principal
and accrued and unpaid interest) shall be applied in accordance with the express
provisions of the related Mortgage Loan documents.
Section 1.3 Calculations Respecting Accrued Interest
Accrued interest on any Certificate (other than the Class [A-3-1FL]
Certificates) and on the Class A-3-1FL Regular Interest shall be calculated
based upon a 360-day year consisting of twelve 30-day months, and, unless there
is a Swap Default or the Swap Contract is terminated, accrued interest on the
Class [A-3-1FL] Certificates shall be calculated on the basis of the actual
number of days elapsed in the related Interest Accrual Period and a 360-day
year. If a Swap Default occurs and is continuing or if the Swap Contract is
terminated and no replacement swap contract is in effect, the Class [A-3-1FL]
Certificates shall accrue interest based upon a 360-day year consisting of
twelve 30-day months. Pass-Through Rates shall be carried out to eight decimal
places, rounded if necessary. All dollar amounts calculated hereunder shall be
rounded to the nearest xxxxx.
Section 1.4 Interpretation
(a) Whenever the Agreement refers to a Distribution Date and a
"related" Collection Period, Interest Accrual Period, Record Date, Due Date,
Report Date, Monthly Certificateholders Report, Special Servicer Remittance
Date, Master Servicer Remittance Date or Determination Date, such reference
shall be to the Collection Period, Interest Accrual Period, Record Date, Due
Date, Report Date, Special Servicer Remittance Date, Master Servicer Remittance
Date or Determination Date, as applicable, immediately preceding such
Distribution Date.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1 shall have the respective meanings given to them under generally accepted
accounting principles or regulatory accounting principles, as applicable.
(c) The words "hereof," "herein" and "hereunder," and words of
similar import, when used in this Agreement, shall refer to this agreement as a
whole and not to any particular provision of this Agreement, and references to
Sections, Schedules and Exhibits contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified.
(d) Whenever a term is defined herein, the definition ascribed to
such term shall be equally applicable to both the singular and plural forms of
such term and to masculine, feminine and neuter genders of such term.
(e) This Agreement is the result of arm's-length negotiations
between the parties and has been reviewed by each party hereto and its counsel.
Each party agrees that any ambiguity in this Agreement shall not be interpreted
against the party drafting the particular clause which is in question.
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Section 1.5 ARD Loan
Notwithstanding any provision of this Agreement:
(a) For the ARD Loan, the Excess Interest accruing as a result of
the step-up in the Mortgage Rate upon failure of the related Mortgagor to pay
the principal on the Anticipated Repayment Date as specifically provided for in
the related Mortgage Note shall not be taken into account for purposes of the
definitions of "Appraisal Reduction," "Assumed Scheduled Payment," "Mortgage
Rate," "Purchase Price" and "Realized Loss."
(b) Excess Interest shall constitute an asset of the Trust but not
an asset of any REMIC Pool.
(c) Neither the Master Servicer nor the Special Servicer shall take
any enforcement action with respect to the payment of Excess Interest unless the
taking of such action is consistent with the Servicing Standard and all other
amounts due under such Mortgage Loan have been paid, and, in the good faith and
reasonable judgment of the Master Servicer and the Special Servicer, as the case
may be, the Liquidation Proceeds expected to be recovered in connection with
such enforcement action will cover the anticipated costs of such enforcement
action and, if applicable, any associated interest thereon.
(d) Liquidation Fees shall not be deemed to be earned on Excess
Interest.
(e) With respect to the ARD Loan after its Anticipated Repayment
Date, the respective Master Servicer or the respective Special Servicer, as the
case may be, shall be permitted, in its discretion, to waive in accordance with
Section 8.18 and Section 9.5 hereof, all or any accrued Excess Interest if,
prior to the related Maturity Date, the related Mortgagor has requested the
right to prepay the Mortgage Loan in full together with all payments required by
the Mortgage Loan in connection with such prepayment except for all or a portion
of accrued Excess Interest, provided that the respective Master Servicer's or
the respective Special Servicer's determination to waive the right to such
accrued Excess Interest is in accordance with the Servicing Standard and with
Section 8.18 and Section 9.5 hereof. The respective Master Servicer or the
respective Special Servicer, as the case may be, will have no liability to the
Trust, the Certificateholders or any other Person so long as such determination
is based on such criteria.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans
(a) Effective as of the Closing Date, the Depositor does hereby
assign in trust to the Trustee, 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 identified on the Mortgage Loan Schedule, (ii)
the Depositor's rights under each Mortgage Loan Purchase Agreement that are
permitted to be assigned to the Trustee pursuant to Section 14 thereof, (iii)
the Initial Deposit
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(which shall be paid to the Trustee on the Closing Date) and (iv) all other
assets included or to be included in REMIC I for the benefit of REMIC II and
REMIC III. Such assignment includes all interest and principal received or
receivable on or with respect to the Mortgage Loans and due after the Cut-Off
Date. The transfer of the Mortgage Loans and the related rights and property
accomplished hereby is absolute and is intended by the parties to constitute a
sale. In connection with the initial sale of the Certificates by the Depositor,
the purchase price to be paid includes a portion attributable to interest
accruing on the Certificates from and after the Cut-Off Date.
(b) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each Seller pursuant to the applicable Mortgage
Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered
to and deposited with, the Trustee or a Custodian appointed hereunder, on or
before the Closing Date, the Mortgage Note for each Mortgage Loan so assigned,
endorsed to the Trustee as specified in clause (i) of the definition of
"Mortgage File." Each Seller is required, pursuant to the applicable Mortgage
Loan Purchase Agreement, to deliver to the Trustee the remaining documents
constituting the Mortgage File for each Mortgage Loan within the time period set
forth therein. None of the Trustee, the Paying Agent, any Custodian, the Master
Servicer or the Special Servicer shall be liable for any failure by any Seller
or the Depositor to comply with the document delivery requirements of the
Mortgage Loan Purchase Agreements and this Section 2.1(b).
(c) Each Seller, at its own expense, for the Mortgage Loans sold to
the Depositor by such Seller shall promptly (and in any event within 90 days
following the receipt of all recording information necessary to record such
document) cause to be submitted for recording or filing, as the case may be, in
the appropriate public office for real property records or UCC financing
statements, as appropriate, each assignment to the Trustee referred to in
clauses (iv), (vi)(B) and (ix)(B) of the definition of "Mortgage File". Each
such assignment shall reflect that it should be returned by the public recording
office to the Trustee following recording or filing; provided that in those
instances where the public recording office retains the original Assignment of
Mortgage, assignment of Assignment of Leases or assignment of UCC financing
statements, the Trustee shall obtain therefrom, at the expense of the applicable
Seller, a certified copy of the recorded original and shall forward copies
thereof to the Master Servicer and the Special Servicer. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, the Trustee shall promptly notify the applicable
Seller and the applicable Seller for its respective Mortgage Loans shall
promptly prepare or cause to be prepared and delivered to the Trustee a
substitute therefor or cure such defect, as the case may be, and thereafter the
Trustee shall upon receipt thereof from such Seller cause the same to be duly
recorded or filed, as appropriate.
The parties acknowledge the obligation of each Seller pursuant to
Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the
Trustee, on or before the fifth Business Day after the Closing Date, _____
limited powers of attorney substantially in the form attached as Exhibit __ to
the Primary Servicing Agreements or Exhibit __ to the Mortgage Loan Purchase
Agreements in favor of the Trustee, the Master Servicer and the Special Servicer
to empower the Trustee, the Master Servicer and, in the event of the failure or
incapacity of the Trustee and the Master Servicer, the Special Servicer, to
submit for recording, at the expense of the applicable Seller, any mortgage loan
documents required to be recorded as described in the
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preceding paragraph and any intervening assignments with evidence of recording
thereon that are required to be included in the Mortgage Files (so long as
original counterparts have previously been delivered to the Trustee). The
Sellers agree to reasonably cooperate with the Trustee, the Master Servicer and
the Special Servicer in connection with any additional powers of attorney or
revisions thereto that are requested by such parties for purposes of such
recordation. The Trustee and each other party hereto agrees that no such power
of attorney shall be used with respect to any Mortgage Loan by or under
authorization by any party hereto except that to the extent that the absence of
a document described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to the related Seller, but
in no event earlier than 18 months from the Closing Date, and (ii) the date (if
any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Trustee shall submit such documents for recording, at the related Seller's
expense, after the periods set forth above; provided, however, the Trustee shall
not submit such assignments for recording if the applicable Seller produces
evidence that it has sent any such assignment for recording and certifies that
it is awaiting its return from the applicable recording office.
(d) All relevant servicing or loan documents and records in the
possession of the Depositor or the Sellers that relate to the servicing of any
Mortgage Loans and that are not required to be a part of a Mortgage File in
accordance with the definition thereof and are reasonably necessary for the
ongoing administration and/or servicing of the applicable Mortgage Loan shall be
delivered to the Master Servicer (with a copy to the related Primary Servicer,
if applicable), on or before the date that is 75 days following the Closing Date
and shall be held by the Master Servicer or the related Primary Servicer on
behalf of the Trustee in trust for the benefit of the Certificateholders. To the
extent delivered to the Master Servicer and the related Sub-Servicer or the
related Primary Servicer, as applicable, by the related Seller, the Servicer
Mortgage File will consist of the documents listed in the definition of Mortgage
File; provided, however, the Seller shall not be required to deliver any draft
documents, attorney-client privileged communications, internal correspondence or
credit analysis. Delivery of any of the foregoing documents to the applicable
Primary Servicer (or sub-servicer) shall be deemed delivery to the Master
Servicer and satisfy the Depositor's obligations under this Section 2.1(d). Each
of the foregoing items shall be delivered in electronic form, to the extent such
document is available in such form and such form is reasonably acceptable to the
Master Servicer. None of the Master Servicer, the Special Servicer or any
Primary Servicer shall have any liability for the absence of any of the
foregoing items from the Servicing Mortgage File if such item was not delivered
by the related Seller.
(e) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall deliver to the Trustee and the Master
Servicer on or before the Closing Date a copy of a fully executed counterpart of
each Mortgage Loan Purchase Agreement, as in full force and effect on the
Closing Date, which Mortgage Loan Purchase Agreements shall contain the
representations and warranties made by the Sellers with respect to each related
Mortgage Loan as of the Closing Date.
(f) In connection herewith, the Depositor has acquired the Mortgage
Loans from the Seller. The Depositor will deliver the original Mortgage Notes
(or lost note affidavits with copies of the related Mortgage Notes, as described
in the definition of Mortgage File)
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relating to the Mortgage Loans to the Trustee, endorsed as otherwise provided
herein, to effect the transfer to the Trustee of such Mortgage Notes and all
related deeds of trust, mortgages and other loan documents. To avoid the
unnecessary expense and administrative inconvenience associated with the
execution and recording of multiple assignment documents, each Seller is
required under the Mortgage Loan Purchase Agreements to deliver Assignments of
Mortgages and assignments of Assignments of Leases and assignments of UCC
financing statements in blank or naming the Trustee, on behalf of the
Certificateholders, as assignee. Notwithstanding the fact that the assignments
shall be in blank or name the Trustee, on behalf of the Certificateholders, as
the assignee, the parties hereto acknowledge and agree that for all purposes the
Mortgage Loans shall be deemed to have been transferred from the applicable
Seller to the Depositor, and all Mortgage Loans shall be deemed to have been
transferred from the Depositor to the Trustee on behalf of the
Certificateholders.
Section 2.2 Acceptance by Trustee
The Trustee will hold (i) the documents constituting a part of the
Mortgage Files delivered to it, (ii) the REMIC I Regular Interests, (iii) the
REMIC II Regular Interests, (iv) the assets of the Class A-3-1FL Grantor Trust
and (v) the assets of the Class EI Grantor Trust, in each case, in trust for the
use and benefit of all present and future Certificateholders. In connection with
the entering into of the Swap Contract, the Trustee, on behalf of the Trust,
will be paid an upfront payment by the Swap Counterparty with respect to the
Class [A-3-1FL] Certificates (the "Swap Upfront Payment"). On the Closing Date,
the Trustee is hereby directed to pay the Swap Upfront Payment to the Depositor
to an account designated by it.
On the Closing Date in respect of the Initial Certification, and
within 90 days after the Closing Date in respect of the Final Certification, the
Trustee shall examine the Mortgage Files in its possession, and shall deliver to
the Depositor, the Sellers, the Master Servicer, the Special Servicer and the
Operating Adviser, a certification (the "Initial Certification" and the "Final
Certification," respectively, in the respective forms set forth as Exhibit B-1
and Exhibit B-2 hereto), which may be in electronic format (i) in the case of
the Initial Certification, as to each Mortgage Loan listed in the Mortgage Loan
Schedule, except as may be specified in the schedule of exceptions to Mortgage
File delivery attached thereto, to the effect that: (A) all documents pursuant
to clause (i) of the definition of Mortgage File are in its possession, (B) such
documents have
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been reviewed by it and have not been materially mutilated, damaged, defaced,
torn or otherwise physically altered, and such documents relate to such Mortgage
Loan, and (C) each Mortgage Note has been endorsed as provided in clause (i) of
the definition of Mortgage File, and (ii) in the case of the Final
Certification, as to each Mortgage Loan listed in the Mortgage Loan Schedule,
except as may be specified in the schedule of exceptions to Mortgage File
delivery attached thereto, to the effect that: (A) all documents pursuant to
clauses (i), (ii), (iv), (vi), (viii) and (xii) of the definition of Mortgage
File required to be included in the Mortgage File (to the extent required to be
delivered pursuant to this Agreement and any applicable Primary Servicing
Agreement), and with respect to all documents specified in the other clauses of
the definition of Mortgage File to the extent actually known by a Responsible
Officer of the Trustee to be required pursuant to this Agreement (assuming that,
with respect to the documents referred to in clause (xii) of the definition of
Mortgage File, an original letter of credit in the possession of the Trustee is
not so required, unless a Responsible Officer of the Trustee has actual
knowledge to the contrary), are in its possession, (B) such documents have been
reviewed by it and have not been materially mutilated, damaged, defaced, torn or
otherwise physically altered, and such documents relate to such Mortgage Loan,
(C) based on its examination and only as to the Mortgage Note and Mortgage or
the appraisal of the related Mortgaged Property, the street address of the
Mortgaged Property set forth in the Mortgage Loan Schedule respecting such
Mortgage Loan accurately reflects the information contained in the documents in
the Mortgage File, and (D) each Mortgage Note has been endorsed as required by
the terms of this Agreement. Notwithstanding the foregoing, the delivery of an
original or a copy of a binder, pro forma policy or title commitment certified
by the title company in lieu of the delivery of the actual Title Insurance
Policy shall not be considered a Material Document Defect with respect to any
Mortgage File. The Trustee shall deliver to the Master Servicer, the Special
Servicer, the Operating Adviser and each Seller a copy of such Final
Certification, which may be in electronic format.
Within 360 days after the Cut-Off Date, the Trustee shall provide a
confirmation of receipt of recorded assignments of Mortgage (as described in the
definition of Mortgage File, with evidence of recording thereon) or otherwise
provide evidence of such recordation to the Master Servicer, the Special
Servicer, the Operating Adviser and each Seller, and if any recorded assignment
of Mortgage has not been received by the Trustee by such time, the Trustee shall
provide information in such confirmation on the status of missing assignments.
The Trustee agrees to use reasonable efforts to submit for recording any
unrecorded assignments of Mortgage that have been delivered to it (including
effecting such recordation process through or cooperating with the applicable
Seller) such recordation to be at the expense of the applicable Seller;
provided, however, that the Trustee shall not submit for recording any such
assignments if the applicable Seller produces evidence that it has sent any such
assignment for recording and is awaiting its return from the applicable
recording office. In giving the certifications required above, the Trustee shall
be under no obligation or duty to inspect, review or examine any such documents,
instruments, securities or other papers to determine whether they or the
signatures thereon are valid, legal, genuine, enforceable, in recordable form or
appropriate for their represented purposes, or that they are other than what
they purport to be on their face, or to determine whether any Mortgage File
should include any assumption agreement, modification agreement, consolidation
agreement, extension agreement, Assignment of Lease, ground lease, UCC financing
statement, guaranty, written assurance, substitution agreement, lock box
agreement, intercreditor agreement, management agreement or letter of credit.
If any exceptions are noted on a schedule of exceptions attached to
the Final Certification, including exceptions resulting from the fact that the
recordation and/or filing has not been completed (based solely on the absence of
receipt by the Custodian (or the Trustee) of the particular documents showing
evidence of the recordation and/or filing), then the Custodian on behalf of the
Trustee (or the Trustee) shall continuously update such schedule of exceptions
to reflect receipt of any corrected documents, additional documents or
instruments or evidences of recordation and/or filing, as to each Mortgage Loan,
until the earliest of the following dates: (i) the date on which all such
exceptions are eliminated (any such elimination resulting from the fact that
recordation and/or filing has been completed shall be based solely on receipt by
the Custodian or the Trustee of the particular documents showing evidence of the
recordation and/or filing), (ii) the date on which all the affected Mortgage
Loans are removed from the Trust and (iii) the second anniversary of the Closing
Date, and shall provide such updated schedule of exceptions (which may be in
electronic format) to each of the Depositor, each Seller (as to its
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respective Mortgage Loans only), the Master Servicer, the Special Servicer, the
Operating Adviser and the Paying Agent on or about the date that is 180 days
after the Closing Date and then again every 90 days thereafter (until the
earliest date specified above, except, with respect to clause (iii) above, the
Trustee shall continue to provide such updated schedule of exceptions annually
after such date). The Paying Agent shall promptly forward a copy thereof to each
Certificateholder in the Controlling Class and shall deliver or make available a
copy thereof to other Certificateholders pursuant to Sections 5.4(e) and 5.4(f).
Promptly, and in any event within two Business Days, following any request
therefor by the Depositor, the Master Servicer, the Special Servicer or the
Operating Adviser that is made later than two years following the Closing Date,
the Custodian (or the Trustee) shall deliver an updated schedule of exceptions,
which may be in electronic format (to the extent the prior schedule showed
exceptions), to the requesting Person and the Paying Agent, which shall make
available a copy thereof pursuant to Section 5.4(e).
The Trustee or its authorized agents shall retain possession and
custody of each Trustee Mortgage File in accordance with and subject to the
terms and conditions set forth herein.
The Master Servicer agrees to hold all of the original letters of
credit, which are part of the Mortgage File, in trust for the benefit of the
Trust Fund.
Section 2.3 Repurchase of Mortgage Loans for Material Document
Defects and Material Breaches of Representations and Warranties
(a) If any party hereto discovers that any document or documents
constituting a part of a Mortgage File has not been delivered as and when
required (and including the expiration of any grace or cure period), has not
been properly executed, or is defective on its face or discovers or receives
notice of a breach of any of the representations and warranties relating to the
Mortgage Loans required to be made by a Seller regarding the characteristics of
the Mortgage Loans and/or related Mortgaged Properties as set forth in the
related Mortgage Loan Purchase Agreements, and in either case such defect or
breach either (i) materially and adversely affects the interests of the holders
of the Certificates in the related Mortgage Loan, or (ii) both (A) the document
defect or breach materially and adversely affects the value of the Mortgage Loan
and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated
Mortgage Loan (such a document defect described in the preceding clause (i) or
(ii), a "Material Document Defect," and such a breach described in the preceding
clause (i) or (ii), a "Material Breach") such party shall give prompt written
notice to the other parties hereto and to each Rating Agency subject to the
terms of the applicable Mortgage Loan Purchase Agreement. Promptly (but in any
event within three Business Days) upon becoming aware of any such Material
Document Defect or Material Breach, the Master Servicer shall, and the Special
Servicer may, request that the related Seller, not later than 90 days from such
Seller's receipt of the notice of such Material Document Defect or Material
Breach, cure such Material Document Defect or Material Breach, as the case may
be, in all material respects; provided, however, that if such Material Document
Defect or Material Breach, as the case may be, cannot be corrected or cured in
all material respects within such 90-day period, and such Material Document
Defect or Material Breach would not cause the Mortgage Loan to be other than a
"qualified mortgage" (as defined in the Code) but the related Seller is
diligently attempting to effect such correction or
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cure, as certified by such Seller in an Officer's Certificate delivered to the
Trustee, then the cure period will be extended for an additional 90 days unless,
solely in the case of a Material Document Defect, (x) the Mortgage Loan is at
the end of the initial 90 day period a Specially Serviced Mortgage Loan and a
Servicing Transfer Event has occurred as a result of a monetary default or as
described in clause (ii) or clause (v) of the definition of "Servicing Transfer
Event" and (y) the Material Document Defect was identified in a certification
delivered to the Seller by the Trustee pursuant to Section 2.2 not less than 90
days prior to the delivery of the notice of such Material Document Defect. The
parties acknowledge that neither delivery of a certification or schedule of
exceptions to a Seller pursuant to Section 2.2 or otherwise nor possession of
such certification or schedule by the Seller shall, in and of itself, constitute
delivery of notice of any Material Document Defect or knowledge or awareness by
the Seller of any Material Document Defect listed therein. Notwithstanding
anything herein to the contrary, any breach of the representation and warranty
contained under the heading "Prepayment Premiums" in Exhibit 2 to each Mortgage
Loan Purchase Agreement with respect to any Mortgage Loan shall constitute a
Material Breach only if such prepayment premium or yield maintenance charge is
not deemed "customary" for commercial mortgage loans at the time of origination,
as evidenced by (i) an opinion of tax counsel to such effect or (ii) a
determination by the Internal Revenue Service that such provision is not
customary. In addition, if such Mortgage Loan is modified so that it becomes a
Qualified Substitute Mortgage Loan, such breach shall be deemed cured and the
related Seller will not be obligated to repurchase such Mortgage Loan or
otherwise remedy such breach. The related Seller is required to pay for any
expenses incurred by the Master Servicer or the Special Servicer in connection
with such modification.
If any such Material Document Defect or Material Breach cannot be
corrected or cured in all material respects within the above cure periods, the
related Seller that is the subject of such Material Breach shall be obligated,
not later than the last day of such permitted cure period, to (i) repurchase the
affected Mortgage Loan or REO Mortgage Loan from the Trust at the applicable
Purchase Price in accordance with the related Mortgage Loan Purchase Agreement,
or (ii) if within the two-year period commencing on the Closing Date, at the
related Seller's option, replace, without recourse, such Mortgage Loan or REO
Mortgage Loan with a Qualifying Substitute Mortgage Loan. If such Material
Document Defect or Material Breach would cause the Mortgage Loan to be other
than a "qualified mortgage" (as defined in the Code), then notwithstanding the
previous sentence, the repurchase or substitution must occur within 90 days from
the earlier of the date the related Seller discovered or was notified of the
breach or defect.
As to any Qualifying Substitute Mortgage Loan or Loans, the Master
Servicer shall not execute any instrument effecting the substitution unless the
related Seller has delivered to the Trustee for such Qualifying Substitute
Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the related Assignment
of Mortgage, and such other documents and agreements as are required by Section
2.1, with the Mortgage Note endorsed as required by Section 2.1 and the Master
Servicer shall be entitled to rely on statements and certifications from the
Trustee for this purpose. No substitution may be made in any calendar month
after the Determination Date for such month. Monthly payments due with respect
to Qualifying Substitute Mortgage Loans in the month of substitution shall not
be part of the Trust and will be retained by the Master Servicer and remitted by
the Master Servicer to the related Seller on the next succeeding Distribution
Date. For the month of substitution, distributions to Certificateholders will
include the
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Scheduled Payment due on the related Deleted Mortgage Loan for such month and
thereafter the related Seller shall be entitled to retain all amounts received
in respect of such Deleted Mortgage Loan.
The Master Servicer shall amend or cause to be amended the Mortgage
Loan Schedule to reflect the removal of such Deleted Mortgage Loan and the
substitution of the Qualifying Substitute Mortgage Loan or Loans and upon such
amendment the Master Servicer shall deliver or cause to be delivered such
amended Mortgage Loan Schedule to the Trustee, the Paying Agent and the Special
Servicer. Upon such substitution, the Qualifying Substitute Mortgage Loan or
Loans shall be subject to the terms of this Agreement in all respects. Upon
receipt of the Trustee Mortgage File pertaining to any Qualifying Substitute
Mortgage Loans, the Trustee shall release the Trustee Mortgage File relating to
such Deleted Mortgage Loan to the related Seller, and the Trustee (and the
Depositor, if necessary) shall execute and deliver such instruments of transfer
or assignment in the form presented to it, in each case without recourse,
representation or warranty, as shall be necessary to vest title (to the extent
that such title was transferred to the Trustee or the Depositor) in the related
Seller or its designee to any Deleted Mortgage Loan (including any property
acquired in respect thereof or any insurance policy proceeds relating thereto)
substituted for pursuant to this Section 2.3.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as contemplated
above, (ii) such Mortgage Loan is cross-collateralized and cross-defaulted with
one or more other Mortgage Loans and (iii) the applicable document defect or
breach does not constitute a Material Document Defect or Material Breach, as the
case may be, as to such other Mortgage Loans (without regard to this paragraph),
then the applicable document defect or breach (as the case may be) shall be
deemed to constitute a Material Document Defect or Material Breach (as the case
may be) as to each such other Mortgage Loan for purposes of the above
provisions, and the related Seller shall be obligated to repurchase or replace
each such other Mortgage Loan in accordance with the provisions above unless, in
the case of such breach or document defect, both of the following conditions
would be satisfied if the related Seller were to repurchase or replace only
those Mortgage Loans as to which a Material Breach or Material Document Defect
had occurred without regard to this paragraph (the "Affected Loan(s)"): (1) the
debt service coverage ratio for all such other Mortgage Loans (excluding the
Affected Loan(s)) for the four calendar quarters immediately preceding the
repurchase or replacement (determined as provided in the definition of Debt
Service Coverage Ratio, except that net cash flow for such four calendar
quarters, rather than year-end, shall be used) is equal to the greater of (x)
the debt service coverage ratio for all such Mortgage Loans (including the
Affected Loan(s)) set forth under the heading "NCF DSCR" in Appendix II to the
Final Prospectus Supplement and (y) [1.25]x, and (2) the Loan-to-Value Ratio for
all such other Mortgage Loans (excluding the Affected Loan(s)) is not greater
than the lesser of (x) the current Loan-to-Value Ratio for all such Mortgage
Loans (including the Affected Loan(s)) set forth under the heading "Cut-Off Date
LTV" in Appendix II to the Final Prospectus Supplement and (y) [75]%. The
determination of the Master Servicer as to whether the conditions set forth
above have been satisfied shall be conclusive and binding in the absence of
manifest error. The Master Servicer will be entitled to cause to be delivered,
or direct the related Seller to (in which case the related Seller shall) cause
to be delivered to the Master Servicer: (i) an Appraisal of any or all of the
related Mortgaged Properties for purposes of determining whether the condition
set forth in clause (2) above has been satisfied, in each case at
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the expense of the related Seller if the scope and cost of the Appraisal is
approved by the related Seller (such approval not to be unreasonably withheld)
and (ii) an Opinion of Counsel that not requiring the repurchase of each such
other Mortgage Loan will not result in an Adverse REMIC Event.
With respect to any Mortgage Loan that is cross-defaulted and
cross-collateralized with any other Mortgage Loan conveyed hereunder, to the
extent that the applicable Seller is required to repurchase or substitute for
such Mortgage Loan (each, a "Repurchased Loan") in the manner prescribed above
while the Trustee continues to hold any other Mortgage Loan that is
cross-collateralized and cross-defaulted (each, a "Cross-Collateralized Loan")
with such Repurchased Loan, the related Seller and the Depositor have agreed in
the Mortgage Loan Purchase Agreement to modify, prior to such repurchase or
substitution, the related Mortgage Loan documents in a manner such that such
affected Repurchased Loan, on the one hand, and any related
Crossed-Collateralized Loans held by the Trustee, on the other, would no longer
be cross-defaulted or cross-collateralized with one another; provided that the
applicable Seller shall have furnished the Trustee, at the expense of the
applicable Seller, with a Nondisqualification Opinion that such modification
shall not cause an Adverse REMIC Event; provided, further, that if such
Nondisqualification Opinion cannot be furnished, the applicable Seller and the
Depositor have agreed in the applicable Mortgage Loan Purchase Agreement that
such repurchase or substitution of only the Repurchased Loan, notwithstanding
anything to the contrary herein, shall not be permitted and the applicable
Seller shall repurchase or substitute for the Repurchased Loan and all related
Crossed-Collateralized Loans. Any reserve or other cash collateral or letters of
credit securing the Repurchased Loan and the Cross-Collateralized Loans shall be
allocated between such Mortgage Loans in accordance with the Mortgage Loan
documents. All other terms of the Mortgage Loans shall remain in full force and
effect, without any modification thereof. The Mortgagors set forth on Schedule
VII hereto are intended third-party beneficiaries of the provisions set forth in
this paragraph and the preceding paragraph. The provisions of this paragraph and
the preceding paragraph may not be modified with respect to any Mortgage Loan
without the related Mortgagor's consent.
Upon occurrence (and after any applicable cure or grace period), any
of the following document defects shall be conclusively presumed materially and
adversely to affect the interests of Certificateholders in a Mortgage Loan and
be a Material Document Defect: (a) the absence from the Mortgage File of the
original signed Mortgage Note, unless the Mortgage File contains a signed lost
note affidavit and indemnity and a copy of the Mortgage Note; (b) the absence
from the Mortgage File of the original signed Mortgage, unless there is included
in the Mortgage File (i) a copy of the Mortgage certified by the local authority
with which the Mortgage was recorded or (ii) a true and correct copy of the
Mortgage together with an Officer's Certificate; or (c) the absence from the
Mortgage File of the item called for by paragraph (viii) of the definition of
Mortgage File. If any of the foregoing Material Document Defects is discovered
by the Custodian (or the Trustee if there is no Custodian) or any other party
hereto, the Trustee (or as set forth in Section 2.3(a), the Master Servicer)
will take the steps described elsewhere in this section, including the giving of
notices to the Rating Agencies and the parties hereto and making demand upon the
related Seller for the cure of the document defect or repurchase or replacement
of the related Mortgage Loan.
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(b) If the related Seller disputes that a Material Document Defect
or Material Breach exists with respect to a Mortgage Loan or otherwise refuses
(i) to effect a correction or cure of such Material Document Defect or Material
Breach, (ii) to repurchase the affected Mortgage Loan from the Trust or (iii) to
replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in
accordance with the related Mortgage Loan Purchase Agreement, then provided that
(x) the period of time provided for the related Seller to correct, repurchase or
cure has expired and (y) the Mortgage Loan is then in default and is then a
Specially Serviced Mortgage Loan, the Special Servicer may, subject to the
Servicing Standard, modify, work-out or foreclose, sell or otherwise liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to Section 9.5,
Section 9.12, Section 9.15 and Section 9.36, as applicable, of this Agreement,
while pursuing the repurchase claim. Each Seller acknowledges and agrees that
any modification of the Mortgage Loan pursuant to such a work-out shall not
constitute a defense to any repurchase claim nor shall such modification or
work-out change the Purchase Price due from the related Seller for any
repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the REO Property, to a Person other than the related
Seller shall be without (i) recourse of any kind (either expressed or implied)
by such Person against the related Seller and (ii) representation or warranty of
any kind (either expressed or implied) by the related Seller to or for the
benefit of such Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
the related Seller for repurchase of the REO Mortgage Loan or REO Property. In
such an event, the Master Servicer or Special Servicer, as applicable, shall
notify the related Seller of the discovery of the Material Document Defect or
Material Breach and the related Seller shall be required to follow the
procedures set forth in the related Mortgage Loan Purchase Agreement to correct
or cure such Material Document Defect or Material Breach or purchase the REO
Property at the Purchase Price. If the related Seller fails to correct or cure
the Material Document Defect or Material Breach or purchase the REO Property,
then the provisions above regarding notice of offers related to such REO
Property and the related Seller's right to purchase such REO Property shall
apply. If a court of competent jurisdiction issues a final order that the
related Seller is or was obligated to repurchase the related Mortgage Loan or
REO Mortgage Loan or the related Seller otherwise accepts liability, then, after
the expiration of any applicable appeal period, but in no event later than the
termination of the Trust pursuant to Section 9.30 hereof, the related Seller
will be obligated to pay to the Trust the difference between any Liquidation
Proceeds received upon such liquidation (including those arising from any sale
to the related Seller) and the Purchase Price; provided that the prevailing
party in such action shall be entitled to recover all costs, fees and expenses
(including reasonable attorneys fees) related thereto; provided, further, that
if the Seller is the prevailing party in such action, such costs, fees and
expenses (including reasonable attorneys fees) shall be an Additional Trust
Expense.
In connection with any liquidation or sale of a Mortgage Loan or REO
Property as described above, the Special Servicer will not receive a Liquidation
Fee in connection with such liquidation or sale or any portion of the Work-Out
Fee that accrues after the related Seller receives notice of a breach or defect
until a final determination has been made, as set forth in the prior paragraph,
as to whether the related Seller is or was obligated to repurchase such related
Mortgage Loan or REO Property. Subject to the last two sentences of the first
paragraph of
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Section 2.3(a), upon such determination, the Special Servicer will be entitled:
(i) with respect to a determination that the related Seller is or was obligated
to repurchase a Mortgage Loan, to collect a Liquidation Fee, if due in
accordance with the definition thereof, based upon the full Purchase Price of
the related Mortgage Loan or REO Property, with such Liquidation Fee payable by
the related Seller or (ii) with respect to a determination that the related
Seller is not or was not obligated to repurchase a Mortgage Loan (or the Trust
decides that it will no longer pursue a claim against the Seller for
repurchase), (A) to collect a Liquidation Fee based upon the Liquidation
Proceeds as received upon the actual sale or liquidation of such Mortgage Loan
or REO Property, and (B) collect any accrued and unpaid Work-Out Fee, based on
amounts that were collected for as long as the related Mortgage Loan was a
Rehabilitated Mortgage Loan, in each case with such amounts to be paid from
amounts in the Certificate Account.
In any month in which the related Seller substitutes one or more
Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
Master Servicer will determine the amount (if any) by which the aggregate
Principal Balance of all such Qualifying Substitute Mortgage Loans as of the
date of substitution is less than the aggregate Principal Balance of all such
Deleted Mortgage Loans (in each case after application of scheduled principal
portion of the monthly payments received in the month of substitution). The
Depositor shall cause the related Seller to deposit the amount of such shortage
into the Certificate Account in the month of substitution, without any
reimbursement thereof. In addition, the Depositor shall cause the related Seller
to deposit into the Certificate Account, together with such shortage, if any, an
amount equal to interest on the Deleted Mortgage Loans at a rate equal to the
sum of the applicable Mortgage Rate from the Due Date as to which interest was
last paid up to the Due Date next succeeding such substitution together with the
amount of unreimbursed Servicing Advances, amounts required to be paid to the
Special Servicer but remaining unpaid or unreimbursed, and interest on
unreimbursed Advances with respect to such Deleted Mortgage Loans at the Advance
Rate. The Depositor shall cause the related Seller, in the case of the Mortgage
Loans, to give notice in writing (accompanied by an Officer's Certificate as to
the calculation of such shortage) to the Trustee, the Paying Agent and the
Master Servicer of such event which notice shall be accompanied by an Officer's
Certificate as to the calculation of such shortfall.
If the affected Mortgage Loan is to be repurchased, the Master
Servicer shall designate the Certificate Account as the account to which funds
in the amount of the Purchase Price are to be wired. Any such purchase of a
Mortgage Loan shall be on a whole loan, servicing released basis.
(c) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 2.3, the Trustee, the Master Servicer
and the Special Servicer shall each tender to the related Seller, upon delivery
to each of them of a receipt executed by such Seller, all portions of the
Mortgage File and other documents pertaining to such Mortgage Loan possessed by
it (including, without limitation, all documents delivered to the Trustee and
the Master Servicer pursuant to the related Mortgage Loan Purchase Agreement),
and each document that constitutes a part of the Mortgage File shall be endorsed
or assigned to the extent necessary or appropriate to the related Seller or its
designee in the same manner, and pursuant to appropriate forms of assignment,
substantially similar to the manner and forms pursuant to which documents were
previously assigned to the Trustee, but in any event, without recourse,
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representation or warranty; provided that such tender by the Trustee shall be
conditioned upon its receipt from the Master Servicer of a Request for Release.
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 2.3, and the Trustee shall execute and
deliver any powers of attorney necessary to permit the Master Servicer to do so.
The Master Servicer shall, and is also hereby authorized and empowered by the
Trustee to, reconvey to the related Seller any deposits then held in the
applicable Escrow Account relating to the Mortgage Loan being repurchased or
substituted for. The Master Servicer shall indemnify the Trustee for all costs,
liabilities and expenses (including attorneys' fees) incurred by the Trustee in
connection with any negligent or intentional misuse of any such powers of
attorney by the Master Servicer.
(d) The Mortgage Loan Purchase Agreements provide the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Material Document Defect or Material Breach.
The parties hereunder understand that each Seller under the applicable Mortgage
Loan Purchase Agreement will be providing the remedies with respect to the
Mortgage Loans sold by such Seller.
(d) The Trustee shall enforce the provisions of this Section 2.3.
Alternatively, the Trustee may, in its sole discretion, appoint a designee to
enforce such provisions (which, with the Master Servicer's consent, may be the
Master Servicer or which, with the Special Servicer's consent, may be the
Special Servicer).
Section 2.4 Representations and Warranties
The Depositor hereby represents and warrants to the Master Servicer,
the Special Servicer, the Trustee (in its capacity as Trustee of the Trust) and
the Paying Agent as of the Closing Date that:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence and has
full corporate power and authority to own its property, to carry on its business
as presently conducted, to enter into and perform its obligations under this
Agreement, and to create the trust pursuant hereto;
(b) The execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part of the
Depositor; neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, (i) any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties; (ii) the certificate of incorporation or bylaws of the Depositor; or
(iii) the terms of any indenture or other agreement or instrument to which the
Depositor is a party or by which it is bound; neither the Depositor nor any of
its Affiliates is a party to, bound by, or in breach of or violation of any
indenture or other agreement or instrument, or subject to or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially and
adversely affects or to the best knowledge of the Depositor may in the future
materially and adversely affect (i) the ability of the Depositor to
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perform its obligations under this Agreement or (ii) the business, operations,
financial condition, properties or assets of the Depositor;
(c) The execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms;
(e) There are no actions, suits or proceedings pending or, to the
best of the Depositor's knowledge, threatened or likely to be asserted against
or affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) with respect to any other matter which in
the judgment of the Depositor will be determined adversely to the Depositor and
will, if determined adversely to the Depositor, materially and adversely affect
it or its business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this Agreement;
and
(f) Immediately prior to the consummation of the transactions
contemplated in this Agreement, the Depositor had good title to and was the sole
owner of each Mortgage Loan free and clear of any and all adverse claims,
charges or security interests (including liens arising under the federal tax
laws or the Employee Retirement Income Security Act of 1974, as amended).
Section 2.5 Conveyance of Interests
Effective as of the Closing Date, the Depositor does hereby
transfer, assign, set over, deposit with and otherwise convey to the Trustee,
without recourse, in trust, all the right, title and interest of the Depositor
in and to (i) the assets of REMIC I in exchange for the REMIC I Interests, (ii)
the assets of REMIC II in exchange for the REMIC II Interests, (iii) the assets
of REMIC III in exchange for the REMIC III Certificates, (iv) the assets of the
Class EI Grantor Trust in exchange for the Class [EI] Certificates and (v) the
Class A-3-1FL Regular Interest in exchange for the Class [A-3-1FL] Certificates.
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates
(a) The Certificates shall be in substantially the forms set forth
in Exhibits A-1 through A-31 hereto, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Agreement or as may in the reasonable
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judgment of the Trustee or the Depositor be necessary, appropriate or convenient
to comply, or facilitate compliance, with applicable laws, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange on which any of the Certificates may be listed, or as may,
consistently herewith, be determined by the officers executing such
Certificates, as evidenced by their execution thereof.
The Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
(b) The Class [A] Certificates and the Class [A-J] Certificates will
be issuable in denominations of $[25,000] initial Certificate Balance and in any
whole dollar denomination in excess thereof. The Class [X] (other than the Class
[X-2] Certificates), 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 will be issuable in denominations of
$[100,000] initial Certificate Balance or initial Notional Amount (as
applicable) or in any whole dollar denomination in excess thereof. The Class
[X-2] Certificates will be issuable in denominations of $[1,000,0000] initial
Certificate Balance and in any whole dollar denomination in excess thereof. The
Class [EI], Class [R-I], Class [R-II] and Class [R-III] Certificates each will
be issued in minimum Percentage Interests of 10% and integral multiples of 10%
in excess thereof and together aggregating the entire 100% Percentage Interest
in each such Class.
(c) Each Certificate shall, on original issue, be executed by the
Certificate Registrar and authenticated by the Authenticating Agent upon the
order of the Depositor. No Certificate shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Authenticating Agent by
manual signature, and such certification 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. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates to the
Authenticating Agent for authentication and the Authenticating Agent shall
authenticate and deliver such Certificates as in this Agreement provided and not
otherwise. In the event that additional Certificates need to be prepared at any
time subsequent to the Closing Date, the Depositor shall prepare, or cause to be
prepared, deliver, or cause to be delivered, at the Depositor's expense, any
such additional Certificates. With respect to the Class [A], Class [A-J], Class
[X-1], Class [X-2], 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 that are issued in book-entry form, on the Closing
Date, the Authenticating Agent upon the order of the Depositor shall
authenticate Book-Entry Certificates that are issued to a Clearing Agency or its
nominee as provided in Section 3.7 against payment of the purchase price
thereof. With respect to the Class [J], Class [K], Class [L], Class [M], Class
[N], Class [O], Class [P], Class [EI] and Class [X-Y] Certificates that are
issued in definitive form, on the Closing Date, the Authenticating Agent upon
the order of the Depositor shall authenticate
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Definitive Certificates that are issued to the registered holder thereof against
payment of the purchase price thereof.
Section 3.2 Registration
The Paying Agent shall be the initial Certificate Registrar in
respect of the Certificates and the Certificate Registrar shall maintain books
for the registration and for the transfer of Certificates (the "Certificate
Register"). The Certificate Registrar may resign or be discharged or removed by
the Paying Agent or the Certificateholders, and a new successor may be
appointed, in accordance with the procedures and requirements set forth in
Sections 7.6 and 7.7 hereof with respect to the resignation, discharge or
removal of the Paying Agent and the appointment of a successor Paying Agent. The
Certificate Registrar may appoint, by a written instrument delivered to the
Holders and the Trustee, any trust company to act as co-registrar under such
conditions as the Certificate Registrar may prescribe; provided that the
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
Section 3.3 Transfer and Exchange of Certificates
(a) A Certificate may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the Corporate Trust Office,
duly endorsed or accompanied by a written instrument of transfer duly executed
by such Holder or such Holder's duly authorized attorney in such form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, and subject to the
restrictions set forth in the other subsections of this Section 3.3, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver to the transferee, one or more new Certificates of the
same Class and evidencing, in the aggregate, the same aggregate initial
Certificate Balance, initial Notional Amount or Percentage Interest, as the case
may be, as the Certificate being transferred. No service charge shall be made to
a Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
or transfer of Certificates. The Certificate Registrar may decline to accept any
request for a registration of transfer of any Certificate during the period
beginning five calendar days prior to any Distribution Date.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same initial Certificate Balance, initial
Notional Amount or Percentage Interest, as the case may be, as the Certificate
surrendered, upon surrender of the Certificate to be exchanged at the offices of
the Certificate Registrar duly endorsed or accompanied by a written instrument
of exchange duly executed by such Holder or such Holder's duly authorized
attorney in such form as is satisfactory to the Certificate Registrar.
Certificates delivered upon any such exchange will evidence the same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Certificate
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Registrar shall execute and the Authenticating Agent shall authenticate, date
and deliver the Certificates which the Certificateholder making the exchange is
entitled to receive.
(c) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless such
transfer, sale, pledge or other disposition 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 Non-Registered Certificate held
as a Definitive Certificate is to be made without registration under the
Securities Act (other than in connection with a transfer of such Non-Registered
Certificate by the Depositor or one of its Affiliates), then the Certificate
Registrar shall refuse to register such transfer unless it receives (and upon
receipt, may conclusively rely upon) either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit D-1 hereto and a certificate from such Certificateholder's
prospective Transferee substantially in the form attached either as Exhibit D-2A
hereto or as Exhibit D-2B hereto; or (ii) an Opinion of Counsel satisfactory to
the Certificate Registrar to the effect that such transfer shall be made without
registration under the Securities Act, 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 (such Opinion of Counsel shall not be an expense of the Trust or of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent, the
Trustee or the Certificate Registrar in their respective capacities as such). If
a transfer of any interest in a Non-Registered Certificate that constitutes a
Book-Entry Certificate is to be made without registration under the Securities
Act (other than in connection with the initial issuance of the Certificates or a
transfer of any interest in such Non-Registered Certificate by the Depositor or
any of its Affiliates), then the Certificate Owner desiring to effect such
transfer shall be required to obtain either (i) a certificate from such
Certificate Owner's prospective Transferee substantially in the form attached as
Exhibit D-3A hereto or as Exhibit D-3B hereto, or (ii) an Opinion of Counsel to
the effect that such transfer may be made without registration under the
Securities Act. None of the Depositor, the Paying Agent, the Trustee, the Master
Servicer, the Special Servicer 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 Certificate. Any
Certificateholder or Certificate Owner desiring to effect a transfer of
Non-Registered Certificates or interests therein shall, and does hereby agree
to, indemnify the Depositor, each Underwriter, the Trustee, the Master Servicer,
the Special Servicer, the Paying Agent and the Certificate Registrar against any
liability that may result if the transfer is not exempt from such registration
or qualification or is not made in accordance with such federal and state laws.
(d) No transfer of a Non-Investment Grade Certificate, Class [EI]
Certificate or Residual Certificate or any interest therein shall be made (A) to
any retirement plan or other employee benefit plan or 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, without limitation, insurance company
general accounts, that is subject to ERISA or Section 4975 of the Code or any
applicable federal, state or local law ("Similar Laws") materially similar to
the foregoing provisions of ERISA or the Code (each, a "Plan"), (B) in
book-entry form to an Institutional Accredited Investor who is not also a
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Qualified Institutional Buyer or (C) 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 "plan assets" of a Plan, unless: (i) in the case of a
Non-Investment Grade Certificate that constitutes a Book-Entry Certificate and
is being sold to a Qualified Institutional Buyer, the purchase and holding of
such Certificate or interest therein qualifies for the exemptive relief
available under Sections I and III of U.S. Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 95-60; or (ii) in the case of a
Non-Investment Grade Certificate held as a Definitive Certificate, the
prospective Transferee provides the Certificate Registrar with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Certificate Registrar that such transfer will not constitute or result in a
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of
the Code or materially similar provisions of applicable federal, state or local
law or subject the Depositor, the Trustee, the Paying Agent, the Master
Servicer, the Special Servicer or the Certificate Registrar to any obligation in
addition to those undertaken in this Agreement. Each Person who acquires any
Non-Investment Grade Certificate or Residual Certificate or interest therein
(unless it shall have acquired such Certificate or interest therein from the
Depositor or an Affiliate thereof or, in the case of a Non-Investment Grade
Certificate, unless it shall have delivered to the Certificate Registrar the
certification of facts and Opinion of Counsel referred to in clause (ii) of the
preceding sentence) shall be required to deliver to the Certificate Registrar
(or, in the case of an interest in a Non-Investment Grade Certificate that
constitutes a Book-Entry Certificate, to the Certificate Owner that is
transferring such interest) a certification to the effect that: (i) it is
neither a Plan nor 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 "plan assets" of a Plan; or (ii) in the case of a Non-Investment
Grade Certificate, that the purchase and holding of such Certificate or interest
therein by such Person qualifies for the exemptive relief available under
Sections I and III of PTCE 95-60 or another exemption from the "prohibited
transactions" rules under ERISA by the U.S. Department of Labor. No transfer of
a Class EI or Residual Certificate will be made to any Person that does not make
the representation in clause (i) of the preceding sentence.
(e) Each Person who has or who acquires any Ownership Interest in a
Residual 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 Paying Agent under clause (F) below to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Certificate Registrar under clause (G) below to negotiate the terms of any
mandatory sale and to execute all instruments of Transfer and to do all other
things necessary in connection with any such sale. The rights of such Person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and a United
States Tax Person and shall promptly notify the Certificate
Registrar 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 Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit and agreement substantially in the form
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attached hereto as Exhibit E-1 (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance
satisfactory to the Certificate Registrar, representing and
warranting, among other things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership Interest in the
Residual 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 Certificate, it will endeavor to remain a Permitted
Transferee, that it is a United States Tax Person, that it has
historically paid its debts as they have come due and will continue
to do so in the future, that it understands that its tax liability
with respect to the Residual Certificates may exceed cash flows
thereon and it intends to pay such taxes as they come due, that it
will provide the Certificate Registrar with all information
necessary to determine that the applicable paragraphs of Section 14
of such Transfer Affidavit and Agreement are true or that Section 14
is not applicable, that it will not cause income with respect to the
Residual Certificate to be attributable to a foreign permanent
establishment or fixed base (within the meaning of an applicable
income tax treaty) of such Person or any other United States Tax
Person and that it has reviewed the provisions of this Section
3.3(e) 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 the
Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee or is not a United States
Tax Person, no Transfer of an Ownership Interest in a Residual
Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring an Ownership Interest in
a Residual 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
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar
a certificate substantially in the form attached hereto as Exhibit
E-2 among other things stating that (x) it has conducted a
reasonable investigation of the financial condition of the proposed
Transferee and, as a result of the investigation, the Transferor
determines that the proposed Transferee had historically paid its
debts as they came due and found no significant evidence that the
proposed Transferee will not continue to pay its debts as they come
due in the future and, (y) it has no actual knowledge that such
prospective Transferee is not a Permitted Transferee or is not a
United States Tax Person.
(E) Each Person holding or acquiring an Ownership Interest in
a Residual Certificate that is a "pass-through interest holder"
within the meaning of temporary Treasury Regulations Section
1.67-3T(a)(2)(i)(A) or is holding an Ownership Interest in a
Residual Certificate on behalf of a "pass-through interest holder,"
by purchasing an Ownership Interest in such Certificate, agrees to
give the Certificate Registrar written notice of its status as such
immediately upon holding or acquiring such Ownership Interest in a
Residual Certificate.
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(F) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
3.3(e) or if any Holder of a Residual Certificate shall lose its
status as a Permitted Transferee or a United States Tax Person, then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 3.3(e) shall be
restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of
registration of such Transfer of such Residual Certificate. None of
the Trustee, the Master Servicer, the Special Servicer, the
Certificate Registrar or the Paying Agent shall be under any
liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by this Section
3.3(e) 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.
(G) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this
Section 3.3(e), or if any Holder of a Residual Certificate shall
lose its status as a Permitted Transferee or a United States Person,
and to the extent that the retroactive restoration of the rights and
obligations of the prior Holder of such Residual Certificate as
described in clause (F) above shall be invalid, illegal or
unenforceable, then the Trustee shall have the right, without notice
to the Holder or any prior Holder of such Residual Certificate, but
not the obligation, to sell or cause to be sold such Residual
Certificate to a purchaser selected by the Trustee on such terms as
the Trustee may choose. Such noncomplying Holder shall promptly
endorse and deliver such Residual Certificate in accordance with the
instructions of the Certificate Registrar. Such purchaser may be the
Certificate Registrar itself or any Affiliate of the Certificate
Registrar. The proceeds of such sale, net of the commissions (which
may include commissions payable to the Certificate Registrar or its
Affiliates), expenses and taxes due, if any, will be remitted by the
Certificate Registrar to such noncomplying Holder. The terms and
conditions of any sale under this clause (G) shall be determined in
the sole discretion of the Certificate Registrar, and the
Certificate Registrar shall not be liable to any Person having an
Ownership Interest in a Residual Certificate as a result of its
exercise of such discretion.
The Trustee shall make available to the Internal Revenue Service and those
Persons specified by the REMIC Provisions, all information in its possession
necessary to compute any tax imposed as a result of the Transfer of an Ownership
Interest in a Residual Certificate to any Person who is not a Permitted
Transferee, 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 Certificate. The Person holding the Ownership Interest in a
Residual Certificate shall be responsible for the reasonable compensation of the
Trustee for providing such information. The Master Servicer shall take all
reasonable action to cooperate with the Trustee in making such information
available.
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The provisions of this Section 3.3(e) may be modified, added to or
eliminated, provided that there shall have been delivered to the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer, the Operating
Adviser and the Depositor the following:
(A) written notification from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to qualify, downgrade
or withdraw its then current rating of any Class of Certificates;
and
(B) an Opinion of Counsel, in form and substance satisfactory
to the Trustee, the Certificate Registrar and the Depositor, to the
effect that such modification of, addition to or elimination of such
provisions will not cause any REMIC Pool to (x) cease to qualify as
a REMIC or (y) be subject to an entity-level tax caused by the
Transfer of any Residual Certificate to a Person which is not a
Permitted Transferee, or cause a Person other than the prospective
Transferee to be subject to a tax caused by the Transfer of a
Residual Certificate to a Person which is not a Permitted
Transferee.
(f) None of the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent or the Certificate Registrar shall have any liability to the
Trust arising from a transfer of any Certificate in reliance upon a
certification, ruling or Opinion of Counsel described in this Section 3.3;
provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in Section 3.3(e); provided, further, that the
Certificate Registrar shall not register the transfer of a Noneconomic Residual
Interest if it shall have received notice that the Transferor has determined, as
a result of the investigation under Section 3.3(e)(D), that the proposed
Transferee has not paid its debts as they came due or that it will not pay its
debts as they come due in the future. The Certificate Registrar shall have no
obligation or duty to monitor, determine or inquire as to compliance with any
restriction on transfer or exchange of Certificates or any interest therein
imposed under this Article III or under applicable law other than to require
delivery of the certifications and/or opinions described in this Article III;
provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in Section 3.3(e). The Certificate Registrar shall have
no liability for transfers (including without limitation transfers made through
the book-entry facilities of the Depository or between or among Participants or
Certificate Owners) made in violation of applicable restrictions, provided that
the Certificate Registrar has satisfied its duties expressly set forth in
Sections 3.3(c), 3.3(d) and 3.3(e).
(g) All Certificates surrendered for transfer and exchange shall be
physically cancelled by the Certificate Registrar, and the Certificate Registrar
shall hold such cancelled Certificates in accordance with its standard
procedures.
(h) The Certificate Registrar shall provide the Master Servicer, the
Special Servicer and the Depositor, upon written request, with an updated copy
of the Certificate Register within a reasonable period of time following receipt
of such request.
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(i) Unless and until it is exchanged in whole for the individual
Certificates represented thereby, a Global Certificate representing all of the
Certificates of a Class may not be transferred, except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Clearing Agency or a nominee of such successor
Clearing Agency, and no such transfer to any such other Person may be
registered; provided that this subsection (i) shall not prohibit any transfer of
a Certificate of a Class that is issued in exchange for a Global Certificate of
the same Class pursuant to Section 3.9 below. Nothing in this subsection (i)
shall prohibit or render ineffective any transfer of a beneficial interest in a
Global Certificate effected in accordance with the other provisions of this
Section 3.3.
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates
If (A) 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 (B) except in the case of
a mutilated Certificate so surrendered, there is delivered to the Certificate
Registrar such security or indemnity as may be required by it to save it
harmless, then, in the absence of notice to 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 like tenor and interest in the Trust.
In connection with the issuance of any new Certificate under this Section 3.4,
the Certificate Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section 3.4 shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
Section 3.5 Persons Deemed Owners
Prior to presentation of a Certificate for registration of transfer,
the Master Servicer, the Special Servicer, the Trustee, the Operating Adviser,
the Paying Agent and any agents of the Master Servicer, the Special Servicer,
the Paying Agent, the Trustee or the Operating Adviser may treat the Person in
whose name any Certificate is registered as of the related Record Date as the
owner of such Certificate for the purpose of receiving distributions as provided
in this Agreement and for all other purposes whatsoever, and none of the Master
Servicer, the Special Servicer, the Trustee, the Paying Agent, the Operating
Adviser or any agent of the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent or the Operating Adviser shall be affected by any notice to the
contrary.
Section 3.6 Access to List of Certificateholders' Names and
Addresses
If three or more Certificateholders, a Certificateholder holding all
the Certificates of any Class of Certificates, the Master Servicer, the Special
Servicer, the Paying Agent, the Trustee, the Operating Adviser or the Depositor
(A) request in writing from the Certificate Registrar a list of the names and
addresses of Certificateholders and (B) in the case of a request
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by Certificateholders, state that such Certificateholders desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates, then the Certificate Registrar shall, within ten
Business Days after the receipt of such request, afford such Certificateholders,
the Master Servicer, the Special Servicer, the Depositor, the Paying Agent, the
Trustee, the Swap Counterparty or the Operating Adviser, as applicable, access
during normal business hours to a current list of the Certificateholders. The
expense of providing any such information requested by such Person shall be
borne by the party requesting such information and shall not be borne by the
Certificate Registrar or the Trustee. Every Certificateholder, by receiving and
holding a Certificate, agrees that the Certificate Registrar and the Trustee
shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
Section 3.7 Book-Entry Certificates
(a) The Class A-1, Class A-1A, Class A-2, Class A-3-1FL, Class
A-3-1, Class A-3-2, Class A-AB, Class X-0X, Xxxxx X-0X, Xxxxx X-X, Class X-1,
Class X-2, 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, upon
original issuance, each shall be issued in the form of one or more Certificates
representing the Book-Entry Certificates, to be delivered to the Certificate
Registrar, as custodian for The Depository Trust Company (the "Depository"), the
initial Clearing Agency, by, or on behalf of, the Depositor, provided that any
Non-Investment Grade Certificates sold to Institutional Accredited Investors who
are not Qualified Institutional Buyers will be issued as Definitive
Certificates. The Certificates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of the Depository, as the
initial Clearing Agency, and no Certificate Owner will receive a definitive
certificate representing such Certificate Owner's interest in the Certificates,
except as provided in Section 3.9. Unless and until Definitive Certificates have
been issued to the Certificate Owners pursuant to Section 3.9:
(i) the provisions of this Section 3.7 shall be in full force and
effect with respect to each such Class;
(ii) the Depositor, the Master Servicer, the Paying Agent, the
Certificate Registrar and the Trustee may deal with the Clearing Agency
for all purposes (including the making of distributions on the
Certificates) as the authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.7 conflict
with any other provisions of this Agreement, the provisions of this
Section 3.7 shall control with respect to each such Class; and
(iv) the rights of the Certificate Owners of each such Class shall
be exercised only through the Clearing Agency and the applicable
Participants and shall be limited to those established by law and
agreements between such Certificate Owners and the Clearing Agency and/or
the Participants. Pursuant to the Depository Agreement, unless and until
Certificates are issued pursuant to Section 3.9, the initial Clearing
Agency will
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make book-entry transfers among the Participants and receive and transmit
distributions of principal and interest on the related Certificates to
such Participants.
(b) For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of the
Certificates evidencing a specified percentage of the aggregate unpaid principal
amount of Certificates, such direction or consent may be given by the Clearing
Agency at the direction of Certificate Owners owning Certificates evidencing the
requisite percentage of principal amount of Certificates. The Clearing Agency
may take conflicting actions with respect to the Certificates to the extent that
such actions are taken on behalf of the Certificate Owners.
(c) The Certificates of each Class (other than the Residual
Certificates) initially sold in reliance on Rule 144A or with respect to the
Class [A-1], Class [A-1A], Class [A-2], Class [A-3-1FL], Class [A-3-1], Class
[A-3-2], Class [A-AB], Class [A-4A], Class [A-4B], Class [A-J], Class [B], Class
[C], Class [D], Class [E], Class [F], Class [G] and Class [H] Certificates sold
to Institutional Accredited Investors shall be represented by the Rule 144A IAI
Global Certificate for such Class, which shall be deposited with the Certificate
Registrar, as custodian for the Depository and registered in the name of Cede &
Co. as nominee of the Depository. The Class [J], Class [K], Class [L], Class
[M], Class [N], Class [O] and Class [P] Certificates initially sold to
Institutional Accredited Investors shall be represented by IAI Definitive
Certificates for such Class. The Certificates evidenced by any Rule 144A IAI
Global Certificate or IAI Definitive Certificate shall be subject to certain
restrictions on transfer as set forth in Section 3.3 hereof and shall bear
legend(s) regarding such restrictions described herein.
(d) The Certificates of each Class (other than the Residual
Certificates) initially sold in offshore transactions in reliance on Regulation
S shall be represented by the Regulation S Temporary Global Certificate for such
Class, which shall be deposited with the Certificate Registrar, as custodian for
the Depository and registered in the name of Cede & Co. as nominee of the
Depository. Not earlier than the Release Date, beneficial interests in any
Regulation S Temporary Global Certificate shall be exchangeable for beneficial
interests in the Regulation S Permanent Global Certificate for such Class.
Beneficial interests in any Regulation S Temporary Global Certificate may be
held only through Euroclear or Clearstream; provided, however, that such
interests may be exchanged for interests in the Rule 144A IAI Global Certificate
for such Class in accordance with the certification requirements described in
Section 3.7(f). The Regulation S Permanent Global Certificates shall be
deposited with the Certificate Registrar, as custodian for the Depository and
registered in the name of Cede & Co. as nominee of the Depository.
On or prior to the Release Date and on or prior to any Distribution
Date occurring prior to the Release Date, each Certificate Owner of a Regulation
S Temporary Global Certificate that holds a beneficial interest therein on the
Release Date or on any such Distribution Date, as the case may be, must deliver
to Euroclear or Clearstream (as applicable) a Regulation S Certificate;
provided, however, that any Certificate Owner that holds a beneficial interest
in a Regulation S Temporary Global Certificate on the Release Date or on any
such Distribution Date that has previously delivered a Regulation S Certificate
to Euroclear or Clearstream with respect to its interest therein does not need
to deliver any subsequent Regulation S Certificate (unless the
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certificate previously delivered is no longer true as of such subsequent date,
and such Certificate Owner must promptly notify Euroclear or Clearstream, as
applicable, thereof). Euroclear or Clearstream, as applicable, shall be required
to promptly deliver to the Certificate Registrar a certificate substantially in
the form of Exhibit H hereto to the effect that it has received the requisite
Regulation S Certificates for each such Class, and no Certificate Owner (or
transferee from any such Certificate Owner) shall be entitled to receive an
interest in the Regulation S Permanent Global Certificate for such Class or any
payment or principal or interest with respect to its interest in such Regulation
S Temporary Global Certificate prior to the Certificate Registrar receiving such
certification from Euroclear or Clearstream with respect to the portion of the
Regulation S Temporary Global Certificate owned by such Certificate Owner (and,
with respect to an interest in the applicable Regulation S Permanent Global
Certificate, prior to the Release Date). After the Release Date, distributions
due with respect to any beneficial interest in a Regulation S Temporary Global
Certificate shall not be made to the holders of such beneficial interests unless
exchange for a beneficial interest in the related Regulation S Permanent Global
Certificate is improperly withheld or refused. No interest in a Regulation S
Global Certificate may be held by or transferred to a U.S. Person (as defined in
Regulation S) except for exchanges for a beneficial interest in the Rule 144A
IAI Global Certificate for such Class as described in Section 3.7(f).
(e) Except in the limited circumstances described below in Section
3.9, owners of beneficial interests in Global Certificates shall not be entitled
to receive physical delivery of Definitive Certificates. The Certificates are
not issuable in bearer form. Upon the issuance of each Global Certificate, the
Depository or its custodian shall credit, on its internal system, the respective
principal amount of the individual beneficial interests represented by such
Global Certificate to the accounts of Persons who have accounts with such
Depository. Such accounts initially shall be designated by or on behalf of the
Underwriters and Placement Agents. Ownership of beneficial interests in a Global
Certificate shall be limited to Customers or Persons who hold interests directly
or indirectly through Customers. Ownership of beneficial interests in the Global
Certificates shall be shown on, and the transfer of that ownership shall be
effected only through, records maintained by the Depository or its nominee (with
respect to interests of Customers) and the records of Customers (with respect to
interests of Persons other than Customers).
So long as the Depository, or its nominee, is the registered holder
of a Global Certificate, the Depository or such nominee, as the case may be,
shall be considered the sole owner and holder of the Certificates represented by
such Global Certificate for all purposes under this Agreement and the
Certificates, including, without limitation, obtaining consents and waivers
thereunder, and the Trustee, the Paying Agent and the Certificate Registrar
shall not be affected by any notice to the contrary. Except under the
circumstance described in Section 3.9, owners of beneficial interests in a
Global Certificate will not be entitled to have any portions of such Global
Certificate registered in their names, will not receive or be entitled to
receive physical delivery of Definitive Certificates in certificated form and
shall not be considered the owners or holders of the Global Certificate (or any
Certificates represented thereby) under this Agreement or the Certificates. In
addition, no Certificate Owner of an interest in a Global Certificate shall be
able to transfer that interest except in accordance with the Depository's
applicable procedures (in addition to those under this Agreement and, if
applicable, those of Euroclear and Clearstream).
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(f) Any holder of an interest in a Regulation S Global Certificate
shall have the right, upon prior written notice to the Certificate Registrar,
Euroclear or Clearstream, as applicable, and the Depository, in the form of an
Exchange Certification (substantially in the form of Exhibit G attached hereto),
to exchange all or a portion of such interest (in authorized denominations as
set forth in Section 3.1(b)) for an equivalent interest in the Rule 144A IAI
Global Certificate for such Class in connection with a transfer of its interest
therein to a transferee that is eligible to hold an interest in such Rule 144A
IAI Global Certificate as described herein; provided, however, that no Exchange
Certification shall be required if any such exchange occurs after the Release
Date. Any holder of an interest in the Rule 144A IAI Global Certificate shall
have the right, upon prior written notice to the Certificate Registrar, the
Depository and Euroclear or Clearstream, as applicable, in the form of an
Exchange Certification, to exchange all or a portion of such interest (in
authorized denominations as set forth in Section 3.1(b)) for an equivalent
interest in the Regulation S Global Certificate for such Class in connection
with a transfer of its interest therein to a transferee that is eligible to hold
an interest in such Regulation S Global Certificate as described herein;
provided, however, that if such exchange occurs prior to the Release Date, the
transferee shall acquire an interest in a Regulation S Temporary Global
Certificate only and shall be subject to all of the restrictions associated
therewith described in Section 3.7(d). Following receipt of any Exchange
Certification or request for transfer, as applicable, by the Certificate
Registrar: (i) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates being exchanged
to reduce the stated principal amount of such Global Certificate by the
denominations of the Certificate or Certificates for which such exchange is to
be made, and (ii) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates for which such
exchange is to be made to increase the stated principal amount of such Global
Certificate by the denominations of the Certificate or Certificates being
exchanged therefor. The form of the Exchange Certification shall be available
from the Certificate Registrar.
Section 3.8 Notices to Clearing Agency
Whenever notice or other communication to the Certificateholders is
required under this Agreement, unless and until Definitive Certificates shall
have been issued to the related Certificateholders pursuant to Section 3.9, the
Paying Agent shall give all such notices and communications specified herein to
be given to Holders of the Book-Entry Certificates to the Clearing Agency which
shall give such notices and communications to the related Participants in
accordance with its applicable rules, regulations and procedures.
Section 3.9 Definitive Certificates
(a) Definitive Certificates will be issued to the owners of
beneficial interests in a Global Certificate or their nominees if (i) the
Clearing Agency notifies the Depositor and the Certificate Registrar in writing
that the Clearing Agency is unwilling or unable to continue as depositary for
such Global Certificate and a qualifying successor depositary is not appointed
by the Depositor within 90 days thereof, (ii) the Trustee has instituted or
caused to be instituted or has been directed to institute any judicial
proceeding in a court to enforce the rights of the Certificateholders under this
Agreement and under such Global Certificate and the Trustee has been advised by
counsel that in connection with such proceeding it is necessary or advisable for
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the Trustee or its custodian to obtain possession of such Global Certificate, or
(iii) after the occurrence of an Event of Default, Certificate Owners
representing a majority in aggregate outstanding Certificate Balance of such
Global Certificate advise the Clearing Agency through the Participants in
writing (and the Clearing Agency so advises the Depositor, the Certificate
Registrar and the Master Servicer in writing) that the continuation in global
form of the Certificates being evidenced by such Global Certificate is no longer
in their best interests; provided that under no circumstances will Definitive
Certificates be issued to Certificate Owners of the Regulation S Temporary
Global Certificate. Upon notice of the occurrence of any of the events described
in the preceding sentence, the Certificate Registrar shall notify the Clearing
Agency and request the Clearing Agency to notify all Certificate Owners, through
the applicable Participants, of the occurrence of the event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of the Global Certificates
by the Clearing Agency, accompanied by registration instructions from the
Clearing Agency for registration, the Certificate Registrar shall execute, and
the Authenticating Agent shall authenticate and deliver, the Definitive
Certificates. None of the Depositor, the Trustee, the Paying Agent or the
Certificate Registrar shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates, all references
herein to obligations imposed upon or to be performed by the Clearing Agency
shall be deemed to be imposed upon and performed by the Certificate Registrar,
to the extent applicable with respect to such Definitive Certificates, and the
Certificate Registrar and the Trustee and the Paying Agent shall recognize the
Holders of Definitive Certificates as Certificateholders hereunder.
(b) Distributions of principal and interest on the Definitive
Certificates shall be made by the Paying Agent directly to holders of Definitive
Certificates in accordance with the procedures set forth in this Agreement.
ARTICLE IV
ADVANCES
P&I Advances and Servicing Advances shall be made as provided herein
by the Master Servicer and, if the Master Servicer does not make such Advances,
by the Trustee, except to the extent that the Master Servicer or the Trustee
determines in accordance with Section 4.4 below, that any such Advance would be
a Nonrecoverable Advance.
Section 4.1 P&I Advances by the Master Servicer
(a) On or prior to the Advance Report Date, the Master Servicer
shall notify the Trustee and the Paying Agent if the P&I Advance Amount for such
Distribution Date is greater than zero, and the Master Servicer shall only make
a P&I Advance in respect of each Mortgage Loan of such amount on the Master
Servicer Remittance Date. It is understood that the obligation of the Master
Servicer to make such P&I Advances is mandatory and shall apply through any
court appointed stay period or similar payment delay resulting from any
insolvency of the Mortgagor or related bankruptcy. Notwithstanding the
foregoing, the Master Servicer shall not be required to make such P&I Advance,
if the Master Servicer determines, in accordance with Section 4.4 below, that
any such P&I Advance would be a Nonrecoverable
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Advance and shall not make such P&I Advance if such P&I Advance, if made, would
be a Nonrecoverable Advance as determined by the Special Servicer in accordance
with the Servicing Standard and the Special Servicer has notified the Master
Servicer of such determination not later than 24 hours (and on a Business Day)
prior to the date on which the Master Servicer would be required to make such
P&I Advance in the absence of a recoverability determination. Such determination
shall be conclusive and binding on the Trustee and the Certificateholders. The
Master Servicer and the Trustee shall not advance default interest, Balloon
Payments or Prepayment Premiums. None of the Master Servicer or the Trustee
shall advance any amount due to be paid by the Swap Counterparty for
distribution to the Class [A-3-1FL] Certificates in the event that the Swap
Counterparty fails to make a required payment. If the Swap Counterparty fails to
make a required payment pursuant to the Swap Contract, the Trustee shall, on the
date on which such payment is due and not made, promptly notify the Swap
Counterparty and the related Credit Support Provider (as such term is defined in
the Swap Contract) of such failure, including the amount of any payment required
to be made by the Swap Counterparty.
(b) No Special Servicer shall make P&I Advances under this Agreement
or advances of any amount due to be paid by the Swap Counterparty for
distribution to the Class [A-3-1FL] Certificates in the event that the Swap
Counterparty fails to make a required payment. If the Master Servicer fails to
make a P&I Advance that it is required to make under this Section 4.1, it shall
promptly notify the Trustee and the Paying Agent of such failure.
(c) If the Master Servicer determines that there is a P&I Advance
Amount with respect to its applicable Mortgage Loans for a Distribution Date,
the Master Servicer shall on the Master Servicer Remittance Date either (A)
deposit in the applicable Certificate Account an amount equal to the P&I Advance
Amount or (B) utilize funds in such Certificate Account being held for future
distributions or withdrawals to make such Advance. Any funds being held in a
Certificate Account for future distribution or withdrawal and so used shall be
replaced by the Master Servicer from its own funds by deposit in such
Certificate Account on or before any future Master Servicer Remittance Date to
the extent that funds in such Certificate Account on the Master Servicer
Remittance Date shall be less than payments to the Paying Agent or other Persons
required to be made on such date.
Section 4.2 Servicing Advances
The Master Servicer and, if the Master Servicer does not, the
Trustee to the extent the Trustee receives written notice from the Paying Agent
that such Advance has not been made by the Master Servicer shall make Servicing
Advances to the extent provided in this Agreement, except to the extent that the
Master Servicer or the Trustee, as applicable, determines in accordance with
Section 4.4 below, that any such Advance would be a Nonrecoverable Advance. If
the Master Servicer or the Trustee, as applicable, determines that such advance
would constitute a Nonrecoverable Advance, then such party shall promptly
deliver notice of such determination to the Special Servicer. Upon receipt of
such notice, the Special Servicer shall determine (with the reasonable
assistance of the Master Servicer or the Trustee, as applicable) whether the
payment of such amount is (i) necessary to preserve the related Mortgaged
Property and (ii) would be in the best interest of the Certificateholders. If
the Special Servicer
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shall determine that the payment of such amount is (i) necessary to preserve the
related Mortgaged Property and (ii) would be in the best interest of the
Certificateholders, then the Special Servicer shall direct the Master Servicer
or the Trustee, as applicable, in writing to make such payment and such party
shall make such payment from amounts in the Certificate Account. Such
determination by the Master Servicer or the Special Servicer shall be conclusive
and binding on the Trustee and the Certificateholders. The Special Servicer
shall not be required to make Servicing Advances under this Agreement, but may
make such Servicing Advances at its option in which event the Master Servicer
shall reimburse the Special Servicer within 5 Business Days of receipt of a
statement therefor sent to the Master Servicer at the Master Servicer's Contact
Numbers. The Special Servicer shall notify the Master Servicer that a Servicing
Advance is required in connection with a Specially Serviced Mortgage Loan or REO
Property, and the Master Servicer shall make such Servicing Advance within five
Business Days of receipt of such notice. In addition, the Special Servicer shall
provide the Master Servicer or the Trustee with such information in its
possession as the Master Servicer or the Trustee may reasonably request to
enable the Master Servicer or the Trustee, as applicable, to determine whether a
requested Servicing Advance would constitute a Nonrecoverable Advance. 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 Advance and the Master
Servicer shall be entitled to conclusively rely on such determination; provided,
that the determination shall not be binding on the Master Servicer or the
Trustee. The Master Servicer or Special Servicer may update or change its
recoverability determinations at any time (but not reverse the other Master
Servicer or Special Servicer's determination that an Advance is a Nonrecoverable
Advance). Promptly after discovering that the Master Servicer has failed to make
a Servicing Advance that the Master Servicer is required to make hereunder, the
Paying Agent shall promptly notify the Trustee in writing of the failure by the
Master Servicer to make such Servicing Advance.
Section 4.3 Advances by the Trustee
(a) To the extent that the Master Servicer fails to make a P&I
Advance by the Master Servicer Remittance Date (other than a P&I Advance that
the Master Servicer determines is a Nonrecoverable Advance), the Trustee shall
make such P&I Advance to the extent the Trustee receives written notice from the
Paying Agent not later than [10:00] a.m. (New York City time) on the
Distribution Date that such Advance has not been made by the Master Servicer on
the Master Servicer Remittance Date unless the Trustee determines that such P&I
Advance, if made, would be a Nonrecoverable Advance. To the extent the Trustee
is required hereunder to make P&I Advances on the Mortgage Loans, it shall remit
the amount thereof to the Paying Agent for deposit in the Distribution Account
by [1:00] p.m. (New York City time) on each such Distribution Date. The Paying
Agent shall notify the Trustee in writing as soon as practicable, but not later
than [10:00] a.m. (New York City time) on the Distribution Date if the Master
Servicer has failed to make a P&I Advance.
(b) To the extent that the Master Servicer fails to make a Servicing
Advance by the date such Servicing Advance is required to be made (other than a
Servicing Advance that the Master Servicer or the Special Servicer determines is
a Nonrecoverable Advance), and a Responsible Officer of the Trustee receives
notice thereof, the Trustee shall make such Servicing Advance promptly, but in
any event, not later than five Business Days after notice thereof in accordance
with Section 4.2, unless the Trustee determines that such Servicing Advance, if
made, would be a Nonrecoverable Advance. If the Trustee determines that such
advance would
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constitute a Nonrecoverable Advance, then the Trustee shall deliver notice of
such determination to the Special Servicer. Upon receipt of such notice, the
Special Servicer shall determine (with the reasonable assistance of the Trustee)
whether the payment of such amount is (i) necessary to preserve the related
Mortgaged Property and (ii) would be in the best interest of the
Certificateholders. If the Special Servicer shall determine that the payment of
such amount is (i) necessary to preserve the related Mortgaged Property and (ii)
would be in the best interest of the Certificateholders, then the Special
Servicer shall direct the Paying Agent in writing to make such payment and the
Paying Agent shall make such payment from amounts in the Distribution Account.
Section 4.4 Evidence of Nonrecoverability
If the Master Servicer or the Special Servicer determines at any
time, in its sole discretion, exercised in accordance with the Servicing
Standard, that any Advance previously made (or Unliquidated Advance in respect
thereof) or any proposed Advance, if made, would constitute a Nonrecoverable
Advance, such determination shall be evidenced by an Officer's Certificate
delivered to the Trustee, the Master Servicer or the Special Servicer, the
Paying Agent, the Operating Adviser and the Rating Agencies promptly upon making
such determination, but in no event later than the Business Day following the
date of such determination. Such Officer's Certificate shall set forth the
reasons for such determination of nonrecoverability, together with, to the
extent such information, report or document is in the Master Servicer's or the
Special Servicer's possession, any related financial information such as related
income and expense statements, rent rolls (with respect to mortgaged properties
other than residential cooperative properties), occupancy status, property
inspections and any Appraisals performed within the last 12 months on the
Mortgaged Property, and, if such reports are used by the Master Servicer or the
Special Servicer to determine that any P&I Advance or Servicing Advance, as
applicable, would be a Nonrecoverable Advance, any engineers' reports,
environmental surveys, internal final valuations or other information relevant
thereto which support such determination. If the Trustee determines at any time,
in its sole discretion, exercised in good faith, that any portion of an Advance
previously made or a portion of a proposed Advance that the Trustee is required
to make pursuant to this Agreement, if made, would constitute a Nonrecoverable
Advance, such determination shall be evidenced by an Officer's Certificate of a
Responsible Officer of the Trustee, delivered to the Depositor, the Master
Servicer, the Special Servicer, the Paying Agent and the Operating Adviser
similar to the Officer's Certificate of the Master Servicer or the Special
Servicer described in the prior sentence. The Trustee shall not be required to
make an Advance that the Master Servicer or the Special Servicer has previously
determined to be a Nonrecoverable Advance. Notwithstanding any other provision
of this Agreement, none of the Master Servicer, the Special Servicer or the
Trustee shall be obligated to, nor shall it, make any Advance or make any
payment that is designated in this Agreement to be an Advance, if the Trustee
determines in its good faith business judgment and, with respect to the Master
Servicer or the Special Servicer, in accordance with the Servicing Standard,
that such Advance or such payment (including interest accrued thereon at the
Advance Rate) would be a Nonrecoverable Advance. Absent bad faith, the Master
Servicer's determination as to the nonrecoverability of any Advance shall be
conclusive and binding on the Certificateholders and may, in all cases, be
relied on by the Trustee; provided, however, that the Special Servicer may, at
its option, make a determination in accordance with the Servicing Standard that
any P&I Advance or Servicing Advance, if made, would be a
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Nonrecoverable Advance and shall deliver to the Master Servicer and the Trustee
notice of such determination; provided, further, however, the Special Servicer
shall have no right to make an affirmative determination that any P&I Advance is
or would be recoverable and, in the absence of a determination by the Special
Servicer that such Advance is or would be a Nonrecoverable Advance, the decision
that a P&I Advance is recoverable shall remain with the Master Servicer or
Trustee, as applicable. Absent bad faith, such determination by the Special
Servicer shall be conclusive and binding on the Certificateholders, the Master
Servicer and the Trustee. The Master Servicer shall consider Unliquidated
Advances in respect of prior P&I Advances and Servicing Advances as outstanding
Advances for purposes of nonrecoverability determinations as if such
Unliquidated Advance were a P&I Advance or Servicing Advance, as applicable.
Section 4.5 Interest on Advances; Calculation of Outstanding
Advances with Respect to a Mortgage Loan
Any unreimbursed Advance funded from the Master Servicer's, the
Special Servicer's or the Trustee's own funds shall accrue interest on a daily
basis, at a per annum rate equal to the Advance Rate, from and including the
date such Advance was made to but not including the date on which such Advance
has been reimbursed; provided, however, that neither the Master Servicer nor any
other party shall be entitled to interest accrued on the amount of any P&I
Advance with respect to any Mortgage Loan for the period commencing on the date
of such P&I Advance and ending on the day on which the grace period applicable
to the related Mortgagor's obligation to make the related Scheduled Payment
expires pursuant to the related Mortgage Loan documents but shall be entitled to
interest on such Advance at the Advance Rate to the extent the Scheduled Payment
remains outstanding beyond the expiration of the grace period. In addition, no
Master Servicer shall be entitled to interest on any particular P&I Advance (or
portion thereof) made thereby to the extent a payment (or portion thereof) is
received but is being held by or on behalf of the Master Servicer in connection
with any dispute, claim or offset. For purposes of determining whether a P&I
Advance is outstanding, amounts collected with respect to a particular Mortgage
Loan or a particular REO Property and treated as collections of principal or
interest shall be applied first to reimburse the earliest P&I Advance and then
each succeeding P&I Advance to the extent not inconsistent with Section 4.6. The
Master Servicer shall use efforts consistent with the Servicing Standard to
collect (but shall have no further obligation to collect), with respect to the
Mortgage Loans that are not Specially Serviced Mortgage Loans, Late Fees and
default interest from the Mortgagor in an amount sufficient to pay Advance
Interest incurred and unpaid with respect to such Mortgage Loan arising on or
after the Cut-off Date. The Master Servicer shall be entitled to retain Late
Fees and default interest paid by any Mortgagor during a Collection Period with
respect to any Mortgage Loan (other than the portion of such Late Fees and
default interest that relates to the period commencing after the Servicing
Transfer Event in respect of a Specially Serviced Mortgage Loan, as to which the
Special Servicer shall retain Late Fees and default interest with respect to
such Specially Serviced Mortgage Loan, subject to the offsets set forth below)
as additional servicing compensation only to the extent such Late Fees and
default interest with respect to such Mortgage Loan (x) exceed unreimbursed
Additional Trust Fund Expenses and Advance Interest with respect to such
Mortgage Loan arising on or after the Cut-off Date and (y) are not used to pay
Special Servicing Fees, Liquidation Fees and Workout Fees accrued with respect
to such Collection Period on such Mortgage Loan. The Special Servicer, with
respect to any Specially Serviced Mortgage Loan, shall (i) pay from any Late
Fees and default interest collected
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from such Specially Serviced Mortgage Loan (a) any outstanding and unpaid
Advance Interest payable with respect to such Specially Serviced Mortgage Loan
to the Master Servicer, the Special Servicer or the Trustee, as applicable, and
(b) to the Trust, any losses previously incurred by the Trust with respect to
such Specially Serviced Mortgage Loan (other than the related Special Servicing
Fees) and (ii) retain any remaining portion of such Late Fees and default
interest as additional Special Servicer Compensation. It is hereby acknowledged
that the Master Servicer may only waive Late Fees and default interest to the
extent set forth in Section 8.3(a).
Section 4.6 Reimbursement of Advances and Advance Interest
(a) Advances made with respect to each Mortgage Loan or Specially
Serviced Mortgage Loan or REO Property (including Advances later determined to
be Nonrecoverable Advances) and Advance Interest thereon shall be reimbursed to
the extent of the amounts identified to be applied therefor in Section 5.2. The
aggregate of the amounts available to repay Advances and Advance Interest
thereon pursuant to Section 5.2 collected in any Collection Period with respect
to Mortgage Loans or Specially Serviced Mortgage Loans or REO Property shall be
an "Available Advance Reimbursement Amount."
(b) To the extent that Advances have been made on the Mortgage
Loans, any Specially Serviced Mortgage Loans or any REO Mortgage Loans, the
Available Advance Reimbursement Amount with respect to any Determination Date
shall be applied to reimburse (i) the Trustee for any Advances outstanding to
the Trustee with respect to any of such Mortgage Loans, any of such Specially
Serviced Mortgage Loans or REO Mortgage Loans, plus any Advance Interest owed to
the Trustee with respect to such Advances and then (ii) the Master Servicer and
the Special Servicer for any Advances outstanding to the Master Servicer or the
Special Servicer, as the case may be, with respect to any of such Mortgage
Loans, any of such Specially Serviced Mortgage Loans or REO Mortgage Loans, plus
any Advance Interest owed to the Master Servicer or the Special Servicer with
respect to such Advances. To the extent that any Advance Interest payable to the
Master Servicer, the Special Servicer or the Trustee with respect to a Specially
Serviced Mortgage Loan or REO Mortgage Loan cannot be recovered from the related
Mortgagor, the amount of such Advance Interest shall be payable to the Trustee,
the Master Servicer or the Special Servicer, as the case may be, from amounts on
deposit in the applicable Certificate Account (or sub-account thereof) (or, if
not available from such Certificate Account, the other Certificate Account) or
the Distribution Account pursuant to Section 5.2(a) or Section 5.3(b)(ii), to
the extent of amounts identified to be applied thereunder. The Master
Servicer's, the Special Servicer's and the Trustee's right of reimbursement
under this Agreement for Advances and interest thereon shall be prior to the
rights of the Certificateholders to receive any amounts recovered with respect
to such Mortgage Loans or REO Mortgage Loans.
(c) Advance Interest arising on or after the Cut-off Date and not
previously paid with respect to any Mortgage Loan will be paid to the Trustee,
the Special Servicer and/or the Master Servicer (in accordance with the
priorities specified in the preceding paragraph) first, from Late Fees and
default interest collected with respect to such Mortgage Loan during the
Collection Period, and then from Excess Liquidation Proceeds then available
prior to payment from any other amounts. Late Fees and default interest will be
applied on a "loan-by-loan basis" (under which Late Fees and default interest
with respect to a Mortgage Loan will be offset
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against the Advance Interest incurred and unpaid with respect to such Mortgage
Loan arising on or after the Cut-off Date).
(d) To the extent that the Special Servicer incurs out-of-pocket
expenses, in accordance with the Servicing Standard, in connection with
servicing Specially Serviced Mortgage Loans, the Master Servicer shall, subject
to Section 4.4, reimburse the Special Servicer for such expenditures on the next
succeeding Master Servicer Remittance Date, provided the Special Servicer has
delivered, on or before the related Determination Date, an invoice and a report
substantiating such expenses from the Special Servicer requesting such
reimbursement. All such amounts paid by the Special Servicer and reimbursed by
the Master Servicer shall be a Servicing Advance. In the event that the Master
Servicer fails to reimburse the Special Servicer hereunder or the Master
Servicer determines that such Servicing Advance was or, if made, would be a
Nonrecoverable Advance and the Master Servicer does not make such payment, the
Special Servicer shall notify the Master Servicer and the Paying Agent in
writing of such nonpayment and the amount payable to the Special Servicer and
shall be entitled to receive reimbursement from the Trust as an Additional Trust
Expense. The Master Servicer, the Paying Agent and the Trustee shall have no
obligation to verify the amount payable to the Special Servicer pursuant to this
Section 4.6(d) and circumstances surrounding the notice delivered by the Special
Servicer pursuant to this Section 4.6(d).
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections
(a) On or prior to the Closing Date, the Master Servicer shall open,
or cause to be opened, and shall thereafter maintain, or cause to be maintained,
a separate account or accounts, which accounts must be Eligible Accounts, in the
name of "_______, as Master Servicer for _______, as Trustee for the Holders of
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 20__-__" (collectively, or individually, as the case may be the
"Certificate Account"). On or prior to the Closing Date, the Master Servicer
shall open, or cause to be opened, and shall maintain, or cause to be maintained
an additional separate account or accounts in the name of "_______, as Master
Servicer for _______, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-__"
(collectively, or individually, as the case may be, the "Interest Reserve
Account").
(b) On or prior to the date the Master Servicer shall initially
deposit funds in a Certificate Account or an Interest Reserve Account, as the
case may be, the Master Servicer shall give to the Paying Agent and the Trustee
prior written notice of the name and address of the depository institution(s) at
which such accounts are maintained and the account number of such accounts. The
Master Servicer shall take such actions as are necessary to cause any depository
institution holding a Certificate Account and an Interest Reserve Account to
hold such accounts in the name of the Master Servicer as provided in Section
5.1(a), subject to the Master Servicer's (or its Primary Servicer's or its
Sub-Servicer's) right to direct payments and investments and its rights of
withdrawal under this Agreement.
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(c) The Master Servicer shall deposit, or cause to be deposited,
into its Certificate Account on the Business Day following receipt (or, in the
case of an inadvertent failure to make such deposit on the Business Day
following receipt, within 3 Business Days of discovery of such failure and in
the case of unscheduled remittances of principal or interest, on the Business
Day following identification of the proper application of such amounts), the
following amounts received by it (including amounts remitted to the Master
Servicer by the Special Servicer from the applicable REO Account pursuant to
Section 9.14 and amounts received from the Primary Servicers or Sub-Servicers),
other than amounts received by it in respect of interest and principal on the
Mortgage Loans due on or before the Cut-Off Date which shall be remitted to the
applicable Seller (provided that the Master Servicer (I) may retain amounts
otherwise payable to the Master Servicer as provided in Section 5.2(a) rather
than deposit them into such Certificate Account, (II) shall, rather than deposit
them in the Certificate Account, directly remit to the Primary Servicers the
applicable Primary Servicing Fees payable as provided in Section 5.2(a)(iv)
(unless already retained by the applicable Primary Servicer), and (III) shall,
rather than deposit them in a Certificate Account, directly remit the Excess
Servicing Fees to the holders thereof as provided in Section 5.2(a)(iv) (unless
already retained by the applicable holder of the excess servicing rights)):
(A) Principal: all payments on account of principal, including
Principal Prepayments, the principal component of Scheduled
Payments, and any Late Collections in respect thereof, on the
Mortgage Loans;
(B) Interest: all payments on account of interest on the
Mortgage Loans (including Excess Interest, which shall be payable
only to the Class [EI] Certificateholders, in each case as provided
herein, and excluding Interest Reserve Amounts to be deposited in
the applicable Interest Reserve Account pursuant to Section 5.1(d)
below);
(C) Liquidation Proceeds: all Liquidation Proceeds with
respect to the Mortgage Loans;
(D) Insurance Proceeds: all Insurance Proceeds other than
proceeds to be applied to the restoration or repair of the property
subject to the related Mortgage or released to the related Mortgagor
in accordance with the Servicing Standard, which proceeds shall be
deposited by the Master Servicer into the applicable Escrow Account
and not deposited in the Certificate Accounts;
(E) Condemnation Proceeds: all Condemnation Proceeds other
than proceeds to be applied to the restoration or repair of the
property subject to the related Mortgage or released to the related
Mortgagor in accordance with the Servicing Standard, which proceeds
shall be deposited by the Master Servicer into the applicable Escrow
Account and not deposited in the Certificate Accounts;
(F) REO Income: all REO Income received from the Special
Servicer;
(G) Investment Losses: any amounts required to be deposited by
the Master Servicer pursuant to Section 5.1(e) in connection with
losses realized on
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Eligible Investments with respect to funds held in the Certificate
Accounts and amounts required to be deposited by the Special
Servicer pursuant to Section 9.14(b) in connection with losses
realized on Eligible Investments with respect to funds held in the
REO Accounts;
(H) Advances: all P&I Advances unless made directly to the
Distribution Account;
(I) Compensating Interest: all Compensating Interest received
with respect to the Mortgage Loans; and
(J) Other: all other amounts, including Prepayment Premiums,
required to be deposited in the Certificate Accounts pursuant to
this Agreement, including, but not limited to, Purchase Proceeds of
any Mortgage Loans repurchased by a Seller or the maker of a
representation and warranty with respect to any Mortgage Loan or
substitution shortfall amounts (as described in the ninth paragraph
of Section 2.3(a)) paid by a Seller in connection with the
substitution of any Qualifying Substitute Mortgage Loans, any
payments or recoveries in respect of Unliquidated Advances or in
respect of Nonrecoverable Advances paid from principal collections
on the Mortgage Loans pursuant to Section 5.2(a)(II).
Remittances from any REO Accounts to the Master Servicer for deposit in the
applicable Certificate Accounts shall be made by the Special Servicer no later
than the Special Servicer Remittance Date.
(d) The Master Servicer, with respect to each Distribution Date
occurring in January (other than in any leap year) and February of each year,
shall deposit in the applicable Interest Reserve Account in respect of each
related Interest Reserve Loan, an amount equal to one day's interest at the
related REMIC I Net Mortgage Rate, as applicable (without regard to the provisos
in the definition of Adjusted Mortgage Rate), on the Scheduled Principal Balance
of such Mortgage Loan as of the Due Date in the month in which such Distribution
Date occurs, to the extent a Scheduled Payment or P&I Advance is timely made in
respect thereof for such Due Date (all amounts so deposited in any consecutive
January and February in respect of each Interest Reserve Loan, the "Interest
Reserve Amount").
(e) Funds in the Certificate Accounts and Interest Reserve Accounts
may be invested and, if invested, shall be invested by, and at the risk of, the
Master Servicer in Eligible Investments selected by the Master Servicer which
shall mature, unless payable on demand, not later than the Business Day
immediately preceding the next Master Servicer Remittance Date, and any such
Eligible Investment shall not be sold or disposed of prior to its maturity
unless payable on demand. All such Eligible Investments shall be made in the
name of "_______, as Trustee for the Holders of the Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____." None of
the Depositor, the Mortgagors, the Paying Agent or the Trustee shall be liable
for any loss incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Master Servicer as additional servicing
compensation and shall be subject to its
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withdrawal at any time from time to time. The amount of any losses incurred in
respect of any such investments shall be for the account of the Master Servicer
which shall deposit the amount of such loss (to the extent not offset by income
from other investments) in the applicable Certificate Account or applicable
Interest Reserve Account, as the case may be, out of its own funds immediately
as realized. No Master Servicer shall be liable for any losses incurred in
respect of any account which is not controlled by the Master Servicer or any
losses with respect to a default on an Eligible Investment. If the Master
Servicer deposits in or transfers to any Certificate Account or any Interest
Reserve Account, as the case may be, any amount not required to be deposited
therein or transferred thereto, it may at any time withdraw such amount or
retransfer such amount from such Certificate Account or Interest Reserve
Account, as the case may be, any provision herein to the contrary
notwithstanding.
(f) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Eligible Investment, or
if a default occurs in any other performance required under any Eligible
Investment, the Paying Agent on behalf of and at the direction of the Trustee
may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings; provided, however, that if the Master Servicer shall have deposited
in the applicable Certificate Account and the Interest Reserve Account an amount
equal to all amounts due under any such Eligible Investment (net of anticipated
income or earnings thereon that would have been payable to the Master Servicer
as additional servicing compensation) the Master Servicer shall have the sole
right to enforce such payment or performance.
(g) Certain of the Mortgage Loans may provide for payment by the
Mortgagor to the Master Servicer of amounts to be used for payment of Escrow
Amounts for the account of the Mortgagor. The Master Servicer shall deal with
these amounts in accordance with the Servicing Standard, the terms of the
related Mortgage Loans and Section 8.3(e) hereof, and the Primary Servicers will
hold any Escrow Accounts relating to the Mortgage Loans that they service in
accordance with the requirements set forth in Section 8.3(e).
Section 5.2 Application of Funds in the Certificate Accounts and
Interest Reserve Accounts
(a) Subsection (I). The Master Servicer shall, from time to time,
make withdrawals from the applicable Certificate Accounts and remit them by wire
transfer prior to 2:00 p.m., New York City time, on the related Master Servicer
Remittance Date, in immediately available funds to the account specified in this
Section or otherwise (x) to such account as each shall determine from time to
time of amounts payable to the Master Servicer from the applicable Certificate
Account pursuant to clauses (i), (ii), (iii), (iv), (vi), (viii) and (ix) below;
(y) to the account specified in writing by the Paying Agent from time to time of
amounts payable to the Paying Agent and the Trustee from the applicable
Certificate Account pursuant to clauses (ii), (iii), (v), (vi), (xi), (xii) and
(xiii) below; and (z) to the Special Servicer from time to time of amounts
payable to the Special Servicer from the applicable Certificate Account pursuant
to clauses (i), (ii), (iv), (vi), (vii) and (ix) below of the following amounts,
from the amounts specified for the following purposes:
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(i) Fees: The Master Servicer shall pay (A) to itself Late Fees (in
excess of amounts used to pay Advance Interest) relating to Mortgage Loans
which are not Specially Serviced Mortgage Loans, [100%] of any
Modification Fees relating to Mortgage Loans which are not Specially
Serviced Mortgage Loans as provided in Section 8.18(b), [100%] of
assumption application fees relating to Mortgage Loans that are not
Specially Serviced Mortgage Loans, [50%] of any assumption fees relating
to Mortgage Loans which are not Specially Serviced Mortgage Loans that
require Special Servicer approval or [100%] of any assumption fees
relating to Mortgage Loans which are not Specially Serviced Mortgage Loans
that, with respect to the assignment, assumption or substitution (a) the
consent of the Special Servicer was not required or (b) is "expressly
permitted" pursuant to the terms of the related Mortgage Loan as payable
under Section 8.7(a) or 8.7(d), [100%] of any extension fees payable under
Section 8.10 or other fees payable to each the Master Servicer hereunder;
provided that any such fees described in (A) hereof shall be divided
between the Master Servicer and any related Primary Servicer as set forth
in the applicable Primary Servicing Agreement and (B) directly to the
Special Servicer, [50%] of any assumption fees on Mortgage Loans which are
not Specially Serviced Mortgage Loans and for which with respect to the
assignment, assumption or substitution (a) the consent of the Special
Servicer was required or (b) is not "expressly permitted" pursuant to the
terms of the related Mortgage Loan as payable under Section 8.7(a) or
8.7(d) and, to the extent deposited into a Certificate Account, all
assumption fees (including assumption application fees) relating to
Specially Serviced Mortgage Loans and, to the extent provided in Section
9.11(c), Late Fees, Modification Fees and other fees collected on
Specially Serviced Mortgage Loans, in each case to the extent provided for
herein from funds paid by or on behalf of the applicable Mortgagor and, to
the extent provided in Section 9.11(c), default interest (in excess of
Advance Interest arising only from that particular Specially Serviced
Mortgage Loan for which the Late Fees or default interest were collected);
(ii) Servicing Advances (including amounts later determined to be
Nonrecoverable Advances): in the case of all Mortgage Loans, subject to
subsection (iv) of Section 5.2(a)(II) below, to reimburse or pay to the
Master Servicer, the Special Servicer and the Trustee, pursuant to Section
4.6, (x) prior to a Final Recovery Determination or determination in
accordance with Section 4.4 that any Servicing Advance is a Nonrecoverable
Advance, Servicing Advances on the related Mortgage Loan from payments
made by or on behalf of the related Mortgagor of the amounts to which a
Servicing Advance relates or from REO Income from the related REO Property
or from Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds or
Purchase Proceeds and, to the extent that a Servicing Advance has been or
is being reimbursed, any related Advance Interest thereon first, from Late
Fees and default interest collected during the Collection Period, and then
from Excess Liquidation Proceeds then available and then from any other
amounts on deposit in the applicable Certificate Account (or, if not
available from such Certificate Account, the other Certificate Account);
provided that Late Fees and default interest will be applied on a "loan by
loan basis" (under which Late Fees and default interest paid with respect
to each Mortgage Loan, will be offset against the Advance Interest
incurred and unpaid with respect to the particular Mortgage Loan, on or
after the Cut Off Date), to the payment of Advance Interest incurred on or
after the Cut Off Date and unpaid on all Advances on such Mortgage Loan;
provided, further, that
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if both the Master Servicer and the Special Servicer have outstanding
Servicing Advances at the same time, because the Master Servicer did not
reimburse the Special Servicer for such Servicing Advance as provided in
Section 4.3 hereof, and amounts on deposit in the Certificate Account are
not sufficient to reimburse both such Servicing Advances with interest
thereon, then such Servicing Advance with respect to the subject Mortgage
Loan made by the Special Servicer shall be reimbursed first until paid in
full or (y) after a Final Recovery Determination or determination that any
Servicing Advance on the related Mortgage Loan is a Nonrecoverable
Advance, any Servicing Advances made on the related Mortgage Loan or REO
Property from any funds on deposit in the applicable Certificate Account
(or, if not available from such Certificate Account, the other Certificate
Account) (regardless of whether such amount was recovered from the
applicable Mortgage Loan or REO Property) and pay Advance Interest thereon
first, from Late Fees and default interest collected during the Collection
Period (applying such Late Fees and default interest on a "loan by loan
basis" to the payment of Advance Interest incurred and unpaid on all
Advances on such Mortgage Loan arising on or after the Cut Off Date), then
from Excess Liquidation Proceeds then available and then from any other
amounts on deposit in the applicable Certificate Account (notwithstanding
anything herein to the contrary the Master Servicer shall reimburse itself
or such other party pursuant to Section 4.4(b));
(iii) P&I Advances (including amounts later to be determined to be
Nonrecoverable Advances): in the case of the Mortgage Loans, subject to
subsection (iv) of Section 5.2(a)(II) below, to reimburse or pay to the
Master Servicer and the Trustee, pursuant to Section 4.6, (x) if prior to
a Final Recovery Determination or determination that any Advance is a
Nonrecoverable Advance, any P&I Advances from Late Collections made by the
Mortgagor of the amounts to which a P&I Advance relates, or REO Income
from the related REO Property or from Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds or Purchase Proceeds allocable to the related
Mortgage Loan and, to the extent that a P&I Advance has been or is being
reimbursed, any related Advance Interest thereon, first, from Late Fees
and default interest collected during the Collection Period and allocable
to such Mortgage Loan, and then from Excess Liquidation Proceeds then
available and then from any other amounts on deposit in the applicable
Certificate Account (or, if not available from such Certificate Account,
the other Certificate Account); provided that Late Fees and default
interest will be applied on a "loan-by-loan basis" (under which Late Fees
and default interest paid with respect to each Mortgage Loan will be
offset against the Advance Interest incurred and unpaid with respect to
the particular Mortgage Loan on or after the Cut-Off Date) or (y) if after
a Final Recovery Determination or determination in accordance with Section
4.4 that any P&I Advance on the related Mortgage Loan is a Nonrecoverable
Advance, for any Mortgage Loan, any P&I Advances made on the related
Mortgage Loan or REO Property from any funds on deposit in the applicable
Certificate Account (or, if not available from such Certificate Account,
the other Certificate Account) (regardless of whether such amount was
recovered from the applicable Mortgage Loan or REO Property) and any
Advance Interest thereon, first, from Late Fees and default interest
collected during the Collection Period allocable to such Mortgage Loan
(applying such Late Fees and default interest on a "loan-by-loan basis,"
to the payment of Advance Interest incurred and unpaid on all Advances on
such Mortgage Loan incurred on or after
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the Cut-Off Date), then from Excess Liquidation Proceeds then available
and then from any other amounts on deposit in the applicable Certificate
Account (or, if not available from such Certificate Account, the other
Certificate Account);
(iv) Servicing Fees and Special Servicer Compensation: to pay to
itself the Master Servicing Fee, subject to reduction for any Compensating
Interest, to pay to the Special Servicer the Special Servicing Fee and the
Work-Out Fee and, if applicable, to pay to the Primary Servicers (or the
Master Servicer) the Primary Servicing Fees and to pay to the parties
entitled thereto the Excess Servicing Fees (to the extent not previously
retained by any of such parties);
(v) Trustee Fee: to pay to the Distribution Account for withdrawal
by the Trustee, the Trustee Fee;
(vi) Expenses of Trust: to pay to the Person entitled thereto any
amounts specified herein to be Additional Trust Expenses at the time set
forth herein or in the definition thereof, the payment of which is not
more specifically provided for in this Agreement; provided that the
Depositor shall not be entitled to receive reimbursement for performing
its duties under this Agreement;
(vii) Liquidation Fees: to pay to the Special Servicer from the
applicable Certificate Accounts, the amount certified by the Special
Servicer equal to the Liquidation Fee, to the extent provided in Section
9.11 hereof;
(viii) Investment Income: to pay to itself income and gain realized
on the investment of funds deposited in the applicable Certificate
Accounts;
(ix) Prepayment Interest Excesses: to pay to the Master Servicer the
aggregate Prepayment Interest Excesses relating to the Mortgage Loans for
which they act as Master Servicer which are not Specially Serviced
Mortgage Loans, to the extent not offset by Prepayment Interest Shortfalls
relating to such Mortgage Loans; and to pay to the Master Servicer the
aggregate Prepayment Interest Excesses relating to the Specially Serviced
Mortgage Loans for which they act as Master Servicer, which have received
voluntary Principal Prepayments (not from Liquidation Proceeds or from
modifications to Specially Serviced Mortgage Loans), to the extent not
offset by Prepayment Interest Shortfalls relating to such Specially
Serviced Mortgage Loans;
(x) Correction of Errors: to withdraw funds deposited in the
Certificate Accounts in error;
(xi) Distribution Account: other than amounts held for payment in
future periods or pursuant to clause (xii) below, to make payment on the
Master Servicer Remittance Date of the remaining amounts in the applicable
Certificate Accounts (excluding Excess Interest and Excess Liquidation
Proceeds) into the Distribution Account (or in the case of any Excess
Interest, deposit to the Excess Interest Sub-account), the obligation to
make such payments to be offset by the amount of any Net Swap Payment, as
set forth in Section 8.30(b) and Section 6.12;
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(xii) Reserve Account: to make payment on the Master Servicer
Remittance Date to the Reserve Account, any Excess Liquidation Proceeds
(subject to Section 4.6(c)); and
(xiii) Clear and Terminate: to clear and terminate the Certificate
Accounts pursuant to Section 8.29.
Subsection (II). The provisions of this subsection II of this
Section 5.2(a) shall apply notwithstanding any contrary provision of subsection
(I) of this Section 5.2(a):
(i) Identification of Workout-Delayed Reimbursement Amounts: If any
Advance made with respect to any Mortgage Loan on or before the date on
which such Mortgage Loan becomes (or, but for the requirement that the
Mortgagor shall have made three consecutive scheduled payments under its
modified terms, would then constitute) a Rehabilitated Mortgage Loan,
together with Advance Interest accrued thereon, is not, pursuant to the
operation of the provisions of Section 5.2(a)(I), reimbursed to the Person
who made such Advance on or before the date, if any, on which such
Mortgage Loan becomes a Rehabilitated Mortgage Loan, such Advance,
together with such Advance Interest, shall constitute a "Workout-Delayed
Reimbursement Amount" to the extent that such amount has not been
determined to constitute a Nonrecoverable Advance. All references herein
to "Workout-Delayed Reimbursement Amount" shall be construed always to
mean the related Advance and any Advance Interest thereon, together with
any further Advance Interest that accrues on the unreimbursed portion of
such Advance from time to time in accordance with the other provisions of
this Agreement. That any amount constitutes all or a portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit the
right of any Person hereunder to determine that such amount instead
constitutes a Nonrecoverable Advance.
(ii) General Relationship of Provisions: Subsection (iii) below
(subject to the terms and conditions thereof) sets forth the terms of and
conditions to the right of a Person to be reimbursed for any
Workout-Delayed Reimbursement Amount to the extent that such Person is not
otherwise entitled to reimbursement and payment of such Workout-Delayed
Reimbursement Amount pursuant to the operation of Section 5.2(a)(I) above.
Subsection (iv) below (subject to the terms and conditions thereof)
authorizes the Master Servicer to abstain from reimbursing itself (or, if
applicable, the Trustee to abstain from obtaining reimbursement) for
Nonrecoverable Advances under certain circumstances in its sole
discretion. Upon any determination that all or any portion of a
Workout-Delayed Reimbursement Amount constitutes a Nonrecoverable Advance,
then the reimbursement or payment of such amount (and any further Advance
Interest that may accrue thereon) shall cease to be subject to the
operation of subsection (iii) below, such amount (and further Advance
Interest) shall be as fully payable and reimbursable to the relevant
Person as would any other Nonrecoverable Advance (and Advance Interest
thereon) and, as a Nonrecoverable Advance, such amount may become the
subject of the Master Servicer's (or, if applicable, the Trustee's)
exercise of its sole discretion authorized by subsection (iv) below.
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(iii) Reimbursements of Workout-Delayed Reimbursement Amounts: The
Master Servicer, the Special Servicer and the Trustee, as applicable,
shall be entitled to reimbursement and payment for all Workout-Delayed
Reimbursement Amounts in each Collection Period; provided, however, that
the aggregate amount (for all such Persons collectively) of such
reimbursements and payments in such Collection Period shall not exceed
(and the reimbursement and payment shall be made from) the aggregate
amounts in the Certificate Account allocable to principal for such
Collection Period contemplated by clause (I)(A) of the definition of
Principal Distribution Amount (but not including any such amounts that
constitute Advances) and net of any Nonrecoverable Advances then
outstanding and reimbursable from such amounts in the Certificate Account
allocable to principal in accordance with Section 5.2(a)(II)(iv) below. As
and to the extent provided in clause (II)(A) of the definition thereof,
the Principal Distribution Amount for the Distribution Date related to
such Collection Period shall be reduced to the extent that such payment or
reimbursement of a Workout-Delayed Reimbursement Amount is made from
amounts in the Certificate Account allocable to principal pursuant to the
preceding sentence.
(iv) Reimbursement of Nonrecoverable Advances; Sole Discretion to
Abstain from Reimbursements of Certain Nonrecoverable Advances: To the
extent that Section 5.2(a)(I) otherwise entitles the Master Servicer,
Special Servicer or Trustee to reimbursement for any Nonrecoverable
Advance (including Workout Delayed Reimbursement Amounts that have been
determined by the Master Servicer, Special Servicer or the Trustee to be
Nonrecoverable Advances) (or payment of Advance Interest thereon from a
source other than Late Fees and default interest on the related Mortgage
Loan) during any Collection Period, then, notwithstanding any contrary
provision of subsection (I) above, (a) to the extent that one or more such
reimbursements and payments of Nonrecoverable Advances (and such Advance
Interest thereon) are made, such reimbursements and payments shall be
made, first, from the aggregate principal collections and recoveries on
the Mortgage Loans for such Collection Period contemplated by clause
(I)(A) of the definition of Principal Distribution Amount (but not
including any such amounts that constitute Advances, and prior to any
deduction for Workout-Delayed Reimbursement Amounts (and Advance Interest
thereon) that were reimbursed or paid during the related Collection Period
from principal collections on the Mortgage Loans, as described by clause
(II)(A) of the definition of Principal Distribution Amount and pursuant to
subsection (iii) of Section 5.2(a)(II)), and then from other collections
(including interest) on the Mortgage Loans for such Collection Period, and
(b) if and to the extent that the amount of such a Nonrecoverable Advance
(and Advance Interest thereon), together with all Nonrecoverable Advances
(and Advance Interest thereon) theretofore reimbursed during such
Collection Period, would exceed such principal collections and recoveries
on the Mortgage Loans for such Collection Period (and Advance Interest
thereon), the Master Servicer (and the Special Servicer or the Trustee, as
applicable, if it made the relevant Advance) is hereby authorized (but
shall not be construed to have any obligation whatsoever), if it elects at
its sole discretion (subject to the requirement below that the Master
Servicer may not defer any reimbursement for more than 6 Collection
Periods without the consent of the Operating Advisor), to abstain from
reimbursing itself (notwithstanding that it is entitled to such
reimbursement) during that Collection Period for all or a portion of such
Nonrecoverable Advance (and Advance
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Interest thereon); provided, however, that no deferment shall be more than
the amount by which the Nonrecoverable Advances (and Advance Interest
thereon) exceed the amount of principal on collection in the Certificate
Account. The Master Servicer or the Special Servicer, in considering
whether an Advance is a Nonrecoverable Advance, shall be entitled to give
due regard to the existence of any outstanding Nonrecoverable Advance or
Workout-Delayed Reimbursement Amount with respect to other Mortgage Loans
which, at the time of such consideration, the reimbursement of which is
being deferred or delayed by the Master Servicer, the Special Servicer or
the Trustee because there is insufficient principal available for such
reimbursement, in light of the fact that proceeds on the related Mortgage
Loan are a source of reimbursement not only for the P&I Advance or
Servicing Advance under consideration, but also as a potential source of
reimbursement of such Nonrecoverable Advance or Workout-Delayed
Reimbursement Amount which is or may be being deferred or delayed. In
connection with a potential election by the Master Servicer, Special
Servicer or Trustee to abstain from the reimbursement of a particular
Nonrecoverable Advance or portion thereof during the Collection Period for
any Distribution Date, the Master Servicer (or the Special Servicer or the
Trustee, as applicable) shall further be authorized to wait for principal
collections to be received before making its determination of whether to
abstain from the reimbursement of a particular Nonrecoverable Advance or
portion thereof until the end of the Collection Period. Notwithstanding
the foregoing, the Master Servicer (or the Special Servicer or the
Trustee, as applicable) may defer the above reimbursement for no more than
6 Collection Periods without the consent of the Operating Adviser and, in
any event, 12 Collection Periods in the aggregate. If the Master Servicer
(or the Special Servicer or the Trustee, as applicable), determines, in
its sole discretion, that its ability to fully recover the Nonrecoverable
Advances has been compromised, then the Master Servicer (or the Special
Servicer or the Trustee, as applicable) will be entitled to immediate
reimbursement of such Nonrecoverable Advance plus interest thereon at the
Advance Rate. The agreement of the Master Servicer (or the Special
Servicer or the Trustee, as applicable) to defer reimbursement of such
Nonrecoverable Advances shall not be construed as an obligation on the
part of the Master Servicer (or the Special Servicer or the Trustee, as
applicable), or a right of the Certificateholders. No such deferment shall
be deemed to create in the Certificateholders a right to prior payment of
distributions over the Master Servicer's, Special Servicer's or the
Trustee's right to reimbursement for Advances. Deferred Advances shall
continue to earn interest at the Advance Rate. In all events the decision
to defer reimbursement or seek immediate reimbursement of Nonrecoverable
Advances shall be deemed to be in accordance with the Servicing Standard.
None of the Master Servicer, the Special Servicer or the Trustee
shall have any liability whatsoever for making an election, or refraining from
making an election, that is authorized under this subsection (II)(iv). The
foregoing shall not, however, be construed to limit any liability that may
otherwise be imposed on such Person for any failure by such Person to comply
with the conditions to making such an election under this subsection (II)(iv) or
to comply with the terms of this subsection (II)(iv) and the other provisions of
this Agreement that apply once such an election, if any, has been made.
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Any election by the Master Servicer (or the Special Servicer or the
Trustee, as applicable) to abstain from reimbursing itself for any
Nonrecoverable Advance (and Advance Interest thereon) or portion thereof with
respect to any Collection Period shall not be construed to impose on the Master
Servicer (or the Special Servicer or the Trustee, as applicable) any obligation
to make such an election (or any entitlement in favor of any Certificateholder
or any other Person to such an election) with respect to any subsequent
Collection Period or to constitute a waiver or limitation on the right of the
Master Servicer (or the Special Servicer or the Trustee, as applicable) to
otherwise be reimbursed for such Nonrecoverable Advance (and Advance Interest
thereon). Any election by the Master Servicer, the Special Servicer or the
Trustee to abstain from reimbursing itself for any Nonrecoverable Advance or
portion thereof with respect to any one or more Collection Periods shall not
limit the accrual of Advance Interest on the unreimbursed portion of such
Nonrecoverable Advance for the period prior to the actual reimbursement of such
Nonrecoverable Advance. None of the Master Servicer, the Special Servicer, the
Trustee or the other parties to this Agreement shall have any liability to one
another or to any of the Certificateholders for any such election that such
party makes as contemplated by this subsection or for any losses, damages or
other adverse economic or other effects that may arise from such an election.
The foregoing statements in this paragraph shall not limit the generality of the
statements made in the immediately preceding paragraph. Notwithstanding the
foregoing, none of the Master Servicer, the Special Servicer or the Trustee
shall have the right to abstain from reimbursing itself for any Nonrecoverable
Advance to the extent of the amount described in clause (I)(A) of the definition
of Principal Distribution Amount.
To the extent that amounts in the Certificate Account allocable to
principal are not sufficient to fully reimburse any Nonrecoverable Advance (with
interest thereon) in any Collection Period and the Master Servicer, the Special
Servicer or the Trustee, as applicable, does not intend to exercise its sole
discretion to defer the reimbursement of such amounts to a subsequent Collection
Period, then the Special Servicer, the Master Servicer or the Trustee, as
applicable, shall give the Rating Agencies at least 15 days notice prior to any
reimbursement to it of Nonrecoverable Advances from amounts in the Certificate
Account allocable to interest on the Mortgage Loans unless (1) the Special
Servicer, the Master Servicer or the Trustee, as applicable, determines in its
sole discretion that waiting 15 days after such a notice could jeopardize the
Special Servicer's, the Master Servicer's or the Trustee's, as applicable,
ability to recover such Nonrecoverable Advances, (2) changed circumstances or
new or different information becomes known to the Special Servicer, the Master
Servicer or the Trustee, as applicable, that could affect or cause a
determination of whether any Advance is a Nonrecoverable Advance, whether to
defer reimbursement of a Nonrecoverable Advance or the determination in clause
(1) above, or (3) the Special Servicer or the Master Servicer, as applicable,
has not timely received from the Trustee information requested by the Special
Servicer or the Master Servicer, as applicable, to consider in determining
whether to defer reimbursement of a Nonrecoverable Advance; provided that, if
clause (1), (2) or (3) apply, the Special Servicer, the Master Servicer or the
Trustee, as applicable, shall give Rating Agencies notice of an anticipated
reimbursement to it of Nonrecoverable Advances from amounts in the Certificate
Account allocable to interest on the Mortgage Loans as soon as reasonably
practicable in such circumstances.
(v) Reimbursement Rights of the Master Servicer, Special Servicer
and Trustee Are Senior: Nothing in this Agreement shall be deemed to
create in any
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Certificateholder a right to prior payment of distributions over the
Master Servicer's, the Special Servicer's or the Trustee's right to
reimbursement for Advances plus Advance Interest (whether those that
constitute Workout-Delayed Reimbursement Amounts, those that have been the
subject of the Master Servicer's election authorized in subsection (iv) or
otherwise).
(b) Scheduled Payments due in a Collection Period succeeding the
Collection Period relating to the Master Servicer Remittance Date, Principal
Prepayments received after the related Collection Period, or other amounts not
distributable on the related Distribution Date, shall be held in the applicable
Certificate Account (or sub-account thereof) and shall be distributed on the
Master Servicer Remittance Date or Dates to which such succeeding Collection
Period or Periods relate. In connection with the deposit of any Scheduled
Payments and Principal Prepayments to the Distribution Account in accordance
with the immediately preceding sentence, the Master Servicer shall promptly
notify the Paying Agent and the Paying Agent shall, if it has already reported
anticipated distributions to the Depository, use commercially reasonable efforts
to cause the Depository to make the revised distribution on a timely basis on
such Distribution Date. Neither the Master Servicer nor the Paying Agent nor the
Trustee shall be liable or held responsible for any resulting delay or failure
or any claims or costs incurred in the making of such distribution to
Certificateholders. For purposes of the definition of "Available Distribution
Amount" and "Principal Distribution Amount," the Scheduled Payments and
Principal Prepayments referred to in the preceding proviso shall be deemed to
have been collected in the prior Collection Period.
(c) On the Master Servicer Remittance Date in March of every year
commencing in March 20__, the Master Servicer shall withdraw all related amounts
then in the applicable Interest Reserve Accounts and deposit such amounts into
the Distribution Account.
Section 5.3 Distribution Account, Excess Interest Sub-account,
Reserve Account and Floating Rate Account
(a) The Paying Agent, on behalf of the Trustee shall establish (with
respect to clause (i), on or prior to the Closing Date, and with respect to
clause (ii), on or prior to the date the Paying Agent determines is necessary)
and maintain in its name, on behalf of the Trustee, (i) an account (the
"Distribution Account"), which shall include a certain sub-account (the "Excess
Interest Sub-account") to be held in trust for the benefit of the Holders until
disbursed pursuant to the terms of this Agreement, titled: "_______, as Trustee,
in trust for the benefit of the Holders of Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 20__-____, Distribution
Account" and (ii) an account (the "Reserve Account") to be held in trust for the
benefit of the holders of interests in the Trust until disbursed pursuant to the
terms of this Agreement, titled: "_______, as Trustee, in trust for the benefit
of the Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 20__-____, Reserve Account." The Distribution
Account and the Reserve Account shall be Eligible Accounts. Funds in the Reserve
Account shall not be invested. The Distribution Account and the Reserve Account
shall be held separate and apart from and shall not be commingled with any other
monies including, without limitation, other monies of the Paying Agent held
under this Agreement. The Excess Interest Sub-account and the Reserve Account
shall be deemed sub-accounts of the Distribution Account.
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Funds in the Distribution Account may be invested and, if invested,
shall be invested by, and at the risk of, the Paying Agent in Eligible
Investments selected by the Paying Agent which shall mature, unless payable on
demand, not later than such time on the Distribution Date which will allow the
Paying Agent to make withdrawals from the Distribution Account under Section
5.3(b), and any such Eligible Investment shall not be sold or disposed of prior
to its maturity unless payable on demand. All such Eligible Investments shall be
made in the name of "_______, as Trustee in trust for the benefit of the Holders
of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 20__-____." None of the Depositor, the Mortgagors, the Special Servicer,
the Master Servicer, the Primary Servicers or the Trustee shall be liable for
any loss incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Paying Agent as additional compensation and
shall be subject to its withdrawal at any time from time to time. The amount of
any losses incurred in respect of any such investments shall be for the account
of the Paying Agent which shall deposit the amount of such loss (to the extent
not offset by income from other investments) in the Distribution Account, as the
case may be, out of its own funds immediately as realized. If the Paying Agent
deposits in or transfers to the Distribution Account, as the case may be, any
amount not required to be deposited therein or transferred thereto, it may at
any time withdraw such amount or retransfer such amount from the Distribution
Account, as the case may be, notwithstanding any provision herein to the
contrary.
(b) Except as set forth in the next succeeding sentences, the Paying
Agent shall deposit into the Distribution Account or the Reserve Account, as
applicable, on the Business Day received, all moneys remitted by the Master
Servicer pursuant to this Agreement, including P&I Advances made by the Master
Servicer and the Trustee, other than Excess Liquidation Proceeds, into the
Distribution Account and all Excess Liquidation Proceeds into the Reserve
Account. The Paying Agent shall deposit amounts constituting collections of
Excess Interest on the Mortgage Loans into the Excess Interest Sub-account.
Subject to Section 5.1(h), on the Master Servicer Remittance Date, none of the
Master Servicer shall have any duty to remit to the Distribution Account any
amounts other than amounts held in the applicable Certificate Accounts and
collected during the related Collection Period as provided in clauses (v) and
(xi) of Section 5.2(a) and the P&I Advance Amount, and, on the Master Servicer
Remittance Date occurring in March of any year, commencing in March 20__,
related amounts held in the applicable Interest Reserve Accounts. The Paying
Agent shall make withdrawals from the Distribution Account (including the Excess
Interest Sub-account) and the Reserve Account only for the following purposes:
(i) to withdraw amounts deposited in the Distribution Account in
error and pay such amounts to the Persons entitled thereto;
(ii) to pay any amounts payable to the Master Servicer, the Primary
Servicers, the Special Servicer and the Trustee (including the Trustee's
Fee), or other expenses or other amounts permitted to be paid hereunder
and not previously paid to such Persons pursuant to Section 5.2;
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(iii) to make distributions to the Certificateholders pursuant to
Sections 6.5 and 6.11, to make distributions to the Class A-3-1FL Grantor
Trust in respect of the Class A-3-1FL Regular Interest; and
(iv) to clear and terminate the Distribution Account pursuant to
Section 10.2.
(c) On or before the Closing Date, the Paying Agent shall establish
and maintain the Floating Rate Account for the benefit of the Class [A-3-1FL]
Certificateholders, which may be a sub-account of the Distribution Account. The
Floating Rate Account shall (i) at all times be an Eligible Account, (ii) be
entitled: "_______, as Trustee, in trust for Holders of the Xxxxxx Xxxxxxx
Capital I Trust 20__-__, Floating Rate Account, Class A-3-1FL" and (iii) relate
solely to the Class [A-3-1FL] Certificates, and the Paying Agent shall have the
exclusive right to withdraw funds therefrom. The Paying Agent shall deposit into
the Floating Rate Account on or prior to each Distribution Date an amount equal
to those amounts payable under the related Class A-3-1FL Regular Interest (net
of any payments to the Swap Counterparty made pursuant to Section 8.30(b)
hereof) pursuant to Article VI hereof and shall deposit into the Floating Rate
Account all amounts received on the Swap Contract in respect of such
Distribution Date. Amounts in the Floating Rate Account shall be held
uninvested. The Paying Agent shall make withdrawals from the Floating Rate
Account under its control in the following order of priority and only for the
following purposes:
(i) to withdraw amounts deposited in the Floating Rate Account in
error and pay such amounts to the Persons entitled thereto;
(ii) to make any payments to the Swap Counterparty in accordance
with this Agreement and the applicable Swap Contract;
(iii) to make distributions to the Holders of the Class [A-3-1FL]
Certificates pursuant to Section 6.12;
(iv) to withdraw termination payments to purchase a replacement Swap
Contract, if applicable;
(v) to pay the costs and expenses incurred by the Trustee in
connection with enforcing the rights of the Trust under the Swap Contract;
provided that the Trustee shall only be permitted to incur and reimburse
itself out of the Floating Rate Account with respect to any such costs and
expenses which are in excess of any termination payment received from the
Swap Counterparty and not otherwise applied to offset the expense of
entering into a replacement Swap Contract if it has received either the
written consent of 100% of the holders of the affected Class [A-3-1FL]
Certificates or the written confirmation of each Rating Agency then rating
such Class [A-3-1F] Certificates that such action or event will not result
in the reduction, qualification or withdrawal of its then current rating
for such Class [A-3-1FL] Certificates (the expense of such confirmation to
be borne by the holders of the Class [A-3-1FL] Certificates); and
(vi) to clear and terminate the Floating Rate Account pursuant to
Section 9.1.
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(d) On or before [3:00] p.m. New York time on the Master Servicer
Remittance Date, the Paying Agent shall pay all amounts due to the Swap
Counterparty pursuant to the Swap Contract.
Section 5.4 Paying Agent Reports
(a) On or prior to each Distribution Date, based on information
provided in monthly reports prepared by the Master Servicer and the Special
Servicer and delivered to the Paying Agent by the Master Servicer (no later than
[2:00 p.m.], New York City time on the Report Date), the Paying Agent shall make
available to any interested party via its internet website initially located at
"___________" (the "Paying Agent's Website"), (i) the Monthly Certificateholders
Report (substantially in the form of Exhibit M), (ii) a report containing
information regarding the Mortgage Loans as of the end of the related Collection
Period, which report shall contain substantially the categories of information
regarding the Mortgage Loans set forth in Appendix I to the Final Prospectus
Supplement and shall be presented in tabular format substantially similar to the
format utilized in such Appendix I which report may be included as part of the
Monthly Certificateholders Report, (iii) the CMSA Loan Periodic Update File,
CMSA Loan Setup File, CMSA Bond Level File and the CMSA Collateral Summary File,
(iv) a CMSA Delinquent Loan Status Report, a CMSA Historical Loan Modification
and Corrected Mortgage Loan Report, a CMSA Historical Liquidation Report, a CMSA
Reconciliation of Funds Report, a CMSA REO Status Report and an CMSA Loan Level
Reserve/LOC Report, each containing substantially the information contemplated
in the definition of Unrestricted Servicer Reports and (v) as a convenience for
interested parties (and not in furtherance of the distribution thereof under the
securities laws), the Final Prospectus Supplement and this Agreement.
In addition, on or prior to each Distribution Date, based on
information provided in monthly reports prepared by the Master Servicer and the
Special Servicer and delivered to the Paying Agent in accordance herewith, the
Paying Agent shall make available via the Paying Agent's Website, on a
restricted basis, the Restricted Servicer Reports (including the Property File
on or prior to each Distribution Date, commencing in ___ 20__). The Paying Agent
shall provide access to the Restricted Servicer Reports, upon request, to each
Certificateholder and any prospective Certificateholder or Certificate Owner,
each of the parties to this Agreement, each of the Rating Agencies, each of the
Underwriters, the Operating Adviser, the Placement Agent and any Certificate
Owner upon receipt (which may be in electronic form) from such Person of an
Investor Certificate in the form of Exhibit I, and any other Person upon the
direction of the Depositor, any Placement Agent or any Underwriter. For
assistance with the above-mentioned Paying Agent services, Certificateholders or
any party hereto may initially call ____________.
The Paying Agent makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on the Paying Agent's Website and assumes no responsibility therefor.
The Paying Agent shall be entitled to conclusively rely on any information
provided to it by the Master Servicer or the Special Servicer and shall have no
obligation to verify such information and the Paying Agent may disclaim
responsibility for any information distributed by the Paying Agent for which it
is not the original source. In connection with providing access to the Paying
Agent's Website, the Paying Agent, may require registration and the acceptance
of a disclaimer. None of the Master Servicer,
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the Special Servicer, any Primary Servicer or the Paying Agent shall be liable
for the dissemination of information in accordance with this Agreement; provided
that this sentence shall not in any way limit the liability the Paying Agent may
otherwise have in the performance of its duties hereunder.
(b) Subject to Section 8.15, upon advance written request, if
required by federal regulation, of any Certificateholder that is a savings
association, bank, or insurance company, the Paying Agent shall provide (to the
extent in its possession) to each such Certificateholder such reports and access
to non privileged information and documentation regarding the Mortgage Loans and
the Certificates as such Certificateholder may reasonably deem necessary to
comply with applicable regulations of the Office of Thrift Supervision or
successor or other regulatory authorities with respect to investment in the
Certificates; provided that the Paying Agent shall be entitled to be reimbursed
by such Certificateholder for the Paying Agent's actual expenses incurred in
providing such reports and access.
(c) Upon written request, the Paying Agent shall send to each Person
who at any time during the calendar year was a Certificateholder of record,
customary information as the Paying Agent xxxxx xxx be necessary or desirable
for such Holders to prepare their federal income tax returns.
(d) Reserved.
(e) The Paying Agent shall afford the Rating Agencies, the
Depositor, the Master Servicer, the Special Servicer, the Primary Servicers, the
Trustee, the Operating Adviser, the Swap Counterparty, any Certificateholder,
prospective Certificate Owner or any Person reasonably designated by any
Placement Agent, or any Underwriter upon reasonable notice and during normal
business hours, reasonable access to all relevant, non-attorney privileged
records and documentation regarding the applicable Mortgage Loans, REO Property
and all other relevant matters relating to this Agreement, and access to
Responsible Officers of the Paying Agent.
(f) Copies (or computer diskettes or other digital or electronic
formats of such information if reasonably available in lieu of paper copies) of
any and all of the foregoing items of this Section 5.4 shall be made available
by the Paying Agent upon request; provided, however, that the Paying Agent shall
be permitted to require payment by the requesting party (other than the
Depositor, the Master Servicer, the Special Servicer, the Swap Counterparty, the
Trustee, the Operating Adviser, the Placement Agent or any Underwriter or any
Rating Agency) of a sum sufficient to cover the reasonable expenses actually
incurred by the Paying Agent of providing access or copies (including electronic
or digital copies) of any such information requested in accordance with the
preceding sentence.
(g) The Paying Agent shall make available at its Corporate Trust
Office (either in physical or electronic form), during normal business hours,
upon reasonable advance written notice for review by any Certificateholder, any
Certificate Owner, any prospective Certificate Owner, any Placement Agent, the
Swap Counterparty, the Underwriters, each Rating Agency, the Special Servicer
and the Depositor, originals or copies of, among other things, the following
items: (i) the most recent property inspection reports in the possession of the
Trustee
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in respect of each Mortgaged Property and REO Property, (ii) the most recent
Mortgaged Property/REO Property annual operating statement and rent roll (or in
the case of a residential cooperative property, the most recent maintenance
schedule), if any, collected or otherwise obtained by or on behalf of the Master
Servicer or the Special Servicer and delivered to the Paying Agent, and (iii)
any Phase I Environmental Report or engineering report prepared or appraisals
performed in respect of each Mortgaged Property; provided, however, that the
Paying Agent shall be permitted to require payment by the requesting party
(other than either Rating Agency or the Operating Adviser) of a sum sufficient
to cover the reasonable expenses actually incurred by the Paying Agent or the
Trustee of providing access or copies (including electronic or digital copies)
of any such information reasonably requested in accordance with the preceding
sentence.
Section 5.5 Paying Agent Tax Reports
The Paying Agent shall perform all reporting and other tax
compliance duties that are the responsibility of each REMIC Pool, the Class
A-3-1FL Grantor Trust and the Class EI Grantor Trust under the Code, REMIC
Provisions, or other compliance guidance issued by the Internal Revenue Service
or any state or local taxing authority, as applicable. Consistent with this
Pooling and Servicing Agreement, the Paying Agent shall provide or cause to be
provided (i) to the United States Department of Treasury or other Persons
(including, but not limited to, the Transferor of a Class [R-I], Class [R-II] or
Class [R-III] Certificate, to a Disqualified Organization or to an agent that
has acquired a Class [R-I], Class [R-II] or Class [R-III] Certificate on behalf
of a Disqualified Organization) such information as is necessary for the
application of any tax relating to the transfer of a Class [R-I], Class [R-II]
or Class [R-III] Certificate to any Disqualified Organization and (ii) to the
Certificateholders such information or reports as are required by the Code or
REMIC Provisions. The Master Servicer shall on a timely basis provide the Paying
Agent with such information concerning the Mortgage Loans as is necessary for
the preparation of the tax or information returns or receipts of each REMIC
Pool, the Class A-3-1FL Grantor Trust and the Class EI Grantor Trust as the
Paying Agent may reasonably request from time to time. The Special Servicer is
required to provide to the Master Servicer all information in its possession
with respect to the Specially Serviced Mortgage Loans and REO Property in order
for the Master Servicer to comply with its obligations under this Section 5.5.
The Paying Agent shall be entitled to conclusively rely on any such information
provided to it by the Master Servicer or the Special Servicer and shall have no
obligation to verify any such information.
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally
Subject to Section 10.2(a), respecting the final distribution on the
Certificates, on each Distribution Date, the Paying Agent shall (1) first,
withdraw from the Distribution Account and pay to the Trustee any unpaid fees,
expenses and other amounts then required to be paid pursuant to this Agreement,
and then, to the Paying Agent, any unpaid fees, expenses and other amounts then
required to be paid pursuant to this Agreement, and then at the written
direction of
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the Master Servicer, withdraw from the Distribution Account and pay to the
Master Servicer, the Primary Servicers and the Special Servicer any unpaid
servicing compensation or other amounts currently required to be paid pursuant
to this Agreement (to the extent not previously retained or withdrawn by the
Master Servicer from the applicable Certificate Accounts), and (2) second, make
distributions in the manner and amounts set forth below.
Each distribution to Holders of Certificates shall be made by check
mailed to such Holder's address as it appears on the Certificate Register of the
Certificate Registrar or, upon written request to the Paying Agent on or prior
to the related Record Date (or upon standing instructions given to the Paying
Agent on the Closing Date prior to any Record Date, which instructions may be
revoked at any time thereafter upon written notice to the Paying Agent five days
prior to the related Record Date) made by a Certificateholder by wire transfer
in immediately available funds to an account specified in the request of such
Certificateholder; provided that (i) remittances to the Paying Agent shall be
made by wire transfer of immediately available funds to the Distribution Account
and the Reserve Account; and (ii) the final distribution in respect of any
Certificate shall be made only upon presentation and surrender of such
Certificate at such location specified by the Paying Agent in a notice delivered
to Certificateholders pursuant to Section 10.2(a). If any payment required to be
made on the Certificates is to be made on a day that is not a Business Day, then
such payment will be made on the next succeeding Business Day without
compensation for such delay. All distributions or allocations made with respect
to Holders of Certificates of a Class on each Distribution Date shall be made or
allocated among the outstanding Interests in such Class in proportion to their
respective initial Certificate Balances or Percentage Interests for the Class X
Certificates.
Section 6.2 REMIC I
On each Distribution Date, the Paying Agent shall be deemed to
distribute to itself on behalf of the Trustee, as holder of the REMIC I Regular
Interests, for the following purposes and in the following order of priority:
(i) from the portion of the Available Distribution Amount
attributable to interest collected or deemed collected on or with respect
to each Mortgage Loan or related REO Property, Distributable Certificate
Interest to each Corresponding REMIC I Regular Interest;
(ii) from the portion of the Available Distribution Amount,
attributable to principal collected or deemed collected on or with respect
to each Mortgage Loan or related REO Property, principal to the
Corresponding REMIC I Regular Interest (other than the Group X-Y REMIC I
Regular Interests), until the Certificate Balance thereof is reduced to
zero;
(iii) any remaining funds with respect to each Mortgage Loan or
related REO Property, to reimburse any Realized Losses previously
allocated to the REMIC I Regular Interests (other than the Group X-Y REMIC
I Regular Interests), plus interest on such Realized Losses at the related
REMIC I Net Mortgage Rate previously allocated thereto; and
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(iv) thereafter, to the Class [R-I] Certificateholders, at such time
as the Certificate Balance of all Classes of REMIC I Regular Interests
have been reduced to zero, and Realized Losses previously allocated
thereto have been reimbursed to the Holders of the REMIC I Regular
Interests, any amounts remaining with respect to each Mortgage Loan or
related REO Property, to the extent of the Trust's interest therein.
Section 6.3 REMIC II
(a) On each Distribution Date, the Paying Agent shall be deemed to
distribute to itself on behalf of the Trustee, as holder of the REMIC II Regular
Interests, amounts distributable to any Class of Principal Balance Certificates
(or, in the case of the Class [A-3-1FL] Certificates, distributable to the Class
A-3-1FL Regular Interest) pursuant to Section 6.5 or Section 10.1 to its
Corresponding REMIC II Regular Interest set forth in the Preliminary Statement
hereto; provided that interest shall be deemed to have been distributed pro rata
among two or more Corresponding REMIC II Regular Interests that correspond to a
Class of Principal Balance Certificates (or, in the case of the Class [A-3-1FL]
Certificates, distributed to the Class A-3-1FL Regular Interest); and provided,
further, that distributions of principal:
(i) with respect to the Class [A-1] Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest A-1-1; second, to REMIC II Regular Interest A-1-2; and
third to REMIC II Regular Interest A-1-3; in each case, until their
respective Certificate Balances are reduced to zero;
(ii) with respect to the Class [A-1A] Certificates, shall be deemed
to have first been distributed from REMIC II to REMIC III in respect of
REMIC II Regular Interest A-1A-1; second, to REMIC II Regular Interest
A-1A-2; third, to REMIC II Regular Interest A-1A-3; fourth, to REMIC II
Regular Interest A-1A-4; fifth, to REMIC II Regular Interest A-1A-5;
sixth, to REMIC II Regular Interest A-1A-6; seventh, to REMIC II Regular
Interest A-1A-7; eighth, to REMIC II Regular Interest A-1A-8 and ninth, to
REMIC II Regular Interest A-1A-9; in each case, until their respective
Certificate Balances are reduced to zero;
(iii) with respect to the Class [A-2] Certificates, shall be deemed
to have been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest A-2, until its Certificate Balance is reduced to zero;
(iv) with respect to the Class A-3-1FL Regular Interest, shall be
deemed to have first been distributed from REMIC II to REMIC III in
respect of REMIC II Regular Interest A-3-1FL-1; second, to REMIC II
Regular Interest A-3-1FL-2; third, to REMIC II Regular Interest A-3-1FL-3
and fourth, to REMIC II Regular Interest A-3-1FL-4; in each case, until
their respective Certificate Balances are reduced to zero;
(v) with respect to the Class [A-3-1] Certificates, shall be deemed
to have first been distributed from REMIC II to REMIC III in respect of
REMIC II Regular Interest A-3-1-1; second, to REMIC II Regular Interest
A-3-1-2; third, to REMIC II Regular
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Interest A-3-1-3 and fourth, to REMIC II Regular Interest A-3-1-4; in each
case, until their respective Certificate Balances are reduced to zero;
(vi) with respect to the Class [A-3-2] Certificates, shall be deemed
to have first been distributed from REMIC II to REMIC III in respect of
REMIC II Regular Interest A-3-2-1 and second, to REMIC II Regular Interest
A-3-2-2; in either case, until their respective Certificate Balances are
reduced to zero;
(vii) with respect to the Class [A-AB] Certificates, shall be deemed
to have first been distributed from REMIC II to REMIC III in respect to of
REMIC II Regular Interest A-AB-1 and second, to REMIC II Regular Interest
A-AB-2; in either case, until their respective Certificate Balances are
reduced to zero;
(viii) with respect to the Class [A-4A] Certificates, shall be
deemed to have first been distributed from REMIC II to REMIC III in
respect of REMIC II Regular Interest A-4A-1; second, to REMIC II Regular
Interest A-4A-2 and third, to REMIC II Regular Interest A-4A-3; in each
case, until their respective Certificate Balances are reduced to zero;
(ix) with respect to the Class [A-4B] Certificates, shall be deemed
to have been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest A-4B, until its Certificate Balance is reduced to zero;
(x) with respect to the Class [B] Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest B-1; second, to REMIC II Regular Interest B-2; and
third, to REMIC II Regular Interest B-3; in each case, until their
respective Certificate Balances are reduced to zero;
(xi) with respect to the Class [C] Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest C-1; and second, to REMIC II Regular Interest C-2; in
each case, until their respective Certificate Balances are reduced to
zero;
(xii) with respect to the Class [D] Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest D-1; second, to REMIC II Regular Interest D-2; and
third, to REMIC II Regular Interest D-3; in each case, until their
respective Certificate Balances are reduced to zero;
(xiii) with respect to the Class [F] Certificates, shall be deemed
to have first been distributed from REMIC II to REMIC III in respect of
REMIC II Regular Interest F-1; and second, to REMIC II Regular Interest
F-2; in each case, until their respective Certificate Balances are reduced
to zero;
(xiv) with respect to the Class [G] Certificates, shall be deemed to
have been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest G. until its Certificate Balance is reduced to zero; and
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(xv) with respect to the Class [H] Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest H-1; and second, to REMIC II Regular Interest H-2; in
each case, until their respective Certificate Balances are reduced to
zero.
(b) All distributions made in respect of the Class [X-1] and Class
[X-2] Certificates on each Distribution Date pursuant to Section 6.5 or Section
10.1, and allocable to any particular Component of such Class of Certificates in
accordance with the last paragraph of Section 6.5(a), shall be deemed to have
first been distributed from REMIC II to REMIC III in respect of such Component's
Corresponding REMIC II Regular Interest. All distributions made in respect of
the Class [X-Y] Certificates on each Distribution Date pursuant to Section 6.5
or Section 10.1 shall be deemed distributed to REMIC II Regular Interest X-Y.
All distributions of reimbursements of Realized Losses made in respect of any
Class of Principal Balance Certificates (or, in the case of the Class [A-3-1FL]
Certificates, in respect of the Class A-3-1FL Regular Interest) on each
Distribution Date pursuant to Section 6.5 shall be deemed to have first been
distributed from REMIC II to REMIC III in respect of its Corresponding REMIC II
Regular Interest set forth in the Preliminary Statement hereto; provided,
however, that distributions of reimbursements of Realized Losses shall be made
in reverse sequential order and priority as such as Realized Losses were
previously allocated to a particular Component of such Class of Certificates.
Any amounts remaining in the Distribution Account with respect to REMIC II on
any Distribution Date after the foregoing distributions shall be distributed to
the holders of the Class [R-II] Certificates.
Section 6.4 Reserved
Section 6.5 REMIC III
(a) On each Distribution Date, the Paying Agent shall withdraw from
the Distribution Account an amount equal to the Available Distribution Amount
and shall distribute such amount (other than the amount attributable to Excess
Liquidation Proceeds which shall be distributed in accordance with Section
6.5(b), the amount attributable to Excess Interest which shall be distributed in
accordance with Section 6.5(c), and the amount equal to any Net Swap Payment
that was deemed distributed in respect of the Class A-3-1FL Regular Interest on
the immediately preceding Master Servicer Remittance Date pursuant to Section
8.30(b)) in the following amounts and order of priority:
(i) to the Holders of the Class [A-1] Certificates, Class [A-1A]
Certificates, Class [A-2] Certificates, Class A-3-1FL Regular Interest,
Class [A-3-1] Certificates, Class [A-3-2] Certificates, Class [A-AB]
Certificates, Class [A-4] Certificates, Class [X-1] Certificates, Class
[X-2] Certificates and Class [X-Y] Certificates, concurrently,
(A) to the Holders of the Class [A-1] Certificates, Class
[A-2] Certificates, Class A-3-1FL Regular Interest, Class [A-3-1]
Certificates, Class [A-3-2] Certificates, Class [A-AB] Certificates
and Class [A-4] Certificates, the Distributable Certificate Interest
Amount in respect of such Class for such Distribution Date (which
shall be payable from amounts in the Available
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Distribution Amount attributable to Loan Group 1), pro rata in
proportion to the Distributable Certificate Interest Amount payable
in respect of each such Class; provided, that the interest
distributed to the Holders of the Class [A-4] Certificates will be
applied first to the Class [A-4A] Certificates up to their
Distributable Certificate Interest Amount and then to the Class
[A-4B] Certificates up to their Distributable Certificate Interest
Amount;
(B) to the Holders of the Class [A-1A] Certificates, the
Distributable Certificate Interest Amount in respect of such Class
for such Distribution Date (which shall be payable from amounts in
the Available Distribution Amount attributable to Loan Group 2);
(C) to the Holders of the Class [X-1] Certificates, Class
[X-2] Certificates and Class [X-Y] Certificates, the Distributable
Certificate Interest Amount in respect of each such Class for such
Distribution Date, pro rata in proportion to the Distributable
Certificate Interest Amount payable in respect of each such Class;
provided, however, that if the portion of Available Distribution
Amount attributable to either Loan Group is insufficient to pay in
full the total amount of interest to be distributed with respect to
any of the Class [A] or Class [X] Certificates on such Distribution
Date as described above, the Available Distribution Amount will be
allocated among the Class [A] Certificates and the Class [X]
Certificates, pro rata in proportion to the respective amounts of
interest payable thereon for such Distribution Date, without regard
to Loan Group, provided that interest distributed to the Holders of
the Class [A-4] Certificates will be applied first to the Class
[A-4A] Certificates up to their interest entitlement and then to the
Class [A-4B] Certificates up to their interest entitlement;
(ii) (A) to the holders of the Class [A-1], Class [A-1A], Class
[A-2], Class [A-3-1], Class [A-3-2], Class [A-AB] and Class [A-4]
Certificates and the Class A-3-1FL Regular Interest,
(1) first, to the Holders of the Class [A-AB]
Certificates, the Loan Group 1 Principal Distribution Amount
for such Distribution Date and, after the Certificate Balance
of the Class [A-1A] Certificates has been reduced to zero, the
Loan Group 2 Principal Distribution Amount for such
Distribution Date, until the aggregate Certificate Balance of
the Class [A-AB] Certificates has been reduced to the Planned
Principal Balance for such Distribution Date; the portion of
the Loan Group 2 Principal Distribution Amount distributed
hereunder will be reduced by any portion thereof distributed
to the Holders of the Class [A-1A] Certificates;
(2) second, upon payment to the Class [A-AB]
Certificates of the above distribution, to the Holders of the
Class [A-1] Certificates, the
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Loan Group 1 Principal Distribution Amount for such
Distribution Date and, after the Certificate Balance of the
Class [A-1A] Certificates has been reduced to zero, the Loan
Group 2 Principal Distribution Amount for such Distribution
Date, until the aggregate Certificate Balance of the Class
[A-1] Certificates has been reduced to zero; the portion of
the Loan Group 1 Principal Distribution Amount and Loan Group
2 Principal Distribution Amount distributed hereunder will be
reduced by any portion thereof distributed to the Holders of
the Class [A-AB] Certificates (in respect of the Planned
Principal Balance) and (solely with respect to the Loan Group
2 Principal Distribution Amount) Class [A-1A] Certificates;
(3) third, upon payment in full of the aggregate
Certificate Balance of the Class [A-1] Certificates, to the
Holders of the Class [A-2] Certificates, the Loan Group 1
Principal Distribution Amount for such Distribution Date and,
after the Certificate Balance of the Class [A-1A] Certificates
has been reduced to zero, the Loan Group 2 Principal
Distribution Amount, until the aggregate Certificate Balance
of the Class [A-2] Certificates has been reduced to zero; the
portion of the Loan Group 1 Principal Distribution Amount and
Loan Group 2 Principal Distribution Amount distributed
hereunder will be reduced by any portion thereof distributed
to the Holders of the Class [A-AB] Certificates (in respect of
the Planned Principal Balance), Class [A-1] Certificates and
(solely with respect to the Loan Group 2 Principal
Distribution Amount) Class [A-1A] Certificates;
(4) fourth, upon payment in full of the aggregate
Certificate Balance of the Class [A-2] Certificates, to the
Holders of the Class [A-3-1] Certificates and the Class
A-3-1FL Regular Interest, pro rata, the Loan Group 1 Principal
Distribution Amount for such Distribution Date and, after the
Certificate Balance of the Class [A-1A] Certificates has been
reduced to zero, the Loan Group 2 Principal Distribution
Amount, until the aggregate Certificate Balances of the Class
[A-3-1] Certificates and the Class A-3-1FL Regular Interest
have been reduced to zero; the portion of the Loan Group 1
Principal Distribution Amount and Loan Group 2 Principal
Distribution Amount distributed hereunder will be reduced by
any portion thereof distributed to the Holders of the Class
[A-AB] Certificates (in respect of the Planned Principal
Balance), Class [A-1] Certificates, Class [A-2] Certificates
and (solely with respect to the Loan Group 2 Principal
Distribution Amount) Class [A-1A] Certificates;
(5) fifth, upon payment in full of the aggregate
Certificate Balances of the Class [A-3-1] Certificates and the
Class A-3-1FL Regular Interest, to the Holders of the Class
[A-3-2] Certificates, the Loan Group 1 Principal Distribution
Amount for such Distribution Date and, after the Certificate
Balance of the Class [A-1A] Certificates has been reduced to
zero, the Loan Group 2 Principal Distribution Amount, until
the aggregate Certificate Balance of the Class [A-3-2]
Certificates has been reduced to
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zero; the portion of the Loan Group 1 Principal Distribution
Amount and Loan Group 2 Principal Distribution Amount
distributed hereunder will be reduced by any portion thereof
distributed to the Holders of the Class [A-AB] Certificates
(in respect of the Planned Principal Balance), Class [A-1]
Certificates, Class [A-2] Certificates, Class [A-3-1]
Certificates and the Class A-3-1FL Regular Interest and
(solely with respect to the Loan Group 2 Principal
Distribution Amount) Class [A-1A] Certificates;
(6) sixth, upon payment in full of the aggregate
Certificate Balance of the Class [A-3-2] Certificates, to the
Holders of the Class [A-AB] Certificates, the Loan Group 1
Principal Distribution Amount for such Distribution Date and,
after the Certificate Balance of the Class [A-1A] Certificates
has been reduced to zero, the Loan Group 2 Principal
Distribution Amount, until the aggregate Certificate Balance
of the Class [A-AB] Certificates has been reduced to zero; the
portion of the Loan Group 1 Principal Distribution Amount and
Loan Group 2 Principal Distribution Amount distributed
hereunder will be reduced by any portion thereof distributed
to the Holders of the Class [A-AB] Certificates (in respect of
the Planned Principal Balance), Class [A-1] Certificates,
Class [A-2] Certificates, Class [A-3-1] Certificates, Class
A-3-1FL Regular Interest and Class [A-3-2] Certificates and
(solely with respect to the Loan Group 2 Principal
Distribution Amount) Class [A-1A] Certificates;
(7) seventh, upon payment in full of the aggregate
Certificate Balance of the Class [A-AB] Certificates, to the
Holders of the Class [A-4A] Certificates, the Loan Group 1
Principal Distribution Amount for such Distribution Date and,
after the Certificate Balance of the Class [A-1A] Certificates
has been reduced to zero, the Loan Group 2 Principal
Distribution Amount, until the aggregate Certificate Balance
of the Class [A-4A] Certificates has been reduced to zero; the
portion of the Loan Group 1 Principal Distribution Amount and
Loan Group 2 Principal Distribution Amount distributed
hereunder will be reduced by any portion thereof distributed
to the Holders of the Class [A-AB] Certificates, Class [A-1]
Certificates, Class [A-2] Certificates, Class [A-3-1]
Certificates, Class A-3-1FL Regular Interest and Class [A-3-2]
Certificates and (solely with respect to the Loan Group 2
Principal Distribution Amount) Class [A-1A] Certificates;
(8) eighth, upon payment in full of the aggregate
Certificate Balance of the Class [A-4A] Certificates, to the
Holders of the Class [A-4B] Certificates, the Loan Group 1
Principal Distribution Amount for such Distribution Date and,
after the Certificate Balance of the Class [A-1A] Certificates
has been reduced to zero, the Loan Group 2 Principal
Distribution Amount, until the aggregate Certificate Balance
of the Class [A-4B] Certificates has been reduced to zero; the
portion of the
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Loan Group 1 Principal Distribution Amount and Loan Group 2
Principal Distribution Amount distributed hereunder will be
reduced by any portion thereof distributed to the Holders of
the Class [A-AB] Certificates, Class [A-1] Certificates, Class
[A-2] Certificates, Class [A-3-1] Certificates, Class A-3-1FL
Regular Interest, Class [A-3-2] Certificates and Class [A-4A]
Certificates and (solely with respect to the Loan Group 2
Principal Distribution Amount) Class [A-1A] Certificates; and
(B) to the Holders of the Class [A-1A] Certificates, the Loan
Group 2 Principal Distribution Amount for such Distribution Date
and, after the Certificate Balance of the Class [A-4B] Certificates
has been reduced to zero, the Loan Group 1 Principal Distribution
Amount for such Distribution Date, until the aggregate Certificate
Balance of the Class [A-1A] Certificates has been reduced to zero;
the portion of the Loan Group 1 Principal Distribution Amount will
be reduced by any portion thereof distributed to the Holders of the
Class [A-AB] Certificates, Class [A-1] Certificates, Class [A-2]
Certificates, Class [A-3-1] Certificates, Class A-3-1FL Regular
Interest, Class [A-3-2] Certificates, Class [A-4A] Certificates and
Class [A-4B] Certificates;
(iii) to the Holders of the Class [A] Certificates (other than the
Class [A-3-1FL] Certificates), Class [X-1] Certificates, Class [X-2]
Certificates, Class [X-Y] Certificates and Class A-3-1FL Regular Interest,
pro rata (treating principal and interest losses separately) in proportion
to their respective entitlements to reimbursement described in this
clause, to reimburse any Realized Losses previously allocated thereto and
not previously fully reimbursed, plus one month's interest at the
applicable Pass-Through Rate on such Realized Losses; provided, that such
amounts in respect of the Class [A-4] Certificates will be allocated first
to the Class [A-4A] Certificates until such Realized Losses previously
allocated thereto are reimbursed together with all applicable interest at
the applicable Pass-Through Rate and then to the Class [A-4B] Certificates
until such Realized Losses previously allocated thereto are reimbursed
together with all applicable interest at the applicable Pass-Through Rate;
(iv) to the Holders of the Class [A-J] Certificates, Distributable
Certificate Interest for such Distribution Date;
(v) upon payment in full of the Certificate Balance of the Class A
Certificates (other than the Class [A-3-1FL] Certificates) and the Class
A-3-1FL Regular Interest, to the Holders of the Class [A-J] Certificates,
the Principal Distribution Amount for such Distribution Date (reduced by
any prior distributions thereof hereunder), until the Certificate Balance
of the Class [A-J] Certificates has been reduced to zero;
(vi) to the Holders of the Class [A-J] Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(vii) to the Holders of the Class [B] Certificates, Distributable
Certificate Interest for such Distribution Date,
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(viii) upon payment in full of the Certificate Balance of the Class
[A-J] Certificates, to the Holders of the Class [B] Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions to Holders of Class [A] Certificates (other than the
Class [A-3-1FL] Certificates), the Class A-3-1FL Regular Interest and
Class [A-J] Certificates hereunder), until the Certificate Balance of the
Class [B] Certificates has been reduced to zero,
(ix) to the Holders of the Class [B] Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses
(x) to the Holders of the Class [C] Certificates, Distributable
Certificate Interest for such Distribution Date,
(xi) upon payment in full of the Certificate Balance of the Class
[B] Certificates, to the Holders of the Class [C] Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions to Holders of Class [A] Certificates (other than Class
[A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J]
Certificates and Class [B] Certificates hereunder), until the Certificate
Balance of the Class [C] Certificates has been reduced to zero,
(xii) to the Holders of the Class [C] Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xiii) to the Holders of the Class [D] Certificates, Distributable
Certificate Interest for such Distribution Date,
(xiv) upon payment in full of the Certificate Balance of the Class
[C] Certificates, to the Holders of the Class [D] Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions to Holders of Class [A] Certificates (other than Class
[A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J]
Certificates, Class [B] Certificates and Class [C] Certificates
hereunder), until the Certificate Balance of the Class [D] Certificates
has been reduced to zero,
(xv) to the Holders of the Class [D] Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xvi) to the Holders of the Class [E] Certificates, Distributable
Certificate Interest for such Distribution Date
(xvii) upon payment in full of the Certificate Balance of the Class
[D] Certificates, to the Holders of the Class [E] Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions to Holders of Class [A] Certificates (other than Class
[A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J]
Certificates, Class [B] Certificates, Class [C] Certificates
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and Class [D] Certificates hereunder), until the Certificate Balance of
the Class [E] Certificates has been reduced to zero,
(xviii) to the Holders of the Class [E] Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xix) to the Holders of the Class [F] Certificates, Distributable
Certificate Interest for such Distribution Date,
(xx) upon payment in full of the Certificate Balance of the Class
[E] Certificates, to the Holders of the Class [F] Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions to Holders of Class [A] Certificates (other than Class
[A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J]
Certificates, Class [B] Certificates, Class [C] Certificates, Class [D]
Certificates and Class [E] Certificates hereunder), until the Certificate
Balance of the Class [F] Certificates has been reduced to zero,
(xxi) to the Holders of the Class [F] Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xxii) to the Holders of the Class [G] Certificates, Distributable
Certificate Interest for such Distribution Date,
(xxiii) upon payment in full of the Certificate Balance of the Class
[F] Certificates, to the Holders of the Class [G] Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions to Holders of Class [A] Certificates (other than Class
[A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J]
Certificates, Class [B] Certificates, Class [C] Certificates, Class [D]
Certificates, Class [E] Certificates and Class [F] Certificates
hereunder), until the Certificate Balance of the Class [G] Certificates
has been reduced to zero,
(xxiv) to the Holders of the Class [G] Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xxv) to the Holders of the Class [H] Certificates, Distributable
Certificate Interest for such Distribution Date,
(xxvi) upon payment in full of the Certificate Balance of the Class
[G] Certificates, to the Holders of the Class [H] Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions to Holders of Class [A] Certificates (other than Class
[A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J]
Certificates, Class [B] Certificates, Class [C] Certificates, Class [D]
Certificates, Class [E] Certificates, Class [F] Certificates and Class [G]
Certificates hereunder), until the Certificate Balance of the Class [H]
Certificates has been reduced to zero,
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(xxvii) to the Holders of the Class [H] Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xxviii) to the Holders of the Class [J] Certificates, Distributable
Certificate Interest for such Distribution Date,
(xxix) upon payment in full of the Certificate Balance of the Class
[H] Certificates, to the Holders of the Class [J] Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions to Holders of Class [A] Certificates (other than Class
[A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J]
Certificates, Class [B] Certificates, Class [C] Certificates, Class [D]
Certificates, Class [E] Certificates, Class [F] Certificates, Class [G]
Certificates and Class [H] Certificates hereunder), until the Certificate
Balance of the Class [J] Certificates has been reduced to zero,
(xxx) to the Holders of the Class [J] Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xxxi) to the Holders of the Class [K] Certificates, Distributable
Certificate Interest for such Distribution Date,
(xxxii) upon payment in full of the Certificate Balance of the Class
[J] Certificates, to the Holders of the Class [K] Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions to Holders of Class [A] Certificates (other than Class
[A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J]
Certificates, Class [B] Certificates, Class [C] Certificates, Class [D]
Certificates, Class [E] Certificates, Class [F] Certificates, Class [G]
Certificates, Class [H] Certificates and Class [J] Certificates
hereunder), until the Certificate Balance of the Class [K] Certificates
has been reduced to zero,
(xxxiii) to the Holders of the Class [K] Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xxxiv) to the Holders of the Class [L] Certificates, Distributable
Certificate Interest for such Distribution Date,
(xxxv) upon payment in full of the Certificate Balance of the Class
[K] Certificates, to the Holders of the Class [L] Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions to Holders of Class [A] Certificates (other than Class
[A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J]
Certificates, Class [B] Certificates, Class [C] Certificates, Class [D]
Certificates, Class [E] Certificates, Class [F] Certificates, Class [G]
Certificates, Class [H] Certificates, Class [J] Certificates and Class [K]
Certificates hereunder), until the Certificate Balance of the Class [L]
Certificates has been reduced to zero,
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(xxxvi) to the Holders of the Class [L] Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xxxvii) to the Holders of the Class [M] Certificates, Distributable
Certificate Interest for such Distribution Date,
(xxxvii) upon payment in full of the Certificate Balance of the
Class [L] Certificates, to the Holders of the Class [M] Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions to Holders of Class [A] Certificates (other than Class
[A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J]
Certificates, Class [B] Certificates, Class [C] Certificates, Class [D]
Certificates, Class [E] Certificates, Class [F] Certificates, Class [G]
Certificates, Class [H] Certificates, Class [J] Certificates, Class [K]
Certificates and Class [L] Certificates hereunder), until the Certificate
Balance of the Class [M] Certificates has been reduced to zero,
(xxxix) to the Holders of the Class [M] Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xl) to the Holders of the Class [N] Certificates, Distributable
Certificate Interest for such Distribution Date,
(xli) upon payment in full of the Certificate Balance of the Class
[M] Certificates, to the Holders of the Class [N] Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions to Holders of Class [A] Certificates (other than Class
[A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J]
Certificates, Class [B] Certificates, Class [C] Certificates, Class [D]
Certificates, Class [E] Certificates, Class [F] Certificates, Class [G]
Certificates, Class [H] Certificates, Class [J] Certificates, Class [K]
Certificates, Class [L] Certificates and Class [M] Certificates
hereunder), until the Certificate Balance of the Class [N] Certificates
has been reduced to zero,
(xlii) to the Holders of the Class [N] Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xliii) to the Holders of the Class [O] Certificates, Distributable
Certificate Interest for such Distribution Date,
(xliv) upon payment in full of the Certificate Balance of the Class
[N] Certificates, to the Holders of the Class [O] Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions to Holders of Class [A] Certificates (other than Class
[A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J]
Certificates, Class [B] Certificates, Class [C] Certificates, Class [D]
Certificates, Class [E] Certificates, Class [F] Certificates, Class [G]
Certificates, Class [H] Certificates, Class [J] Certificates, Class [K]
Certificates, Class [L]
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Certificates, Class [M] Certificates and Class [N] Certificates
hereunder), until the Certificate Balance of the Class [O] Certificates
has been reduced to zero,
(xlv) to the Holders of the Class [O] Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xlvi) to the Holders of the Class [P] Certificates, Distributable
Certificate Interest for such Distribution Date,
(xlvii) upon payment in full of the Certificate Balance of the Class
[O] Certificates, to the Holders of the Class [P] Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions to Holders of Class [A] Certificates (other than Class
[A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J]
Certificates, Class [B] Certificates, Class [C] Certificates, Class [D]
Certificates, Class [E] Certificates, Class [F] Certificates, Class [G]
Certificates, Class [H] Certificates, Class [J] Certificates, Class [K]
Certificates, Class [L] Certificates, Class [M] Certificates, Class [N]
Certificates and Class [O] Certificates hereunder), until the Certificate
Balance of the Class [P] Certificates has been reduced to zero,
(xlviii) to the Holders of the Class [P] Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses, and
(xlix) to the Holders of the Class [R-III] Certificates at such time
as the Certificate Balances of all Classes of REMIC Regular Certificates
and the Class A-3-1FL Regular Interest have been reduced to zero, and
Realized Losses previously allocated to each Holder have been reimbursed
to the Holders of the REMIC Regular Certificates and the Class A-3-1FL
Regular Interest, any amounts remaining on deposit in the Distribution
Account.
Notwithstanding the foregoing, on each Distribution Date occurring
on or after the earliest date, if any, upon which the Certificate Balances of
all the Classes of Subordinate Certificates have been reduced to zero or the
aggregate Appraisal Reduction in effect is greater than or equal to Certificate
Balances of all the Classes of Subordinate Certificates, the Principal
Distribution Amount will be distributed,
o first, to the Holders of the Class [A-1], Class [A-1A], Class [A-2], Class
[A-3-1], Class [A-3-2], Class [A-AB] and Class [A-4] Certificates and the
Class A-3-1FL Regular Interest, pro rata, based on their respective
Certificate Balances, in reduction of their respective Certificate
Balances, until the Certificate Balance of each such Class is reduced to
zero, provided that Principal Distribution Amounts distributed to the
Holders of the Class [A-4] Certificates will be applied first to the Class
[A-4A] Certificates until the aggregate Certificate Balance of such Class
is reduced to zero and then to the Class [A-4B] Certificates until the
aggregate Certificate Balance of such Class is reduced to zero; and
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o second, to the Holders of the Class [A-1], Class [A-1A], Class [A-2],
Class [A-3-1], Class [A-3-2], Class [A-AB] and Class [A-4] Certificates
and the Class A-3-1FL Regular Interest, pro rata, based on the respective
amounts of unreimbursed Realized Losses previously allocated to each such
Class, plus one month's interest on such Realized Losses at the applicable
Pass-Through Rate, provided that such amounts with respect to the Class
[A-4] Certificates will be allocated first to the Class [A-4A]
Certificates until such unreimbursed losses are reimbursed, together with
interest at the applicable Pass-Through Rate, and then to the Class [A-4B]
Certificates until such unreimbursed losses are reimbursed, together with
interest at the applicable Pass-Through Rate.
Such distribution of the Principal Distribution Amount to the
Holders of the Class [A-1] Certificates, Class [A-1A] Certificates, Class [A-2]
Certificates, Class A-3-1FL Regular Interest, Class [A-3-1] Certificates, Class
[A-3-2] Certificates, Class [A-AB] Certificates, Class [A-4A] Certificates and
Class [A-4B] Certificates, respectively, shall be deemed to be made to REMIC II
Regular Interests A-1-1, A-1-2 and A-1-3, REMIC II Regular Interests X-0X-0,
X-0X-0, X-0X-0, X-0X-0, X-0X-0, X-0X-0, X-0X-0, X-0X-0, and A-1A-9, REMIC II
Regular Interest A-2, REMIC II Regular Interests X-0-0XX-0, X-0-0XX-0, X-0-0XX-0
and A-3-1FL-4, REMIC II Regular Interests X-0-0-0, X-0-0-0, X-0-0-0 and A-3-1-4,
REMIC II Regular Interests A-3-2-1 and A-3-2-2, REMIC II Regular Interests
A-AB-1, and A-AB-2, REMIC II Regular Interests A-4A-1, A-4A-2 and A-4A-3 and
REMIC II Regular Interest A-4B, respectively, in the same order and priority as
the distributions described in Section 6.3(a).
(b) On each Distribution Date, following the above-described
distributions on the Principal Balance Certificates and the Class [X-1]
Certificates, Class [X-2] Certificates and Class [X-Y] Certificates, the Paying
Agent shall withdraw amounts in the Reserve Account and shall pay the
Certificateholders on such Distribution Date such amounts in the following
priority:
(i) first, from amounts in the Reserve Account with respect to all
Mortgage Loans, to reimburse the Holders of the Class [A] Certificates
(other than the Class [A-3-1FL] Certificates), the Class A-3-1FL Regular
Interest and the Class [X] Certificates, pro rata, and then the remaining
amounts to reimburse the Principal Balance Certificates (other than the
Class [A] Certificates) (in order of alphabetical and numerical Class
designation) for any, and to the extent of, Realized Losses previously
allocated to them and not previously fully reimbursed, plus one month's
interest at the applicable Pass-Through Rate on such Realized Losses;
provided, that such amounts in respect of the Class [A-4] Certificates
will be allocated first to the Class [A-4A] Certificates until such
Realized Losses previously allocated thereto are reimbursed together with
all applicable interest at the applicable Pass-Through Rate and then to
the Class [A-4B] Certificates until such Realized Losses previously
allocated thereto are reimbursed together with all applicable interest at
the applicable Pass-Through Rate; and
(ii) second, upon the reduction of the Aggregate Certificate Balance
of the Principal Balance Certificates (other than the Class [A-3-1FL]
Certificates) and the Class A-3-1FL Regular Interest to zero, to pay any
amounts remaining on deposit in such account to the Special Servicer as
additional Special Servicer Compensation.
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Amounts reimbursed pursuant to Section 6.5(b)(i) shall be deemed to
be applied to reimbursement of Realized Losses previously allocated to the REMIC
II Regular Interests and the REMIC I Regular Interests in the reverse sequential
order and priority as such Realized Losses were applied thereto.
(c) On each Distribution Date, the Paying Agent shall withdraw from
the Excess Interest Sub-account any Excess Interest on deposit therein, and the
Paying Agent shall distribute such Excess Interest on such Distribution Date to
the Class [EI] Certificates.
Section 6.6 Allocation of Realized Losses, Expense Losses and
Shortfalls Due to Nonrecoverability
(a) REMIC I. On each Distribution Date, except as provided in
subsection (b) below,
(i) Realized Principal Losses on each Mortgage Loan realized during
the related Collection Period shall reduce the Certificate Balance of the
Corresponding REMIC I Regular Interest;
(ii) Realized Interest Losses on each Mortgage Loan shall be
allocated to reduce first, Distributable Certificate Interest for such
Distribution Date, and then Unpaid Interest in each case owing on the
Corresponding REMIC I Regular Interests (and as between the related Group
X-Y REMIC I Regular Interest and Group PB REMIC I Regular Interest, pro
rata, based on Distributable Certificate Interest otherwise payable
thereon); and to the extent that such Realized Interest Loss exceeds such
amount, shall be treated as an Expense Loss; and
(iii) Expense Losses (not otherwise applied above) realized during
the related Collection Period shall be allocated among the REMIC I Regular
Interests in proportion to their Certificate Balances or Notional Amounts
(and, as between the related Group X-Y REMIC I Regular Interest and Group
PB REMIC I Regular Interest, in proportion to Distributable Certificate
Interest or Unpaid Interest, as applicable) after making all other
allocations for such Distribution Date.
(b) In the event that the Master Servicer, the Special Servicer or
the Trustee determines that an Advance previously made by it (whether such
Advance (together with Advance Interest thereon) was in respect of principal or
interest on the related Mortgage Loan or a Servicing Advance) is a
Nonrecoverable Advance and the Master Servicer withdraws the amount of such
Advance from the applicable Certificate Account pursuant to Section 5.2(a)
hereof (which amount shall be treated as an Available Advance Reimbursement
Amount pursuant to Section 4.6 or if the Master Servicer determines any
Unliquidated Advance has become a Nonrecoverable Advance), the Master Servicer
(after consultation with the Special Servicer) shall compute the Realized Loss
with respect to such Mortgage Loan (and the Paying Agent shall allocate the
Realized Loss) as follows:
(i) the amount withdrawn from the Certificate Account shall be
treated as Realized Principal Losses up to the amount of the aggregate
amount in the Certificate Account allocable to principal for such
Collection Period contemplated by clause (I)(A)
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of the definition of Principal Distribution Amount, and shall be allocated
to the Corresponding REMIC I Regular Interest in accordance with Section
6.6(a)(i) (and to the extent that any Realized Principal Loss exceeds the
Certificate Balance of the Corresponding REMIC I Regular Interest, such
Realized Principal Loss shall be allocated to the other Corresponding
REMIC I Regular Interests in accordance with Section 6.6(a)(iii)), and
such withdrawal shall reduce the principal paid on each such REMIC I
Regular Interest on which principal would otherwise be paid on such
Distribution Date, in proportion to such principal payments; and
(ii) if the amount that the Master Servicer withdraws from the
Certificate Account as referenced in clause (b)(i) above exceeds such
amounts allocable to principal for such Collection Period, then such
additional amounts shall constitute Unpaid Interest, and shall be
allocated to the REMIC I Regular Interests on a pro rata basis based upon
the amount of accrued and unpaid interest thereon.
(c) At such time as a Final Recovery Determination is made with
respect to any Mortgage Loan with respect to which the Master Servicer
previously had withdrawn amounts from the applicable Certificate Account
following a determination that Advances previously made were Nonrecoverable
Advances and Realized Losses were computed and allocated pursuant to clauses (a)
and (b) above, and amounts are recovered:
(i) the portion of the amount of collections recovered on the
Mortgage Loan that is identified and applied by the Master Servicer as
recoveries of principal shall be applied first, to make payments of
principal on the Corresponding REMIC I Regular Interest up to an amount
equal to the Realized Principal Losses previously allocated thereto as a
result of the reimbursement of Nonrecoverable Advances or Advance Interest
(and the Principal Balance of the Mortgage Loan and the related
Certificate Balance of the Corresponding REMIC I Regular Interest shall be
correspondingly increased), and thereafter to make payments of principal
to the Corresponding REMIC I Regular Interests with respect to which
principal distributions were reduced pursuant to Section 6.6(b)(i) above,
in proportion to the amount of such reductions; and
(ii) the portion of the amount recovered on the Mortgage Loan that
is identified and applied by the Master Servicer as recoveries of interest
shall be applied to make payments of Unpaid Interest on the REMIC I
Regular Interests with respect to which Unpaid Interest was allocated
pursuant to Section 6.6(b)(ii).
(d) REMIC II. On each Distribution Date, all Realized Losses and
Expense Losses on the REMIC I Regular Interests for such Distribution Date (or
for prior Distribution Dates, to the extent not previously allocated) shall be
allocated to the REMIC II Regular Interests in the amounts and in the manner as
will be allocated to the Corresponding Certificates relating thereto pursuant to
Section 6.6(f)); provided, however, that Realized Losses and Expense Losses
allocated to REMIC II Regular Interests shall be allocated among the
Corresponding Components sequentially in alphabetical and numerical order.
Realized Interest Losses allocated to the Class [X-1] and Class [X-2]
Certificates shall reduce the amount of interest payable on the REMIC II Regular
Interest A-1-1, REMIC II Regular Interest A-1-2, REMIC II Regular Interest
A-1-3, REMIC II Regular Interest A-1A-1, REMIC II Regular Interest A-1A-2, REMIC
II
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Regular Interest A-1A-3, REMIC II Regular Interest A-1A-4, REMIC II Regular
Interest A-1A-5, REMIC II Regular Interest A-1A-6, REMIC II Regular Interest
A-1A-7, REMIC II Regular Interest A-1A-8, REMIC II Regular Interest A-1A-9,
REMIC II Regular Interest A-2, REMIC II Regular Interest A-3-1FL-1, REMIC II
Regular Interest A-3-1FL-2, REMIC II Regular Interest A-3-1FL-3, REMIC II
Regular Interest A-3-1FL-4, REMIC II Regular Interest A-3-1-1, REMIC II Regular
Interest A-3-1-2, REMIC II Regular Interest A-3-1-3, REMIC II Regular Interest
A-3-1-4, REMIC II Regular Interest A-3-2-1, REMIC II Regular Interest A-3-2-2,
REMIC II Regular Interest A-AB-1, REMIC II Regular Interest A-AB-2, REMIC II
Regular Interest A-4A-1, REMIC II Regular Interest A-4A-2, REMIC II Regular
Interest A-4A-3, REMIC II Regular Interest A-4B, REMIC II Regular Interest A-J,
REMIC II Regular Interest B-1, REMIC II Regular Interest B-2, REMIC II Regular
Interest B-3, REMIC II Regular Interest C-1, REMIC II Regular Interest C-2,
REMIC II Regular Interest D-1, REMIC II Regular Interest D-2, REMIC II Regular
Interest E, REMIC II Regular Interest F-1, REMIC II Regular Interest F-2, REMIC
II Regular Interest G, REMIC II Regular Interest H-1, REMIC II Regular Interest
H-2, REMIC II Regular Interest J, REMIC II Regular Interest K, REMIC II Regular
Interest L, REMIC II Regular Interest M, REMIC II Regular Interest N, REMIC II
Regular Interest O and REMIC II Regular Interest P, which reduction shall be
allocated pro rata based on the product of the Certificate Balance of such REMIC
II Regular Interest and the sum of the Class X-1 Strip Rate and the Class X-2
Strip Rate (if any) applicable to the Corresponding Component relating to such
REMIC II Regular Interest.
(e) Reserved.
(f) REMIC III. On each Distribution Date, all Realized Losses on the
REMIC II Regular Interests for such Distribution Date (or for prior Distribution
Dates, to the extent not previously allocated) shall be allocated to the REMIC
III Regular Interests in Reverse Sequential Order, with such reductions being
allocated among the Class [A-1], Class [A-1A], Class [A-2], Class [A-3-1], Class
[A-3-2], Class [A-AB], Class [A-4A] and Class [A-4B] Certificates and the Class
A-3-1FL Regular Interest and, in the case of interest, Class [X-1], Class [X-2]
and Class [X-Y] Certificates, pro rata, in each case reducing (A) the
Certificate Balance of such Class until such Certificate Balance is reduced to
zero (in the case of the Class A Certificates, other than the Class [A-3-1FL]
Certificates, and the Class A-3-1FL Regular Interest); (B) Unpaid Interest owing
to such Class to the extent thereof; and (C) Distributable Certificate Interest
owing to such Class, provided that Realized Losses shall not reduce the
Aggregate Certificate Balance of the REMIC Regular Certificates and the Class
A-3-1FL Regular Interest below the sum of the Aggregate Certificate Balances of
the REMIC II Regular Interests; provided, further, that losses allocated to the
Class [A-4] Certificates will be applied first to the Class [A-4B] Certificates
until such Certificate Balance is reduced to zero and then to the Class [A-4A]
Certificates until such Certificate Balance is reduced to zero.
Section 6.7 Net Aggregate Prepayment Interest Shortfalls
On each Distribution Date, any Net Aggregate Prepayment Interest
Shortfalls in the Mortgage Loans in REMIC I (other than any Specially Designated
Co-op Mortgage Loan) shall be allocated among the REMIC I Regular Interests, pro
rata in proportion to the Accrued Certificate Interest for each such REMIC I
Regular Interest for such Distribution Date (without taking into account any
Class X-Y Interest Amount) and shall reduce Distributable Certificate
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Interest for each such Interest. On each Distribution Date, any such Net
Aggregate Prepayment Interest Shortfalls in the REMIC I Regular Interests held
by REMIC II shall be allocated among the REMIC II Regular Interests (other than
REMIC II Regular Interest X-Y), pro rata in proportion to the Accrued
Certificate Interest for each such REMIC II Regular Interest for such
Distribution Date (without taking into account any Class X-Y Interest Amount)
and shall reduce Distributable Certificate Interest for each such Interest. On
each Distribution Date, the amount of any such Net Aggregate Prepayment Interest
Shortfalls on the REMIC III Regular Interests shall be allocated to each Class
of Certificates (other than Class [A-3-1FL] Certificates and the Class [X-Y]
Certificates) and the Class A-3-1FL Regular Interest, pro rata, in proportion to
the amount of Accrued Certificate Interest payable to such Class of Certificates
on such Distribution Date (without taking into account any Class X-Y Interest
Amount), in each case reducing interest otherwise payable thereon. The amount of
Net Aggregate Prepayment Interest Shortfalls allocated to a Class of
Certificates pursuant to the preceding sentence shall reduce the Distributable
Certificate Interest for such Class for such Distribution Date (without taking
into account any Accrued Certificate Interest payable to the Holders of the
Class [X-Y] Certificates on such Distribution Date.) On each Distribution Date,
any Net Aggregate Prepayment Interest Shortfalls in respect of any Specially
Designated Co-op Mortgage Loan shall be allocated among the REMIC I Regular
Interests, pro rata in proportion to the Accrued Certificate Interest for each
such REMIC I Regular Interest for such Distribution Date and shall reduce
Distributable Certificate Interest for each such Interest. On each Distribution
Date, any such Net Aggregate Prepayment Interest Shortfalls in the REMIC I
Regular Interests held by REMIC II shall be allocated among the REMIC II Regular
Interests, pro rata in proportion to the Accrued Certificate Interest for each
such REMIC II Regular Interest for such Distribution Date and shall reduce
Distributable Certificate Interest for each such REMIC II Regular Interest. On
each Distribution Date, any such Net Aggregate Prepayment Interest Shortfalls in
the REMIC III Regular Interests shall be allocated among the REMIC III Regular
Interests, pro rata in proportion to the Accrued Certificate Interest for each
such REMIC III Regular Interests for such Distribution Date and shall reduce
Distributable Certificate Interest for each such REMIC III Regular Interest. No
portion of any Net Aggregate Prepayment Interest Shortfalls for any Distribution
Date that is attributable to a Mortgage Loan that is not a Specially Designated
Co-op Mortgage Loan shall be allocable to or reduce interest distributions on
the Class [X-Y] Certificates. Any amounts of Net Aggregate Prepayment Interest
Shortfalls allocated to the Class A-3-1FL Regular Interest shall reduce the
amount of interest distributable to the Class [A-3-1FL] Certificates by an
equivalent amount.
Section 6.8 Adjustment of Servicing Fees
The Master Servicing Fee payable to the Master Servicer shall be
adjusted as provided in Section 8.10(c) herein. Any amount retained by REMIC I
as a result of a reduction of the Master Servicing Fee shall be treated as
interest collected with respect to the prepaid Mortgage Loans with respect to
which the Master Servicing Fee adjustment occurs.
Section 6.9 Appraisal Reductions
Not later than the date on which an Appraisal Event occurs, the
Special Servicer shall have obtained (A) an Appraisal of the Mortgaged Property
securing the related Mortgage Loan if the Principal Balance of such Mortgage
Loan exceeds $2,000,000 or (B) at the option of
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the Special Servicer, if such Principal Balance is less than or equal to
$2,000,000, either an internal valuation prepared by the Special Servicer in
accordance with MAI standards (which internal valuation shall ascribe a value
for any residential cooperative property based on the value of such property as
if operated as a residential cooperative) or an Appraisal which in all cases
shall be completed as of the date that such Mortgage Loan becomes a Required
Appraisal Loan; provided that if the Special Servicer had completed or obtained
an Appraisal or internal valuation within the immediately prior 12 months, the
Special Servicer may rely on such Appraisal or internal valuation and shall have
no duty to prepare a new Appraisal or internal valuation, unless such reliance
would not be in accordance with the Servicing Standard; provided, further, that
if the Special Servicer is required to obtain an Appraisal of a Mortgaged
Property or prepare an internal valuation after receipt of the notice described
in clause (ii) of the definition of Appraisal Event, such Appraisal or internal
valuation will be obtained or prepared, as the case may be, no later than 60
days after receipt of such notice. With respect to each Mortgage Loan that is
cross-collateralized with any other Mortgage Loan, the Appraisal or internal
valuation need only be performed with respect to Mortgaged Properties that
constitute the principal security for the individual Mortgage Loan to which an
Appraisal Event occurs, and not with respect to all of the Mortgaged Properties
that constitute security for the individual Mortgage Loan in the
cross-collateralized group. Such Appraisal or valuation shall be conducted in
accordance with the definition of "market value" as set forth in 12 C.F.R. ss.
225.62 and shall be updated at least annually from the date of such Appraisal or
valuation, as applicable, to the extent such Mortgage Loan remains a Required
Appraisal Loan. The cost of any such Appraisal or valuation, if not performed by
the Special Servicer, shall be an expense of the Trust and may be paid from REO
Income or, to the extent collections from such related Mortgage Loan or
Mortgaged Property does not cover the expense, such unpaid expense shall be,
subject to Section 4.4 hereof, advanced by the Master Servicer at the request of
the Special Servicer pursuant to Section 4.6 in which event it shall be treated
as a Servicing Advance. The Special Servicer shall calculate any Appraisal
Reduction. The Master Servicer shall recalculate the Appraisal Reduction for any
Mortgage Loan based on the original Appraisal or updated Appraisals or internal
valuations provided from time to time to it by the Special Servicer and report
such amount to the Trustee. The Special Servicer shall provide notice of any
Appraisal Event with respect to a Mortgage Loan to the Master Servicer and the
Operating Adviser on the day of determination of such Appraisal Event.
Appraisal Reductions allocated to any Mortgage Loan shall be
allocated to the Certificate Principal Balance of the related Classes of
Principal Balance Certificates in the order of their subordination, i.e., in
Reverse Sequential Order.
Section 6.10 Compliance with Withholding Requirements
Notwithstanding any other provision of this Agreement to the
contrary, the Paying Agent on behalf of the Trustee shall comply with all
federal withholding requirements with respect to payments to Certificateholders
of interest, original issue discount, or other amounts that the Paying Agent
reasonably believes are applicable under the Code, giving effect to all
applicable exemptions from withholding as to which the recipient has furnished
the applicable and effective certification or other documentation. The consent
of Certificateholders shall not be required for any such withholding and any
amount so withheld shall be regarded as distributed to the related
Certificateholders for purposes of this Agreement. In the event the Paying Agent
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withholds any amount from payments made to any Certificateholder pursuant to
federal withholding requirements, the Paying Agent shall indicate to such
Certificateholder the amount withheld. The Trustee shall not be responsible for
the Paying Agent's failure to comply with any withholding requirements.
Section 6.11 Prepayment Premiums and Yield Maintenance Charges
On any Distribution Date prior to and including the Distribution
Date on which the Certificate Balance of the Class A Senior Certificates has
been reduced to zero, Prepayment Premiums or Yield Maintenance Charges collected
with respect to a Mortgage Loan in a particular Loan Group during any particular
Collection Period will be distributed by the Paying Agent on the Classes of
Certificates as follows: (i) first, the Paying Agent shall be deemed to
distribute to the Trustee, as holder of the Group PB REMIC I Regular Interest to
which such Mortgage Loan relates, any Prepayment Premiums collected on or with
respect to such Mortgage Loan in that Loan Group on that Distribution Date; and
(ii) second, the Paying Agent shall be deemed to distribute to the Trustee, as
holder of the REMIC II Regular Interests, any Prepayment Premiums deemed
distributed to the REMIC I Regular Interests, and shall be deemed to distribute
such Prepayment Premiums to the REMIC II Regular Interest then entitled to
distributions of principal from the Principal Distribution Amount (or, if more
than one Class of REMIC II Regular Interests is then entitled to distributions
of principal from the Principal Distribution Amount, such Prepayment Premiums
shall be deemed distributed among such Classes pro rata in accordance with the
relevant amounts of entitlements to distributions of principal).
Following such deemed distributions, the Holders of the respective
Classes of Principal Balance Certificates (other than the Class [J], Class [K],
Class [L], Class [M], Class [N], Class [O] and Class [P] Certificates) and the
Class A-3-1FL Regular Interest then entitled to distributions of principal from
the Principal Distribution Amount for such Distribution Date, will be entitled
to, and the Paying Agent on behalf of the Trustee will pay to such Holder(s), an
amount equal to, in the case of each such Class, the product of (a) a fraction,
the numerator of which is the amount distributed as principal to the Holders of
that Class on that Distribution Date, and the denominator of which is the total
amount distributed as principal to the Holders of all Classes of Principal
Balance Certificates on that Distribution Date, (b) the Base Interest Fraction
for the related Principal Prepayment and that Class of Certificates and (c) the
amount of Prepayment Premiums or Yield Maintenance Charges in respect of such
principal prepayment during the related Collection Period. If there is more than
one such Class of Principal Balance Certificates entitled to distributions of
principal on such Distribution Date, the aggregate amount described in the
preceding sentence will be allocated among such Classes on a pro rata basis in
accordance with the relative amounts of entitlement to such distributions of
principal. Any portion of such Prepayment Premium or Yield Maintenance Charge
that is not so distributed to the Holders of such Principal Balance Certificates
will be distributed to the Holders of the Class [X-1] and Class [X-2]
Certificates. On or prior to the Distribution Date in ____________, [80]% of the
Prepayment Premium or Yield Maintenance Charge that is not so distributed to the
Holders of such Principal Balance Certificates will be distributed to the
Holders of the Class [X-1] Certificates and [20]% of the Prepayment Premium or
Yield Maintenance Charge that is not so distributed to the Holders of such
Principal Balance Certificates will be distributed to the Holders of the Class
[X-2] Certificates. After the Distribution Date in
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____________, any portion of such Prepayment Premium or Yield Maintenance Charge
collected during the related Collection Period that is not so distributed to the
Holders of such Principal Balance Certificates will be distributed to the
Holders of the Class [X-1] Certificates. For so long as the Swap Contract or any
replacement swap contract is in effect, the Prepayment Premium allocated to the
Class A-3-1FL Regular Interest shall be payable to the Swap Counterparty
pursuant to the terms of the Swap Contract. If the Swap Contract and any
replacement swap contract are no longer in effect, any Prepayment Premium
allocated to the Class A-3-1FL Regular Interest shall be distributed to the
Class [A-3-1FL] Certificates.
Notwithstanding the foregoing, Yield Maintenance Charges collected
during any Collection Period with respect to any Specially Designated Co-op
Mortgage Loan will be distributed to the REMIC III Regular Interests as follows,
with allocations to be made pursuant to the following (a) and (b) on a pro rata
basis: (a) if the amount of such Yield Maintenance Charges exceeds any
applicable Yield Maintenance Minimum Amount, (x) the amount of such Yield
Maintenance Charges that would have been payable with respect to such Specially
Designated Co-op Mortgage Loan if the related Mortgage Rate was equal to the
related REMIC I Net Mortgage Rate with respect to such Mortgage Loan (calculated
without regard to any Yield Maintenance Minimum Amount) will be distributed as
set forth above, and (y) the amount of such Yield Maintenance Charges actually
payable during such Collection Period in excess of the amount to be distributed
pursuant to clause (x) will be distributed to the Holders of the Class [X-Y]
Certificates; (b) if the amount of such Yield Maintenance Charges equals any
applicable Yield Maintenance Minimum Amount, such Yield Maintenance Charges
shall be distributed as follows: (x) [50%] to the Holders of the Class [A-1],
Class [A-1A], Class [A-2], Class [A-3-1], Class [A-3-2], Class [A-AB], Class
[A-4A], Class [A-4B], Class [A-J], Class [B], Class [C], Class [D], Class [E],
Class [F], Class [G], Class [H], Class [X-1] and Class [X-2] Certificates and
the Class A-3-1FL Regular Interest, allocable among such Classes as set forth in
the paragraphs above, and (y) [50%] to the Holders of the Class [X-Y]
Certificates; and (c) notwithstanding the foregoing, Prepayment Premiums
collected during any Collection Period with respect to any Specially Designated
Co-op Mortgage Loan shall be distributed as follows: (a) [50%] to the Holders of
the Class [A-1], Class [A-1A], Class [A-2], Class [A-3-1], Class [A-3-2], Class
[A-AB], Class [A-4A], Class [A-4B], Class [A-J], Class [B], Class [C], Class
[D], Class [E], Class [F], Class [G], Class [H], Class [X-1] and Class [X-2]
Certificates and the Class A-3-1FL Regular Interest, allocable among such
Classes as set forth in the paragraph above, and (b) [50%] to the Holders of the
Class [X-Y] Certificates.
Section 6.12 Other Distributions.
On each Distribution Date, the Paying Agent shall distribute the
Class A-3-1FL Available Funds for such Distribution Date to the Holders of
record of the Class [A-3-1FL] Certificates as of the related Record Date in the
following amounts: (i) the Class A-3-1FL Interest Distribution Amount, (ii) the
Class A-3-1FL Principal Distribution Amount, (iii) any termination payments made
by the Swap Counterparty and not used by the Paying Agent to enter into a
replacement swap contract, and (iv) only if the Swap Contract has been
terminated and no replacement Swap Contract has
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been entered into, any Prepayment Premiums that were allocated to the Class
A-3-1FL Regular Interest. No Holder of a Class [A-3-1FL] Certificate shall be
entitled to receive any portion of any Prepayment Premium paid on the Class
A-3-1FL Regular Interest unless the Swap Contract has been terminated and no
replacement Swap Contract has been entered into. Such amount shall be payable to
the Swap Counterparty pursuant to the terms of the Swap Contract. Following a
Swap Default under the Swap Contract or other default or event of termination of
the Swap Contract, and during the period when the Trustee is pursuing remedies
under such Swap Contract, the Class A-3-1FL Interest Distribution Amount for
each Class [A-3-1FL] Certificate shall equal the Distributable Certificate
Interest amount for the Class A-3-1FL Regular Interest, until such time as the
conditions giving rise to such Swap Default or other default have been cured.
Any such Swap Default, other default or event of termination, and the consequent
change to a fixed Pass-Through Rate shall not constitute a default under this
Agreement. To the extent required by The Depository Trust Company, a Swap
Default can result in a delay in the distribution of amounts payable to the
Class [A-3-1FL] Certificates and such delay will not constitute a default under
this Agreement nor result in the accrual of interest on such delayed payment and
no party hereto shall be obligated to advance such amounts. Notwithstanding the
foregoing, to the extent provided in the Swap Contract, the Swap Counterparty
will remain liable for such Swap Default or other default or event of
termination pursuant to the Swap Contract.
For as long as a Swap Default or other default or event of
termination has occurred and a Class [A-3-1FL] Certificate is receiving the
fixed Pass-Through Rate, such Class [A-3-1FL] Certificate shall accrue interest
at the same rate, on the same basis and in the same manner as the related Class
A-3-1FL Regular Interest.
If the Swap Contract becomes subject to early termination due to the
occurrence of an event of default or a termination event thereunder, the Paying
Agent on behalf of the Trustee shall promptly provide written notice to the
Holders of the Class [A-3-1FL] Certificates and the Paying Agent shall take such
commercially reasonable actions (following the expiration of any applicable
grace period), unless directed in writing by the Certificateholders evidencing,
in the aggregate, not less than 100% of the Voting Rights of the Class [A-3-1FL]
Certificates, to enforce the rights of the Trust under the Swap Contract as may
be permitted by the terms of the Swap Contract and consistent with the terms
hereof (and only to the extent that, and only for so long as, doing so does not
lead the Paying Agent to incur expenses in excess of the amounts available to it
for reimbursement), and shall apply the proceeds collected from the Swap
Counterparty in connection with any such actions (including, without limitation,
the proceeds of the liquidation of any collateral pledged by the Swap
Counterparty) to enter into a replacement interest rate swap contract on
substantially identical terms or on such other terms reasonably acceptable to
the Trustee as directed by 100% of the Holders of the Class [A-3-1FL]
Certificates. Each Rating Agency shall confirm in writing that such action will
not result in a qualification, downgrade or withdrawal of the then-current
ratings of the Certificates. If the costs attributable to entering into a
replacement interest rate swap contract will exceed the sum of the net proceeds
of the liquidation of the Swap Contract, a replacement interest rate swap
contract shall not be entered into. Prior to the application of any proceeds in
accordance with the terms of this paragraph, such proceeds shall be deposited in
the Floating Rate Account. Any proceeds of the liquidation of the Swap Contract
which exceed the costs attributable to entering into a replacement interest rate
swap contract (or if no replacement interest rate swap contract is entered into)
shall be deposited into the Floating Rate Account and shall be distributed to
the Holders of the Class [A-3-1FL] Certificates.
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The Trustee and the Paying Agent shall be entitled to conclusively
rely on the report from the Swap Counterparty that specifies LIBOR for any
Interest Accrual Period (in the absence of manifest error).
As long as the Swap Contract is in effect, each beneficial owner of
a Class [A-3-1FL] Certificate, or any interest therein, shall be deemed to have
represented that either (i) it is not an employee benefit plan subject to Title
I of ERISA, a plan subject to Section 4975 of the Code, or a plan subject to any
Similar Laws or any person investing on behalf of or with plan assets of such
employee benefit plan or plan or (ii) the acquisition and holding of such
Certificate are eligible for the exemptive relief available under at least one
of the Investor-Based Exemptions.
Notwithstanding anything herein to the contrary, any expenses
incurred by the Trustee under this Section 6.12 shall be paid by the Class
A-3-1FL Grantor Trust, and not by any other trust hereunder, but only upon the
Trustee's determination that such expenses cannot be recovered from the Swap
Counterparty or any proceeds due under the Swap Contract; provided, however,
that either without the consent of 100% of the Holders of the Class [A-3-1FL]
Certificates or the written confirmation of each Rating Agency then rating the
Class [A-3-1FL] Certificates that such action or event will not result in the
reduction, qualification or withdrawal of its then current rating of the Class
[A-3-1FL] Certificates (the expense of such confirmation to be borne by the
holders of the Class [A-3-1FL] Certificates), the Trustee shall not be permitted
to incur such costs and expenses in excess of any termination payment received
from the Swap Counterparty and not otherwise applied to offset the expense of
entering into a replacement swap contract. Factors that the Trustee may consider
when making a recoverability determination with respect to the reimbursement of
such expenses include, but are not limited to, (i) the financial condition of
the Swap Counterparty and (ii) the likelihood that the Swap Counterparty will
make such reimbursements in the event the Trustee pursues appropriate legal
action or other commercially reasonable enforcement and collection measures.
ARTICLE VII
CERTAIN MATTERS CONCERNING THE TRUSTEE AND THE PAYING AGENT
Section 7.1 Duties of the Trustee and the Paying Agent
(a) The Trustee and the Paying Agent each shall undertake to perform
only those duties as are specifically set forth in this Agreement and no implied
covenants or obligations shall be read into this Agreement against the Trustee
or the Paying Agent. Any permissive right of the Trustee or the Paying Agent
provided for in this Agreement shall not be construed as a duty of the Trustee
or the Paying Agent. The Trustee shall exercise such of the rights and powers
vested in it by this Agreement and following the occurrence and during the
continuation of any Event of Default hereunder, the Trustee shall use the same
degree of care and skill in its exercise as a prudent Person would exercise or
use under the circumstances in the conduct of such Person's own affairs.
(b) The Trustee or the Paying Agent, as applicable, upon receipt of
all resolutions, certificates, statements, opinions, reports, documents, orders
or other instruments
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furnished to the Trustee or the Paying Agent, as the case may be, which are
specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they on their face conform to
the requirements of this Agreement; provided that the Trustee or the Paying
Agent, as the case may be, shall not be responsible for the accuracy or content
of any such resolution, certificate, statement, opinion, report, document, order
or other instrument furnished by the Master Servicer or any other Person to it
pursuant to this Agreement. If any such instrument is found on its face not to
conform to the requirements of this Agreement, the Trustee or the Paying Agent
shall request the providing party to correct the instrument and if not so
corrected, the Trustee shall inform the Certificateholders.
(c) Neither of the Trustee or the Paying Agent or any of their
respective partners, representatives, Affiliates, members, managers, directors,
officers, employees, agents or Controlling Persons shall have any liability to
the Trust or the Certificateholders arising out of or in connection with this
Agreement, except for their respective negligence or willful misconduct. No
provision of this Agreement shall be construed to relieve the Trustee, the
Paying Agent or any of their respective partners, representatives, Affiliates,
members, managers, directors, officers, employees, agents or Controlling Persons
from liability for their own negligent action, their own negligent failure to
act or their own willful misconduct or bad faith; provided that:
(i) neither of the Trustee or the Paying Agent or any of their
respective partners, representatives, Affiliates, members, managers,
directors, officers, employees, agents or Controlling Persons shall be
personally liable with respect to any action taken, suffered or omitted to
be taken by it in its reasonable business judgment in accordance with this
Agreement or at the direction of Holders of Certificates evidencing not
less than a majority of the outstanding Certificate Balance of the
Certificates;
(ii) no provision of this Agreement shall require either the Trustee
or the Paying Agent 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;
(iii) neither of the Trustee or the Paying Agent or any of their
respective partners, representatives, Affiliates, members, managers,
directors, officers, employees, agents or Controlling Persons shall be
responsible for any act or omission of the Master Servicer, the Special
Servicer, the Depositor or any Seller, or for the acts or omissions of
each other, including, without limitation, in connection with actions
taken pursuant to this Agreement;
(iv) the execution by the Trustee or the Paying Agent of any forms
or plans of liquidation in connection with any REMIC Pool shall not
constitute a representation by the Trustee or the Paying Agent as to the
adequacy of such form or plan of liquidation;
(v) neither of the Trustee or the Paying Agent shall be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties as Trustee or Paying Agent, as applicable, in
accordance with this Agreement. In such event, all legal expense and costs
of such action shall be expenses and costs of the Trust
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and the Trustee and the Paying Agent shall be entitled to be reimbursed
therefor from the Certificate Account pursuant to Section 5.2(a)(vi); and
(vi) neither of the Trustee or the Paying Agent shall be charged
with knowledge of any failure by the Master Servicer, the Special Servicer
or the Swap Counterparty or by each other to comply with its obligations
under this Agreement or the Swap Contract or any act, failure, or breach
of any Person upon the occurrence of which the Trustee or the Paying Agent
may be required to act, unless a Responsible Officer of the Trustee or the
Paying Agent, as the case may be, obtains actual knowledge of such
failure.
Section 7.2 Certain Matters Affecting the Trustee and the Paying
Agent
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee and the Paying Agent each may request, and may rely
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 believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(ii) the Trustee and the Paying Agent each may consult with counsel
and the advice of such counsel and any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(iii) neither of the Trustee or the Paying Agent or any of their
respective partners, representatives, Affiliates, members, managers,
directors, officers, employees, agents or Controlling Persons shall be
personally liable for any action taken, suffered or omitted by such Person
in its reasonable business judgment and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(iv) the Trustee and the Paying Agent shall not be under any
obligation to exercise any remedies after default as specified in this
Agreement or to institute, conduct or defend any litigation hereunder or
relating hereto or 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
(provided the same appears regular on its face), unless requested in
writing to do so by Holders of at least 25% of the Aggregate Certificate
Balance of the Certificates then outstanding, provided that, if the
payment within a reasonable time to the Trustee or the Paying Agent, as
applicable, of the costs, expenses or liabilities likely to be incurred by
it in connection with the foregoing is, in the opinion of such Person not
reasonably assured to such Person by the security afforded to it by the
terms of this Agreement, such Person may require reasonable indemnity
against such expense or liability or payment of such estimated expenses as
a condition to proceeding. The reasonable expenses of the Trustee
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or the Paying Agent, as applicable, shall be paid by the
Certificateholders requesting such examination;
(v) the Trustee and the Paying Agent each may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys, which agents or attorneys shall have
any or all of the rights, powers, duties and obligations of the Trustee
and the Paying Agent conferred on them by such appointment; provided that
each of the Trustee and the Paying Agent, as the case may be, shall
continue to be responsible for its duties and obligations hereunder and
shall not be liable for the actions or omissions of the Master Servicer,
the Special Servicer, the Depositor or the actions or omissions of each
other;
(vi) neither of the Trustee or the Paying Agent shall be required to
obtain a deficiency judgment against a Mortgagor;
(vii) neither of the Trustee or the Paying Agent shall be required
to expend its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such liability is not assured to it;
(viii) neither of the Trustee or the Paying Agent shall be liable
for any loss on any investment of funds pursuant to this Agreement;
(ix) unless otherwise specifically required by law, neither of the
Trustee or the Paying Agent shall be required to post any surety or bond
of any kind in connection with the execution or performance of its duties
hereunder; and
(x) except as specifically provided hereunder in connection with the
performance of its specific duties, neither of the Trustee or the Paying
Agent shall be responsible for any act or omission of the Master Servicer,
the Special Servicer, the Depositor or of each other.
(b) Following the Closing Date, the Trustee shall not accept any
contribution of assets to the Trust not specifically contemplated by this
Agreement unless the Trustee shall have received a Nondisqualification Opinion
at the expense of the Person desiring to contribute such assets with respect to
such contribution.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
any proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
(d) The Trustee shall timely pay, from its own funds, the amount of
any and all federal, state and local taxes imposed on the Trust or its assets or
transactions including, without limitation, (A) "prohibited transaction" penalty
taxes as defined in Section 860F of the Code, if, when and as the same shall be
due and payable, (B) any tax on contributions to a REMIC after the Closing Date
imposed by Section 860G(d) of the Code and (C) any tax on "net
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income from foreclosure property" as defined in Section 860G(c) of the Code, but
only if such taxes arise out of a breach by the Trustee of its obligations
hereunder, which breach constitutes negligence or willful misconduct of the
Trustee.
(e) The Paying Agent shall timely pay, from its own funds, the
amount of any and all federal, state and local taxes imposed on the Trust or its
assets or transactions including, without limitation, (A) "prohibited
transaction" penalty taxes as defined in Section 860F of the Code, if, when and
as the same shall be due and payable, (B) any tax on contributions to a REMIC
after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the
Code, but only if such taxes arise out of a breach by the Paying Agent of its
obligations hereunder, which breach constitutes negligence or willful misconduct
of the Paying Agent.
(f) If, in connection with any Distribution Date, the Trustee or
Paying Agent has reported to the Depository the anticipated amount of the
distribution to be made to the Depository on such Distribution Date and the
timing of the receipt from the Master Servicer of any Principal Prepayment or
Balloon Payment requires modification of such anticipated amount of the
distribution to be made to the Depository, the Trustee or Paying Agent will use
commercially reasonable efforts to cause the Depository to revise the amount of
the distribution on a timely basis so that such Principal Prepayments or Balloon
Payments will be included in the Available Distribution Amount for such
Distribution Date. None of the Trustee, the Paying Agent, the Master Servicer
and the Special Servicer will be liable or held responsible for any resulting
delay (or claims by the Depository resulting therefrom) in the making of such
distribution to Certificateholders.
Section 7.3 The Trustee and the Paying Agent Not Liable for
Certificates or Interests or Mortgage Loans
The Trustee and the Paying Agent each makes no representations as to
the validity or sufficiency of this Agreement, the information contained in the
Private Placement Memorandum, the Free Writing Prospectus, the Final Prospectus
Supplement or Prospectus for the REMIC III Regular Interests or Residual
Certificates (other than the Certificate of Authentication on the Certificates
if the Paying Agent is the Authenticating Agent) or of any Mortgage Loan,
Assignment of Mortgage or related document save that (i) each of the Trustee and
the Paying Agent represents that, assuming due execution and delivery by the
other parties hereto, this Agreement has been duly authorized, executed and
delivered by it and constitutes its valid and binding obligation, enforceable
against it in accordance with its terms except that such enforceability may be
subject to (A) applicable bankruptcy and insolvency laws and other similar laws
affecting the enforcement of the rights of creditors generally, and (B) general
principles of equity regardless of whether such enforcement is considered in a
proceeding in equity or at law and (ii) the Trustee represents that, assuming
due execution and delivery by the other parties hereto, this Agreement has been
duly authorized, executed and delivered by it and constitutes its valid and
binding obligation, enforceable against it in accordance with its terms except
that such enforceability may be subject to (A) applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of the rights
of creditors generally, and (B) general principles of equity regardless of
whether such enforcement is considered in a proceeding in equity or at law.
Neither of the Trustee or the Paying Agent shall be accountable for the use or
application by the
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Depositor or the Master Servicer or the Special Servicer or by each other of any
of the Certificates or any of the proceeds of such Certificates, or for the use
or application by the Depositor or the Master Servicer or the Special Servicer
or by each other of funds paid in consideration of the assignment of the
Mortgage Loans to the Trust or deposited into the Distribution Account or any
other fund or account maintained with respect to the Certificates or any account
maintained pursuant to this Agreement or for investment of any such amounts. No
recourse shall be had for any claim based on any provisions of this Agreement,
the Private Placement Memorandum, the Free Writing Prospectus, the Final
Prospectus Supplement, the Prospectus or the Certificates (except with respect
to the Trustee and the Paying Agent to the extent of information furnished by
the Trustee and the Paying Agent under the caption entitled ["DESCRIPTION OF THE
OFFERED CERTIFICATES--The Trustee, Paying Agent, Certificate Registrar and
Authenticating Agent"] in the Free Writing Prospectus and the Final Prospectus
Supplement), the Mortgage Loans or the assignment thereof against the Trustee or
the Paying Agent in such Person's individual capacity and any such claim shall
be asserted solely against the Trust or any indemnitor who shall furnish
indemnity as provided herein. None of the Trustee or the Paying Agent shall be
liable for any action or failure of any action by the Depositor or the Master
Servicer or the Special Servicer or by each other hereunder. None of Trustee or
the Paying Agent shall at any time have any responsibility or liability for or
with respect to the legality, validity or enforceability of the Mortgages or the
Mortgage Loans, or the perfection and priority of the Mortgages or the
maintenance of any such perfection and priority, or for or with respect to the
efficacy of the Trust or its ability to generate the payments to be distributed
to Certificateholders under this Agreement, including, without limitation, the
existence, condition and ownership of any Mortgaged Property; the existence and
enforceability of any hazard insurance thereon; the validity of the assignment
of the Mortgage Loans to the Trust or of any intervening assignment; the
completeness of the Mortgage Loans; the performance or enforcement of the
Mortgage Loans (other than if the Trustee shall assume the duties of the Master
Servicer); the compliance by the Depositor, each Seller, the Mortgagor or the
Master Servicer or the Special Servicer or by each other with any warranty or
representation made under this Agreement or in any related document or the
accuracy of any such warranty or representation made under this Agreement or in
any related document prior to the receipt by a Responsible Officer of the
Trustee of notice or other discovery of any non compliance therewith or any
breach thereof; any investment of monies by or at the direction of the Master
Servicer or the Special Servicer or any loss resulting therefrom; the failure of
the Master Servicer or any Sub-Servicer or the Special Servicer to act or
perform any duties required of it on behalf of the Trustee hereunder; or any
action by the Trustee taken at the instruction of the Master Servicer or the
Special Servicer.
Section 7.4 The Trustee and the Paying Agent May Own Certificates
Each of the Trustee and the Paying Agent in its individual or any
other capacity may become the owner or pledgee of Certificates with the same
rights it would have if it were not the Trustee or the Paying Agent, as the case
may be.
Section 7.5 Eligibility Requirements for the Trustee and the Paying
Agent
The Trustee hereunder shall at all times be (i) an institution
insured by the FDIC, (ii) a corporation, national bank or national banking
association organized and doing business
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under the laws of the United States of America and any state thereof, authorized
to exercise corporate trust powers, having a combined capital and surplus of not
less than $50,000,000 and subject to supervision or examination by federal or
state authority, and (iii) an institution whose short-term debt obligations are
at all times rated not less than ["A 1" (without regard to plus or minus) by S&P
and "Prime-1" by Xxxxx'x] and whose long term senior unsecured debt is at all
times rated not less than ["A1" by Xxxxx'x and "A+" by S&P]. If such
corporation, national bank or national banking association 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 corporation, national bank or
national banking association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 7.6.
The Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers and shall be
rated at least ["A" by S&P and "A2" by Xxxxx'x], unless and to the extent Rating
Agency Confirmation is obtained.
Section 7.6 Resignation and Removal of the Trustee or the Paying
Agent
(a) The Trustee or the Paying Agent 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 Swap Counterparty and the Rating
Agencies; provided that such resignation shall not be effective until its
successor shall have accepted the appointment. Upon receiving such notice of
resignation, the Depositor will promptly appoint a successor trustee or paying
agent, as the case may be. If no successor trustee or paying agent shall have
been so appointed, as the case may be, and shall have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee or the Paying Agent, as the case may be, may petition any court of
competent jurisdiction for the appointment of a successor trustee or paying
agent, as the case may be. It shall be a condition to the appointment of a
successor trustee that such entity satisfies the eligibility requirements set
forth in Section 7.5.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a 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, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Trustee or the Trust held by the Trustee is located solely because
of the location of the Trustee in such state; provided, however, that, if the
Trustee agrees to indemnify the Trust for such taxes, it shall not be removed
pursuant to this clause (iii), or (iv) the continuation of the Trustee as such
would result in a downgrade, qualification or withdrawal of the rating by the
Rating Agencies of any Class of Certificates with a rating as evidenced in
writing by the Rating Agencies. In the case of removal under clauses (i), (ii),
(iii) and (iv) above, the Trustee shall bear all such costs of transfer. Such
succession shall take effect after a successor trustee has been appointed and
has accepted such appointment. In the case of the removal of the initial
Trustee, the Depositor shall also remove the Paying Agent.
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(c) If at any time (i) the Paying Agent shall cease to be eligible
in accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, (ii) the Paying Agent shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Paying Agent or of its property shall be appointed, or any public officer
shall take charge or control of the Paying Agent or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Paying Agent is located solely because of the location of the
Paying Agent in such state; provided, however, that, if the Paying Agent agrees
to indemnify the Trust for such taxes, it shall not be removed pursuant to this
clause (iii), or (iv) the continuation of the Paying Agent as such would result
in a downgrade, qualification or withdrawal, as applicable, of the rating by any
Rating Agency of any Class of Certificates with a rating as evidenced in writing
by any Rating Agency, then the Depositor or the Trustee shall send a written
notice of termination to the Paying Agent (which notice shall specify the reason
for such termination) and remove such Paying Agent and the Depositor shall
appoint a successor Paying Agent by written instrument, one copy of which
instrument shall be delivered to the Paying Agent so removed, one copy to the
successor Paying Agent, and one copy to each of the Trustee, the Master
Servicer, the Swap Counterparty and the Rating Agencies. In all such cases, the
Paying Agent shall bear all costs of transfer to a successor Paying Agent, such
succession only to take effect after a successor Paying Agent has been appointed
and has accepted such appointment.
(d) The Holders of more than 50% of the Aggregate Certificate
Balance of the Certificates then outstanding may for cause upon 30 days' written
notice to the Trustee or the Paying Agent, as the case may be, and to the
Depositor remove the Trustee or the Paying Agent, as the case may be, by such
written instrument, signed by such Holders or their attorney-in-fact duly
authorized, one copy of which instrument shall be delivered to the Depositor and
one copy to the Trustee or the Paying Agent, as the case may be, so removed; the
Depositor shall thereupon use its best efforts to appoint a successor Trustee or
the Paying Agent, as the case may be, in accordance with this Section.
(e) Any resignation or removal of the Trustee or the Paying Agent,
as the case may be, and appointment of a successor trustee or paying agent
pursuant to any of the provisions of this Section shall become effective upon
acceptance of appointment by the successor trustee or paying agent, as the case
may be, as provided in Section 7.7. Upon any succession of the Trustee or the
Paying Agent under this Agreement, the predecessor Trustee or Paying Agent, as
the case may be, shall be entitled to the payment of compensation and
reimbursement agreed to under this Agreement for services rendered and expenses
incurred. The Trustee or the Paying Agent shall not be liable for any action or
omission of any successor Trustee or Paying Agent, as the case may be.
(f) Following the Closing Date, for so long as the Trust is subject
to the reporting requirements of the Exchange Act, the Paying Agent may not
appoint any sub-servicer that is or could become a Reporting Servicer without
the prior written consent of the Depositor, which consent shall not be
unreasonably withheld.
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Section 7.7 Successor Trustee or Paying Agent
(a) Any successor Trustee or Paying Agent appointed as provided in
Section 7.6 shall execute, acknowledge and deliver to the Depositor and to its
predecessor Trustee or Paying Agent, as the case may be, an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee or Paying Agent, as the case may be, shall become effective
and such successor Trustee or Paying Agent, as the case may be, without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as Trustee or Paying Agent herein, as the case may be. The
predecessor Trustee or Paying Agent shall deliver (at such predecessor's own
expense) to the successor Trustee or Paying Agent all Mortgage Files and
documents and statements related to the Mortgage Files held by it hereunder, and
the predecessor Trustee shall duly assign, transfer, deliver and pay over (at
such predecessor's own expense) to the successor Trustee, the entire Trust,
together with all instruments of transfer and assignment or other documents
properly executed necessary to effect such transfer. The predecessor Trustee or
Paying Agent, as the case may be, shall also deliver all records or copies
thereof maintained by the predecessor Trustee or Paying Agent in the
administration hereof as may be reasonably requested by the successor Trustee or
Paying Agent, as applicable, and shall thereupon be discharged from all duties
and responsibilities under this Agreement. In addition, the Depositor and the
predecessor Trustee or Paying Agent shall execute and deliver such other
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor Trustee or Paying Agent, as the
case may be, all such rights, powers, duties and obligations. Anything herein to
the contrary notwithstanding, in no event shall the combined fees payable to a
successor Trustee exceed the Trustee Fee.
(b) No successor Trustee or Paying Agent shall accept appointment as
provided in this Section unless at the time of such appointment such successor
Trustee or Paying Agent, as the case may be, shall be eligible under the
provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee or Paying
Agent as provided in this Section, the successor Trustee or Paying Agent shall
mail notice of the succession of such Trustee or Paying Agent hereunder to all
Holders of Certificates at their addresses as shown in the Certificate Register
and to the Rating Agencies. The expenses of such mailing shall be borne by the
successor Trustee or Paying Agent. If the successor Trustee or Paying Agent
fails to mail such notice within 10 days after acceptance of appointment by the
successor Trustee or Paying Agent, the Master Servicer shall cause such notice
to be mailed at the expense of the successor Trustee or Paying Agent, as
applicable.
Section 7.8 Merger or Consolidation of Trustee or Paying Agent
Any Person into which the Trustee or Paying 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 such Trustee or Paying Agent shall
be a party, or any Persons succeeding to the business of such Trustee or Paying
Agent, shall be the successor of such Trustee or Paying Agent, as the case may
be, hereunder, as applicable, provided that (i) such Person shall be eligible
under the provisions of Section 7.5, without the execution or filing of any
paper or any
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further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding and (ii) for so long as the Trust is subject to the
reporting requirements of the Exchange Act, shall have been consented to by the
Depositor (which consent shall not be unreasonably withheld).
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or
Custodian
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or, in the case of the Trust, the Certificateholders
evidencing more than 50% of the Aggregate Certificate Balance of the
Certificates then outstanding shall each have the power from time to time to
appoint one or more Persons to act either as co-trustees jointly with the
Trustee or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee is advised by the Master Servicer or the Special Servicer that such
separate trustee or co-trustee is necessary or advisable) under the laws of any
state in which a property securing a Mortgage Loan is located or for the purpose
of otherwise conforming to any legal requirement, restriction or condition in
any state in which a property securing a Mortgage Loan is located or in any
state in which any portion of the Trust is located. The separate trustees, co
trustees, or custodians so appointed shall be trustees or custodians for the
benefit of all the Certificateholders, shall have such powers, rights and
remedies as shall be specified in the instrument of appointment and shall be
deemed to have accepted the provisions of this Agreement; provided that no such
appointment shall, or shall be deemed to, constitute the appointee an agent of
the Trustee; provided, further, that the Trustee shall be liable for the actions
of any co-trustee or separate trustee appointed by it and shall have no
liability for the actions of any co-trustee or separate trustee appointed by the
Depositor or the Certificateholders pursuant to this paragraph.
(b) The Trustee or the Paying Agent, as the case may be, may from
time to time appoint one or more independent third-party agents to perform all
or any portion of its administrative duties hereunder (i.e., collection and
distribution of funds, preparation and dissemination of reports, monitoring
compliance, etc.). The Trustee or the Paying Agent, as the case may be, shall
supervise and oversee such agents appointed by it. The terms of any arrangement
or agreement between the Trustee or the Paying Agent, as the case may be, and
such agent, may be terminated, without cause and without the payment of any
termination fees in the event the Trustee or the Paying Agent, as the case may
be, is terminated in accordance with this Agreement. In addition, neither the
Trust nor the Certificateholders shall have any liability or direct obligation
to such agent. Notwithstanding the terms of any such agreement, the Trustee or
the Paying Agent, as the case may be, shall remain at all times obligated and
liable to the Trust and the Certificateholders for performing its duties
hereunder.
(c) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
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(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other 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, co-trustee, or
custodian jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to the Master Servicer
hereunder) the Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations,
including the holding of title to the Trust or any portion thereof in any
such jurisdiction, shall be exercised and performed by such separate
trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally liable
by reason of any act or omission of any other trustee or custodian
hereunder; and
(iv) the Trustee or, in the case of the Trust, the
Certificateholders evidencing more than 50% of the Aggregate Principal
Amount of the Certificates then outstanding may at any time accept the
resignation of or remove any separate trustee, co-trustee or custodian, so
appointed by it or them, if such resignation or removal does not violate
the other terms of this Agreement.
(d) 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, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VII. 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.
(e) Any separate trustee, co-trustee or custodian 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, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
(f) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
7.5 hereof and no notice to Certificateholders of the appointment of any
separate trustee, co-trustee or custodian hereunder shall be required.
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(g) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(h) The Trustee shall pay the reasonable compensation of the
co-trustees, separate trustees or custodians appointed by the Trustee pursuant
to this Section 7.9 to the extent, and in accordance with the standards,
specified in Section 7.12 hereof.
(i) Subject to the consent of the Depositor, which consent shall not
be unreasonably withheld, the Trustee, at its sole cost and expense, may appoint
at any time a successor Custodian. Until such time as the Trustee appoints a
successor Custodian, the Trustee shall be the Custodian hereunder. Upon the
appointment of a successor custodian, the Trustee and the Custodian shall enter
into a custodial agreement.
Section 7.10 Authenticating Agents
(a) The Paying Agent shall serve as the initial Authenticating Agent
hereunder for the purpose of executing and authenticating Certificates. Any
successor Authenticating Agent must be acceptable to the Depositor and must be a
corporation or national bank organized and doing business under the laws of the
United States of America or of any state and having a principal office and place
of business in the Borough of Manhattan in the City and State of New York,
having a combined capital and surplus of at least $50,000,000, authorized under
such laws to do a trust business and subject to supervision or examination by
federal or state authorities.
(b) Any Person into which the 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 the Authenticating Agent shall be a
party, or any Person succeeding to the corporate agency business of the
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) The Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee and the
Depositor. The Trustee may at any time terminate the agency of the
Authenticating Agent by giving written notice of termination to the
Authenticating Agent and the Depositor; provided that the Trustee may not
terminate the Paying Agent as Authenticating Agent unless the Paying Agent shall
be removed as Paying Agent hereunder. Upon receiving a notice of resignation or
upon such a termination, or in case at any time the Authenticating Agent shall
cease to be eligible in accordance with the provisions of Section 7.10(a), the
Trustee may appoint a successor Authenticating Agent, shall give written notice
of such appointment to the Depositor and shall mail notice of such appointment
to all Holders of Certificates. 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. No such Authenticating
Agent shall be appointed unless eligible under the provisions of Section
7.10(a). No Authenticating Agent shall have responsibility or liability for any
action taken by it as such at the direction of the Trustee.
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Section 7.11 Indemnification of the Trustee and the Paying Agent
(a) The Trustee, the Certificate Registrar, the Paying Agent and
each of its respective partners, representatives, Affiliates, members, managers,
directors, officers, employees, agents and Controlling Persons shall be entitled
to indemnification from the Trust for any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments and any other costs,
liabilities, fees and expenses incurred in connection with any legal action
incurred without negligence or willful misconduct on their respective part,
arising out of, or in connection with this Agreement, the Mortgage Loans, the
Certificates and the acceptance or administration of the trusts or duties
created hereunder (including, without limitation, any unanticipated loss,
liability or expense incurred in connection with any action or inaction of the
Master Servicer, the Special Servicer or the Depositor or of each other such
Person hereunder but only to the extent the Trustee, the Certificate Registrar
or the Paying Agent, as the case may be, is unable to recover within a
reasonable period of time such amount from such third party pursuant to this
Agreement) including the costs and expenses of defending themselves against any
claim in connection with the exercise or performance of any of their powers or
duties hereunder and the Trustee, the Certificate Registrar and the Paying Agent
and each of their respective partners, representatives, Affiliates, members,
managers, directors, officers, employees, agents and Controlling Persons shall
be entitled to indemnification from the Trust for any unanticipated loss,
liability or expense incurred in connection with the provision by the Trustee,
the Certificate Registrar and the Paying Agent of the reports required to be
provided by it pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee, the Certificate
Registrar or the Paying Agent, as the case may be, shall have given the
Depositor, the Master Servicer, the Sellers, each other and the Holders of
the Certificates written notice thereof promptly after a Responsible
Officer of the Trustee, the Certificate Registrar or the Paying Agent, as
the case may be, shall have knowledge thereof; provided, however, that
failure to give such notice to the Depositor, the Master Servicer, the
Sellers, each other and the Holders of Certificates shall not affect the
Trustee's, Certificate Registrar's or Paying Agent's, as the case may be,
rights to indemnification herein unless the Depositor's defense of such
claim on behalf of the Trust is materially prejudiced thereby;
(ii) while maintaining control over its own defense, the Trustee,
the Certificate Registrar or the Paying Agent, as the case may be, shall
cooperate and consult fully with the Depositor in preparing such defense;
and
(iii) notwithstanding anything to the contrary in this Section 7.11,
the Trust shall not be liable for settlement of any such claim by the
Trustee, the Certificate Registrar or the Paying Agent, as the case may
be, entered into without the prior consent of the Depositor, which consent
shall not be unreasonably withheld.
(b) The provisions of this Section 7.11 shall survive any
termination of this Agreement and the resignation or removal of the Trustee, the
Certificate Registrar or the Paying Agent, as the case may be.
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(c) The Depositor shall indemnify and hold harmless the Trustee, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
partners, representatives, Affiliates, members, managers, directors, officers,
employees, agents and Controlling Persons from and against any loss, claim,
damage or liability, joint or several, and any action in respect thereof, to
which the Trustee, the Certificate Registrar or the Paying Agent, as the case
may be, their respective partners, representatives, Affiliates, members,
managers, directors, officers, employees, agents or Controlling Person may
become subject under the 1933 Act, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon any untrue statement or
alleged untrue statement of a material fact contained in the Private Placement
Memorandum, the Free Writing Prospectus, the Final Prospectus Supplement or the
Prospectus, or arises out of, or is based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein in light of the circumstances under which they were
made, not misleading and shall reimburse the Trustee, the Certificate Registrar
or the Paying Agent, as the case may be, their respective partners,
representatives, Affiliates, members, managers, directors, officers, employees,
agents or Controlling Person for any legal and other expenses reasonably
incurred by the Trustee, the Certificate Registrar or the Paying Agent, as the
case may be, or any such partners, representatives, Affiliates, members,
managers, directors, officers, employees, agents or Controlling Person in
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action; provided that the Depositor shall not be liable in
any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission made in any such Private Placement Memorandum, Free
Writing Prospectus, Final Prospectus Supplement or Prospectus in reliance upon
and in conformity with written information concerning the Trustee, the
Certificate Registrar or the Paying Agent, as the case may be, furnished to the
Depositor by or on behalf of such Person specifically for inclusion therein. It
is hereby expressly agreed that the only written information provided by the
Trustee, the Certificate Registrar or the Paying Agent, as the case may be, for
inclusion in the Free Writing Prospectus and Final Prospectus Supplement is set
forth in [the third sentence under the caption entitled "DESCRIPTION OF THE
OFFERED CERTIFICATES--The Trustee, Paying Agent, Certificate Registrar and
Authenticating Agent--The Trustee, Paying Agent, Certificate Registrar and
Authenticating Agent."] The Trustee, the Certificate Registrar or the Paying
Agent, as the case may be, shall immediately notify the Depositor and the
Sellers if a claim is made by a third party with respect to this Section 7.11(c)
entitling such Person, its partners, representatives, Affiliates, members,
managers, directors, officers, employees, agents or Controlling Person to
indemnification hereunder, whereupon the Depositor shall assume the defense of
any such claim (with counsel reasonably satisfactory to such Person) and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Depositor shall not
affect any rights the Trustee, the Certificate Registrar or the Paying Agent, as
the case may be, their respective partners, representatives, Affiliates,
members, managers, directors, officers, employees, agents or Controlling Person
may have to indemnification under this Section 7.11(c), unless the Depositor's
defense of such claim is materially prejudiced thereby. The indemnification
provided herein shall survive the termination of this Agreement and the
resignation or removal of the Trustee or the Paying Agent. The Depositor shall
not be
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indemnified by the Trust for any expenses incurred by the Depositor arising from
any violation or alleged violation of the 1933 Act or 1934 Act by the Depositor.
Section 7.12 Fees and Expenses of Trustee and the Paying Agent
The Trustee shall be entitled to receive the Trustee Fee, pursuant
to Section 5.3(b)(ii) (which shall not be limited by any provision of law with
respect to the compensation of a trustee of an express trust), for all services
rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties respectively, hereunder of the
Trustee and the Paying Agent. The Trustee and the Paying Agent shall also be
entitled to recover from the Trust all reasonable unanticipated expenses and
disbursements incurred or made by the Trustee and the Paying Agent in accordance
with any of the provisions of this Agreement (including the reasonable
compensation and the reasonable expenses and disbursements of its counsel and
other Persons not regularly in its employ), not including expenses incurred in
the ordinary course of performing its duties as Trustee or Paying Agent,
respectively, hereunder, and except any such expense, disbursement or advance as
may arise from the negligence or bad faith of such Person or which is the
responsibility of the Holders of the Certificates hereunder. The provisions of
this Section 7.12 shall survive any termination of this Agreement and the
resignation or removal of the Trustee or the Paying Agent.
Section 7.13 Collection of Moneys
Except as otherwise expressly provided in this Agreement, the
Trustee and the Paying Agent may demand payment or delivery of, and shall
receive and collect, all money and other property payable to or receivable by
the Trustee or the Paying Agent, as the case may be, pursuant to this Agreement.
The Trustee or the Paying Agent, as the case may be, shall hold all such money
and property received by it as part of the Trust and shall distribute it as
provided in this Agreement. If the Trustee or the Paying Agent, as the case may
be, shall not have timely received amounts to be remitted with respect to the
Mortgage Loans from the Master Servicer, the Trustee or the Paying Agent, as the
case may be, shall request that the Master Servicer make such distribution as
promptly as practicable or legally permitted. If the Trustee or the Paying
Agent, as the case may be, shall subsequently receive any such amount, it may
withdraw such request.
Section 7.14 Trustee to Act; Appointment of Successor
(a) On and after the time the Master Servicer is terminated pursuant
to this Agreement in accordance with Sections 8.28 and 8.29, the Trustee shall
be the successor in all respects to the Master Servicer in its capacity under
this Agreement and the transactions set forth or provided for therein and shall
have all the rights and powers and be subject to all the responsibilities,
duties and liabilities relating thereto and arising thereafter placed on the
Master Servicer by the terms and provisions of this Agreement; provided that,
any failure to perform such duties or responsibilities caused by the Master
Servicer's failure to provide required information shall not be considered a
default by the Trustee hereunder. In addition, the Trustee shall have no
liability relating to (i) the representations and warranties of the Master
Servicer contained in this Agreement or (ii) any obligation incurred by the
Master Servicer prior to its termination or resignation (including, without
limitation, the Master Servicer's obligation to
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repay losses resulting from the investment of funds in any account established
under this Agreement), except any ongoing obligations to the Primary Servicers
arising after the termination of the Master Servicer from their servicing rights
and obligations under the applicable Primary Servicing Agreement. In the
Trustee's capacity as such successor, the Trustee shall have the same
limitations on liability granted to the Master Servicer in this Agreement. As
compensation therefor, the Trustee shall be entitled to receive all the
compensation payable to the Master Servicer set forth in this Agreement,
including, without limitation, the Master Servicing Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the Trustee
is unwilling to so act, or (B) shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint any established commercial
or multifamily mortgage finance institution, servicer or special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
meeting such other standards for a successor servicer as are set forth in this
Agreement and with respect to which Rating Agency Confirmation is obtained, as
the successor to such terminated Master Servicer hereunder in the assumption of
all of the responsibilities, duties or liabilities of a servicer as the Master
Servicer hereunder and under the applicable Primary Servicing Agreement. Pending
any such appointment, the Trustee shall act in such capacity as hereinabove
provided. Any entity designated by the Trustee as successor Master Servicer may
be an Affiliate of the Trustee; provided that such Affiliate must meet the
standards for the Master Servicer as set forth herein. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and such
successor shall agree subject to Section 8.10. The Trustee and such successor
shall take such actions, consistent with this Agreement as shall be necessary to
effectuate any such succession. The terminated Master Servicer shall cooperate
with the Trustee and any successor servicer in effecting the termination of the
Master Servicer's responsibilities and rights under this Agreement, including,
without limitation, notifying Mortgagors of the assignment of the servicing
function and providing the Trustee and successor servicer all documents and
records in its possession in electronic or other form reasonably requested by
the successor servicer to enable the successor servicer to assume the Master
Servicer's functions hereunder and the transfer to the Trustee or such successor
servicer of all amounts which shall at the time be or should have been deposited
by the Master Servicer in the applicable Certificate Account and any other
account or fund maintained with respect to the Certificates or thereafter be
received by the Master Servicer with respect to the Mortgage Loans. Neither the
Trustee nor any other successor servicer shall be deemed to be in default
hereunder by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof caused by (i) the failure of the
terminated Master Servicer to deliver, or any delay in delivering, cash,
documents or records to it, or (ii) restrictions imposed by any regulatory
authority having jurisdiction over the Master Servicer. The Trustee shall be
reimbursed for all of its out-of-pocket expenses incurred in connection with
obtaining such successor Master Servicer by the Trust within 30 days of the
Trustee's submission of an invoice with respect thereto, to the extent such
expenses have not been reimbursed by the terminated Master Servicer as provided
herein; such expenses paid by the Trust shall be deemed to be an Additional
Trust Expense.
(c) On and after the time the Special Servicer is terminated
pursuant to this Agreement, in accordance with Section 9.30, the Trustee shall
be the successor in all respects to the Special Servicer in its capacity under
this Agreement and the transactions set forth or
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provided for therein and shall, subject to Section 9.21(d), have all the rights
and powers and be subject to all the responsibilities, duties and liabilities
relating thereto and arising thereafter placed on the Special Servicer by the
terms and provisions of this Agreement; provided that, any failure to perform
such duties or responsibilities caused by the Special Servicer's failure to
provide required information shall not be considered a default by the Trustee
hereunder. In addition, the Trustee shall have no liability relating to (i) the
representations and warranties of the Special Servicer contained in this
Agreement or (ii) any obligation incurred by the Special Servicer prior to its
termination or resignation. In the Trustee's capacity as such successor, the
Trustee shall have the same limitations on liability granted to the Special
Servicer in this Agreement. As compensation therefor, the Trustee shall, subject
to Section 9.21(d), be entitled to receive all the compensation payable to the
Special Servicer set forth in this Agreement, including, without limitation the
Special Servicer Compensation.
(d) Notwithstanding the above, the Trustee may, if the Trustee shall
be unwilling to so act, or shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established
commercial or multifamily mortgage finance institution, special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
and meeting such other standards for a successor Special Servicer as are set
forth in Section 9.21, and with respect to which Rating Agency Confirmation is
obtained, as the successor to the terminated Special Servicer hereunder in the
assumption of all of the responsibilities, duties or liabilities of the Special
Servicer hereunder. Pending any such appointment, the Trustee shall act in such
capacity as hereinabove provided. Any entity designated by the Trustee as
successor Special Servicer may be an Affiliate of the Trustee; provided that
such Affiliate must meet the standards for a successor Special Servicer set
forth herein. In connection with such appointment and assumption, the Trustee
may make such arrangements for the compensation of such successor, subject to
Section 9.21(d), out of payments on Mortgage Loans as it and such successor
shall agree; provided that no such compensation shall be in excess of that
permitted to the terminated Special Servicer under this Agreement. The Trustee
and such successor shall take such actions, consistent with this Agreement as
shall be necessary to effectuate any such succession. The terminated Special
Servicer shall cooperate with the Trustee and any successor Special Servicer in
effecting the termination of the Special Servicer's responsibilities and rights
under this Agreement, including, without limitation, notifying Mortgagors of
Specially Serviced Mortgage Loans of the assignment of the special servicing
function and providing the Trustee and successor Special Servicer all documents
and records in its possession in electronic or other form reasonably requested
by the successor Special Servicer to enable the successor Special Servicer to
assume the Special Servicer's functions hereunder and the transfer to the
Trustee or such successor Special Servicer of all amounts which shall at the
time be or should have been deposited by the terminated Special Servicer in the
applicable Certificate Account and any other account or fund maintained with
respect to the Certificates or thereafter be received by the Special Servicer
with respect to the Mortgage Loans. Neither the Trustee nor any other successor
Special Servicer shall be deemed to be in default hereunder by reason of any
failure to make, or any delay in making, any distribution hereunder or any
portion thereof caused by (i) the failure of the terminated Special Servicer to
deliver, or any delay in delivering, cash, documents or records to it, or (ii)
restrictions imposed by any regulatory authority having jurisdiction over the
Special Servicer. The Trustee shall be reimbursed for all of its out-of-pocket
expenses incurred in connection with obtaining such successor Special Servicer
by the Trust within 30 days of
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submission of an invoice with respect thereto but only to the extent such
expenses have not been reimbursed by the terminated Special Servicer as provided
herein; and such expenses paid by the Trust shall be deemed to be an Additional
Trust Expense.
Section 7.15 Notification to Holders
Upon termination of, or an Event of Default by, the Master Servicer,
the Paying Agent or the Special Servicer, or appointment of a successor to the
Master Servicer, the Paying Agent or the Special Servicer, the Trustee shall
promptly mail notice thereof by first class mail to the Rating Agencies, the
Operating Adviser, the Sellers and the Certificateholders at their respective
addresses appearing on the Certificate Register.
Section 7.16 Representations and Warranties of the Trustee and the
Paying Agent
(a) The Trustee hereby represents and warrants as of the date hereof
that:
(i) the Trustee is a national banking association, duly organized,
validly existing and in good standing under the laws governing its
creation and existence and has full power and authority to own its
property, to carry on its business as presently conducted, and to enter
into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Trustee of this Agreement
have been duly authorized by all necessary action on the part of the
Trustee; neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated in this Agreement, nor
compliance with the provisions of this Agreement, will conflict with or
result in a breach of, or constitute a default under, (i) any of the
provisions of any law, governmental rule, regulation, judgment, decree or
order binding on the Trustee or its properties that would materially and
adversely affect the Trustee's ability to perform its obligations under
this Agreement, (ii) the organizational documents of the Trustee, or (iii)
the terms of any material agreement or instrument to which the Trustee is
a party or by which it is bound; the Trustee is not in default with
respect to any order or decree of any court or any order, regulation or
demand of any federal, state, municipal or other governmental agency,
which default would materially and adversely affect its performance under
this Agreement;
(iii) the execution, delivery and performance by the Trustee of this
Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of,
the giving of notice to or the registration with any state, federal or
other governmental authority or agency, except such as has been or will be
obtained, given, effected or taken in order for the Trustee to perform its
obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by the
Trustee and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
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creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and
(v) no litigation is pending or, to the Trustee's knowledge,
threatened, against the Trustee that, either in one instance or in the
aggregate, would draw into question the validity of this Agreement, or
which would be likely to impair materially the ability of the Trustee to
perform under the terms of this Agreement.
(b) The Paying Agent hereby represents and warrants as of the date
hereof that:
(i) the Paying Agent is a national banking association, duly
organized, validly existing and in good standing under the laws governing
its creation and existence and has full power and authority to own its
property, to carry on its business as presently conducted, and to enter
into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Paying Agent of this
Agreement have been duly authorized by all necessary action on the part of
the Paying Agent; neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated in this Agreement,
nor compliance with the provisions of this Agreement, will conflict with
or result in a breach of, or constitute a default under, (i) any of the
provisions of any law, governmental rule, regulation, judgment, decree or
order binding on the Paying Agent or its properties that would materially
and adversely affect the Paying Agent's ability to perform its obligations
under this Agreement, (ii) the organizational documents of the Paying
Agent, or (iii) the terms of any material agreement or instrument to which
the Paying Agent is a party or by which it is bound; the Paying Agent is
not in default with respect to any order or decree of any court or any
order, regulation or demand of any federal, state, municipal or other
governmental agency, which default would materially and adversely affect
its performance under this Agreement;
(iii) the execution, delivery and performance by the Paying Agent of
this Agreement and the consummation of the transactions contemplated by
this Agreement do not require the consent, approval, authorization or
order of, the giving of notice to or the registration with any state,
federal or other governmental authority or agency, except such as has been
or will be obtained, given, effected or taken in order for the Paying
Agent to perform its obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by the
Paying Agent and, assuming due authorization, execution and delivery by
the other parties hereto, constitutes a valid and binding obligation of
the Paying Agent, enforceable against the Paying Agent in accordance with
its terms, subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium and other similar laws
affecting creditors' rights generally as from time to time in effect, and
to general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law); and
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(v) there are no actions, suits or proceeding pending or, to the
best of the Paying Agent's knowledge, threatened, against the Paying Agent
that, either in one instance or in the aggregate, would draw into question
the validity of this Agreement, or which would be likely to impair
materially the ability of the Paying Agent to perform under the terms of
this Agreement.
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Trustee and the Paying Agent
Each of the Trustee and the Paying Agent, at its own respective
expense, shall maintain in effect a Fidelity Bond and a Errors and Omissions
Insurance Policy. The Errors and Omissions Insurance Policy and Fidelity Bond
shall be issued by a Qualified Insurer in form and in amount customary for
trustees or paying agents in similar transactions (unless the Trustee or the
Paying Agent, as the case may be, self insures as provided below). In the event
that any such Errors and Omissions Insurance Policy or Fidelity Bond ceases to
be in effect, the Trustee or the Paying Agent, as the case may be, shall obtain
a comparable replacement policy or bond from an insurer or issuer meeting the
requirements set forth above as of the date of such replacement. So long as the
long-term debt rating of the Trustee or the Paying Agent, as the case may be, is
not less than ["A" as rated by S&P and "Baa1" as rated by Xxxxx'x, if rated by
S&P and Xxxxx'x], respectively, the Trustee or the Paying Agent, as the case may
be, may self-insure for the Fidelity Bond and the Errors and Omissions Insurance
Policy.
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties
(a) Subject to the express provisions of this Agreement, for and on
behalf of the Trust and for the benefit of the Certificateholders as a whole,
the Master Servicer shall service and administer the Mortgage Loans in
accordance with the Servicing Standard and the terms of this Agreement.
In connection with such servicing and administration, the Master
Servicer shall service in accordance with the Servicing Standard; provided,
however, that nothing herein contained shall be construed as an express or
implied guarantee by the Master Servicer of the collectability of payments on
the Mortgage Loans or shall be construed as impairing or adversely affecting any
rights or benefits specifically provided by this Agreement to the Master
Servicer, including with respect to Master Servicing Fees or the right to be
reimbursed for Advances.
(b) The Master Servicer, in the case of an event specified in clause
(x) of this subclause (b), and the Special Servicer, in the case of an event
specified in clause (y) of this subclause (b), shall each send a written notice
to the other and to the Trustee and the Paying Agent, the Operating Adviser and
the respective Seller within two Business Days after becoming aware (x) that a
Servicing Transfer Event has occurred with respect to a Mortgage Loan or (y)
that a Mortgage Loan has become a Rehabilitated Mortgage Loan, which notice
shall identify the
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applicable Mortgage Loan and, in the case of an event specified in clause (x) of
this subclause (b) above, the Servicing Transfer Event that occurred.
(c) With respect to each Mortgage Loan that is subject to an
Environmental Insurance Policy, for as long as it is not a Specially Serviced
Mortgage Loan, if any of the Master Servicer, the Special Servicer or the
applicable Primary Servicer has actual knowledge of any event giving rise to a
claim under an Environmental Insurance Policy, such Person shall notify the
related Master Servicer, the related Special Servicer and the related Primary
Servicer, as applicable, to such effect and the Master Servicer shall take
reasonable actions as are in accordance with the Servicing Standard and the
terms and conditions of such Environmental Insurance Policy to make a claim
thereunder and achieve the payment of all amounts to which the Trust is entitled
thereunder. Any legal fees or other out-of-pocket costs incurred in accordance
with the Servicing Standard in connection with any such claim shall be paid by,
and reimbursable to, the Master Servicer or the Special Servicer as a Servicing
Advance.
(d) In connection with any extension of the Maturity Date of a
Mortgage Loan that is the subject of an Environmental Insurance Policy, the
Master Servicer shall give prompt written notice of such extension to the
insurer under the Environmental Insurance Policy and shall execute such
documents as are reasonably required by such insurer to procure an extension of
such policy (if available).
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Master Servicer
The Master Servicer, at its expense, shall maintain in effect a
Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance Policy. The
Servicer Errors and Omissions Insurance Policy and Servicer Fidelity Bond shall
be issued by a Qualified Insurer (unless the Master Servicer self insures as
provided below) and be in form and amount consistent with the Servicing
Standard. In the event that any such Servicer Errors and Omissions Insurance
Policy or Servicer Fidelity Bond ceases to be in effect, the Master Servicer
shall obtain a comparable replacement policy or bond from an insurer or issuer
meeting the requirements set forth above as of the date of such replacement. So
long as the long-term rating of the Master Servicer (or its corporate parent) is
not in any event less than ["A" as rated by S&P and "Baa1" as rated by Xxxxx'x,]
respectively, the Master Servicer may self-insure for the Servicer Fidelity Bond
and the Servicer Errors and Omissions Insurance Policy.
Section 8.3 Master Servicer's General Power and Duties
(a) The Master Servicer shall service and administer the Mortgage
Loans it is required to service hereunder and shall, subject to Sections 8.7,
8.18, 8.19, 8.27 and 9.39 and Article XII hereof and as otherwise provided
herein and by the Code, have full power and authority to do any and all things
which it may deem necessary or desirable in connection with such servicing and
administration in accordance with the Servicing Standard. To the extent
consistent with the foregoing and subject to any express limitations and
provisions set forth in this Agreement, such power and authority shall include,
without limitation, the right, subject to the terms hereof, (A) to execute and
deliver, on behalf of the Certificateholders and the Trustee, customary consents
or waivers and other instruments and documents (including, without
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limitation, estoppel certificates, financing statements, continuation
statements, title endorsements and reports and other documents and instruments
necessary to preserve and maintain the lien on the related Mortgaged Property
and related collateral), (B) to consent to assignments and assumptions or
substitutions, and transfers of interest of any Mortgagor, in each case subject
to and in accordance with the terms of the related Mortgage Loan and Section
8.7, (C) to collect any Insurance Proceeds, (D) subject to Section 8.7, to
consent to any subordinate financings to be secured by any related Mortgaged
Property to the extent that such consent is required pursuant to the terms of
the related Mortgage or which otherwise is required, and, subject to Section
8.7, to consent to any mezzanine debt to the extent such consent is required
pursuant to the terms of the related Mortgage; (E) to consent to the application
of any proceeds of insurance policies or condemnation awards to the restoration
of the related Mortgaged Property or otherwise and to administer and monitor the
application of such proceeds and awards in accordance with the terms of the
Mortgage Loan as the Master Servicer deems reasonable under the circumstances,
(F) to execute and deliver, on behalf of the Certificateholders and the Trustee,
documents relating to the management, operation, maintenance, repair, leasing
and marketing of the related Mortgaged Properties, including agreements and
requests by the Mortgagor with respect to modifications of the standards of
operation and management of the Mortgaged Properties or the replacement of asset
managers, (G) to consent to any operation or action under a Mortgage Loan that
is contemplated or permitted under a Mortgage or other documents evidencing or
securing the applicable Mortgage Loan (either as a matter of right or upon
satisfaction of specified conditions), (H) to obtain, release, waive or modify
any term other than a Money Term of a Mortgage Loan and related documents
subject to and to the extent permitted by Section 8.18, (I) to exercise all
rights, powers and privileges granted or provided to the holder of the Mortgage
Notes under the terms of the Mortgage, including all rights of consent or
approval thereunder, (J) to enter into lease subordination agreements,
non-disturbance and attornment agreements or other leasing or rental
arrangements which may be requested by the Mortgagor or the Mortgagor's tenants,
(K) to join the Mortgagor in granting, modifying or releasing any easements,
covenants, conditions, restrictions, equitable servitudes, or land use or zoning
requirements with respect to the Mortgaged Properties to the extent such does
not adversely affect the value of the related Mortgage Loan or Mortgaged
Property, (L) to execute and deliver, on behalf of itself, the Trustee, the
Trust or any of them, any and all instruments of satisfaction or cancellation,
or of partial or full release or discharge and all other comparable instruments,
with respect to the Mortgage Loans and with respect to the Mortgaged Properties,
and (M) cause to be held on behalf of the Trustee, in accordance with the terms
of any Mortgage Loan and this Agreement, Defeasance Collateral. The foregoing
clauses (A) through (M) are referred to collectively as "Master Servicer Consent
Matters." In addition, the Master Servicer, consistent with the Servicing
Standard, may waive any default interest and Late Fees with respect to its
Mortgage Loans that are not Specially Serviced Mortgage Loans; provided that, to
the extent the Master Servicer waives any default interest and Late Fees, any
outstanding Advance Interest with respect to the related Mortgage Loan that
would otherwise have been paid out of such default interest and Late Fees shall
be paid out of the additional servicing compensation payable to the Master
Servicer with respect to that Mortgage Loan; and provided, further, that if no
additional servicing compensation is available to offset the outstanding Advance
Interest with respect to the Mortgage Loan that would otherwise be offset by the
default interest and Late Fees, then the Master Servicer shall not waive such
default interest and Late Fees unless it is the first such waiver with respect
to the subject Mortgage Loan.
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Notwithstanding the above, the Master Servicer shall have no power
to (i) waive any Prepayment Premiums or (ii) consent to any modification of a
Money Term. In addition, subject to the Servicing Standard, the Master Servicer
shall not accept any prepayment of principal with respect to any Mortgage Loan
on any date other than the related Due Date unless (i) such payment is
accompanied by a payment of the interest due with respect to such Mortgage Loan
up to the next succeeding Due Date, (ii) such prepayment does not result in the
Trust incurring a Prepayment Interest Shortfall or (iii) such prepayment is
required to be permitted under the related Mortgage Loan documents on a date
other than the related Due Date. Nothing contained in this Agreement shall limit
the ability of the Master Servicer to lend money to (to the extent not secured,
in whole or in part, by any Mortgaged Property), accept deposits from and
otherwise generally engage in any kind of business or dealings with any
Mortgagor as though the Master Servicer were not a party to this Agreement or to
the transactions contemplated hereby; provided, however, that this sentence
shall not modify the Servicing Standard.
(b) No Master Servicer shall be obligated to service and administer
the Mortgage Loans which have become and continue to be Specially Serviced
Mortgage Loans, except as specifically provided herein. The Master Servicer
shall be required to make all calculations and prepare all reports required
hereunder with respect to such Specially Serviced Mortgage Loans (other than
calculations and reports expressly required to be made by the Special Servicer
hereunder) as if no Servicing Transfer Event had occurred and shall continue to
collect all Scheduled Payments, make Servicing Advances as set forth herein,
make P&I Advances as set forth herein and render such incidental services with
respect to such Specially Serviced Mortgage Loans, all as are specifically
provided for herein, but shall have no other servicing or other duties with
respect to such Specially Serviced Mortgage Loans. The Master Servicer shall
give notice within three Business Days to the Special Servicer of any
collections it receives from any Specially Serviced Mortgage Loans, subject to
changes agreed upon from time to time by the Special Servicer and the Master
Servicer. The Special Servicer shall instruct within one Business Day after
receiving such notice the Master Servicer on how to apply such funds. The Master
Servicer within one Business Day after receiving such instructions shall apply
such funds in accordance with the Special Servicer's instructions. Each Mortgage
Loan that becomes a Specially Serviced Mortgage Loan shall continue as such
until such Mortgage Loan becomes a Rehabilitated Mortgage Loan. No Master
Servicer shall be required to initiate extraordinary collection procedures or
legal proceedings with respect to any Mortgage Loan or to undertake any
pre-foreclosure procedures.
(c) Concurrently with the execution of this Agreement, the Trustee
shall sign the Powers of Attorney. The Master Servicer, shall promptly notify
the Trustee of the recording of any document on behalf of the Trustee under such
Power-of-Attorney. From time to time until the termination of the Trust, upon
receipt of additional unexecuted powers of attorney from the Master Servicer or
the Special Servicer, the Trustee shall execute and return to the Master
Servicer, the Special Servicer or any Primary Servicer any additional powers of
attorney and other documents necessary or appropriate to enable the Master
Servicer and the Special Servicer to service and administer the Mortgage Loans
including, without limitation, documents relating to the management, operation,
maintenance, repair, leasing or marketing of the Mortgaged Properties. The
Master Servicer shall indemnify the Trustee for any costs, liabilities and
expenses (including attorneys' fees) incurred by the Trustee in connection with
the intentional or negligent misuse of such power of attorney by the Master
Servicer. Notwithstanding anything
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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 directly relating to the servicing of the Mortgage Loans
solely under the Trustee's name without indicating the Master Servicer's or
Special Servicer's, as applicable, representative capacity, (ii) initiate any
other action, suit or proceeding not directly relating to the servicing of the
Mortgage Loans (including but not limited to actions, suits or proceedings
against Certificateholders, or against the Depositor or the Sellers for breaches
of representations and warranties) solely under the Trustee's name, (iii) engage
counsel to represent the Trustee in any action, suit or proceeding not directly
related to the servicing of the Mortgage Loans (including but not limited to
actions, suits or proceedings against Certificateholders, or against the
Depositor or the Sellers for breaches of representations and warranties, or (iv)
prepare, execute or deliver any government filings, forms, permits,
registrations or other documents or take any other actions with the intent to
cause, and that actually causes, the Trustee to be registered to do business in
any state. The limitations of the preceding clause shall not be construed to
limit any duty or obligation imposed on the Trustee under any other provision of
this Agreement.
(d) The Master Servicer shall make efforts consistent with the
Servicing Standard and the terms of this Agreement to collect all payments
called for under the terms and provisions of the applicable Mortgage Loans
(other than Specially Serviced Mortgage Loans or REO Properties).
(e) The Master Servicer (or any Primary Servicer on its behalf)
shall segregate and hold all funds collected and received pursuant to any
Mortgage Loan constituting Escrow Amounts separate and apart from any of its own
funds and general assets and shall establish and maintain one or more segregated
custodial accounts (each, an "Escrow Account") into which all Escrow Amounts
shall be deposited within one Business Day after receipt. Each Escrow Account
shall be an Eligible Account. The Master Servicer shall also deposit into each
applicable Escrow Account any amounts representing losses on Eligible
Investments pursuant to the immediately succeeding paragraph and any Insurance
Proceeds or Liquidation Proceeds which are required to be applied to the
restoration or repair of any Mortgaged Property pursuant to the related Mortgage
Loan. Each Escrow Account shall be maintained in accordance with the
requirements of the related Mortgage Loan and in accordance with the Servicing
Standard. Withdrawals from an Escrow Account may be made only:
(i) to effect timely payments of items constituting Escrow Amounts
for the related Mortgage Loan;
(ii) to transfer funds to the applicable Certificate Account (or any
sub-account thereof) to reimburse the Master Servicer for any Advance (or
the Trust for any Unliquidated Advance) relating to Escrow Amounts, but
only from amounts received with respect to the related Mortgage Loan which
represent late collections of Escrow Amounts thereunder;
(iii) for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage Loan and the
Servicing Standard;
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(iv) to clear and terminate such Escrow Account upon the termination
of this Agreement or pay-off of the related Mortgage Loan;
(v) to pay from time to time to the related Mortgagor any interest
or investment income earned on funds deposited in the applicable Escrow
Account if such income is required to be paid to the related Mortgagor
under applicable law or by the terms of the Mortgage Loan, or otherwise to
the Master Servicer; and
(vi) to remove any funds deposited in a Escrow Account that were not
required to be deposited therein or to refund amounts to the Mortgagors
determined to be overages.
Subject to the immediately succeeding two sentences, (i) the Master
Servicer may direct any depository institution or trust company in which the
applicable Escrow Accounts are maintained to invest the funds held therein in
one or more Eligible Investments; provided, however, that such funds shall be
either (x) immediately available or (y) available in accordance with a schedule
which will permit the Master Servicer to meet the payment obligations for which
the applicable Escrow Account was established; (ii) the Master Servicer shall be
entitled to all income and gain realized from any such investment of funds as
additional servicing compensation; and (iii) the Master Servicer shall deposit
from its own funds in the applicable Escrow Account the amount of any loss
incurred in respect of any such investment of funds on or before the next Master
Servicer Remittance Date. The Master Servicer shall not direct the investment of
funds held in any Escrow Account and retain the income and gain realized
therefrom if the terms of the related Mortgage Loan or applicable law permit the
Mortgagor to be entitled to the income and gain realized from the investment of
funds deposited therein, and the Master Servicer shall not be required to invest
amounts on deposit in applicable Escrow Accounts in Eligible Investments or
Eligible Accounts to the extent that the Master Servicer are required by either
law or under the terms of any related Mortgage Loan to deposit or invest (or the
Mortgagor is entitled to direct the deposit or investment of) such amounts in
another type of investments or accounts. In the event the Master Servicer is not
entitled to direct the investment of such funds, (1) the Master Servicer shall
direct the depository institution or trust company in which such Escrow Accounts
are maintained to invest the funds held therein in accordance with the
Mortgagor's written investment instructions, if the terms of the related
Mortgage Loan or applicable law require the Master Servicer to invest such funds
in accordance with the Mortgagor's directions; and (2) in the absence of
appropriate written instructions from the Mortgagor, the Master Servicer shall
have no obligation to, but may be entitled to, direct the investment of such
funds; provided, however, that in either event (i) such funds shall be either
(y) immediately available or (z) available in accordance with a schedule which
will permit the Master Servicer to meet the payment obligations for which the
applicable Escrow Account was established, and (ii) the Master Servicer shall
have no liability for any loss in investments of such funds that are invested
pursuant to written instructions from the Mortgagor.
(f) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee and the Paying Agent and to each other under this
Agreement is intended by the parties to be that of an independent contractor and
not of a joint venturer, partner or agent.
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(g) With respect to each Mortgage Loan, if required by the terms of
the related Mortgage Loan, any Lock-Box Agreement or similar agreement, the
Master Servicer shall establish and maintain, in accordance with the Servicing
Standard, one or more lock-box, cash management or similar accounts ("Lock-Box
Accounts") to be held outside the Trust and maintained by the Master Servicer in
accordance with the terms of the related Mortgage. No Lock-Box Account is
required to be an Eligible Account, unless otherwise required pursuant to the
related Mortgage Loan documents. The Master Servicer shall apply the funds
deposited in such accounts in accordance with terms of the related Mortgage Loan
documents, any Lock-Box Agreement and in accordance with the Servicing Standard.
(h) The Master Servicer or any Primary Servicer on its behalf shall
process all defeasances of Mortgage Loans in accordance with the terms of the
Mortgage Loan documents, and shall be entitled to any fees paid relating
thereto. The Master Servicer shall not permit defeasance (or partial defeasance
if permitted under the Mortgage Loan) of any Mortgage Loan on or before the
second anniversary of the Closing Date unless such defeasance will not result in
an Adverse REMIC Event and the Master Servicer has received an opinion of
counsel to such effect and all items in the following sentence have been
satisfied. Subsequent to the second anniversary of the Closing Date, the Master
Servicer, in connection with the defeasance of a Mortgage Loan shall require (to
the extent it is not inconsistent with the Servicing Standard) that: (i) the
defeasance collateral consists of "government securities" as defined in the 1940
Act, subject to Rating Agency approval, (ii) the Master Servicer has received
evidence satisfactory to it, that the defeasance will not result in an Adverse
REMIC Event, (iii) either (A) the related Mortgagor designates a Single-Purpose
Entity (if the Mortgagor no longer complies) to own the Defeasance Collateral
(subject to customary qualifications) or (B) the Master Servicer has established
a Single-Purpose Entity to hold all Defeasance Collateral relating to the
Defeasance Loans (in its corporate capacity and not as agent of or on behalf of
the Trust or the Trustee), (iv) the Master Servicer has requested and received
from the Mortgagor (A) an opinion of counsel that the Trustee will have a
perfected, first priority security interest in such Defeasance Collateral and
(B) written confirmation from a firm of independent accountants stating that
payments made on such Defeasance Collateral in accordance with the terms thereof
will be sufficient to pay the subject Mortgage Loan (or the defeased portion
thereof in connection with a partial defeasance) in full on or before its
Maturity Date (or, in the case of the ARD Loan, on or before its Anticipated
Repayment Date) and to timely pay each subsequent Scheduled Payment, (v) (A) the
Master Servicer shall receive a Rating Agency Confirmation if the Mortgage Loan
(together with any other Mortgage Loan with which it is cross-collateralized)
has a Principal Balance greater than the lesser of $20,000,000 and 5% of the
Aggregate Certificate Balance (or such higher threshold as shall be published by
S&P), unless such Rating Agency has waived in writing such Rating Agency
Confirmation requirement [or (B) if the Mortgage Loan is less than or equal to
both of the amounts set forth in clause (A), either a Notice and Certification
in the form attached hereto as Exhibit J (or such less restrictive form as shall
be adopted by S&P) or a Rating Agency Confirmation is received from S&P] and
(vi) a Rating Agency Confirmation is received if the Mortgage Loan is one of the
ten largest Mortgage Loans, by Principal Balance. Any customary and reasonable
out-of-pocket expense incurred by the Master Servicer pursuant to this Section
8.3(h) shall be paid by the Mortgagor of the Defeasance Loan pursuant to the
related Mortgage, Mortgage Note or other pertinent document, if so allowed by
the terms of such documents.
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The parties hereto acknowledge that, if a Seller shall have breached
the representation set forth under the heading "Releases of Mortgaged Property"
in Exhibit 2 to the Mortgage Loan Purchase Agreements, regarding the obligations
of a Mortgagor to pay the costs of a tax opinion associated with the full or
partial release or substitution of collateral for a Mortgage Loan because the
related Mortgage Loan documents do not require the related Mortgagor to pay
costs related thereto, to the extent an amount is due and not paid by the
Mortgagor, then the sole obligation of the related Seller shall be to pay for
such tax opinion. In addition, the parties hereto acknowledge that, if a Seller
shall have breached the representation set forth under the heading "Defeasance
and Assumption Costs" in Exhibit 2 to the Mortgage Loan Purchase Agreements,
regarding the obligation of a Mortgagor to pay the reasonable costs and expenses
associated with a defeasance or assumption of the related Mortgage Loan, because
the related Mortgage Loan documents do not require the related Mortgagor to pay
costs related thereto, including, but not limited to, amounts owed to one or
both Rating Agencies, then the sole obligation of the related Seller shall be to
pay an amount equal to such insufficiency or expense to the extent the related
Mortgagor is not required to pay such amount. Promptly upon receipt of notice of
such insufficiency or unpaid expenses or costs, the Master Servicer shall
request the related Seller to make such payment by deposit to the applicable
Certificate Account. The related Seller shall have no obligation to pay for any
of the foregoing costs if the applicable Mortgagor has an obligation to pay for
such costs.
In the case of a Specially Serviced Mortgage Loan, the Master
Servicer shall process any defeasance of such Specially Serviced Mortgage Loan
in accordance with the original terms of the respective Mortgage Loan documents
following a request by the Special Servicer that the Master Servicer do so,
which request shall be accompanied by a waiver of any condition of defeasance
that an "event of default" under such Specially Serviced Mortgage Loan not have
occurred or be continuing, and the Master Servicer shall be entitled to any fees
paid relating to such defeasance. If such "event of default" is on account of an
uncured payment default, the Special Servicer will process the defeasance of
such Specially Serviced Mortgage Loan, and the Special Servicer shall be
entitled to any fees paid relating to such defeasance.
(i) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor under a ground lease, confirm
whether or not on or prior to the date that is thirty (30) days after receipt of
the related Servicer Mortgage File by the Master Servicer (or Primary Servicer,
if applicable), the Seller has notified the related ground lessor of the
transfer of such Mortgage Loan to the Trust pursuant to this Agreement, and
informed such ground lessor that any notices of default under the related Ground
Lease should thereafter be forwarded to the Master Servicer (as evidenced by
delivery of a copy thereof to the Master Servicer). The Master Servicer shall
promptly notify the ground lessor if the Seller has failed to do so by the
thirtieth day after the Closing Date.
Section 8.4 Primary Servicing and Sub-Servicing
(a) The parties hereto (A) acknowledge that the Master Servicer has
delegated certain of its obligations and assigned certain of its rights under
this Agreement to each of the Primary Servicers pursuant to the respective
Primary Servicing Agreements and (B) agree: (1) in addition to those obligations
specifically delegated by the Master Servicer to the Primary Servicers under the
applicable Primary Servicing Agreement, each Primary Servicer and (if so
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provided in the related Sub-Servicing Agreement) each Sub-Servicer shall also
perform the Master Servicer's obligations set forth in Section 2.1(d) of this
Agreement as such Section relates to the Mortgage Loans serviced by it; (2) in
addition to those rights specifically granted by the Master Servicer to the
Primary Servicers under the applicable Primary Servicing Agreement or any
Sub-Servicer under the applicable Sub-Servicing Agreement, those rights set
forth in Section 8.24 hereof accruing to the benefit of the Master Servicer
shall also accrue to the benefit of the Primary Servicers and each Sub-Servicer;
(3) any indemnification or release from liability set forth in this Agreement
accruing to the benefit of the Master Servicer shall also, to the extent
applicable, benefit the Primary Servicers and each Sub-Servicer; and (4) for
each notice, certification, report, schedule, statement or other type of writing
that a party hereto is obligated to deliver to the Master Servicer in respect of
Mortgage Loans for which a Primary Servicer or Sub-Servicer has been engaged,
such party shall deliver to each of the applicable Primary Servicers or the
applicable Sub-Servicer a copy of such notice, certification, report, schedule,
statement or other type of writing at the time and in the same manner that any
of the foregoing is required to be delivered to the Master Servicer.
Notwithstanding the provisions of any Primary Servicing Agreement,
the Sub-Servicing Agreement or any other provisions of this Agreement, the
Master Servicer shall remain obligated and liable to the Trustee, the Paying
Agent, the Special Servicer and the Certificateholders for servicing and
administering of the Mortgage Loans in accordance with the provisions of this
Agreement to the same extent as if the Master Servicer was alone servicing and
administering the Mortgage Loans; provided, however, the foregoing shall not in
any way limit or impair the indemnification provisions benefiting the Master
Servicer in Section 8.25. The Master Servicer or applicable Primary Servicer
shall supervise, administer, monitor, enforce and oversee the servicing of the
applicable Mortgage Loans by any Sub-Servicer appointed by it. Other than with
respect to the agreements with the Primary Servicers or the Sub-Servicers under
agreements that are in effect as of the Closing Date, the terms of any
arrangement or agreement between the Master Servicer or applicable Primary
Servicer, on the one hand, and a Sub-Servicer, on the other, shall provide that
such sub-servicing agreement or arrangement may be terminated, without cause and
without the payment of any termination fees, by the Trustee in the event the
Master Servicer or the applicable Primary Servicer is terminated in accordance
with this Agreement or the applicable Primary Servicing Agreement. In addition,
none of the Special Servicer, the Trustee, the Paying Agent or the
Certificateholders shall have any direct obligation or liability (including,
without limitation, indemnification obligations) with respect to any
Sub-Servicer. The Master Servicer or applicable Primary Servicer shall pay the
costs of enforcement against any of its Sub-Servicers at its own expense, but
shall be reimbursed therefor only (i) from a general recovery resulting from
such enforcement only to the extent that such recovery exceeds all amounts due
in respect of the related Mortgage Loans or (ii) from a specific recovery of
costs, expenses or attorneys fees against the party against whom such
enforcement is directed. Notwithstanding the provisions of any Primary Servicing
Agreement or any sub-servicing agreement, any of the provisions of this
Agreement relating to agreements or arrangements between the Master Servicer, a
Primary Servicer or a Sub-Servicer, or reference to actions taken through a
Sub-Servicer or otherwise, the Master Servicer, or applicable Primary Servicer
shall remain obligated and liable to the Trustee, the Paying Agent, the Special
Servicer and the Certificateholders for the servicing and administering of the
applicable Mortgage Loans in accordance with (and subject to the limitations
contained within) the provisions of this Agreement or the applicable Primary
Servicing Agreement without diminution of such
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obligation or liability by virtue of indemnification from a Sub-Servicer and to
the same extent and under the same terms and conditions as if the Master
Servicer or applicable Primary Servicer alone were servicing and administering
the Mortgage Loans.
(b) Subject to the limitations of subsection (a), the Master
Servicer or any Primary Servicer may appoint one or more sub-servicers to
perform all or any portion of its duties hereunder for the benefit of the
Trustee and the Certificateholders, provided, however, that any decision or
recommendation involving the exercise of a Primary Servicer's discretion as a
"lender" under any loan document with respect to a Mortgage Loan shall be
exercised only by the Primary Servicer and may not be delegated to a
sub-servicer, provided, further, that following the Closing Date, for so long as
the Trust is subject to the reporting requirements of the Exchange Act, the
Master Servicer and the Primary Servicer may not appoint any sub-servicer that
is or could become a Reporting Servicer, without the prior written consent of
the Depositor, which consent shall not be unreasonably withheld; provided, that
for the avoidance of doubt, the Depositor shall be deemed to have provided its
prior written consent to the appointment of the Primary Servicer as a
sub-servicer.
The Master Servicer shall enter into a Primary Servicing Agreement
with each Primary Servicer and shall not terminate such agreement except in
accordance with the terms thereof. To the extent consistent with the rights of a
Primary Servicer or a Sub-Servicer under this Agreement and the related Primary
Servicing Agreement or Sub-Servicing Agreement, but not in limitation of any
other rights granted to a Primary Servicer or a Sub-Servicer in this Agreement
and/or in the Primary Servicing Agreement or a Sub-Servicing Agreement, such
Primary Servicer or Sub-Servicer shall have all of the rights and obligations of
a Sub-Servicer set forth herein.
Notwithstanding any other provision set forth in this Agreement to
the contrary, (i) each Primary Servicer's and each Sub-Servicer's rights and
obligations under its respective Primary Servicing Agreement or Sub-Servicing
Agreement shall expressly survive a termination of the Master Servicer's
servicing rights under this Agreement; provided that the applicable Primary
Servicing Agreement or Sub-Servicing Agreement has not been terminated in
accordance with its provisions, (ii) any successor Master Servicer, including,
without limitation, the Trustee (if it assumes the servicing obligations of the
terminated Master Servicer) shall be deemed to automatically assume and agree to
each of the then current Primary Servicing Agreements or Sub-Servicing Agreement
without further action upon becoming the successor Master Servicer and (iii)
this Agreement may not be modified in any manner which would increase the
obligations or limit the rights of any Primary Servicer or any Sub-Servicer
hereunder and/or under the applicable Primary Servicing Agreement or the
Sub-Servicing Agreement, without the prior written consent of such Primary
Servicer or the Sub-Servicer (which consent shall not be unreasonably withheld).
If a task, right or obligation of the Master Servicer is delegated
to a Primary Servicer under a Primary Servicing Agreement, and such task, right
or obligation involves or requires the consent of the Special Servicer, then the
Special Servicer shall accept the performance of such task, right or obligation
by such Primary Servicer in accordance with the terms of this Agreement
(including without limitation any time periods for consent or deemed consent to
be observed by the Special Servicer) as if the Master Servicer were performing
it.
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Notwithstanding any provision of this Agreement, each of the parties
hereto acknowledges and agrees that the Special Servicer, in such capacity, is
neither a party to any Primary Servicing Agreement or Sub-Servicing Agreement,
nor is bound by any provision of any Primary Servicing Agreement or the
Sub-Servicing Agreement in its capacity as Special Servicer. The Special
Servicer hereby acknowledge the delegation of rights and duties hereunder by the
Master Servicer pursuant to the provisions of the Primary Servicing Agreements
and the Sub-Servicing Agreements in effect on the date hereof.
Section 8.5 [Master] [Primary] Servicer May Own Certificates
The Master Servicer and any Primary Servicer and any agent of the
Master Servicer or Primary Servicers in its individual or any other capacity may
become the owner or pledgee of Certificates with the same rights it would have
if it were not the Master Servicer, such Primary Servicer or such agent. Any
such interest of the Master Servicer or any Primary Servicer or such agent in
the Certificates shall not be taken into account when evaluating whether actions
of the Master Servicer are consistent with its obligations in accordance with
the Servicing Standard regardless of whether such actions may have the effect of
benefiting the Class or Classes of Certificates owned by the Master Servicer.
Section 8.6 Maintenance of Hazard Insurance, Other Insurance and
Taxes
Subject to the limitations set forth below, the Master Servicer
shall use reasonable efforts consistent with the Servicing Standard to cause the
related Mortgagor to maintain for each Mortgaged Property (other than any REO
Property) (A) a Standard Hazard Insurance Policy which does not provide for
reduction due to depreciation in an amount that is at least equal to the lesser
of (i) the full replacement cost of improvements securing such Mortgage Loan or
(ii) the outstanding Principal Balance of such Mortgage Loan but, in any event,
in an amount sufficient to avoid the application of any co insurance clause, (B)
any terrorism insurance coverage for a Mortgage Loan, which the related
Mortgagor is required to maintain under the related Mortgage, to the extent that
such insurance is available at a commercially reasonable rate and (C) any other
insurance coverage for a Mortgage Loan which the related Mortgagor is required
to maintain under the related Mortgage; provided the Master Servicer shall not
be required to maintain earthquake insurance on any Mortgaged Property required
by the related Mortgage unless such insurance was required at origination and is
available at a commercially reasonable rate; provided, however, that the Special
Servicer shall have the right, but not the duty, to obtain, at the Trust's
expense, earthquake insurance on any Mortgaged Property securing a Specially
Serviced Mortgage Loan or an REO Property so long as such insurance is available
at a commercially reasonable rate; provided, further, that a determination by
the Master Servicer that terrorism insurance is not available at a commercially
reasonable rate shall be subject to the approval of the Operating Adviser as set
forth below. If the related Mortgagor does not maintain the insurance set forth
in clauses (A), (B) and (C) above, then the Master Servicer shall cause to be
maintained such insurance with a Qualified Insurer and the payment of the cost
of such insurance shall be a Servicing Advance; provided, that a determination
by the Master Servicer that terrorism insurance should not be obtained on a
force-placed basis shall be subject to the approval of the Operating Adviser as
set forth below. Upon the Master Servicer's determination that terrorism
insurance is not available at a commercially reasonable rate or that terrorism
insurance should not be obtained on a force-placed basis, the Master Servicer
shall notify the
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Operating Adviser. The Operating Adviser shall have five days after such notice
to disapprove such determination. The failure of the Operating Adviser to
provide notice of such disapproval in such time period shall be deemed approval.
If the Operating Adviser provides such notice of disapproval within such time
period, the Master Servicer shall obtain such insurance coverage and the cost of
such insurance coverage shall be considered a Servicing Advance.
Each Standard Hazard Insurance Policy maintained with respect to any
Mortgaged Property that is not an REO Property shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. If, on the
date of origination, the improvements on the Mortgaged Property are located in a
designated special flood hazard area by the Federal Emergency Management Agency
in the Federal Register, as amended from time to time (to the extent permitted
under the related Mortgage Loan or as required by law), the Master Servicer
(with respect to any Mortgaged Property that is not an REO Property) shall cause
flood insurance to be maintained. Such flood insurance shall be in an amount
equal to the lesser of (i) the unpaid principal balance of the related Mortgage
Loan or (ii) the maximum amount of such insurance available for the related
Mortgaged Property under the national flood insurance program, if the area in
which the improvements on the Mortgaged Property are located is participating in
such program. Any amounts collected by the Master Servicer under any such
policies (other than amounts to be applied to the restoration or repair of the
related Mortgaged Property or property thus acquired or amounts released to the
Mortgagor in accordance with the terms of the applicable Mortgage Loan) shall be
deposited in the applicable Certificate Account.
Any cost (such as insurance premiums and insurance broker fees but
not internal costs and expenses of obtaining such insurance) incurred by the
Master Servicer in maintaining any insurance pursuant to this Section 8.6 shall
not, for the purpose of calculating monthly distributions to the
Certificateholders or remittances to the Paying Agent for their benefit, be
added to the Principal Balance of the Mortgage Loan, notwithstanding that the
terms of the Mortgage Loan permit such cost to be added to the outstanding
Principal Balance thereof. Such costs shall be paid as a Servicing Advance by
the Master Servicer, subject to Section 4.4 hereof.
Notwithstanding the above, the Master Servicer shall have no
obligation beyond using its reasonable efforts consistent with the Servicing
Standard to enforce such insurance requirements. Furthermore, the Master
Servicer shall not be required in any event to maintain or obtain insurance
coverage to the extent the Trustee as mortgagee does not have an insurable
interest or beyond what is reasonably available at a commercially reasonable
rate and consistent with the Servicing Standard. The Master Servicer shall
notify the Trustee in the event it makes such determination. Notwithstanding the
foregoing, such determination shall be subject to the approval of the Operating
Adviser with respect to terrorism insurance, as set forth in the first paragraph
of this Section 8.6. In addition, the Master Servicer shall be entitled to rely
at its own expense on insurance consultants in connection with any such
determination. In no event shall the Master Servicer be required to obtain any
insurance coverage that would require a Servicing Advance that constitutes a
Nonrecoverable Advance.
The Master Servicer shall conclusively be deemed to have satisfied
its obligations as set forth in this Section 8.6 either (i) if the Master
Servicer shall have obtained and maintained a master force placed or blanket
insurance policy insuring against hazard losses on all of the applicable
Mortgage Loans, it being understood and agreed that such policy may contain a
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deductible clause on terms substantially equivalent to those commercially
available and maintained by comparable servicers consistent with the Servicing
Standard, and provided that such policy is issued by a Qualified Insurer or (ii)
if the Master Servicer, provided that its or its parent's long-term rating is
not less than ["A" by S&P and "A2" by Xxxxx'x], self-insures for its obligations
as set forth in the first paragraph of this Section 8.6. In the event that the
Master Servicer shall cause any Mortgage Loan to be covered by such a master
force placed or blanket insurance policy, the incremental cost of such insurance
allocable to such Mortgage Loan (i.e., other than any minimum or standby premium
payable for such policy whether or not any Mortgage Loan is then covered
thereby), if not borne by the related Mortgagor, shall be paid by the Master
Servicer as a Servicing Advance. If such policy contains a deductible clause,
the Master Servicer shall, if there shall not have been maintained on the
related Mortgaged Property a policy complying with this Section 8.6 and there
shall have been a loss that would have been covered by such policy, deposit in
the applicable Certificate Account the amount not otherwise payable under such
master force placed or blanket insurance policy because of such deductible
clause to the extent that such deductible exceeds (i) the deductible under the
related Mortgage Loan or (ii) if there is no deductible limitation required
under the Mortgage Loan, the deductible amount with respect to insurance
policies generally available on properties similar to the related Mortgaged
Property which is consistent with the Servicing Standard, and deliver to the
Trustee an Officer's Certificate describing the calculation of such amount. In
connection with its activities as administrator and servicer of the Mortgage
Loans, the Master Servicer agrees to present, on its behalf and on behalf of the
Trustee, claims under any such master force placed or blanket insurance policy.
With respect to each Mortgage Loan, the Master Servicer shall
maintain accurate records with respect to each related Mortgaged Property
reflecting the status of taxes, assessments and other similar items that are or
may become a lien on the related Mortgaged Property and the status of insurance
premiums payable with respect thereto. From time to time, the Master Servicer
(other than with respect to REO Mortgage Loans) shall, except in the case of
Mortgage Loans under which Escrow Amounts are not held by the Master Servicer
(i) obtain all bills for the payment of such items (including renewal premiums),
and (ii) effect payment of all such bills, taxes and other assessments with
respect to such Mortgaged Properties prior to the applicable penalty or
termination date, in each case employing for such purpose Escrow Amounts as
allowed under the terms of the related Mortgage Loan. If a Mortgagor fails to
make any such payment on a timely basis or collections from the Mortgagor are
insufficient to pay any such item before the applicable penalty or termination
date, the Master Servicer in accordance with the Servicing Standard shall use
its reasonable efforts to pay as a Servicing Advance the amount necessary to
effect the payment of any such item prior to such penalty or termination date
(or, with respect to real estate taxes, prior to the earlier of the imposition
of late tax payment penalty charges or the notice of intent to create a tax lien
on the Mortgaged Property), subject to Section 4.4 hereof. No costs incurred by
the Master Servicer or the Trustee, as the case may be, in effecting the payment
of taxes and assessments on the Mortgaged Properties and related insurance
premiums and ground rents shall, for the purpose of calculating distributions to
Certificateholders, be added to the Principal Balance of the Mortgage Loans,
notwithstanding that the terms of such Mortgage Loans permit such costs to be
added to the outstanding principal balances of such Mortgage Loans.
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Section 8.7 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Due-On-Encumbrance Clause
(a) In the event the Master Servicer receives a request from a
Mortgagor pursuant to the provisions of any Mortgage Loan (other than a
Specially Serviced Mortgage Loan) that expressly permits, subject to any
conditions set forth in the Mortgage Loan documents, the assignment of the
related Mortgaged Property to, and assumption of such Mortgage Loan by, another
Person, the Master Servicer (or, if applicable, a Primary Servicer) shall obtain
relevant information for purposes of evaluating such request and no Special
Servicer shall have an obligation to review or consent to such request. For the
purpose of the foregoing sentence, the term "expressly permits" shall include
outright permission to assign, permission to assign upon satisfaction of certain
conditions or prohibition against assignment except upon the satisfaction of
stated conditions. With respect to each Mortgage Loan that does not "expressly
permit" an assignment or assumption, if the Master Servicer (or, if such
Mortgage Loan is serviced by a Primary Servicer, the Primary Servicer)
recommends to approve such assignment, the Master Servicer shall provide to the
Special Servicer and the Operating Adviser (or, with respect to a recommendation
by the Primary Servicer, to the Master Servicer, the Special Servicer and the
Operating Adviser, simultaneously) a copy of such recommendation and the
materials upon which such recommendation is based (the "Assignment and
Assumption Submission") and all other information related to such assignment and
assumption in its possession reasonably requested by the Special Servicer and
(A) the Special Servicer shall have the right hereunder to grant or withhold
consent to any such request for such assignment and assumption in accordance
with the terms of the Mortgage Loan and this Agreement, and the Special Servicer
shall not unreasonably withhold such consent and any such decision of the
Special Servicer shall be in accordance with the Servicing Standard, (B) failure
of the Special Servicer to notify the Master Servicer in writing within ten
Business Days following the Master Servicer's or the applicable Primary
Servicer's delivery of the recommendation described above and the Assignment and
Assumption Submission to the Special Servicer on which the recommendation is
based, of its determination to grant or withhold such consent shall be deemed to
constitute a grant of such consent; provided, that, if the Special Servicer
reasonably requests additional information from the Master Servicer or Primary
Servicer, as applicable, on which to base its decision, the foregoing ten
Business Day period in which the Special Servicer has to consent to the
Assignment and Assumption Submission shall cease to run on the Business Day on
which the Special Servicer makes such request and shall resume to run on the
Business Day on which the Special Servicer receives such additional information,
and (C) the Master Servicer or Primary Servicer shall not permit any such
assignment or assumption unless it has received the written consent of the
Special Servicer or such consent has been deemed to have been granted as
described in the preceding clause (B). The Special Servicer hereby acknowledges
the delegation of rights and duties hereunder by the Master Servicer pursuant to
the provisions of each Primary Servicing Agreement. If the Special Servicer
withholds consent pursuant to the provisions of this Agreement, it shall provide
the Master Servicer or any applicable Primary Servicer with a written statement
and a verbal explanation as to its reasoning and analysis within the time frame
specified in (B) of the preceding sentence. Upon consent or deemed consent by
the Special Servicer to such proposed assignment and assumption, the Master
Servicer or Primary Servicer, as applicable, shall process such request of the
related Mortgagor and shall be authorized to enter into an assignment and
assumption or substitution agreement with the Person to whom the related
Mortgaged Property has been or is proposed to be conveyed, and/or release
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the original Mortgagor from liability under the related Mortgage Loan and
substitute as obligor thereunder the Person to whom the related Mortgaged
Property has been or is proposed to be conveyed; provided, however, that the
Master Servicer shall not enter into any such agreement to the extent that any
terms thereof would result in an Adverse REMIC Event or create any lien on a
Mortgaged Property that is senior to, or on parity with, the lien of the related
Mortgage. In the event that the Master Servicer shall require a
Nondisqualification Opinion in order to process a request for a substitution,
the Master Servicer shall use its reasonable efforts in accordance with the
Servicing Standard to collect the related costs, expenses and fees from the
Mortgagor to the extent the related Mortgage Loan documents require the related
Mortgagor to pay such amounts. To the extent permitted by applicable law, the
Master Servicer shall not enter into such an assumption or substitution
agreement unless the credit status of the prospective new Mortgagor is in
conformity to the terms of the related Mortgage Loan. In making its
recommendation, the Master Servicer shall evaluate such conformity in accordance
with the Servicing Standard. The Master Servicer shall not condition approval of
any request for assumption of a Mortgage Loan on an increase in the interest
rate of such Mortgage Loan. The Master Servicer shall notify the Trustee, the
Paying Agent, the Special Servicer and the Operating Adviser of any assignment
and assumption or substitution agreement executed pursuant to this Section
8.7(a). The Master Servicer, as applicable, shall be entitled to (as additional
servicing compensation) [50%] of any assumption fee collected from a Mortgagor
in connection with an assignment and assumption or substitution of a
non-Specially Serviced Mortgage Loan (except that the Master Servicer shall be
entitled to [100%] of such fee in connection with (a) any assignment and
assumption or substitution with respect to which the consent of the Special
Servicer was not required or (b) any assignment and assumption or substitution
that is "expressly permitted" pursuant to the terms of the related Mortgage
Loan), as executed pursuant to this Section 8.7(a) and the Special Servicer
shall be entitled to (as additional special servicing compensation) the other
[50%] of such fee relating to the non-Specially Serviced Mortgage Loans (except
with respect to the Mortgage Loans with respect to which the Special Servicer's
consent was not required in connection therewith or with respect to any
assignment and assumption or substitution that is not "expressly permitted"
pursuant to the terms of the related Mortgage Loan); provided that any such fees
payable to the Master Servicer pursuant to this paragraph shall be divided
between the Master Servicer and any related Primary Servicer as set forth in the
applicable Primary Servicing Agreement.
(b) Reserved.
(c) Neither the Master Servicer nor the Special Servicer shall have
any liability, and shall be indemnified by the Trust for any liability to the
Mortgagor or the proposed assignee, for any delay in responding to requests for
assumption, if the same shall occur as a result of the failure of the Rating
Agencies, or any of them, to respond to such request in a reasonable period of
time.
(d) If any Mortgage Loan that is not a Specially Serviced Mortgage
Loan contains a provision in the nature of a "due-on-sale" clause, which by its
terms (i) provides that such Mortgage Loan shall (or may at the mortgagee's
option) become due and payable upon the sale or other transfer of an interest in
the related Mortgaged Property or ownership interest in the related Mortgagor,
or (ii) provides that such Mortgage Loan may not be assumed or ownership
interests in the related Mortgagor may not be transferred without the consent of
the related
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mortgagee in connection with any such sale or other transfer, then, the Master
Servicer's review and determination (such determination to be approved by the
Special Servicer in the same manner as in Section 8.7(a)) to either (A) enforce
such due-on-sale clause or (B) if in the best economic interest of the Trust,
waive the effect of such provision, shall be processed in the same manner as in
Section 8.7(a); provided, however, that if the Principal Balance of such
Mortgage Loan (together with any other Mortgage Loan with which it is
cross-collateralized) at such time equals or exceeds [5%] of the Aggregate
Certificate Balance or exceeds $[35,000,000] or is one of the then current top
10 loans (by Principal Balance) in the pool, then prior to waiving the effect of
such provision, the Master Servicer shall obtain Rating Agency Confirmation
regarding such waiver. In connection with the request for such consent, the
Master Servicer shall prepare and deliver to [S&P and Xxxxx'x] a memorandum
outlining its analysis and recommendation in accordance with the Servicing
Standard, together with copies of all relevant documentation. The Master
Servicer shall promptly forward copies of the assignment and assumption
documents relating to any Mortgage Loan to the Special Servicer, the Paying
Agent and the Trustee, and the Master Servicer shall promptly thereafter forward
such documents to the Rating Agencies. The Special Servicer and the Master
Servicer shall each be entitled to (as additional compensation) [50%] of any fee
collected from a Mortgagor in connection with the granting or withholding such
consent with respect to Mortgage Loans that are not Specially Serviced Mortgage
Loans; provided, that such fees that are allocated to the Master Servicer
pursuant hereto shall be divided between the Master Servicer and any applicable
Primary Servicer as set forth in the related Primary Servicing Agreement.
(e) The Master Servicer, as applicable, shall have the right to
consent to any transfers of an interest in a Mortgagor of a Mortgage Loan that
is not a Specially Serviced Mortgage Loan, to the extent such transfer is to a
party or entity specifically named or described under the terms of the related
Mortgage Loan in connection with a transfer of cooperative units therein to the
extent such consent is required under the terms of the related Mortgage Loan, in
each case including any consent to transfer to any subsidiary or Affiliate of
Mortgagor, to a Person acquiring less than a majority interest in the Mortgagor
or to an entity of which the Mortgagor is the controlling beneficial owner;
provided, however, that if (i) the Principal Balance of such Mortgage Loan
(together with any other Mortgage Loan with which it is cross-collateralized) at
such time equals or exceeds [5%] of the Aggregate Certificate Balance or is one
of the then current top 10 loans (by Principal Balance) in the pool (provided
that such Mortgage Loan has a then current Principal Balance of $[5,000,000] or
more), and (ii) the transfer is of an equity interest in the Mortgagor greater
than 49%, then prior to consenting, the Master Servicer shall obtain a Rating
Agency Confirmation regarding such consent, the costs of which to be payable by
the related Mortgagor to the extent provided for in the Mortgage Loan documents.
The Master Servicer, as applicable, shall be entitled to collect and receive
from Mortgagors any customary fees in connection with such transfers of interest
as additional servicing compensation to the extent the Master Servicer's
collection of such fees is not expressly prohibited under the related loan
documents for the Mortgage Loan.
(f) The Trustee for the benefit of the Certificateholders shall
execute any necessary instruments in the form presented to it by the Master
Servicer (pursuant to subsection (a) or (d)) for such assignments and
assumptions agreements. Upon the closing of the transactions contemplated by
such documents, the Master Servicer shall cause the originals of the assignment
and assumption agreement, the release (if any), or the modification or
supplement
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to the Mortgage Loan to be delivered to the Trustee except to the extent such
documents have been submitted to the recording office, in which event the Master
Servicer shall promptly deliver copies of such documents to the Trustee and the
Special Servicer.
(g) If any Mortgage Loan (other than a Specially Serviced Mortgage
Loan) which contains a provision in the nature of a "due-on-encumbrance" clause,
which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property or
a lien on the ownership interest in the Mortgagor; or
(ii) requires the consent of the Mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property,
then, as long as such Mortgage Loan is included in the Trust, the Master
Servicer, on behalf of the Trustee as the Mortgagee of record, shall exercise
(or, subject to Section 8.18, waive its right to exercise) any right it may have
with respect to such Mortgage Loan (x) to accelerate the payments thereon, or
(y) to withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standard, sub-section (h)
below and Section 8.18 hereof. The Master Servicer shall not waive the effect of
such provision without first obtaining Rating Agency Confirmation regarding such
waiver and complying with the provisions of the next succeeding paragraph;
provided, however, that such Rating Agency Confirmation shall only be required
if the applicable Mortgage Loan (x) represents 2% or more of the Principal
Balance of all of the Mortgage Loans held by the Trust or is one of the 10
largest Mortgage Loans based on Principal Balance or (y) such Mortgage Loan
(which includes Junior Indebtedness, if any) has a Loan to Value Ratio that is
greater than or equal to [85%] and a Debt Service Coverage Ratio (which includes
debt service on any Junior Indebtedness) that is less than [1.2x].
(b) Without limiting the generality of the preceding paragraph, in
the event that the Master Servicer receives a request for a waiver of any
"due-on-encumbrance" clause under any Mortgage Loan, the Master Servicer shall
obtain relevant information for purposes of evaluating such request for a
waiver. If the Master Servicer recommends to waive such clause, the Master
Servicer shall provide to the Special Servicer a copy of such recommendation and
the materials upon which such recommendation is based and (A) the Special
Servicer shall have the right hereunder to grant or withhold consent to any such
request in accordance with the terms of the Mortgage Loan and this Agreement,
and the Special Servicer shall not unreasonably withhold such consent and any
such decision of the Special Servicer shall be in accordance with the Servicing
Standard, (B) failure of the Special Servicer to notify the Master Servicer in
writing, within ten Business Days following the Master Servicer's delivery of
the recommendation described above and the complete Additional Lien, Monetary
Encumbrance and Mezzanine Financing Submission Package and any other information
in its possession reasonably requested by the Special Servicer to the Special
Servicer on which the recommendation is based, of its determination to grant or
withhold such consent shall be deemed to constitute a grant of such consent and
(C) the Master Servicer shall not permit any such waiver unless it has received
the written consent of the Special Servicer or such consent has been deemed to
have been granted as
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described in the preceding sentence. If the Special Servicer withholds consent
pursuant to the foregoing provisions, it shall provide the Master Servicer with
a written statement and a verbal explanation as to its reasoning and analysis.
Upon consent or deemed consent by the Special Servicer to such proposed waiver,
the Master Servicer shall process such request of the related Mortgagor subject
to the other requirements set forth above.
(i) The parties hereto acknowledge that, if a Seller shall have
breached the representation set forth under the heading "Defeasance and
Assumption Costs" in Exhibit 2 to the Mortgage Loan Purchase Agreements,
regarding the obligation of a Mortgagor to pay the reasonable costs and expenses
of obtaining any Rating Agency Confirmation in connection with an assumption or
defeasance of the related Mortgage Loan because the related mortgage loan
documents do not require the Mortgagor to pay costs related thereto, then it
shall be the sole obligation of the related Seller to pay an amount equal to
such insufficiency to the extent the related Mortgagor is not required to pay
such amount. Promptly upon receipt of notice of such insufficiency, the Master
Servicer or the Special Servicer, as applicable, shall request the related
Seller to make such payment by deposit to the applicable Certificate Account.
The Master Servicer may not waive such payment by the Mortgagor (and then seek
payment for such costs and expenses from the Seller) and shall use its
reasonable efforts to collect such amounts from the Mortgagor to the extent the
related mortgage loan documents require the related Mortgagor to pay such
amounts.
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files
Upon the payment in full of any Mortgage Loan, the complete
defeasance of a Mortgage Loan, satisfaction or discharge in full of any
Specially Serviced Mortgage Loan or the receipt by the Master Servicer of a
notification that payment in full (or such payment, if any, in connection with
the satisfaction and discharge in full of any Specially Serviced Mortgage Loan)
will be escrowed in a manner customary for such purposes, and upon notification
by the Master Servicer in the form of a certification (which certification shall
include a statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
applicable Certificate Account have been or will be so deposited) of a Servicing
Officer and a request for release of the Trustee Mortgage File in the form of
Exhibit C hereto the Trustee shall promptly release the related Trustee Mortgage
File to the Master Servicer and the Trustee shall execute and deliver to the
Master Servicer the deed of reconveyance or release, satisfaction or assignment
of mortgage or such instrument releasing the lien of the Mortgage, as directed
by the Master Servicer together with the Mortgage Note. The provisions of the
immediately preceding sentence shall not, in any manner, limit or impair the
right of the Master Servicer to execute and deliver, on behalf of the Trustee,
the Certificateholders or any of them, any and all instruments of satisfaction,
cancellation or assignment without recourse, representation or warranty, or of
partial or full release or discharge and all other comparable instruments, with
respect to the Mortgage Loans, and with respect to the Mortgaged Properties held
for the benefit of the Certificateholders. No expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the Distribution Account but shall be paid by the Master Servicer except to
the extent that such expenses are paid by the related Mortgagor in a manner
consistent with the terms of the related Mortgage and applicable law. From time
to time and as shall be appropriate for the servicing of any Mortgage Loan,
including for such purpose, collection under any policy of flood insurance,
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any Servicer Fidelity Bond or Errors and Omissions Policy, or for the purposes
of effecting a partial or total release of any Mortgaged Property from the lien
of the Mortgage or the making of any corrections to the Mortgage Note or the
Mortgage or any of the other documents included in the Trustee Mortgage File,
the Trustee shall, upon request of the Master Servicer and the delivery to the
Trustee of a Request for Release signed by a Servicing Officer, in the form of
Exhibit C hereto, release the Trustee Mortgage File to the Master Servicer or
the Special Servicer, as the case may be.
Section 8.9 Documents, Records and Funds in Possession of the Master
Servicer to Be Held for the Trustee for the Benefit of the Certificateholders
Notwithstanding any other provisions of this Agreement, the Master
Servicer shall transmit to the Trustee, to the extent required by this
Agreement, all documents and instruments coming into the possession of the
Master Servicer from time to time and shall account fully to the Trustee and the
Paying Agent for any funds received or otherwise collected thereby, including
Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan. All
Servicer Mortgage Files and funds collected or held by, or under the control of,
the Master Servicer in respect of such Mortgage Loans, whether from the
collection of principal and interest payments or from Liquidation Proceeds or
Insurance Proceeds, including any funds on deposit in the applicable Certificate
Accounts, shall be held by the Master Servicer for and on behalf of the Trustee
and the Certificateholders and shall be and remain the sole and exclusive
property of the Trustee, subject to the applicable provisions of this Agreement.
The Master Servicer agrees that it shall not create, incur or subject any
Servicer Mortgage Files or Trustee Mortgage File or any funds that are deposited
in the Certificate Accounts or the applicable Escrow Accounts, or any funds that
otherwise are or may become due or payable to the Trustee or the Paying Agent,
to any claim, lien, security interest, judgment, levy, writ of attachment or
other encumbrance, or assert by legal action or otherwise any claim or right of
setoff against any Servicer Mortgage Files or Trustee Mortgage File or any funds
collected on, or in connection with, a Mortgage Loan, except, however, that the
Master Servicer shall be entitled to receive from any such funds any amounts
that are properly due and payable to the Master Servicer under this Agreement.
Section 8.10 Servicing Compensation
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to the Master Servicing Fee, which shall be payable
by the Trust from amounts held in the applicable Certificate Accounts or
otherwise collected from the Mortgage Loans and REO Loans as provided in Section
5.2. The Master Servicer shall be required to pay to the Primary Servicers the
related Primary Servicing Fees, which shall be payable by the Trust from amounts
as provided in Section 5.1(c), unless retained by the Primary Servicers from
amounts transferred to the Master Servicer in accordance with the terms of the
Primary Servicing Agreements. The Master Servicer shall be required to pay to
the holders of the rights to the Excess Servicing Fees (including, if
applicable, the Master Servicer), the Excess Servicing Fees, which shall be
payable by the Trust as provided in Section 5.1(c), unless otherwise retained by
the holders of such rights. Notwithstanding anything herein to the contrary, if
any of the holders of the right to receive Excess Servicing Fees resigns or is
no longer the Master Servicer or Primary Servicer (to the extent that such
Person was ever the Master Servicer or a Primary Servicer), as applicable, for
any reason, it will continue to have the right to receive its portion of the
Excess Servicing
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Fee, and any of the holders of the right to receive Excess Servicing Fees shall
have the right to assign its portion of the Excess Servicing Fee, whether or not
it is then acting as the Master Servicer or Primary Servicer hereunder. The
Master Servicer shall also be entitled to the Primary Servicing Fee, which shall
be payable by the Trust from amounts held in the applicable Certificate Account
(or a sub-account thereof) or otherwise collected from the Mortgage Loans as
provided in Section 5.2.
(b) Additional servicing compensation in the form of application
fees, assumption fees, extension fees, servicing fees, default interest payable
at a rate above the Mortgage Rate (net of any amount used to pay Advance
Interest, Additional Trust Fund Expenses, Special Servicing Fees, Liquidation
Fees and Workout Fees relating to the subject Mortgage Loan as provided in
Section 4.5), Modification Fees, forbearance fees, Late Fees (net of any amount
used to pay Advance Interest), other usual and customary charges and fees
actually received from Mortgagors and any other fees listed in any of the
Primary Servicing Agreements, all such fees subject to allocation pursuant to
such Primary Servicing Agreements, shall be retained by the Master Servicer,
provided that the Master Servicer shall be entitled to receive (i) [50%] of any
assumption fees relating to Mortgage Loans which are not Specially Serviced
Mortgage Loans that require Special Servicer approval or [100%] of any
assumption fees relating to Mortgage Loans which are not Specially Serviced
Mortgage Loans for which with respect to the assignment, assumption or
substitution (a) the consent of the Special Servicer was not required or (b) is
"expressly permitted" pursuant to the terms of the related Mortgage Loan as
payable under Section 8.7(a) or 8.7(d), (ii) [100%] of application fees, default
interest (net of the default interest used to pay Advance Interest, as set forth
above), forbearance fees, Late Fees (net of any amount used to pay Advance
Interest) and Modification Fees on Mortgage Loans that are not Specially
Serviced Mortgage Loans as provided in Section 8.18 hereof; and (iii) [100%] of
any modification or extension fees collected from the related Mortgagor in
connection with the extension of the Maturity Date of any Mortgage Loan as
provided in Section 8.18; provided, however, that the Master Servicer shall not
be entitled to any such fees in connection with any Specially Serviced Mortgage
Loans and, such fees will be subject to the allocations set forth in the Primary
Servicing Agreements. If the Master Servicer collects any amount payable to the
Special Servicer hereunder in connection with an REO Mortgage Loan or Specially
Serviced Mortgage Loan, the Master Servicer shall promptly remit such amount to
the Special Servicer as provided in Section 5.2. The Master Servicer shall be
required to pay (in the manner otherwise provided herein) all applicable
expenses incurred by it in connection with its servicing activities hereunder.
(c) Notwithstanding any other provision herein, the Master Servicing
Fee payable to the Master Servicer for each monthly period relating to each
Determination Date shall be reduced by an amount equal to the Compensating
Interest (if any) relating to Mortgage Loans serviced by the Master Servicer for
such Determination Date.
(d) The Master Servicer, as applicable, shall also be entitled to
additional servicing compensation of (i) an amount equal to the excess, if any,
of the aggregate Prepayment Interest Excess relating to its respective Mortgage
Loans (including any Specially Serviced Loans) for each Distribution Date over
the aggregate Prepayment Interest Shortfalls for such Mortgage Loans for such
Distribution Date, (ii) interest or other income earned on deposits in the
applicable Certificate Account and the Distribution Account (but only to the
extent of the net
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investment earnings, if any, with respect to each such account), 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 its respective Escrow Accounts.
Section 8.11 Master Servicer Reports; Account Statements
(a) For each Distribution Date, (i) the Master Servicer shall
deliver to the Paying Agent on the related Report Date, the Loan Periodic Update
File with respect to such Distribution Date, (ii) the Master Servicer shall
report to the Paying Agent on the related Advance Report Date, the amount of any
P&I Advance to be made by the Master Servicer on the related Master Servicer
Remittance Date and (iii) the Master Servicer shall notify the Paying Agent as
soon as reasonably possible, but no later than noon, New York City time on the
Master Servicer Remittance Date, of the amount of any Principal Payments and
Balloon Payments received by the Business Day immediately preceding the Master
Servicer Remittance Date, which amounts were not reported pursuant to clause (i)
or (ii) immediately above. The Special Servicer is required to provide, in the
form required under Section 9.32, all information relating to Specially Serviced
Mortgage Loans in order for the Master Servicer to satisfy its duties in this
Section 8.11 not later than one Business Day prior to the date the Master
Servicer is required to distribute any report. The Master Servicer shall be
entitled in good faith to rely on and shall have no liability for information
provided by third parties, including the Special Servicer.
(b) The Master Servicer shall notify the Trustee and the Paying
Agent on or before the Closing Date of the initial location of the applicable
Certificate Accounts and, promptly following any change in location of any
Certificate Account, the new location thereof.
(c) The Master Servicer shall promptly inform the Special Servicer
of the name, account number, location and other necessary information concerning
the applicable Certificate Accounts in order to permit the Special Servicer to
make deposits therein.
(d) Reserved.
(e) The Master Servicer shall deliver a copy of any reports or
information delivered to the Trustee or the Paying Agent pursuant to subsection
(a) or subsection (b) of this Section 8.11 to the Depositor, the Special
Servicer, the Operating Adviser and each Rating Agency, in each case upon
request by such Person and only to the extent such reports and information are
not otherwise required to be delivered to such Person under any provision of
this Agreement.
(f) Notwithstanding any provision of this Agreement to the contrary,
the Master Servicer shall not have any obligation to deliver any statement,
notice or report that is then made available on the Master Servicer's website or
the Paying Agent's Website, provided that it has notified all parties entitled
to delivery of such reports, by electronic mail or other notice provided in this
Agreement, to the effect that such statements, notices or reports shall
thereafter be made available on such website from time to time.
(g) The Master Servicer shall deliver or cause to be delivered to
the Paying Agent the following CMSA Reports with respect to the Mortgage Loans
serviced by the Master Servicer (and, if applicable, the related REO Properties)
providing the required information as of
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the related Determination Date upon the following schedule: (i) a CMSA
Comparative Financial Status Report not later than each Report Date, commencing
in ___ 20__; (ii) a CMSA Operating Statement Analysis Report, the CMSA Financial
File and the CMSA NOI Adjustment Worksheet in accordance with Section 8.14 of
this Agreement; (iii) a CMSA Servicer Watch List in accordance with and subject
to the terms of Section 8.11(h) on each Report Date, commencing in ____ 20__;
(iv) a CMSA Loan Setup File (with respect to the initial Distribution Date only)
not later than the Report Date in ____20__; (v) a CMSA Loan Periodic Update File
not later than each Report Date commencing in ____ 20__ (a ____ 20__ report will
be issued by the Master Servicer in the format and with the content as
reasonably agreed by the Master Servicer and the Trustee); (vi) a CMSA Property
File on each Report Date, commencing in ____ 20__; (vii) a CMSA Delinquent Loan
Status Report on each Report Date, commencing in ____ 20__; (viii) a CMSA
Historical Loan Modification and Corrected Mortgage Loan Report not later than
each Report Date, commencing in ____ 20__; (ix) a CMSA Historical Liquidation
Report not later than each Report Date, commencing in ____ 20__; and (x) a CMSA
REO Status Report on each Report Date, commencing in ____ 20__. The information
that pertains to Specially Serviced Mortgage Loans and REO Properties reflected
in such reports shall be based solely upon the reports delivered by the Special
Servicer to the Master Servicer in writing and on a computer readable medium
reasonably acceptable to the Master Servicer and the Special Servicer on the
date and in the form required under Section 9.32. The Master Servicer's
responsibilities under this Section 8.11(g) with respect to REO Mortgage Loans
and Specially Serviced Mortgage Loans shall be subject to the satisfaction of
the Special Servicer's obligations under Section 9.32.
(h) If the Master Servicer delivers a notice of drawing to effect a
drawing on any letter of credit or debt service reserve account under which the
Trust has rights as the holder of any Mortgage Loan for purposes other than
payment or reimbursement of amounts contemplated in and by a reserve or escrow
agreement (other than after a default under an applicable Mortgage Loan), the
Master Servicer shall, within five Business Days following its receipt of the
proceeds of such drawing, deliver notice thereof to the Special Servicer, the
Operating Adviser and the Paying Agent, which notice shall set forth (i) the
unpaid Principal Balance of such Mortgage Loan immediately before and
immediately after the drawing, and (ii) a brief description of the circumstances
that in the Master Servicer's good faith and reasonable judgment and in
compliance with the Servicing Standard entitled the Master Servicer to make such
drawing.
Section 8.12 [Reserved]
Section 8.13 [Reserved]
Section 8.14 Operating Statement Analysis Reports Regarding the
Mortgaged Properties
Within [105] calendar days (or [90] days as to the Special
Servicer), or [120] days with respect to any Co-op Mortgage Loans, after the end
of each of the first three calendar quarters (in each year) for the trailing 12
months, quarterly or year-to-date information received, commencing for the
quarter ending on March 31, 20__, the Master Servicer shall deliver to the
Paying Agent and the Operating Adviser an Operating Statement Analysis Report
and a Financial File for each Mortgaged Property in electronic format, prepared
using the non
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normalized quarterly, year-to-date or trailing 12 month operating statements
and, in the case of Mortgage Loans other than Co-op Mortgage Loans, rent rolls
received from the related Mortgagor, if any. With respect to Specially Serviced
Mortgage Loans, the Master Servicer shall include information only to the extent
provided by the Special Servicer, which an Operating Statement Analysis Report
and a Financial File shall be prepared by the Special Servicer and delivered to
the Master Servicer within 90 days after the end of each of the first three
quarters of each year for the trailing twelve months, quarterly or year-to-date
information received and other information utilized by the Special Servicer to
prepare such report or files. With respect to any Mortgage Loan for which a
Primary Servicer is appointed as the Special Servicer with respect to such
Mortgage Loan pursuant to Section 9.39, the reports prepared by any the Special
Servicer shall only include the CMSA reports and related data required by the
related Primary Servicing Agreement, and such other reports as are mutually
agreed to by the related Primary Servicer and the Master Servicer. Not later
than the Report Date occurring in June of each year, beginning in 20__ for
year-end 20__, the Master Servicer (in the case of Mortgage Loans that are not
Specially Serviced Mortgage Loans and as provided by the Special Servicer to the
Master Servicer for Specially Serviced Mortgage Loans) shall deliver to the
Paying Agent and the Operating Adviser an Operating Statement Analysis Report, a
Financial File and an NOI Adjustment Worksheet for each Mortgage Loan in
electronic format, based on the most recently available year-end financial
statements and most recently available rent rolls, in each case of Mortgage
Loans other than Co-op Mortgage Loans, of each applicable Mortgagor (to the
extent provided to the Master Servicer or the Special Servicer by or on behalf
of each Mortgagor). In the case of Specially Serviced Mortgaged Loans, as
provided to the Special Servicer by the Mortgagor, the Special Servicer shall
forward such information to the Master Servicer on or before April 15 of each
such year as provided for in Section 9.32(e) herein, containing such information
and analyses for each Mortgage Loan provided for in the respective forms of
Operating Statement Analysis Report, Financial File and NOI Adjustment
Worksheet. Such information provided by the Master Servicer shall include what
would customarily be included in accordance with the Servicing Standard
including, without limitation, Debt Service Coverage Ratios and income. As and
to the extent reasonably requested by the Special Servicer, the Master Servicer
shall make inquiry of any Mortgagor with respect to such information or as
regards the performance of the related Mortgaged Property in general. The Paying
Agent shall provide or make available electronically at no cost to the
Certificateholders or Certificate Owners, the Rating Agencies, the Operating
Adviser, the Depositor, the Placement Agent and the Underwriters the Operating
Statement Analysis Reports, the Financial Files and the NOI Adjustment
Worksheets described above pursuant to Section 5.4(a). The Master Servicer shall
make the CMSA Operating Statement Analysis Report, the operating statements,
rent rolls (except in the case of Co-op Mortgage Loans), property inspections
and NOI Adjustment Worksheet for each Mortgage Loan available on its website
(which shall initially be located at _______ (the "Master Servicer's Website"))
by the Business Day following the Distribution Date in _____. The Master
Servicer shall, upon request by any of such parties, deliver copies of such
documents to such parties if such documents are not available on the Master
Servicer's website at such time. Pursuant to the Mortgage Loan Purchase
Agreements, the Sellers shall populate all fields or any information for their
related Mortgage Loans reasonably requested by the Master Servicer to complete
the Property File.
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Section 8.15 Other Available Information and Certain Rights of the
Master Servicer
(a) Subject to paragraphs (b), (c) and (d) below, unless prohibited
by applicable law or the loan documents, the Paying Agent shall make available
at its Corporate Trust Office, during normal business hours, upon reasonable
advance written notice for review by any Certificateholder, any Certificate
Owner, any Seller, any Primary Servicer, the Placement Agent, any Underwriter,
each Rating Agency, the Paying Agent or the Depositor, originals or copies of,
among other things, the following items: (i) this Agreement and any amendments
thereto, (ii) all final and released Operating Statement Analysis Reports and
the Loan Periodic Update Files, (iii) all Officer's Certificates (including
Officer's Certificates evidencing any determination of Nonrecoverable Advances)
delivered to the Trustee and the Paying Agent since the Closing Date, (iv) all
accountants' reports delivered to the Trustee and the Paying Agent since the
Closing Date, (v) the most recent property Inspection Reports in the possession
of the Paying Agent in respect of each Mortgaged Property, (vi) the most recent
Mortgaged Property annual operating statement and, in the case of Mortgage Loans
other than Co-op Mortgage Loans, rent roll, if any, collected by or on behalf of
the Master Servicer or the Special Servicer, (vii) any and all modifications,
waivers and amendments of the terms of a Mortgage Loan entered into by the
Master Servicer and/or the Special Servicer, and (viii) any and all Officers'
Certificates (and attachments thereto) delivered to the Trustee and the Paying
Agent to support the Master Servicer's determination that any Advance was not
or, if made, would not be, recoverable. The Trustee and the Paying Agent will be
permitted to require payment of a sum to be paid by the requesting party (other
than the Rating Agencies, the Trustee, the Paying Agent, any Placement Agent or
any Underwriter) sufficient to cover the reasonable costs and expenses of making
such information available.
(b) Subject to the restrictions described below, the Master Servicer
shall afford the Rating Agencies, the Depositor, the Trustee, the Paying Agent,
the Special Servicer, the Primary Servicers, the Sellers, any Placement Agent,
the Underwriters, the Operating Adviser, any Certificateholder or any
Certificate Owner, upon reasonable notice and during normal business hours,
reasonable access to all information referred to in Section 8.15(a) and any
additional relevant, non-attorney-client-privileged records and documentation
regarding the applicable Mortgage Loans, REO Property and all accounts,
insurance policies and other relevant matters relating to this Agreement (which
access may occur by means of the availability of information on the Master
Servicer's or the Paying Agent's Website or the electronic delivery of such
information to the requesting Person), in each case to the extent in its
respective possession, and access to Servicing Officers of the Master Servicer
responsible for its obligations hereunder. Copies of information or access will
be provided to Certificateholders and each Certificate Owner providing
satisfactory evidence of ownership of Certificates or beneficial ownership of a
Certificate, as the case may be, which may include a certification. Copies (or
computer diskettes or other digital or electronic copies of such information if
reasonably available in lieu of paper copies) of any and all of the foregoing
items shall be made available by the Master Servicer upon request; provided,
however, that the Master Servicer shall be permitted to require payment by the
requesting party (other than the Depositor, the Trustee, the Paying Agent, the
Special Servicer, the Operating Adviser, any Placement Agent, any Underwriter,
or any Rating Agency) of a sum sufficient to cover the reasonable expenses
actually incurred by the Master Servicer of providing
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access or copies (including electronic or digital copies) of any such
information requested in accordance with the preceding sentence.
(c) Nothing herein shall be deemed to require the Master Servicer to
confirm, represent or warrant the accuracy of (or to be liable or responsible
for) any other Person's information or report. Notwithstanding the above, the
Master Servicer shall not have any liability to the Depositor, the Trustee, the
Paying Agent, the Special Servicer, any Certificateholder, any Certificate
Owner, the Placement Agent, any Underwriter, any Rating Agency or any other
Person to whom it delivers information pursuant to this Section 8.15 or any
other provision of this Agreement for federal, state or other applicable
securities law violations relating to the disclosure of such information. In the
event any Person brings any claims relating to or arising from the foregoing
against the Master Servicer (or any partners, representatives, Affiliates,
members, managers, directors, officers, employees, agents thereof), the Trust
(from amounts held in any account) shall hold harmless and indemnify the Master
Servicer from any loss or expense (including attorney fees) relating to or
arising from such claims.
(d) The Master Servicer shall produce the reports required of it
under this Agreement; provided, however, that the Master Servicer shall not be
required to produce any ad hoc non-standard written reports not otherwise
required under this Agreement with respect to such Mortgage Loans. In the event
the Master Servicer elects to provide such non-standard reports, it may require
the Person requesting such report (other than a Rating Agency) to pay a
reasonable fee to cover the costs of the preparation thereof. Notwithstanding
anything to the contrary herein, as a condition to the Master Servicer making
any report or information available upon request to any Person other than the
parties hereto, the Master Servicer may require that the recipient of such
information acknowledge that the Master Servicer may contemporaneously provide
such information to the Depositor, the Trustee, the Paying Agent, the Special
Servicer, the Primary Servicer, the Sellers, the Placement Agent, any
Underwriter, any Rating Agency and/or the Certificateholders or Certificate
Owners. Any transmittal of information by the Master Servicer to any Person
other than the Trustee, the Paying Agent, the other Master Servicer, the Special
Servicer, the Rating Agencies, the Operating Adviser or the Depositor may be
accompanied by a letter from the Master Servicer containing a disclaimer as to
the confidentiality of the information requested.
(e) The Master Servicer may, at its discretion, make available by
electronic media and bulletin board service certain information and may make
available by electronic media or bulletin board service (in addition to making
such information available as provided herein) any reports or information
required by this Agreement that the Master Servicer is required to provide to
any of the Rating Agencies, the Depositor and anyone the Depositor reasonably
designates.
(f) The Master Servicer shall cooperate in providing the Rating
Agencies with such other pertinent information relating to the Mortgage Loans as
is or should be in their respective possession as the Rating Agencies may
reasonably request.
(g) Once a month, the Master Servicer and the Special Servicer
shall, without charge, make a knowledgeable Servicing Officer available to
answer questions from the Operating Adviser during regular business hours at
such time and for such duration as the Master
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Servicer or Special Servicer, and the Operating Adviser shall reasonably agree,
regarding the performance and servicing of the Mortgage Loans and REO Properties
for which the Master Servicer or the Special Servicer, as the case may be, is
responsible. As a condition to such disclosure, the Operating Adviser shall
execute a confidentiality agreement in form reasonably acceptable to the Master
Servicer, the Special Servicer and the Operating Adviser.
Section 8.16 Rule 144A Information
For as long as any of the Certificates are "restricted securities"
within the meaning of Rule 144A under the Securities Act, the Master Servicer
agrees to provide to the Paying Agent for delivery to any Holder thereof, any
Certificate Owner therein and to any prospective purchaser of the Certificates
or beneficial interest therein reasonably designated by the Paying Agent upon
the request of such Certificateholder, such Certificate Owner or the Paying
Agent, subject to this Section 8.16 and the provisions of Section 8.15, any
information prepared by the Master Servicer that is required to be provided to
such holder or prospective purchaser to satisfy the condition set forth in Rule
144A(d)(4) under the Securities Act, including, without limitation, copies of
the reports and information described in Sections 8.15(a) and (b).
Any recipient of information provided pursuant to this Section 8.16
shall agree that such information shall not be disclosed or used for any purpose
other than the evaluation of the Certificates by such Person and the Master
Servicer shall be permitted to use the letter referred to in Section 8.15(d).
Unless the Master Servicer chooses to deliver the information directly, the
Depositor, the Placement Agent, the Underwriters or the Paying Agent shall be
responsible for the physical delivery of the information requested pursuant to
this Section 8.16. As a condition to the Master Servicer making any report or
information available upon request to any Person other than the parties hereto,
the Master Servicer may require that the recipient of such information
acknowledge that the Master Servicer may contemporaneously provide such
information to the Depositor, the Trustee, the Paying Agent, the Placement
Agent, the Underwriters, any Rating Agency and/or the Certificateholders and
Certificate Owners. The Master Servicer will be permitted to require payment of
a sum to be paid by the requesting party (other than the Rating Agencies, the
Trustee, the Paying Agent, the Placement Agent or the Underwriters) sufficient
to cover the reasonable costs and expenses of making such information available.
Section 8.17 Inspections
The Master Servicer shall, at its own expense, inspect or cause to
be inspected each Mortgaged Property for which it is acting as Master Servicer,
other than Mortgaged Properties related to Specially Serviced Mortgage Loans,
every calendar year beginning in 20__, or every second calendar year beginning
in 20__ if the Principal Balance of the related Mortgage Loan is under
$2,000,000; provided that the Master Servicer shall, at the expense of the
Trust, inspect or cause to be inspected each Mortgaged Property related to a
Mortgage Loan for which it is acting as Master Servicer (other than a Specially
Serviced Mortgage Loan, or if there has not been an inspection within the past
six months) that has a Debt Service Coverage Ratio that falls below [1.0x or,
with respect to Co-op Mortgage Loans, 0.90x]. The foregoing sentence shall not
alter the terms of the Special Servicer's obligation to inspect Mortgaged
Properties as set forth in
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Section 9.4(b) hereto. The Master Servicer shall cause to be prepared an
Inspection Report relating to each inspection.
The applicable Inspection Reports shall be available for review by
the Trustee, the Special Servicer, the Rating Agencies, the Placement Agent, the
Underwriters, the Depositor, the Paying Agent, the Operating Adviser, any
Certificate Owner, any Seller and any Primary Servicer via password protocol and
execution of an agreement relating thereto on the Master Servicer's Website. The
Special Servicer shall have the right, but no duty, to inspect or cause to be
inspected (at its own expense) every calendar year any Mortgaged Property
related to a Mortgage Loan that is not a Specially Serviced Mortgage Loan,
provided that the Special Servicer notifies the Master Servicer prior to such
inspection.
Section 8.18 Modifications, Waivers, Amendments, Extensions and
Consents
Subject to the limitations of Sections 9.39 and 12.3, the Master
Servicer shall have the following powers:
(a)(i) Master Servicer, in accordance with the Servicing Standard,
may agree to any modification, waiver, amendment or consent of or relating to
any term (including, without limitation, Master Servicer Consent Matters set
forth in Section 8.3(a) hereof and waiver of default interest and Late Fees as
provided in Section 8.3(a)) other than a Money Term of a Mortgage Loan that is
not a Specially Serviced Mortgage Loan, provided that such amendment would not
result in an Adverse REMIC Event; and provided, further, that if any consent
relates to a release of a letter of credit relating to any Mortgage Loan (other
than letters of credit or portions thereof released upon satisfaction of
conditions specified in the related agreements), then (i) the Master Servicer
shall notify the Special Servicer of any Mortgagor's request to release such
letter of credit which the Master Servicer recommends to release, and (ii) if
the terms of the related Mortgage Loan do not require the Master Servicer to
approve a release, then the Special Servicer shall within five Business Days
provide notice to the Master Servicer on whether the Master Servicer should
approve the release (and the failure of the Special Servicer to give the Master
Servicer such notice shall automatically be deemed to be an approval by the
Special Servicer that the Master Servicer should grant such release).
Notwithstanding the preceding sentence, with respect to the Mortgage Loans that
are not Specially Serviced Loans, if the Master Servicer recommends to approve a
modification, waiver, amendment or consent which is not the Master Servicer
Consent Matter (including, without limitation, any waiver of any requirement
that the Mortgagor post additional reserves or a letter of credit upon the
failure of the Mortgagor to satisfy conditions specified in the Mortgage Loan
documents, but excluding any waiver of default interest and Late Fees as
provided in Section 8.3(a)), the Master Servicer shall provide to the Special
Servicer a copy of the Master Servicer's recommendation and the relevant
information obtained or prepared by the Master Servicer in connection therewith
and all other information in the Master Servicer's possession reasonably
requested by the Special Servicer, provided, that (A) the Special Servicer shall
have the right hereunder to grant or withhold consent to any such proposed
modification, waiver, amendment or consent, and the Special Servicer shall not
unreasonably withhold such consent and any such decision shall be in accordance
with the Servicing Standard, (B) failure of the Special Servicer to notify the
Master Servicer, within five Business Days following the Master Servicer's
delivery of the recommendation and all required information described above, of
its determination to grant or
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withhold such consent shall be deemed to constitute a grant of such consent and
(C) the Master Servicer shall not enter into any such proposed modification,
waiver, amendment or consent unless it has received the written consent of the
Special Servicer or such consent has been deemed to have been granted as
described above. Notwithstanding anything in this Agreement to the contrary, the
Master Servicer shall not be required to obtain or request the consent of the
Special Servicer in connection with any modification, waiver or amendment, or
granting its consent to transactions, under one or more of the Mortgage Loans
that in each case the Master Servicer has determined (in accordance with the
Servicing Standard) is immaterial. In any event, the Master Servicer shall
promptly notify the Special Servicer of any material modification, waiver,
amendment or consent executed by the Master Servicer pursuant to this Section
8.18(a)(i) and provide to the Special Servicer a copy thereof. Notwithstanding
the foregoing provisions of this Section 8.18, if the Mortgage Loan documents do
not preclude imposition of a requirement to or require a Mortgagor to pay a fee
for an assumption, modification, waiver, amendment or consent that would be due
or partially due to the Special Servicer, then the Master Servicer shall not
waive the portion of such fee due to the Special Servicer without the Special
Servicer's approval.
Notwithstanding the foregoing, the Special Servicer acknowledges
that the Master Servicer has delegated certain tasks, rights and obligations to
the Primary Servicers for the [specify Mortgage Loans] with respect to
Post-Closing Requests pursuant to Section 8.4 of this Agreement.
With respect to a Category 1 Request that involves a condition, term
or provision that requires, or specifies a standard of, consent or approval of
the applicable Mortgagee under the Mortgage Loan documents, each Primary
Servicing Agreement provides for the Master Servicer's determination of
materiality of such condition, term or provision requiring approval or consent
and the referral of such condition, term or provision to the Special Servicer
for consent in accordance with the terms of such Primary Servicing Agreements
upon a determination of materiality. The Special Servicer hereby acknowledges
such provisions, including that "materiality" shall include the existence of an
Adverse REMIC Event. Nothing in this Agreement, however, shall grant the
applicable Primary Servicers greater authority, discretion or delegated rights
over Post-Closing Requests than are set forth in the applicable Primary
Servicing Agreements.
(ii) The Master Servicer may, without the consent of the Special
Servicer, extend the maturity date of any Balloon Mortgage Loan that is
not a Specially Serviced Mortgage Loan to a date that is not more than 90
days following the original Maturity Date, if in the Master Servicer's
sole judgment exercised in good faith (and evidenced by an Officer's
Certificate), a default in the payment of the Balloon Payment is
reasonably foreseeable and the Mortgagor has obtained an executed written
commitment (subject only to satisfaction of conditions set forth therein)
for refinancing of the Mortgage Loan or purchase of the related Mortgaged
Property. The Master Servicer shall process all such extensions and shall
be entitled to (as additional servicing compensation) 100% of any
extension fees collected from a Mortgagor with respect to any such
extension.
(b) The Master Servicer may require, in its discretion (unless
prohibited or otherwise provided in the Mortgage Loan documents), as a condition
to granting any request by a
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Mortgagor for any consent, modification, waiver or amendment, that such
Mortgagor pay to the Master Servicer a reasonable and customary modification fee
to the extent permitted by law; provided that the collection of such fee shall
not be permitted if collection of such fee would cause a "significant
modification" (within the meaning of Treasury Regulations Section 1.860G-2(b) of
the Mortgage Loan). The Master Servicer shall be entitled to (as additional
servicing compensation) [100%] of any Modification Fees collected from a
Mortgagor in connection with a consent, waiver, modification or amendment of a
non-Specially Serviced Mortgage Loan executed or granted pursuant to this
Section 8.18. The Master Servicer may charge the Mortgagor for any costs and
expenses (including attorneys' fees and Rating Agency Confirmation fees)
incurred by the Master Servicer or the Special Servicer (which amounts shall be
reimbursed to the Special Servicer) in connection with any request for a
modification, waiver or amendment. The Master Servicer agrees to use its
reasonable efforts in accordance with the Servicing Standard to collect such
costs, expenses and fees from the Mortgagor, provided that the failure or
inability of the Mortgagor to pay any such costs and expenses shall not impair
the right of the Master Servicer to cause such costs and expenses (but not
including any modification fee), and interest thereon at the Advance Rate, to be
paid or reimbursed by the Trust as a Servicing Advance (to the extent not paid
by the Mortgagor). If the Master Servicer believes that the costs and expenses
(including attorneys' fees) to be incurred by the Master Servicer in connection
with any request for a modification, waiver or amendment will result in a
payment or reimbursement by the Trust, then the Master Servicer shall notify the
Special Servicer.
(c) The Master Servicer shall notify the Trustee and the Special
Servicer of any modification, waiver or amendment of any term of any Mortgage
Loan permitted by it under this Section and the date thereof, and shall deliver
to the Trustee for deposit in the related Mortgage File, an original counterpart
of the agreement relating to such modification, waiver or amendment, promptly
following the execution thereof except to the extent (i) allowed with respect to
waiver of default interest and Late Fees as provided in Section 8.3(a) and (ii)
such documents have been submitted to the applicable recording office, in which
event the Master Servicer shall promptly deliver copies of such documents to the
Trustee. The Master Servicer shall not agree to any modification, waiver, or
amendment of any Money Term of a Mortgage Loan or any term of a Specially
Serviced Mortgage Loan.
( d) If the Mortgage Loan documents relating to a Mortgage Loan
provide that certain conditions must be satisfied prior to the Master Servicer
releasing additional collateral for the Mortgage Loan (e.g., the release,
reduction or termination of reserves or letters of credit or the establishment
of reserves), then the Master Servicer shall be permitted to waive any such
condition without obtaining the consent of the Special Servicer, provided that
(1) the aggregate amount of the related release, reduction or termination is no
greater than the smaller of 10% of the outstanding unpaid Principal Balance of
the related Mortgage Loan or [$75,000], (2) the condition to be waived is deemed
to be non-material in accordance with the Servicing Standard or (3) such
release, reduction or termination would not otherwise cause an Adverse REMIC
Event. Notwithstanding the foregoing, without the Special Servicer's consent or
except as provided in the specific Mortgage Loan documents, the Master Servicer
shall not waive: (1) a requirement for any such additional collateral to exist,
or (2) a lock box requirement.
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Section 8.19 Specially Serviced Mortgage Loans
(a) The Master Servicer shall send a written notice to the Special
Servicer, the Operating Adviser, Rating Agencies, the Paying Agent and the
Trustee, within two Business Days after becoming aware of a Servicing Transfer
Event with respect to a Mortgage Loan, which notice shall identify the related
Mortgage Loan and set forth in reasonable detail the nature and relevant facts
of such Servicing Transfer Event and whether such Mortgage Loan is covered by an
Environmental Insurance Policy (and for purposes of stating whether such
Mortgage Loan is covered by an Environmental Insurance Policy applicable the
Master Servicer may rely on the Mortgage Loan Schedule) and, except for the
Rating Agencies, the Paying Agent and the Trustee, shall be accompanied by a
copy of the Servicer Mortgage File. The Special Servicer shall not be liable for
its failure to deliver the notice set forth in Section 9.36(a) if such failure
is caused by its failure to receive the written notice set forth above.
(b) Prior to the transfer of the servicing of any Specially Serviced
Mortgage Loan to the Special Servicer, the Master Servicer shall notify the
related Mortgagor of such transfer in accordance with the Servicing Standard
(the form and substance of such notice shall be reasonably satisfactory to the
Special Servicer).
(c) Any calculations or reports prepared by the Master Servicer to
the extent they relate to Specially Serviced Mortgage Loans shall be based on
information supplied to the Master Servicer in writing by the Special Servicer
as provided hereby. The Master Servicer shall have no duty to investigate or
confirm the accuracy of any information provided to it by the Special Servicer
and shall have no liability for the inaccuracy of any of its reports due to the
inaccuracy of the information provided by the Special Servicer.
(d) On or prior to each Distribution Date, the Master Servicer shall
provide to the Special Servicer, in order for the Special Servicer to comply
with its obligations under this Agreement, such information (and in the form and
medium) as the Special Servicer may reasonably request in writing from time to
time, provided that (i) the Master Servicer shall not be required to produce any
ad hoc reports or incur any unusual expense or effort in connection therewith
and (ii) if the Master Servicer elects to provide such ad hoc reports, it may
require the Special Servicer to pay a reasonable fee to cover the costs of the
preparation thereof.
Section 8. 20 Representations, Warranties and Covenants of the
Master Servicer
(a) The Master Servicer hereby represents and warrants to and
covenants with the Trustee and the Paying Agent, as of the date hereof:
(i) the Master Servicer is a corporation, duly organized, validly
existing and in good standing under the laws of the [State of _________],
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, except where the failure to so
qualify or comply would not adversely affect the Master Servicer's ability
to perform its obligations hereunder in accordance with the terms of 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
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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 instrument to which it is a party or which
is applicable to it or any of its assets, which default or breach, in the
good faith reasonable judgment of the Master Servicer, is likely to
materially and adversely either affect the ability of the Master Servicer
to perform its obligations under this Agreement or the financial condition
of the Master Servicer;
(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 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, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law;
(v) the Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, 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) the Master Servicer has errors and omissions insurance
coverage which is in full force and effect and which complies with the
requirements of Section 8.2; and
(vii) no consent, approval, authorization or order, registration or
filing with or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of
or compliance by the Master Servicer with this Agreement, or the
consummation by the Master Servicer of any transaction contemplated
hereby, other than (1) such consents, approvals, authorizations,
qualifications, registrations, filings, or notices as have been obtained
or made and (2) where the lack of such consent, approval, authorization,
qualification, registration, filing
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or notice would not have a material adverse effect on the performance by
the Master Servicer under this Agreement.
(b) It is understood that the representations and warranties set
forth in this Section 8.20 shall survive the execution and delivery of this
Agreement.
(c) Any cause of action against the Master Servicer arising out of
the breach of any representations and warranties made in this Section shall
accrue upon the giving of written notice to the Master Servicer by any of the
Trustee or the Master Servicer. The Master Servicer shall give prompt notice to
the Trustee, the Depositor, the Primary Servicers and the Special Servicer of
the occurrence, or the failure to occur, of any event that, with notice or the
passage of time or both, would cause any representation or warranty in this
Section to be untrue or inaccurate in any respect.
Section 8.21 Merger or Consolidation
Any Person into which the Master Servicer may be merged or
consolidated, or any Person resulting from any merger, conversion, other change
in form or consolidation to which the Master Servicer shall be a party, or any
Person succeeding to the business of the Master Servicer, shall be the successor
of the Master Servicer hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto; provided, however,
that each Rating Agency provides a Rating Agency Confirmation; provided,
further, that for so long as the Trust is subject to the reporting requirements
of the Exchange Act, the Depositor shall have consented thereto (which consent
shall not be unreasonably withheld). If such a succession occurs and the
conditions thereto set forth in the provisions in the foregoing sentence are not
met, the Trustee may terminate the Master Servicer's servicing of the Mortgage
Loans pursuant hereto, such termination to be effected in the manner set forth
in Sections 8.28 and 8.29.
Section 8.22 Resignation of the Master Servicer
(a) Except as otherwise provided in Section 8.22(b) hereof, the
Master Servicer shall not resign from the obligations and duties hereby imposed
on it unless it determines that the Master Servicer's 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. Any such
determination permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. No
such resignation shall become effective until a successor servicer designated by
the Trustee, with the consent of the Depositor and the Paying Agent, shall have
assumed the Master Servicer's responsibilities and obligations under this
Agreement and Rating Agency Confirmation shall have been obtained. Notice of
such resignation shall be given promptly by the Master Servicer to the Trustee
and the Paying Agent. The Master Servicer bears all costs associated with its
resignation and the transfer of servicing under this Section 8.22(a).
Notwithstanding the foregoing, if the Master Servicer shall cease to serve as
such in accordance with this Section 8.22(a) and a successor servicer shall not
have been engaged, the Trustee or an agent of the Trustee shall assume the
duties and obligations of the Master Servicer under this Agreement. If the
Trustee or an agent of the Trustee assumes the duties and obligations of the
Master Servicer
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pursuant to this Section 8.22(a), the Trustee or such agent shall be permitted
to resign as master servicer if it has been replaced by a successor servicer
satisfying the criteria in the fourth preceding sentence above.
(b) The Master Servicer may resign from the obligations and duties
imposed on it, upon 30 days notice to the Trustee and the Paying Agent, provided
that (i) a successor servicer (x) is available, (y) is willing to assume the
obligations, responsibilities, and covenants to be performed hereunder by the
Master Servicer on substantially the same terms and conditions, and for not more
than equivalent compensation to that herein provided and (z) in the case of a
successor servicer to the Master Servicer, assumes all obligations of the
resigning Master Servicer under the Primary Servicing Agreements; (ii) the
Master Servicer bears all costs associated with its resignation and the transfer
of servicing; and (iii) Rating Agency Confirmation is obtained with respect to
such servicing transfer, as evidenced by a letter delivered to the Trustee by
each such Rating Agency.
Section 8.23 Assignment or Delegation of Duties by the Master
Servicer
The Master Servicer shall have the right without the prior written
consent of the Trustee to (A) delegate or subcontract with or authorize or
appoint anyone, or delegate certain duties to other professionals such as
attorneys and appraisers, as an agent of the Master Servicer (as provided in
Section 8.4) to perform and carry out any duties, covenants or obligations to be
performed and carried out by the Master Servicer hereunder or (B) assign and
delegate all of its duties hereunder; provided, however, that with respect to
clause (B), (i) the Master Servicer gives the Depositor, the Special Servicer,
the Primary Servicers, and the Trustee notice of such assignment and delegation;
(ii) such purchaser or transferee accepting such assignment and delegation
executes and delivers to the Depositor and the Trustee an agreement accepting
such assignment, which contains an assumption by such Person of the rights,
powers, duties, responsibilities, obligations and liabilities of the Master
Servicer, with like effect as if originally named as a party to this Agreement
and the Primary Servicing Agreements; (iii) the purchaser or transferee has
assets in excess of [$15,000,000]; (iv) such assignment and delegation is the
subject of a Rating Agency Confirmation from [Xxxxx'x and S&P]; and (v) the
Depositor consents to such assignment and delegation, such consent not be
unreasonably withheld. In the case of any such assignment and delegation in
accordance with the requirements of subclause (B) of this Section, the Master
Servicer shall be released from its obligations under this Agreement, except
that the Master Servicer shall remain liable for all liabilities and obligations
incurred by it as the Master Servicer hereunder prior to the satisfaction of the
conditions to such assignment set forth in the preceding sentence.
Notwithstanding the above, the Master Servicer may appoint the Primary Servicers
and Sub-Servicers in accordance with Section 8.4 hereof.
Section 8.24 Limitation on Liability of the Master Servicer and
Others
(a) The Master Servicer or any of the partners, representatives,
Affiliates, members, managers, directors, officers, employees or agents of the
Master Servicer shall not be under any liability to the holders of the
Certificates, the Depositor, the Trustee, the Paying Agent, the Placement Agent,
the Underwriters or the Special Servicer for any action taken or for refraining
from the taking of any action in good faith, or using reasonable business
judgment, consistent with the Servicing Standard; provided that this provision
shall not protect the Master
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Servicer or any such Person against any breach of a representation or warranty
contained herein or any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in its performance of duties under
the Agreement or by reason of negligent disregard of obligations and duties
hereunder. The Master Servicer and any partner, representative, Affiliate,
member, manager, director, officer, employee or agent of the Master Servicer may
rely in good faith on any document of any kind prima facie properly executed and
submitted by any Person (including, without limitation, the Special Servicer)
respecting any matters arising hereunder. The Master Servicer shall not be under
any obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement; provided that the Master Servicer may in its sole discretion
undertake any such action which it may reasonably deem necessary or desirable in
order to protect the interests of the Certificateholders and the Trustee in the
Mortgage Loans (subject to the Special Servicer's servicing of Specially
Serviced Mortgage Loans as contemplated herein). In such event, all legal
expenses and costs of such action shall be expenses and costs of the Trust, and
the Master Servicer shall be entitled to be reimbursed therefor as Servicing
Advances as provided by Section 5.2, subject to the provisions of Section 4.4
hereof.
(b) In addition, the Master Servicer shall have no liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to the Master Servicer and conforming to the requirements of
this Agreement. Subject to the Servicing Standard, the Master Servicer shall
have the right to rely on information provided to it by the Special Servicer and
Mortgagors, and will have no duty to investigate or verify the accuracy thereof.
The Master Servicer, or any partner, representative, Affiliate, member, manager,
director, officer, employee or agent, shall not be personally liable for any
error of judgment made in good faith by any officer, unless it shall be proved
that the Master Servicer or such officer was negligent in ascertaining the
pertinent facts. The Master Servicer or any partner, representative, Affiliate,
member, manager, director, officer, employee or agent, shall not be personally
liable for any action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion, rights or powers
conferred upon it by this Agreement.
(c) The Master Servicer shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Special Servicer, the Paying Agent or the Trustee in this
Agreement. The Trust shall indemnify and hold harmless the Master Servicer from
any and all claims, liabilities, costs, charges, fees or other expenses which
relate to or arise from any such breach of representation, warranty or covenant
to the extent the Master Servicer is unable to recover such amounts from the
Person in breach.
(d) Except as otherwise specifically provided herein:
(i) the Master Servicer may rely, 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, financial statement,
agreement, appraisal, bond or other document (in electronic or paper
format) reasonably believed or in good faith believed by it to be genuine
and to have been signed or presented by the proper party or parties;
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(ii) the Master Servicer may consult with counsel, and any written
advice or Opinion of Counsel shall be full and complete authorization and
protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) the Master Servicer shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion, rights or powers conferred upon
it by this Agreement; and
(iv) the Master Servicer, in preparing any reports hereunder, may
rely, and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document,
agreement, covenant, notice, request or other paper (in electronic or
paper format) reasonably believed by it to be genuine and provided by any
Mortgagor or manager of a Mortgaged Property.
(e) The Master Servicer and any partner, representative, Affiliate,
member, manager, director, officer, employee or agent of the Master Servicer
shall be indemnified by the Trustee, the Paying Agent and the Special Servicer,
as the case may be, and held harmless against any and all claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments, and any
other costs, liabilities, fees and expenses that the Master Servicer may sustain
arising from or as a result of the willful misfeasance, bad faith or negligence
in the performance of the Trustee's, the Paying Agent's or the Special
Servicer's duties hereunder, as the case may be, or by reason of negligent
disregard of the Trustee's, the Special Servicer's or the Paying Agent's
obligations and duties hereunder, as the case may be, (including a breach of
such obligations a substantial motive of which is to obtain an economic
advantage from being released from such obligations). The Master Servicer shall
immediately notify the Trustee, the Paying Agent and the Special Servicer, if a
claim is made by a third party with respect to this Agreement or the Mortgage
Loans for which it is acting as Master Servicer entitling the Master Servicer to
indemnification hereunder, whereupon the Trustee, the Paying Agent or the
Special Servicer, in each case, to the extent the claim is related to its
respective willful misfeasance, bad faith, negligence or negligent disregard,
shall assume the defense of any such claim (with counsel reasonably satisfactory
to the Master Servicer) and pay all expenses in connection therewith, including
counsel fees, and promptly pay, discharge and satisfy any judgment or decree
which may be entered against it or them in respect of such claim. Any failure to
so notify the Trustee, the Paying Agent and the Special Servicer shall not
affect any rights that the Master Servicer may have to indemnification under
this Agreement or otherwise, unless the Trustee's, the Paying Agent's or the
Special Servicer's defense of such claim is materially prejudiced thereby. Such
indemnity shall survive the termination of this Agreement or the resignation or
removal of the Master Servicer hereunder. Any payment hereunder made by the
Trustee, the Paying Agent or the Special Servicer pursuant to this paragraph to
the Master Servicer shall be paid from the Trustee's, the Paying Agent's or the
Special Servicer's own funds, without reimbursement from the Trust therefor
except to the extent achieved through subrogation as provided in this Agreement.
Any expenses incurred or indemnification payments made by the Trustee, the
Paying Agent or the Special Servicer shall be reimbursed by the party so paid,
if a court of competent jurisdiction makes a final judgment that the conduct of
the Trustee, the Paying Agent or the Special Servicer, as the case may be, was
not culpable of willful misfeasance, bad faith or negligence in the performance
of its respective duties hereunder or of
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negligent disregard of its respective duties hereunder or the indemnified party
is found to have acted with willful misfeasance, bad faith or negligence.
Section 8.25 Indemnification; Third-Party Claims
(a) The Master Servicer and any partner, representative, Affiliate,
member, manager, director, officer, employee or agent of each the Master
Servicer shall be indemnified by the Trust and held harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action or claim relating to this Agreement, any
Mortgage Loans, any REO Property or the Certificates or any exercise of any
right under this Agreement reasonably requiring the use of counsel or the
incurring of expenses other than any loss, liability or expense incurred by
reason of the Master Servicer's willful misfeasance, bad faith or negligence in
the performance of duties hereunder. The Master Servicer shall assume the
defense of any such claim (with counsel reasonably satisfactory to the Master
Servicer) and out of the Trust pay all expenses in connection therewith,
including counsel fees, and out of the Trust promptly pay, discharge and satisfy
any judgment or decree which may be entered against it or them in respect of
such claim and satisfy any settlement or other disposition in respect of such
claim. The indemnification provided herein shall survive the termination of this
Agreement or of the Master Servicer in such capacity. The Trustee, the Paying
Agent or the Master Servicer shall promptly make from the applicable Certificate
Account any payments certified by the Master Servicer to the Trustee and the
Paying Agent as required to be made to the Master Servicer pursuant to this
Section 8.25.
(b) The Master Servicer agrees to indemnify the Trustee, the Special
Servicer, the Trust, the Depositor, the Paying Agent, and any partner,
representative, Affiliate, member, manager, director, officer, employee, agent
or Controlling Person thereof, and hold them harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, liabilities, fees and expenses that the Trustee,
the Special Servicer, the Depositor, the Paying Agent and the Trust may sustain
arising from or as a result of the willful misfeasance, bad faith or negligence
in the performance of any of the Master Servicer's duties hereunder or by reason
of negligent disregard of the Master Servicer's obligations and duties hereunder
(including a breach of such obligations a substantial motive of which is to
obtain an economic advantage from being released from such obligations), and if
in any such situation the Master Servicer is replaced, the parties hereto agree
that the amount of such claims, losses, penalties, fines, legal fees and related
costs, judgments, and other costs, liabilities, fees and expenses shall at least
equal the incremental costs, if any, of retaining a successor servicer. The
Trustee, the Special Servicer, the Paying Agent or the Depositor, as applicable,
shall immediately notify the Master Servicer if a claim is made by any Person
with respect to this Agreement or the Mortgage Loans entitling the Trustee, the
Depositor, the Special Servicer, the Paying Agent or the Trust to
indemnification under this Section 8.25(b), whereupon the Master Servicer shall
assume the defense of any such claim (with counsel reasonably satisfactory to
the Trustee, the Special Servicer, the Paying Agent or the Depositor, as
applicable) and pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which may
be entered against it or them in respect of such claim. Any failure to so notify
the Master Servicer shall not affect any rights the Trustee, the Special
Servicer, the Depositor, the Paying Agent or the Trust may have to
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indemnification under this Agreement or otherwise, unless the Master Servicer's
defense of such claim is materially prejudiced thereby. The indemnification
provided herein shall survive the termination of this Agreement and the
resignation or termination of the Master Servicer, the Special Servicer, the
Paying Agent and the Trustee. Any expenses incurred or indemnification payments
made by the Master Servicer shall be reimbursed by the party so paid, if a court
of competent jurisdiction makes a final, non-appealable judgment that the
conduct of the Master Servicer was not culpable of willful misfeasance, bad
faith or negligence in the performance of its respective duties hereunder or of
negligent disregard of its respective duties hereunder or the indemnified party
is found to have acted with willful misfeasance, bad faith or negligence.
(c) The Primary Servicer and any partner, representative, Affiliate,
member, manager, director, officer, employee or agent thereof shall be
indemnified by the Trust and held harmless against any and all claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments and any
other costs, liabilities, fees and expenses incurred in connection with any
legal action relating to this Agreement, its Primary Servicing Agreement (but
only if, and to the extent that, the Master Servicer would have been entitled to
indemnification therefor under this Agreement if it were directly servicing the
related Mortgage Loans, any [specify primary serviced loans] (solely with
respect to the Primary Servicer), any REO Property or the Certificates or any
exercise of any right under this Agreement or its related Primary Servicing
Agreement (limited as set forth above) reasonably requiring the use of counsel
or the incurring of expenses other than any loss, liability or expense incurred
by reason of such Primary Servicer's willful misfeasance, bad faith or
negligence in the performance of duties thereunder. Such Primary Servicer shall
assume the defense of any such claim (with counsel reasonably satisfactory to
such Primary Servicer) and out of the Trust pay all expenses in connection
therewith, including counsel fees, and out of the Trust promptly pay, discharge
and satisfy any judgment or decree which may be entered against it or them in
respect of such claim. The indemnification provided herein shall survive the
termination of this Agreement and the related Primary Servicing Agreement. The
Trustee, the Paying Agent or the Master Servicer shall promptly make from the
applicable Certificate Account any payments certified by such Primary Servicer
with respect to the Mortgage Loans to the Trustee and the Paying Agent as
required to be made to such Primary Servicer pursuant to this Section 8.25.
(d) The Primary Servicer agrees to indemnify the Trustee, the
Special Servicer, the Trust, the Depositor, the Paying Agent, and any partner,
representative, Affiliate, member, manager, director, officer, employee, agent
or Controlling Person thereof, and hold them harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, liabilities, fees and expenses that the Trustee,
the Special Servicer, the Depositor, the Paying Agent and the Trust may sustain
arising from or as a result of the willful misfeasance, bad faith or negligence
in the performance of such Primary Servicer's duties under this Agreement, its
related Primary Servicing Agreement or by reason of negligent disregard of such
Primary Servicer's obligations and duties thereunder (including a breach of such
obligations a substantial motive of which is to obtain an economic advantage
from being released from such obligations), and if in any such situation such
Primary Servicer is replaced, the parties hereto agree that the amount of such
claims, losses, penalties, fines, legal fees and related costs, judgments, and
other costs, liabilities, fees and expenses shall at least equal the incremental
costs, if any, of retaining a successor primary servicer. The Trustee, the
Special Servicer, the Paying Agent or the Depositor, as applicable, shall
immediately notify such
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Primary Servicer if a claim is made by any Person with respect to this
Agreement, the related Primary Servicing Agreement or the related Mortgage Loans
(solely with respect to the Primary Servicer) entitling the Trustee, the
Depositor, the Special Servicer, the Paying Agent or the Trust to
indemnification under this Section 8.25(d), whereupon such Primary Servicer
shall assume the defense of any such claim (with counsel reasonably satisfactory
to the Trustee, the Special Servicer, the Paying Agent or the Depositor, as
applicable) and pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which may
be entered against it or them in respect of such claim. Any failure to so notify
such Primary Servicer shall not affect any rights the Trustee, the Special
Servicer, the Depositor, the Paying Agent or the Trust may have to
indemnification under this Agreement, the related Primary Servicing Agreement or
otherwise, unless such Primary Servicer's defense of such claim is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the related Primary Servicing Agreement and
the resignation or termination of the Master Servicer, the Special Servicer, the
Paying Agent and the Trustee. Any expenses incurred or indemnification payments
made by such Primary Servicer shall be reimbursed by the party so paid, if a
court of competent jurisdiction makes a final, non-appealable judgment that the
conduct of such Primary Servicer was not culpable or that such Primary Servicer
did not act with willful misfeasance, bad faith or negligence.
(e) The Master Servicer shall not have any liability to the
Depositor, the Trustee, the Paying Agent, the Special Servicer, any
Certificateholder, any Certificate Owner, any Primary Servicer, the Placement
Agent, any Underwriter, any Rating Agency or any other Person to whom it
delivers information pursuant to the provisions of this Agreement for federal,
state or other applicable securities law violations relating to the disclosure
of such information. In the event any Person brings any claims relating to or
arising from the foregoing against the Master Servicer (or any partners,
representatives, Affiliates, members, managers, directors, officers, employees,
agents thereof), the Trust (from amounts held in any account) shall hold
harmless and indemnify the Master Servicer from any loss or expense (including
attorney fees) relating to or arising from such claims.
Section 8.26 [Reserved]
Section 8.27 Compliance with REMIC Provisions and Grantor Trust
Provisions
The Master Servicer shall act in accordance with this Agreement and
the REMIC Provisions and related provisions of the Code in order to create or
maintain the status of the REMIC Pools created hereby as REMICs and each of the
Class A-3-1FL Grantor Trust and the Class EI Grantor Trust created hereby as a
grantor trust under the Code. The Master Servicer shall take no action or (A)
cause any REMIC Pool to take any action that could (i) endanger the status of
any REMIC Pool as a REMIC under the Code or (ii) result in the imposition of a
tax upon any REMIC Pool (including, but not limited to, the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code or on prohibited
contributions pursuant to Section 860G(d) of the Code) or (B) cause either the
Class A-3-1FL Grantor Trust or Class EI Grantor Trust to take any action that
could (i) endanger its status as a grantor trust or (ii) result in the
imposition of any tax upon the Class A-3-1FL Grantor Trust or Class EI Grantor
Trust, unless the Trustee shall have received a Nondisqualification Opinion (at
the expense of the party seeking to take such action) to the effect that the
contemplated action will not endanger such
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status or result in the imposition of such tax. The Master Servicer shall comply
with the provisions of Article XII hereof.
Section 8.28 Termination
(a) The obligations and responsibilities of the Master Servicer
created hereby (other than the obligation of the Master Servicer to make
payments to the Paying Agent as set forth in Section 8.29 and the obligations of
the Master Servicer to the Trustee, the Paying Agent, the Special Servicer and
the Trust as set forth in Section 8.25) shall terminate (i) on the date which is
the later of (A) the final payment or other liquidation of the last Mortgage
Loan remaining outstanding (and final distribution to the Certificateholders) or
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) if an Event of Default with respect to the Master
Servicer described in clauses 8.28(b)(iii), (iv), (viii) or (ix) (but, with
respect to clause (ix), only if directed by the Certificateholders or the
Operating Adviser as set forth in the last sentence of this Section 8.28(a)) has
occurred, 60 days following the date on which the Trustee or Depositor gives
written notice to the Master Servicer that the Master Servicer is terminated or
(iii) if an Event of Default with respect to the Master Servicer described in
clauses 8.28(b)(i), (ii), (v), (vi) or (vii) has occurred, immediately upon the
date on which the Trustee or the Depositor gives written notice to the Master
Servicer that the Master Servicer is terminated. After any Event of Default, the
Trustee (i) may elect to terminate the Master Servicer by providing such notice,
and (ii) shall provide such notice if holders of Certificates representing more
than 25% of the Aggregate Certificate Balance of all Certificates so direct the
Trustee. After an Event of Default described in Section 8.28(b)(ix) below, the
Trustee shall, at the written direction of the Operating Advisor or the holders
of Certificates representing more than 51% of the Aggregate Certificate Balance
of all Certificates, terminate the Master Servicer.
(b) "Event of Default," wherever used herein, means, with respect to
the Master Servicer, any one of the following events:
(i) any failure by the Master Servicer, at the times required
hereunder, to remit to the Paying Agent or otherwise make any payment
required to be remitted by the Master Servicer under the terms of this
Agreement, including any required Advances, which continues unremedied
until 11:00 a.m. on the Distribution Date; or
(ii) any failure by the Master Servicer to make a required deposit
to the applicable Certificate Account which continues unremedied for one
Business Day following the date on which such deposit was first required
to be made; or
(iii) any failure on the part of the Master Servicer duly to observe
or perform in any material respect any other of the duties, covenants or
agreements on the part of the Master Servicer contained in this Agreement
which continues unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given to the Master Servicer by the Depositor or the Trustee;
provided, however, that if the Master Servicer certifies to the Trustee
and the Depositor that the Master Servicer is in good faith attempting to
remedy such failure, such cure period will be extended to the extent
necessary to permit the Master Servicer to cure such failure; provided,
further, that such cure period may not exceed 90 days; or
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(iv) any breach of the representations and warranties contained in
Section 8.20 hereof that materially and adversely affects the interest of
any holder of any Class of Certificates and that continues unremedied for
a period of 30 days after the date on which notice of such breach,
requiring the same to be remedied, shall have been given to the Master
Servicer by the Depositor or the Trustee, provided, however, that if the
Master Servicer certifies to the Trustee and the Depositor that the Master
Servicer is in good faith attempting to remedy such breach, such cure
period will be extended to the extent necessary to permit the Master
Servicer to cure such breach; provided, further, that such cure period may
not exceed 90 days; or
(v) 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,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer and such decree or order shall have remained in force
undischarged, undismissed or unstayed for a period of 60 days; or
(vi) the Master Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Master Servicer
or of or relating to all or substantially all of its property; or
(vii) the Master Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable bankruptcy, insolvency or reorganization
statute, make an assignment for the benefit of its creditors, voluntarily
suspend payment of its obligations, or take any corporate action in
furtherance of the foregoing; or
(viii) [a Servicing Officer of the Master Servicer obtains actual
knowledge that Xxxxx'x has (a) qualified, downgraded or withdrawn any
rating then assigned by it to any class of certificates, or (b) placed any
class of certificates on "watch status" in contemplation of possible
rating downgrade or withdrawal (and that "watch status" placement has not
have been withdrawn by it within 60 days of such Servicing Officer
obtaining such knowledge), and, in either case, cited servicing concerns
with the Master Servicer as the sole or a material factor in such rating
action]; or
(ix) [the Master Servicer is no longer listed on S&P's Select
Servicer List as a U.S. Commercial Mortgage Master Servicer and the Master
Servicer is not reinstated to such status within 60 days]; or [other
Rating Agency default]
(x) the Master Servicer shall fail to comply with any of its
obligations under Article XIII of this Agreement; provided, however, that
if, following the Master Servicer's failure to comply with any of such
obligations under Section 13.6, 13.7, 13.9, 13.11, 13.12 or 13.13 on or
prior to the dates by which such obligations are to be performed pursuant
to, and as set forth in, such Sections, (a) the Master Servicer
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subsequently complies with such obligations before the Trustee or the
Depositor gives written notice to it that it is terminated in accordance
with this Section 8.28 and (b) the Master Servicer's failure to comply
does not cause the Paying Agent to fail in its obligations to timely file
the related Form 8-K, Form 10-D or Form 10-K, as the case may be, by the
related 8-K Filing Deadline, 10-D Filing Deadline or 10-K Filing Deadline,
then such failure to comply shall cease to be an Event of Default under
this Section 8.28(a)(xi) on the date on which such Form 8-K, Form 10-D or
Form 10-K is so filed.
If the Master Servicer is terminated based upon an Event of Default
set forth in clause (viii) or (ix) above, then the Master Servicer shall have
the right to enter into a sub-servicing agreement or primary servicing agreement
with the applicable successor master servicer with respect to all applicable
Mortgage Loans that are not then subject to a Sub-Servicing Agreement or Primary
Servicing Agreement, so long as such terminated Master Servicer is on the
approved list of commercial mortgage loan primary servicers maintained by S&P
and the Operating Advisor has consented to such Primary Servicing or
Sub-Servicing arrangement.
Section 8.29 Procedure Upon Termination
(a) Notice of any termination pursuant to clause (i) of Section
8.28(a), specifying the Master Servicer Remittance Date upon which the final
transfer by the Master Servicer to the Paying Agent shall be made, shall be
given promptly in writing by the Master Servicer to the Paying Agent no later
than the later of (i) five Business Days after the final payment or other
liquidation of the last Mortgage Loan or (ii) the sixth day of the month of such
final distribution. Upon any such termination, the duties of the Master Servicer
(other than the obligation of the Master Servicer to pay to the Paying Agent the
amounts remaining in the applicable Certificate Account as set forth below and
the obligations of the Master Servicer to the Trustee and the Trust as provided
herein) shall terminate and the Master Servicer shall transfer to the Paying
Agent the amounts remaining in the applicable Certificate Account (and any
sub-account) after making the withdrawals permitted to be made pursuant to
Section 5.2 and shall thereafter terminate the applicable Certificate Account
and any other account or fund maintained with respect to the Mortgage Loans. The
Master Servicer being terminated shall bear all costs of the transfer of
servicing arising from such termination.
(b) On the date specified in a written notice of termination given
to the Master Servicer pursuant to clause (ii) of Section 8.28(a), or on the
date on which a written notice of termination is given to the Master Servicer
pursuant to clause (iii) of Section 8.28(a) all authority, power and rights of
the Master Servicer under this Agreement, whether with respect to the Mortgage
Loans or otherwise, shall terminate (except for any rights relating to unpaid
servicing compensation, unreimbursed Advances and all indemnities and
exculpations set forth herein); provided that in no event shall the termination
of the Master Servicer be effective until a successor servicer shall have
succeeded the Master Servicer as successor servicer, subject to approval by the
Rating Agencies, notified the Master Servicer of such designation and such
successor servicer shall have assumed the Master Servicer's obligations and
responsibilities hereunder and under the Primary Servicing Agreements, as set
forth in an agreement substantially in the form hereof, with respect to the
Mortgage Loans. Except as provided in the
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next sentence, the Trustee may not succeed the Master Servicer as servicer until
and unless it has satisfied the provisions that would apply to a Person
succeeding to the business of the Master Servicer pursuant to Section 8.22(b)
hereof. Notwithstanding the foregoing sentence, in the event that the Master
Servicer is terminated as a result of an event described in Section 8.28(b)(v),
8.28(b)(vi) or 8.28(b)(vii), the Trustee shall act as successor servicer
immediately upon delivery of a notice of termination to the Master Servicer and
shall use commercially reasonable efforts within 90 days of assuming the duties
of the Master Servicer, either to satisfy the conditions of Section 8.22(b)
hereof or to transfer the duties of the Master Servicer to a successor servicer
who has satisfied such conditions. The Trustee is hereby authorized and
empowered to execute and deliver, on behalf of the Master Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents or
otherwise. The Master Servicer agrees to cooperate with the Trustee and the
Paying Agent in effecting the termination of the Master Servicer's
responsibilities and rights hereunder as Master Servicer including, without
limitation, notifying Mortgagors of the assignment of the servicing function and
providing the Trustee all documents and records in electronic or other form
reasonably requested by it to enable the successor servicer designated by the
Trustee to assume the Master Servicer's functions hereunder and to effect the
transfer to such successor for administration by it of all amounts which shall
at the time be or should have been deposited by the Master Servicer in the
Certificate Account and any other account or fund maintained or thereafter
received with respect to the Mortgage Loans.
(c) If the Master Servicer receives a written notice of termination
pursuant to clause (ii) of Section 8.28(a) relating solely to an Event of
Default set forth in clause (viii) or (ix) of Section 8.28(b) or an Event of
Default caused by a default of a Primary Servicer under its Primary Servicing
Agreement, and if the Master Servicer provides the Trustee with the appropriate
"request for proposal" materials within five Business Days after receipt of such
written notice of termination, then the Trustee shall promptly thereafter (using
such "request for proposal" materials provided by the Master Servicer) solicit
good faith bids for the rights to service the Mortgage Loans under this
Agreement from at least three but no more than five Qualified Bidders or, if
three Qualified Bidders cannot be located, then from as many Persons as the
Trustee can determine are Qualified Bidders. At the Trustee's request, the
Master Servicer shall supply the Trustee with the names of Persons from whom to
solicit such bids. In no event shall the Trustee be responsible if less than
three Qualified Bidders submit bids for the right to service the Mortgage Loans
under this Agreement.
(d) Each bid proposal shall require any Qualified Bidder, as a
condition of its bid, to enter into this Agreement as successor Master Servicer,
and to agree to be bound by the terms hereof and the terms of the Primary
Servicing Agreements, not later than 45 days after termination of the Master
Servicer hereunder. The Trustee shall select the Qualified Bidder with the
highest cash bid (or such other Qualified Bidder as the Master Servicer may
direct) (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 in connection
therewith to deliver the amount of the Successful Bidder's cash bid to the
Trustee by wire transfer of immediately available funds to an account specified
by the
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Trustee no later than [10:00 a.m.] New York City time on the date specified for
the assignment and assumption of the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing rights
hereunder to and by the Successful Bidder and receipt of such cash bid, the
Trustee shall remit or cause to be remitted to the terminated Master Servicer
the amount of such cash bid received from the Successful Bidder (net of all
out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to an
account specified by the terminated Master Servicer no later than [1:00 p.m.]
New York City time on the date specified for the assignment and assumption of
the servicing rights hereunder.
(f) If the Successful Bidder has not entered into this Agreement as
a successor Master Servicer within [45 days] after the termination of the Master
Servicer hereunder or no Successful Bidder was identified within such [45-day]
period, the Trustee shall have no further obligations under Section 8.29(c) and
may act or may select another successor to act as Master Servicer hereunder in
accordance with Section 8.29(b). During such [45-day] period and until the
acceptance of appointment by a successor servicer, the Master Servicer shall
continue to service the Mortgage Loans in accordance with this Agreement.
(g) Notwithstanding anything to the contrary in this Section 8.29,
the successor master servicer must assume all of the obligations of the
terminated Master Servicer under the Primary Servicing Agreements as a condition
precedent to its becoming Master Servicer hereunder.
Section 8.30 Swap Contract
(a) On the Closing Date, the Trustee, not in its individual capacity
but solely in its capacity as Trustee on behalf of the Trust, is hereby directed
to execute and deliver the Swap Contract in the name of the Trust. Subject to
Section 6.12, the Trustee shall enforce in a commercially reasonable manner the
terms of the Swap Contract, including, without limiting the generality of the
foregoing, the Credit Support Annex and the terms of the Schedule to the related
ISDA Master Agreement.
(b) On the second Business Day prior to each Distribution Date,
based on the reports provided by the Master Servicer or on information that the
Paying Agent obtains from the Swap Counterparty pursuant to the Swap Contract,
and subject to the priorities set forth in Article VI hereof, the Paying Agent
shall provide to the Swap Counterparty sufficient information to enable the Swap
Counterparty to calculate the Net Swap Payment, if any, due to the Swap
Counterparty under the Swap Contract, based upon the projected payment that will
be payable on the Class A-3-1FL Regular Interest pursuant to the priorities set
forth in Article VI hereof and the Pass-Through Rate of the Class A-3-1FL
Regular Interest and the Class [A-3-1FL] Certificates and the amount of any
Prepayment Premiums payable on the Class A-3-1FL Regular Interest. The Paying
Agent shall distribute or cause to be distributed pursuant to Section 8.30(g),
one Business Day prior to each Distribution Date, the Net Swap Payment to the
Swap Counterparty pursuant to the terms of the Swap Contract.
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Any termination payments due to the Swap Counterparty under the Swap
Contract shall be payable solely from any portion of the Fixed Interest
Distribution remaining after all other amounts have been paid under the Class
A-3-1FL Regular Interest and the Class [A-3-1FL] Certificates (including all
Unpaid Interest and principal amounts outstanding).
(c) The Paying Agent agrees to calculate LIBOR for each Interest
Reset Date. By the close of business on each Interest Reset Date (or, if such
date is not a Business Day, on the immediately succeeding Business Day), the
Paying Agent will provide notice to the Swap Counterparty of its calculation of
LIBOR applicable to the related Interest Accrual Period.
(d) Promptly upon receipt of any payment or other receipt in respect
of the Class A-3-1FL Regular Interest or the Swap Contract, the Paying Agent
shall deposit the same into the Floating Rate Account.
(e) Subject to Section 6.12 hereof, if a Rating Agency Trigger Event
occurs, the Trustee will enforce in a commercially reasonable manner the Trust's
rights to the Swap Counterparty's obligations to post collateral or find a
replacement swap counterparty that would not cause a Rating Agency Trigger
Event.
(f) If the Swap Counterparty is required to post collateral pursuant
to the Swap Contract, the Trustee shall establish an account (or, shall direct
the Paying Agent to establish such account), which shall be an Eligible Account
(the "Swap Counterparty Collateral Account"). The Trustee shall deposit all
collateral received from the Swap Counterparty under any Credit Support Annex
(as defined in the Swap Contract) of the Swap Contract into the Swap
Counterparty Collateral Account. The only permitted withdrawal from or
application of funds on deposit in, or otherwise to the credit of, the Swap
Counterparty Collateral Account shall be (i) for application to obligations of
the Swap Counterparty under the Swap Contract if such Swap Contract becomes
subject to early termination or upon default by the Swap Counterparty or (ii) to
return collateral to the relevant Swap Counterparty when and as required by the
Swap Contract. The Trustee or Paying Agent, as applicable, agrees to give the
Swap Counterparty prompt notice if it obtains knowledge that the Swap
Counterparty Collateral Account or any funds on deposit therein or otherwise to
the credit of the Swap Counterparty Collateral Account, shall become subject to
any writ, order, judgment, warrant of attachment, execution or similar process.
Funds credited to the Swap Counterparty Collateral Account shall be applied as
contemplated in the Swap Contract. Subject to the terms of the Swap Contract,
proceeds of liquidation of any Swap Contract collateral (if the Swap Contract
becomes subject to early termination or upon default by the Swap Counterparty)
shall be deposited in the Floating Rate Account for application as applicable.
(g) The Paying Agent shall pay to the Swap Counterparty the portion
of interest and other amounts payable on the Class A-3-1FL Regular Interest
which is equal to the net swap payment due to the Swap Counterparty pursuant to
the Swap Contract (the "Net Swap Payment") in accordance with Section 8.30(b)
above. The Trustee and the Paying Agent will have no obligation on behalf of the
Trust to pay to the Swap Counterparty any portion of the Fixed Interest
Distribution unless and until the interest payment on the Class A-3-1FL Regular
Interest is actually received by the Paying Agent. The Paying Agent shall
receive funds from the Swap Counterparty representing the net amount payable to
the Paying Agent pursuant to the
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Swap Contract and shall remit such amount to the holders of the Class [A-3-1FL]
Certificates as part of the Class A-3-1FL Interest Distribution Amount pursuant
to Section 6.12.
(h) With respect to any proposed amendment to the Swap Contract,
upon receipt of a Rating Agency Confirmation, the Trustee shall enter into such
amendment on behalf of the Class [A-3-1FL] Certificateholders.
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS BY THE
SPECIAL SERVICER
Section 9.1 Duties of the Special Servicer
(a) Subject to the express provisions of this Agreement, for and on
behalf of the Certificateholders and the Trustee, the Special Servicer shall
service the Specially Serviced Mortgage Loans and manage the related REO
Properties in accordance with the provisions of this Agreement and the Servicing
Standard.
The Special Servicer shall be the Special Servicer with respect to
all the Mortgage Loans and other assets of the Trust and, as such, shall service
and administer such of the assets of the Trust as constitute Specially Serviced
Mortgage Loans and REO Properties and shall render such incidental services as
are required of the Special Servicer with respect to such of the assets of the
Trust as constitute assets that are not Specially Serviced Mortgage Loans or REO
Properties.
(b) The Special Servicer shall cooperate with the Master Servicer
and provide the Master Servicer with the information reasonably requested by the
Master Servicer, in writing, to the extent required to allow the Master Servicer
to perform its servicing obligations with respect to the Specially Serviced
Mortgage Loans hereunder; provided, however, that (i) the Special Servicer shall
not be required to produce any ad hoc reports or incur any unusual expense or
effort in connection therewith and (ii) if the Special Servicer elects to
provide such ad hoc reports requested by the Master Servicer, the Special
Servicer may require the Master Servicer to pay a reasonable fee to cover the
costs of the preparation thereof. The Special Servicer's obligations with
respect to the servicing of any Specially Serviced Mortgage Loan and any related
REO Properties shall terminate when such Specially Serviced Mortgage Loan has
become a Rehabilitated Mortgage Loan, unless and until another Servicing
Transfer Event with respect to such Rehabilitated Mortgage Loan occurs.
(c) The Special Servicer shall send a written notice to the Master
Servicer and the Paying Agent within two Business Days after becoming aware that
a Mortgage Loan has become a Rehabilitated Mortgage Loan, which notice shall
identify the applicable Mortgage Loan. Upon the receipt of such notice by the
Master Servicer and the Paying Agent, such Mortgage Loan shall become a
Rehabilitated Mortgage Loan and will be serviced by the Master Servicer.
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(d) Upon the occurrence of a Servicing Transfer Event with respect
to a Mortgage Loan and upon the reasonable request of the Special Servicer, the
Master Servicer shall xxxx its records for such Mortgage Loan to cause any
monthly statements for amounts due on such Mortgage Loan to be sent thereafter
to the Special Servicer rather than the related Mortgagor. Upon receipt of any
such monthly statement, the Special Servicer shall, within two Business Days,
advise the Master Servicer of any changes to be made, and return the monthly
statement to the Master Servicer. The Master Servicer shall thereafter promptly
send the corrected monthly statement to the Mortgagor. If a Mortgage Loan
becomes a Rehabilitated Mortgage Loan, the Master Servicer shall send the
monthly statement to the Mortgagor as it did before such Mortgage Loan became a
Specially Serviced Mortgage Loan.
(e) All amounts collected by the Master Servicer with respect to a
Specially Serviced Mortgage Loan (other than a Mortgage Loan that has become an
REO Mortgage Loan) shall be deposited in the applicable Certificate Account. The
Master Servicer shall within two Business Days after receipt of any such
payment, notify the Special Servicer of the receipt of such payment and the
amount thereof. The Special Servicer shall, within two Business Days thereafter,
instruct the Master Servicer in writing how to apply such payment (with the
application of such payments to be made in accordance with the related Mortgage
Loan documents or in accordance with this Agreement, as applicable).
(f) After the occurrence of any Servicing Transfer Event with
respect to any one or more Mortgage Loans that are the subject of any
Environmental Insurance Policy, (i) the Special Servicer shall monitor the dates
by which any claim must be made or action must be taken under such Environmental
Insurance Policy to achieve the payment of all amounts thereunder to which the
Trust is entitled in the event the Special Servicer has actual knowledge of any
event giving rise to a claim under such Environmental Insurance Policy (an
"Insured Environmental Event") and (ii) if the Special Servicer has actual
knowledge of an Insured Environmental Event with respect to such Mortgage Loan,
the Special Servicer shall take reasonable actions as are in accordance with the
Servicing Standard and the terms and conditions of the related Environmental
Insurance Policy to make a claim thereunder and achieve the payment of all
amounts to which the Trust is entitled thereunder. Any legal fees or other
out-of-pocket costs incurred in accordance with the Servicing Standard in
connection with any such claim shall be paid by, and reimbursable to, the Master
Servicer as a Servicing Advance. All extraordinary expenses (but not ordinary
and routine or anticipated expenses) incurred by the Special Servicer in
fulfilling its obligations under this Section 9.1 shall be paid by the Trust.
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy
of the Special Servicer
The Special Servicer, at its expense, shall maintain in effect a
Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance Policy. The
Servicer Errors and Omissions Insurance Policy and Servicer Fidelity Bond shall
be issued by a Qualified Insurer (unless the Special Servicer self insures as
provided below) and be in form and amount consistent with the Servicing
Standard. In the event that any such Servicer Errors and Omissions Insurance
Policy or Servicer Fidelity Bond ceases to be in effect, the Special Servicer
shall obtain a comparable replacement policy or bond from an insurer or issuer
meeting the requirements set forth above as of the date of such replacement. So
long as the long-term rating of the Special Servicer (or its
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corporate parent) is not less than two rating categories (ignoring pluses or
minuses) lower than the highest rating of the Certificates, but in any event not
less than ["A" as rated by S&P and "A2" as rated by Xxxxx'x], the Special
Servicer may self-insure for the Servicer Fidelity Bond and the Servicer Error
and Omissions Insurance Policy.
Section 9.3 Sub-Servicers
The Special Servicer shall have the right to use a Sub-Servicer on
the same terms and conditions as those set forth in Section 8.4 for a
Sub-Servicer of the Master Servicer. The Special Servicer shall notify the
Master Servicer, the Trustee and the Operating Adviser of the appointment of any
Sub-Servicer of the Special Servicer.
Section 9.4 Special Servicer's General Powers and Duties
(a) Subject to the other terms and provisions of this Agreement
(including, but not limited to, Sections 9.39), the Special Servicer is hereby
authorized and empowered when the Special Servicer believes it appropriate in
accordance with the Servicing Standard, to take any and all the actions with
respect to Specially Serviced Mortgage Loans which the Master Servicer may
perform as set forth in Section 8.3(a), including (i) to execute and deliver, on
behalf of itself or the Trust, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge and all other
comparable instruments, with respect to the Specially Serviced Mortgage Loans
and with respect to the related REO Properties and (ii) to effectuate
foreclosure or other conversion of the ownership of any REO Property securing a
Mortgage Loan. The Trustee shall execute on the Closing Date the Powers of
Attorney and shall furnish the Special Servicer from time to time, upon request,
with any additional powers of attorney of the Trust, empowering the Special
Servicer to take such actions as it determines to be reasonably necessary to
comply with its servicing, administrative and management duties hereunder, and
the Trustee shall execute and deliver or cause to be executed and delivered such
other documents as a Special Servicing Officer may request, that are necessary
or appropriate to enable the Special Servicer to service, administer and manage
the Specially Serviced Mortgage Loans and carry out its duties hereunder, in
each case as the Special Servicer determines is in accordance with the Servicing
Standard and the terms of this Agreement; provided that, prior to initiating any
proceedings in any court of law or equity (but not defending any proceedings in
any court of law or equity) or instituting any proceeding to foreclose on any
Mortgaged Property in the name of the Trust in any state, the Special Servicer
shall notify the Trustee in writing and not institute or initiate any such
proceedings for a period of five Business Days from the date of its delivery of
such notice to the Trustee, unless the Special Servicer reasonably believes that
such action should be taken in less than five Business Days to preserve the
property of the Trust for the benefit of Certificateholders, and the Trustee may
within five Business Days of its receipt of such notice advise the Special
Servicer that it has received an Opinion of Counsel (the cost of which shall be
an expense of the Trust) from an attorney duly licensed to practice law in the
state where the related Mortgaged Property or REO Property is located, that it
is likely that the laws of the state in which said action is to be taken either
prohibit such action if taken in the name of the Trust or that the Trust would
be adversely affected under the "doing business" or tax laws of such state if
such action is taken in its name; provided, further, that the Special Servicer
shall not be liable to the extent that it relies on the advice provided in such
Opinion of Counsel. Upon receipt of any such advice from the Trustee, the
Special Servicer shall take such action in the name of such
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Person or Persons, in trust for the Trust, as shall be consistent with the
Opinion of Counsel obtained by the Trustee. Such Person or Persons shall
acknowledge in writing that such action is being taken by the Special Servicer
in the name of the Trust. In the performance of its duties hereunder, the
Special Servicer shall be an independent contractor and shall not, except in
those instances where it is, after notice to the Trustee as provided above,
taking action in the name of the Trust, be deemed to be the agent of the Trust.
The Special Servicer shall indemnify the Trustee for any loss, liability or
reasonable expense (including attorneys' fees) incurred by the Trustee or any
partner, representative, Affiliate, member, manager, director, officer,
employee, agent or Controlling Person of it or its Affiliates in connection with
any negligent or intentional misuse of the foregoing powers of attorney
furnished to the Special Servicer by the Trustee. Such indemnification shall
survive the resignation or termination of the Special Servicer hereunder, the
resignation or termination of the Trustee and the termination of this Agreement.
The Special Servicer shall not have any responsibility or liability for any act
or omission of the Trustee, the Master Servicer or the Depositor that is not
attributable to the failure of the Special Servicer to perform its obligations
hereunder. The Special Servicer may conclusively rely on any advice of counsel
rendered in a Nondisqualification Opinion.
(b) In servicing and administering the Specially Serviced Mortgage
Loans and managing any related REO Properties, the Special Servicer shall employ
procedures consistent with the Servicing Standard. The Special Servicer shall
conduct, or cause to be conducted, inspections of the Mortgaged Properties
relating to Specially Serviced Mortgage Loans at such times and in such manner
as shall be consistent with the Servicing Standard; provided that the Special
Servicer shall conduct, or cause to be conducted, inspections of the Mortgaged
Properties relating to Specially Serviced Mortgage Loans at least once during
each twelve-month period that ends on June 30 of any calendar year (commencing
with the twelve-month period ending June 30, 20__); provided, further, that the
Special Servicer shall, at the expense of the Trust, inspect or cause to be
inspected each Mortgaged Property related to a Mortgage Loan that is delinquent
for sixty (60) days in the payment of any amounts due under such Mortgage Loan.
The Special Servicer shall provide to the Master Servicer and the Operating
Adviser copies of the Inspection Reports relating to such inspections as soon as
practicable after the completion of any inspection.
Section 9.5 "Due-On-Sale" Clauses; Assignment and Assumption
Agreements; Modifications of Specially Serviced Mortgage Loans;
Due-On-Encumbrance Clauses
Subject to the limitations of Sections 9.39 and 12.3, the Special
Servicer shall have the following duties and rights:
(a) If any Specially Serviced Mortgage Loan contains a provision in
the nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Specially Serviced Mortgage Loan shall (or
may at the Mortgagee's option) become due and payable upon the sale or
other transfer of an interest in the related Mortgaged Property, or
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(ii) provides that such Specially Serviced Mortgage Loan may not be
assumed without the consent of the related mortgagee in connection with
any such sale or other transfer,
then, the Special Servicer, on behalf of the Trust, shall, after consultation
with (or, if required pursuant to this Agreement, receipt of written consent of)
the Operating Adviser and in accordance with the REMIC Provisions, take such
actions as it deems to be in the best economic interest of the Trust in
accordance with the Servicing Standard, and may waive or enforce any due-on-sale
clause contained in the related Mortgage Note or Mortgage; provided, however,
that if the Principal Balance of such Mortgage Loan at such time equals or
exceeds [5%] of the Aggregate Certificate Balance or is one of the then current
top 10 loans (by Principal Balance) in the pool, then prior to waiving the
effect of such provision, the Special Servicer shall obtain Rating Agency
Confirmation regarding such waiver. In connection with the request for such
consent, the Special Servicer shall prepare and deliver to [S&P and Xxxxx'x] a
memorandum outlining its analysis and recommendation in accordance with the
Servicing Standard, together with copies of all relevant documentation. The
Special Servicer shall also prepare and provide [S&P and Xxxxx'x] with such
memorandum and documentation for all transfer, assumption and encumbrance
consents granted for Specially Serviced Mortgage Loans below the threshold set
forth above, but for which the Special Servicer's decision will be sufficient
and a Rating Agency Confirmation is not required. As to any Mortgage Loan that
is not a Specially Serviced Mortgage Loan and contains a provision in the nature
of a "due-on-sale" clause, the Special Servicer shall have the rights and duties
set forth in Section 8.7(d). The Special Servicer shall be entitled to [100%] of
all assumption fees in connection with Specially Serviced Mortgage Loans.
After notice to the Operating Adviser (or, if otherwise required
pursuant to this Agreement, receipt of written consent of), the Special Servicer
is also authorized to take or enter into an assignment and assumption agreement
from or with the Person to whom such property has been or is about to be
conveyed, and/or to release the original Mortgagor from liability upon the
Specially Serviced Mortgage Loan and substitute the new Mortgagor as obligor
thereon; provided that except as otherwise permitted by Section 9.5(c), any such
assignment and assumption or substitution agreement shall contain no terms that
could result in an Adverse REMIC Event. To the extent permitted by law, the
Special Servicer shall enter into an assumption or substitution agreement that
is required under the related Mortgage Loan documents (either as a matter of
right or upon satisfaction of specified conditions) and shall otherwise enter
into any assumption or substitution agreement only if entering into such
assumption or substitution agreement is consistent with the Servicing Standard.
The Special Servicer shall not condition approval of any request for assumption
of a Specially Serviced Mortgage Loan on an increase in the interest rate of
such Specially Serviced Mortgage Loan. The Special Servicer shall notify the
Master Servicer of any such assignment and assumption or substitution agreement
and the Special Servicer shall forward to the Trustee the original of such
agreement, which original shall be added by the Trustee to the related Mortgage
File and shall, for all purposes, be considered a part of such Mortgage File to
the same extent as all other documents and instruments constituting a part
thereof.
(b) In connection with any assignment and assumption of a Specially
Serviced Mortgage Loan, in no event shall the Special Servicer consent to the
creation of any lien on a Mortgaged Property that is senior to, or on a parity
with, the lien of the related Mortgage.
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Nothing in this Section 9.5 shall constitute a waiver of the Trustee's right, as
the mortgagee of record, to receive notice of any assignment and assumption of a
Specially Serviced Mortgage Loan, any sale or other transfer of the related
Mortgaged Property or the creation of any lien or other encumbrance with respect
to such Mortgaged Property.
(c) Subject to the Servicing Standard and Sections 9.37 and 9.39,
and the rights and duties of the Master Servicer under Section 8.18, the Special
Servicer may enter into any modification, waiver or amendment (including,
without limitation, the substitution or release of collateral or the pledge of
additional collateral) of the terms of any Specially Serviced Mortgage Loan,
including any modification, waiver or amendment to (i) reduce the amounts owing
under any Specially Serviced Mortgage Loan by forgiving principal, accrued
interest and/or any Prepayment Premium and/or any other amounts due and payable
with respect to such Specially Serviced Mortgage Loan (including, but not
limited to, any Late Fees or default interest), (ii) reduce the amount of the
Scheduled Payment on any Specially Serviced Mortgage Loan, including by way of a
reduction in the related Mortgage Rate, (iii) forbear in the enforcement of any
right granted under any Mortgage Note or Mortgage relating to a Specially
Serviced Mortgage Loan, (iv) extend the Maturity Date of any Specially Serviced
Mortgage Loan and/or (v) accept a principal prepayment on any Specially Serviced
Mortgage Loan during any period during which voluntary Principal Prepayments are
prohibited, provided, in the case of any such modification, waiver or amendment,
that (A) the related Mortgagor is in default with respect to the Specially
Serviced Mortgage Loan or, in the reasonable judgment of the Special Servicer,
such default is reasonably foreseeable, (B) in the reasonable judgment of the
Special Servicer, such modification, waiver or amendment would increase the
recovery on the Specially Serviced Mortgage Loan to Certificateholders on a net
present value basis (the relevant discounting of amounts that will be
distributable to Certificateholders to be performed at the related Mortgage Rate
(as demonstrated in writing by the Special Servicer to the Trustee and the
Paying Agent), (C) such modification, waiver or amendment would not cause an
Adverse REMIC Event to occur, and (D) if notice to the Operating Adviser of such
modification, waiver or amendment is required pursuant to Section 9.39.
In no event, however, shall the Special Servicer (i) extend the
Maturity Date of a Specially Serviced Mortgage Loan beyond a date that is two
years prior to the Final Rated Distribution Date or (ii) if the Specially
Serviced Mortgage Loan is secured by a ground lease, extend the Maturity Date of
such Specially Serviced Mortgage Loan unless the Special Servicer gives due
consideration to the remaining term of such ground lease. The Special Servicer
shall not extend the Maturity Date of any Specially Serviced Mortgage Loan
secured by a Mortgaged Property covered by a group secured creditor impaired
property environmental insurance policy for more than five years beyond such
Specially Serviced Mortgage Loan's Maturity Date unless a new Phase I
Environmental Report indicates that there is no environmental condition or the
Mortgagor obtains, at its expense, an extension of such policy on the same terms
and conditions to cover the period through five years past the extended Maturity
Date, provided that, (i) if such Specially Serviced Mortgage Loan is secured by
a ground lease, the Special Servicer shall give due consideration to the
remaining term of the ground lease and (ii) in no case shall the Maturity Date
of any such Specially Serviced Mortgage Loan be extended past a date that is two
years prior to the Final Rated Distribution Date. The determination of the
Special Servicer contemplated by clause (B) of the proviso to the first
paragraph of this Section 9.5(c) shall be
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evidenced by an Officer's Certificate certifying the information in the proviso
to the first paragraph under this subsection (c).
(d) In the event the Special Servicer intends to permit a Mortgagor
to substitute collateral for all or any portion of a Mortgaged Property pursuant
to Section 9.5(c) or pledge additional collateral for the Specially Serviced
Mortgage Loan pursuant to Section 9.5(c), if the security interest of the Trust
in such collateral can only be perfected by possession, or if such collateral
requires special care or protection, then prior to agreeing to such substitution
or addition of collateral, the Special Servicer shall make arrangements for such
possession, care or protection, and prior to agreeing to such substitution or
addition of collateral (or such arrangement for possession, care or protection)
shall obtain the prior written consent of the Trustee with respect thereto
(which consent shall not be unreasonably withheld, delayed or conditioned);
provided, however, that the Trustee shall not be required (but has the option)
to consent to any substitution or addition of collateral or to hold any such
collateral which will require the Trustee to undertake any additional duties or
obligations or incur any additional expense. Notwithstanding the foregoing, to
the extent not inconsistent with the related Mortgage Loan documents, the
Special Servicer will not permit a Mortgagor to substitute collateral for any
portion of the Mortgaged Property unless it shall have received a Rating Agency
Confirmation in connection therewith, the costs of which to be payable by the
related Mortgagor to the extent provided for in the Mortgage Loan documents. If
the Mortgagor is not required to pay for the Rating Agency Confirmation, then
such expense will be paid by the Trust. Promptly upon receipt of notice of such
unpaid expense, regarding a Specially Serviced Mortgage Loan, the Special
Servicer shall request the related Seller as and to the extent required pursuant
to the terms of the related Mortgage Loan Purchase Agreement to make such
payment by deposit to the applicable Certificate Account. The parties hereto
acknowledge that if the Trust incurs any Additional Trust Expense associated
solely with the release of collateral that is not required to be paid by a
Mortgagor pursuant to the related Mortgage Loan documents (and such Additional
Trust Expense is not paid by the Mortgagor), including, but not limited to,
rating agency fees, then the sole obligation of the related Seller shall be to
pay an amount equal to such expense to the extent the related Mortgagor is not
required to pay them.
(e) The Special Servicer will promptly deliver to the Master
Servicer, the Operating Adviser, the Trustee, the Paying Agent, the Rating
Agencies, a notice, specifying any such assignments and assumptions,
modifications, material waivers (except any waivers with respect to Late Fees or
default interest) or amendments, such notice identifying the affected Specially
Serviced Mortgage Loan. Such notice shall set forth the reasons for such waiver,
modification, or amendment (including, but not limited to, information such as
related income and expense statements, rent rolls, in the case of Mortgage Loans
other than Co-op Mortgage Loans, occupancy status, property inspections, and an
internal or external appraisal performed in accordance with MAI standards and
methodologies (and, if done externally, the cost of such appraisal shall be
recoverable as a Servicing Advance subject to the provisions of Section 4.4
hereof)). The Special Servicer shall also deliver to the Trustee (or the
Custodian), for deposit in the related Mortgage File, an original counterpart of
the agreement relating to such modification, waiver or amendment promptly
following the execution thereof.
(f) No fee described in this Section shall be collected by the
Special Servicer from the Mortgagor (or on behalf of the Mortgagor) in
conjunction with any consent or any
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modification, waiver or amendment of the Specially Serviced Mortgage Loan if the
collection of such fee would cause such consent, modification, waiver or
amendment to be a "significant modification" of the Mortgage Note within the
meaning of Treasury Regulations Section 1.860G-2(b). Subject to the foregoing,
the Special Servicer shall use its reasonable efforts, in accordance with the
Servicing Standard, to collect any modification fees and other expenses
connected with a permitted modification of a Specially Serviced Mortgage Loan
from the Mortgagor. The Special Servicer shall be entitled to [100%] of any
modification fees received in connection with a Specially Serviced Mortgage
Loan. The inability of the Mortgagor to pay any costs and expenses of a proposed
modification shall not impair the right of the Special Servicer, the Master
Servicer or the Trustee to be reimbursed by the Trust for such expenses
(including any cost and expense associated with the Opinion of Counsel referred
to in this Section).
(g) The Special Servicer shall cooperate with the Master Servicer
(as provided in Section 8.7) in connection with assignments, assumptions or
substitutions of Mortgage Loans that are not Specially Serviced Mortgage Loans
and shall be entitled to receive [50%] of any assumption fee paid by the related
Mortgagor in connection with an assignment, assumption or substitution executed
pursuant to Section 8.7(a) or Section 8.7(d) to the extent that the Special
Servicer's consent was required and the subject assignment, assumption or
substitution was not "expressly permitted" by the related Mortgage Loan
documents. The Special Servicer shall be entitled to [100%] of any assumption
fee (including assumption application fees) received in connection with a
Specially Serviced Mortgage Loan.
(h) Notwithstanding anything herein to the contrary, (i) the Special
Servicer shall not have any right or obligation to consult with or to seek
and/or obtain consent or approval from the Operating Adviser prior to acting,
and provisions of this Agreement requiring such shall be of no effect, if the
Operating Adviser resigns or is removed, during the period following such
resignation or removal until a replacement is elected and (ii) no advice,
direction or objection from or by the Operating Adviser, as contemplated by this
Agreement, 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) (A) require or cause
the Special Servicer to violate applicable law, the terms of any Mortgage Loan,
any provision of this Agreement or the REMIC Provisions, including the Special
Servicer's obligation to act in accordance with the Servicing Standard, (B)
result in an Adverse REMIC Event with respect to any REMIC Pool or any Adverse
Grantor Trust Event with respect to the Class EI Grantor Trust or the Class
A-3-1FL Grantor Trust, (C) expose the Trust, the Depositor, the Master Servicer,
the Special Servicer, the Paying Agent or the Trustee, or any of their
respective partners, representatives, Affiliates, members, managers, directors,
officers, employees or agents, to any material claim, suit or liability, or (D)
materially expand the scope of the Special Servicer's responsibilities under
this Agreement.
(i) If any Specially Serviced Mortgage Loan which contains a
provision in the nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property; or
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(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property,
then, for so long as such Mortgage Loan is included in the Trust, the Special
Servicer, on behalf of the Trustee as the mortgagee of record, shall exercise
(or, subject to Section 9.5, waive its right to exercise) any right it may have
with respect to such Mortgage Loan (x) to accelerate the payments thereon, or
(y) to withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standard. Prior to
waiving the effect of such provision with respect to a Mortgage Loan, the
Special Servicer shall obtain Rating Agency Confirmation regarding such waiver;
provided, however, that such Rating Agency Confirmation shall only be required
if the applicable Mortgage Loan (x) represents 2% or more of the Principal
Balance of all of the Mortgage Loans held by the Trust or is one of the 10
largest Mortgage Loans based on Principal Balance or (y) such Mortgage Loan has
a Loan-to-Value Ratio (which also includes Junior Indebtedness, if any) that is
greater than or equal to [85%] and a Debt Service Coverage Ratio (which also
includes debt service on and any Junior Indebtedness) that is less than [1.2x].
Section 9.6 Release of Mortgage Files
(a) Upon becoming aware of the payment in full of any Specially
Serviced Mortgage Loan, or the receipt by the Special Servicer of a notification
that payment in full will be escrowed in a manner customary for such purposes,
or the complete defeasance of a Specially Serviced Mortgage Loan, the Special
Servicer will within 2 Business Days notify the Master Servicer. The Special
Servicer shall determine, in accordance with the Servicing Standard, whether an
instrument of satisfaction shall be delivered and, if the Special Servicer
determines that such instrument should be delivered, the Special Servicer shall
deliver written approval of such delivery to the Master Servicer.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Specially Serviced Mortgage Loan or the management of the
related REO Property and in accordance with the Servicing Standard, the Trustee
shall execute or cause to be executed such documents as shall be prepared and
furnished to the Trustee by a Special Servicing Officer (in form reasonably
acceptable to the Trustee) and as are necessary for such purposes. The Trustee
or Custodian shall, upon request of the Special Servicer and delivery to the
Trustee or Custodian of a request for release signed by a Special Servicing
Officer substantially in the form of Exhibit C, release the related Mortgage
File to the Special Servicer. After the transfer of servicing with respect to
any Specially Serviced Mortgage Loan to the Special Servicer, in accordance with
the Servicing Standard, the Master Servicer shall notify, in writing, the
Mortgagor under each Specially Serviced Mortgage Loan transferred to the Special
Servicer, of such transfer.
(c) Reserved.
(d) The Special Servicer shall, with respect to any Rehabilitated
Mortgage Loan, release to the Master Servicer all documents and instruments in
the possession of the Special Servicer related to such Rehabilitated Mortgage
Loan. Prior to the transfer of servicing with respect to any Rehabilitated
Mortgage Loan to the Master Servicer in accordance with the
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Servicing Standard, the Special Servicer shall notify, in writing, each
Mortgagor under each Rehabilitated Mortgage Loan of such transfer.
Section 9.7 Documents, Records and Funds in Possession of the
Special Servicer to Be Held for the Trustee
(a) The Special Servicer shall transmit to the Trustee or Custodian
such documents and instruments coming into the possession of the Special
Servicer as from time to time are required by the terms hereof to be delivered
to the Trustee. Any funds received by the Special Servicer in respect of any
Specially Serviced Mortgage Loan or any REO Property or which otherwise are
collected by the Special Servicer as Liquidation Proceeds, Condemnation Proceeds
or Insurance Proceeds in respect of any Specially Serviced Mortgage Loan or any
REO Property shall be remitted to the Master Servicer within two Business Days
of receipt for deposit into the applicable Certificate Account, except that if
such amounts relate to REO Income, they shall be deposited in the applicable REO
Account. The Special Servicer shall provide access to information and
documentation regarding the Specially Serviced Mortgage Loans to the Trustee,
the Master Servicer, the Paying Agent, the Operating Adviser and their
respective agents and accountants at any time upon reasonable written request
and during normal business hours, provided that the Special Servicer shall not
be required to take any action or provide any information that the Special
Servicer determines will result in any material cost or expense to which it is
not entitled to reimbursement hereunder or will result in any material liability
for which it is not indemnified hereunder; provided, further, that the Trustee
and the Paying Agent shall be entitled to receive from the Special Servicer all
such information as the Trustee and the Paying Agent shall reasonably require to
perform their respective duties hereunder. In fulfilling such a request, the
Special Servicer shall not be responsible for determining whether such
information is sufficient for the Trustee's, the Master Servicer's, the Paying
Agent's or the Operating Adviser's purposes.
(b) The Special Servicer hereby acknowledges that the Trust owns the
Specially Serviced Mortgage Loans and all Mortgage Files representing such
Specially Serviced Mortgage Loans and all funds now or hereafter held by, or
under the control of, the Special Servicer that are collected by the Special
Servicer in connection with the Specially Serviced Mortgage Loans (but excluding
the Special Servicer Compensation and all other amounts to which the Special
Servicer is entitled hereunder); and the Special Servicer agrees that all
documents or instruments constituting part of the Mortgage Files, and such funds
relating to the Specially Serviced Mortgage Loans which come into the possession
or custody of, or which are subject to the control of, the Special Servicer,
shall be held by the Special Servicer for and on behalf of the Trust.
(c) The Special Servicer also agrees that it shall not create, incur
or subject any Specially Serviced Mortgage Loans, or any funds that are required
to be deposited in any REO Account to any claim, lien, security interest,
judgment, levy, writ of attachment or other encumbrance, nor assert by legal
action or otherwise any claim or right of setoff against any Specially Serviced
Mortgage Loan or any funds, collected on, or in connection with, a Specially
Serviced Mortgage Loan.
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Section 9.8 Representations, Warranties and Covenants of the Special
Servicer
(a) The Special Servicer, hereby represents and warrants to and
covenants with the Trustee, the Paying Agent, as of the Closing Date:
(i) the Special Servicer is a corporation, duly organized, validly
existing and in good standing under the laws of the [State of _________],
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 instrument to
which it is a party or which is applicable to it or any of its assets
which default or breach in the reasonable judgment of the Special
Servicer, 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;
(iii) the Special Servicer has the full corporate 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, receivership,
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, 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 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 reasonable judgment, could reasonably
be expected to prohibit the Special Servicer from entering into this
Agreement or that, in the Special Servicer's reasonable judgment, is
likely to materially and adversely affect the ability of the Special
Servicer to perform its obligations under this Agreement;
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(vii) the Special Servicer has errors and omissions insurance
coverage which is in full force and effect and complies with the
requirements of Section 9.2 hereof; and
(viii) no consent, approval, authorization or order, registration or
filing with or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of
or compliance by the Special Servicer with this Agreement, or the
consummation by the Special Servicer of any transaction contemplated
hereby, other than (1) such consents, approvals, authorizations,
qualifications, registrations, filings, or notices as have been obtained
or made and (2) where the lack of such consent, approval, authorization,
qualification, registration, filing or notice would not have a material
adverse effect on the performance by the Special Servicer under this
Agreement.
(b) It is understood that the representations and warranties set
forth in this Section 9.8 shall survive the execution and delivery of this
Agreement.
(c) Any cause of action against the Special Servicer arising out of
the breach of any representations and warranties made in this Section shall
accrue upon the giving of written notice to the Special Servicer by any of the
Trustee, the Master Servicer or the Paying Agent. The Special Servicer shall
give prompt notice to the Trustee, the Paying Agent, the Depositor, the
Operating Adviser and the Master Servicer of the occurrence, or the failure to
occur, of any event that, with notice, or the passage of time or both, would
cause any representation or warranty in this Section to be untrue or inaccurate
in any respect.
Section 9.9 Standard Hazard, Flood and Comprehensive General
Liability Insurance Policies
(a) For all REO Property, the Special Servicer shall use reasonable
efforts, consistent with the Servicing Standard, to maintain with a Qualified
Insurer a Standard Hazard Insurance Policy which does not provide for reduction
due to depreciation in an amount which is not less than the full replacement
cost of the improvements of such REO Property or in an amount not less than the
unpaid Principal Balance plus all unpaid interest and the cumulative amount of
Servicing Advances (plus Advance Interest) made with respect to such Mortgage
Loan, whichever is less, but, in any event, in an amount sufficient to avoid the
application of any co-insurance clause. If the improvements to the Mortgaged
Property are in an area identified in the Federal Register by the Federal
Emergency Management Agency as having special flood hazards (and such flood
insurance has been made available), the Special Servicer shall maintain a flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration in an amount representing coverage equal to the
lesser of the then outstanding Principal Balance of the Specially Serviced
Mortgage Loan and unpaid Advances (plus Advance Interest) and the maximum
insurance coverage required under such current guidelines. It is understood and
agreed that the Special Servicer has no obligation to obtain earthquake or other
additional insurance on REO Property, except as required by law and,
nevertheless, at its sole discretion and at the Trust's expense, it (if required
at origination and is available at commercially reasonable rates) may obtain
such earthquake insurance. The Special Servicer shall use its reasonable
efforts, consistent with the Servicing Standard, to obtain a comprehensive
general liability insurance policy for all REO Properties. The Special Servicer
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shall, to the extent available at commercially reasonable rates (as determined
by the Special Servicer in accordance with the Servicing Standard) and to the
extent consistent with the Servicing Standard, use its reasonable efforts to
maintain a Rent Loss Policy covering revenues for a period of at least twelve
months and a comprehensive general liability policy with coverage comparable to
prudent lending requirements in an amount not less than $1,000,000 per
occurrence. All applicable policies required to be maintained by the Special
Servicer pursuant to this Section 9.9(a) shall name the Trustee as loss payee.
The costs of such insurance shall be paid by the Master Servicer as a Servicing
Advance pursuant to Section 4.2, subject to the provisions of Section 4.4
hereof.
(b) Any amounts collected by the Special Servicer under any
insurance policies maintained pursuant to this Section 9.9 (other than amounts
to be applied to the restoration or repair of the REO Property) shall be
deposited into the applicable REO Account. Any cost incurred in maintaining the
insurance required hereby for any REO Property shall be a Servicing Advance,
subject to the provisions of Section 4.4 hereof.
(c) Notwithstanding the above, the Special Servicer shall not be
required in any event to maintain or obtain insurance coverage beyond what is
reasonably available at commercially reasonable rates consistent with the
Servicing Standard. The Special Servicer shall notify the Trustee of any such
determination.
The Special Servicer shall conclusively be deemed to have satisfied
its obligations as set forth in this Section 9.9 either (i) if the Special
Servicer shall have obtained and maintained a master force placed or blanket
insurance policy insuring against hazard losses on all of the applicable REO
Property serviced by it, it being understood and agreed that such policy may
contain a deductible clause on terms substantially equivalent to those
commercially available and maintained by comparable servicers consistent with
the Servicing Standard, and provided that such policy is issued by a Qualified
Insurer or (ii) if the Special Servicer (or its corporate parent) self-insures
for its obligations, provided that the rating of such Person's long-term debt is
not less than ["A" by S&P and "A2" by Xxxxx'x]. In the event that the Special
Servicer shall cause any REO Property to be covered by such a master force
placed or blanket insurance policy, the incremental cost of such insurance
allocable to such REO Property (i.e., other than any minimum or standby premium
payable for such policy whether or not any REO Property is then covered
thereby), shall be paid by the Special Servicer, at its option, or by the Master
Servicer, as a Servicing Advance, subject to the provisions of Section 4.4
hereof. If such policy contains a deductible clause, the Special Servicer shall,
if there shall not have been maintained on the related REO Property a policy
complying with this Section 9.9 and there shall have been a loss that would have
been covered by such policy, deposit in the applicable Certificate Account the
amount not otherwise payable under such master force placed or blanket insurance
policy because of such deductible clause to the extent that such deductible
exceeds (i) the deductible under the related Mortgage Loan or (ii) if there is
no deductible limitation required under the Mortgage Loan, the deductible amount
with respect to insurance policies generally available on properties similar to
the related REO Property which is consistent with the Servicing Standard, and
deliver to the Trustee an Officer's Certificate describing the calculation of
such amount. In connection with its activities as administrator and servicer of
the REO Properties, the Special Servicer agrees to present, on its behalf and on
behalf of the Trustee, claims under any such master force placed or blanket
insurance policy.
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Section 9.10 Presentment of Claims and Collection of Proceeds
The Special Servicer will prepare and present or cause to be
prepared and presented on behalf of the Trustee all claims under the Insurance
Policies with respect to REO Property, and take such actions (including the
negotiation, settlement, compromise or enforcement of the insured's claim) as
shall be necessary to recover under such policies. Any proceeds disbursed to the
Special Servicer in respect of such policies shall be promptly remitted to the
applicable Certificate Account, upon receipt, except for any amounts realized
that are to be applied to the repair or restoration of the applicable REO
Property in accordance with the Servicing Standard. Any extraordinary expenses
(but not ordinary and routine or anticipated expenses) incurred by the Special
Servicer in fulfilling its obligations under this Section 9.10 shall be paid by
the Trust.
Section 9.11 Compensation to the Special Servicer
(a) As compensation for its activities hereunder, the Special
Servicer shall be entitled to (i) the Special Servicing Fee, (ii) the
Liquidation Fee and (iii) the Work-Out Fee. Such amounts, if any, collected by
the Special Servicer from the related Mortgagor shall be transferred by the
Special Servicer to the Master Servicer within one Business Day of receipt
thereof, and deposited by the Master Servicer in the Certificate Account. The
Special Servicer shall be entitled to receive a Liquidation Fee from the
proceeds received in connection with a full or partial liquidation (net of
related costs and expenses of such liquidation) of a Specially Serviced Mortgage
Loan or REO Property (whether arising pursuant to a sale, condemnation, casualty
or otherwise). With respect to each REO Mortgage Loan that is a successor to a
Mortgage Loan secured by two or more Mortgaged Properties, the reference to "REO
Property" in the preceding sentence shall be construed on a property-by-property
basis to refer separately to the acquired real property that is a successor to
each of such Mortgaged Properties, thereby entitling the Special Servicer to a
Liquidation Fee from the Liquidation Proceeds received in connection with a
final disposition of, and Condemnation Proceeds or Insurance Proceeds received
in connection with, each such acquired property as the Liquidation Proceeds,
Condemnation Proceeds or Insurance Proceeds related to that property are
received.
(b) The Special Servicer shall be entitled to cause the Master
Servicer to withdraw from the applicable Certificate Account, the Special
Servicer Compensation in respect of each Mortgage Loan, in the time and manner
set forth in Section 5.2 of this Agreement. The Special Servicer shall be
required to pay all expenses incurred by it in connection with its servicing
activities hereunder and shall not be entitled to reimbursement therefor except
as expressly provided in this Agreement.
(c) Additional Special Servicer Compensation in the form of net
interest or income on any REO Account, assumption fees, extension fees,
servicing fees, Modification Fees, forbearance fees, Late Fees and default
interest payable at a rate above the Mortgage Rate (net of amounts used to pay
Advance Interest, Additional Trust Fund Expenses, Special Servicing Fees,
Liquidation Fees and Workout Fees relating to the subject Mortgage Loan as
provided in Section 4.5) or other usual and customary charges and fees actually
received from the Mortgagor in connection with any Specially Serviced Mortgage
Loan shall be retained by the Special Servicer, to the extent not required to be
deposited in the applicable Certificate Account pursuant to the
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terms of this Agreement. The Special Servicer shall also be permitted to receive
50% of any assumption fees on Mortgage Loans which are not Specially Serviced
Mortgage Loans and for which with respect to the assignment, assumption or
substitution (a) the consent of the Special Servicer was required or (b) is not
"expressly permitted" pursuant to the terms of the related Mortgage Loan as
payable under Section 8.7(a) or 8.7(d), and, to the extent deposited into a
Certificate Account, [100%] of all assumption fees relating to Specially
Serviced Mortgage Loans and, to the extent provided in Section 9.5(a), Late
Fees, Modification Fees and other fees collected on Specially Serviced Mortgage
Loans, in each case to the extent provided for herein from funds paid by the
applicable Mortgagor. To the extent any component of the Special Servicer
Compensation is in respect of amounts usually and customarily paid by
Mortgagors, the Special Servicer shall use reasonable good faith efforts to
collect such amounts from the related Mortgagor, and to the extent so collected,
in full or in part, the Special Servicer shall not be entitled to compensation
for the portion so collected therefor hereunder out of the Trust.
Section 9.12 Realization Upon Defaulted Mortgage Loans
(a) The Special Servicer, in accordance with the Servicing Standard
and subject to Sections 9.4(a), 9.36 and 9.39, shall use its reasonable efforts
to foreclose upon, repossess or otherwise comparably convert the ownership of
Mortgaged Properties securing such of the Specially Serviced Mortgage Loans as
come into and continue in default and as to which no satisfactory arrangements
can be made for collection of delinquent payments of such Mortgage Loan, the
sale of such Mortgage Loan in accordance with this Agreement or the modification
of such Mortgage Loan in accordance with this Agreement. In connection with such
foreclosure or other conversion of ownership, the Special Servicer shall follow
the Servicing Standard.
(b) The Special Servicer shall not acquire any personal property
relating to any Specially Serviced Mortgage Loan pursuant hereto unless either:
(i) such personal property is incidental 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 received a Nondisqualification
Opinion (the cost of which shall be reimbursed by the Trust) to the effect
that the holding of such personal property by any REMIC Pool will not
cause the imposition of a tax on such REMIC Pool under the Code or cause
such REMIC Pool to fail to qualify as a REMIC.
(c) Notwithstanding anything to the contrary in this Agreement, the
Special Servicer shall not, on behalf of the Trust, obtain title to a Mortgaged
Property as a result of or in lieu of foreclosure or otherwise, and shall not
otherwise acquire possession of, or take any other action with respect to, any
Mortgaged Property, if, as a result of any such action the Trust would be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or "operator" of such Mortgaged Property within the meaning of CERCLA,
or any applicable comparable federal, state or local law, or a "discharger" or
"responsible party" thereunder, unless the Special Servicer has also previously
determined in accordance with the Servicing Standard, based on a Phase I
Environmental Report prepared by a Person (who may be an employee or Affiliate
of the Master Servicer or the Special Servicer) who regularly conducts
environmental
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site assessments in accordance with the standards of FNMA in the case of
multi-family mortgage loans and customary servicing practices in the case of
commercial loans for environmental assessments, which report shall be delivered
to the Trustee, that:
(i) such Mortgaged Property is in compliance with applicable
Environmental Laws or, if not, after consultation with an environmental
expert that taking such actions as are necessary to bring the Mortgaged
Property in compliance therewith is reasonably likely to produce a greater
recovery on a net present value basis than not taking such actions;
(ii) taking such actions as are necessary to bring the Mortgaged
Property in compliance with applicable Environmental Laws is reasonably
likely to produce a greater recovery on a net present value basis than
pursuing a claim under the Environmental Insurance Policy; and
(iii) there are no circumstances or conditions present or threatened
at such Mortgaged Property relating to the use, management, disposal or
release of any hazardous substances, hazardous materials, hazardous
wastes, or petroleum-based materials for which investigation, testing,
monitoring, removal, clean-up or remediation could be required under any
federal, state or local law or regulation, or that, if any such materials
are present for which such action could be required, after consultation
with an environmental expert taking such actions with respect to the
affected Mortgaged Property is reasonably likely to produce a greater
recovery on a net present value basis than not taking such actions (after
taking into account the projected costs of such actions); provided,
however, that such compliance pursuant to clause (i) and (ii) above or the
taking of such action pursuant to this clause (iii) shall only be required
to the extent that the cost thereof is a Servicing Advance of the Master
Servicer pursuant to this Agreement, subject to the provisions of Section
4.4 hereof.
(d) The cost of the Phase I Environmental Report contemplated by
Section 9.12(c) may be treated as a Liquidation Expense, or in the event the
related Specially Serviced Mortgage Loan is not liquidated and a Final Recovery
Determination has been made with respect to such Specially Serviced Mortgage
Loan, the Master Servicer shall treat such cost as a Servicing Advance subject
to the provisions of Section 4.4 hereof; provided that, in the latter event, the
Special Servicer shall use its good faith reasonable business efforts to recover
such cost from the Mortgagor.
(e) If the Special Servicer determines, pursuant to Section 9.12(c),
that taking such actions as are necessary to bring any Mortgaged Property into
compliance with applicable Environmental Laws, or taking such actions with
respect to the containment, removal, clean-up or remediation of hazardous
substances, hazardous materials, hazardous wastes, or petroleum-based materials
affecting any such Mortgaged Property, is not reasonably likely to produce a
greater recovery on a net present value basis than not taking such actions
(after taking into account the projected costs of such actions) or than not
pursuing a claim under the Environmental Insurance Policy, then the Special
Servicer shall take such action as it deems to be in the best economic interest
of the Trust, including, without limitation, releasing the lien of the related
Mortgage. If the Special Servicer determines that a material possibility exists
that
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Liquidation Expenses with respect to Mortgaged Property (taking into account the
cost of bringing it into compliance with applicable Environmental Laws) would
exceed the Principal Balance of the related Mortgage Loan, the Special Servicer
shall not attempt to bring such Mortgaged Property into compliance and shall not
acquire title to such Mortgaged Property unless it has received the written
consent of the Trustee to such action.
Notwithstanding any provision of this Agreement to the contrary, the
Special Servicer shall not foreclose on any Mortgaged Property in anticipation
of pursuing a claim under the related Environmental Insurance Policy, unless the
Special Servicer shall have first reviewed such Environmental Insurance Policy.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of maintaining any
action with respect to any Specially Serviced Mortgage Loan, including, without
limitation, any action to obtain a deficiency judgment with respect to any
Specially Serviced Mortgage Loan.
Section 9.13 Foreclosure
In the event that the Trust obtains, through foreclosure on a
Mortgage or otherwise, the right to receive title to a Mortgaged Property, the
Special Servicer, as its agent, shall direct the appropriate party to deliver
title to the REO Property to the Trustee or its nominee.
The Special Servicer may consult with counsel to determine when an
Acquisition Date shall be deemed to occur under the REMIC Provisions with
respect to the Mortgaged Property, the expense of such consultation being
treated as a Servicing Advance related to the foreclosure, subject to the
provisions of Section 4.4 hereof. The Special Servicer, on behalf of the Trust,
shall sell the REO Property expeditiously, but in any event within the time
period, and subject to the conditions, set forth in Section 9.15. Subject to
Section 9.15, the Special Servicer shall manage, conserve, protect and operate
the REO Property for the holders of beneficial interests in the Trust solely for
the purpose of its prompt disposition and sale.
Section 9.14 Operation of REO Property
(a) The Special Servicer shall segregate and hold all funds
collected and received in connection with the operation of each REO Property
separate and apart from its own funds and general assets and shall establish and
maintain with respect to each REO Property one or more accounts held in trust
for the benefit of the Certificateholders in the name of "_______, as Trustee
for the Holders of Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Securities
Inc. Commercial Mortgage Pass-Through Certificates Series 20__-__" (each, an
"REO Account"), which shall be an Eligible Account. Amounts in any REO Account
shall be invested in Eligible Investments. The Special Servicer shall deposit
all funds received with respect to an REO Property in the applicable REO
Accounts within two days of receipt. The Special Servicer shall account
separately for funds received or expended with respect to each REO Property. All
funds in each REO Account may be invested only in Eligible Investments. The
Special Servicer shall notify the Trustee and the Master Servicer in writing of
the location and account number of each REO Account and shall notify the Trustee
prior to any subsequent change thereof.
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(b) On or before [2:00 p.m.] on the Special Servicer Remittance
Date, the Special Servicer shall withdraw from the applicable REO Account and
remit to the Master Servicer for deposit in the applicable Certificate Account,
the REO Income received or collected during the Collection Period immediately
preceding the Special Servicer Remittance Date on or with respect to the related
REO Properties; provided, however, that (i) the Special Servicer may retain in
such REO Account such portion of such proceeds and collections as may be
necessary to maintain in such REO Account sufficient funds for the proper
operation, management and maintenance of the related REO Property, including,
without limitation, the creation of reasonable reserves for repairs,
replacements, and necessary capital improvements and other related expenses. The
Special Servicer shall notify the Master Servicer of all such remittances (and
the REO Properties to which the remittances relate) made into the applicable
Certificate Account and (ii) the Special Servicer shall be entitled to withdraw
from the REO Account and pay itself as additional special servicing compensation
any interest or net reinvestment income earned on funds deposited in the
applicable REO Account. The amount of any losses incurred in respect of any such
investments shall be for the account of the Special Servicer which shall deposit
the amount of such loss (to the extent not offset by income from other
investments) in the applicable REO Account, out of its own funds immediately as
realized. If the Special Servicer deposits in any REO Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
such REO Account, any provision herein to the contrary notwithstanding.
(c) If the Trust acquires the Mortgaged Property, the Special
Servicer shall have full power and authority, in consultation with the Operating
Adviser, and subject to the specific requirements and prohibitions of this
Agreement to do any and all things in connection therewith as are consistent
with the Servicing Standard, subject to the REMIC Provisions, and in such manner
as the Special Servicer deems to be in the best interest of the Trust, and,
consistent therewith, may advance from its own funds to pay for the following
items (which amounts shall be reimbursed by the Master Servicer or the Trust
subject to Sections 4.4 in accordance with Section 4.6(d)), to the extent such
amounts cannot be paid from REO Income:
(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 could result or have resulted in the imposition of a lien
thereon; and
(iii) all costs and expenses necessary to maintain, operate, lease
and sell such REO Property (other than capital expenditures).
(d) The Special Servicer may, and to the extent necessary to (i)
preserve the status of the REO Property as "foreclosure property" under the
REMIC Provisions or (ii) avoid the imposition of a tax on "income from
nonpermitted assets" within the meaning of the REMIC Provisions, shall contract
with any Independent Contractor for the operation and management of the REO
Property, provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith;
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(ii) the terms of such contract shall be consistent with the
provisions of Section 856 of the Code and Treasury Regulations Section
1.856-4(b)(5);
(iii) only to the extent consistent with (ii) above, any such
contract shall require, or shall be administered to require, that the
Independent Contractor (A) pay all costs and expenses incurred in
connection with the operation and management of such Mortgaged Property
underlying the REO Property and (B) deposit on a daily basis all amounts
payable to the Trust in accordance with the contract between the Trust and
the Independent Contractor in an Eligible Account;
(iv) none of the provisions of this Section 9.14 relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations to the Trustee with respect to the operation and management of
any such REO Property;
(v) if the Independent Contractor is an Affiliate of the Special
Servicer, the consent of the Operating Adviser and a Nondisqualification
Opinion must be obtained; and
(vi) 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.
(e) The Special Servicer shall be entitled to enter into any
agreement with any Independent Contractor performing services for the Trust
pursuant to this subsection (d) for indemnification of the Special Servicer by
such Independent Contractor, and nothing in this Agreement shall be deemed to
limit or modify such indemnification. All fees of the Independent Contractor
(other than fees paid for performing services within the ordinary duties of the
Special Servicer which shall be paid by the Special Servicer) shall be paid from
the income derived from the REO Property. To the extent that the income from the
REO Property is insufficient, such fees shall be advanced by the Master Servicer
as a Servicing Advance, subject to the provisions of Section 4.4 and Section
4.6(d) hereof.
(f) Notwithstanding any other provision of this Agreement, the
Special Servicer shall not rent, lease, or otherwise earn income on behalf of
the Trust or the beneficial owners thereof with respect to REO Property which
might cause the REO Property to fail to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code (without giving effect to the
final sentence thereof) or result in the receipt by any REMIC of any "income
from nonpermitted assets" within the meaning of Section 860F(a)(2) of the Code
or any "net income from foreclosure property" which is subject to tax under the
REMIC Provisions unless (i) the Trustee and the Special Servicer have received
an Opinion of Counsel (at the Trust's sole expense) to the effect that, under
the REMIC Provisions and any relevant proposed legislation, any income generated
for REMIC I by the REO Property would not result in the imposition of a tax upon
REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer
determines the income or earnings with respect to such REO Property will offset
any tax under the REMIC Provisions relating to such income or earnings and will
maximize the net recovery from the REO Property to the Certificateholders. The
Special Servicer shall notify the Trustee,
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the Paying Agent and the Master Servicer of any election by it to incur such
tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an
amount equal to the tax payable thereby from revenues collected from the related
REO Property, (ii) provide the Paying Agent with all information for the Paying
Agent to file the necessary tax returns in connection therewith and (iii) upon
request from the Paying Agent, pay from such account to the Paying Agent the
amount of the applicable tax. The Paying Agent shall file the applicable tax
returns based on the information supplied by the Special Servicer and pay the
applicable tax from the amounts collected by the Special Servicer.
Subject to, and without limiting the generality of the foregoing,
the Special Servicer, on behalf of the Trust, shall not:
(i) permit the Trust to enter into, renew or extend any New Lease
with respect to the REO Property, if the New Lease by its terms will give
rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on the REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than ten percent of the construction of such building or
other improvement was completed before default on the Mortgage Loan became
imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, other than through an Independent Contractor,
or allow any other Person to Directly Operate, other than through an
Independent Contractor, the REO Property on any date more than 90 days
after the Acquisition Date; unless, in any such case, the Special Servicer
has requested and received an Opinion of Counsel at the Trust's sole
expense to the effect that such action will not cause such REO Property to
fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code (without giving effect to the final sentence
thereof) at any time that it is held by the applicable REMIC Pool, in
which case the Special Servicer may take such actions as are specified in
such Opinion of Counsel.
Section 9.15 Sale of REO Property
(a) In the event that title to any REO Property is acquired by the
Trust in respect of any Specially Serviced Mortgage Loan, the deed or
certificate of sale shall be issued to the Trust, the Trustee or to its
nominees. The Special Servicer, after notice to the Operating Adviser, shall
sell any REO Property as soon as practicable consistent with the objective of
maximizing proceeds for all Certificateholders, but in no event later than the
end of the third calendar year following the end of the year of its acquisition,
and in any event prior to the Final Rated Distribution Date, unless (i) the
Trustee, on behalf of the applicable REMIC Pool, has been granted an extension
of time (an "Extension") (which extension shall be applied for at least 60 days
prior to the expiration of the period specified above) by the Internal Revenue
Service to sell such REO Property (a copy of which shall be delivered to the
Paying Agent upon request), in
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which case the Special Servicer shall continue to attempt to sell the REO
Property for its fair market value for such period longer than the period
specified above as such Extension permits or (ii) the Special Servicer seeks and
subsequently receives, at the expense of the Trust, a Nondisqualification
Opinion, addressed to the Trustee and the Special Servicer, to the effect that
the holding by the Trust of such REO Property subsequent to the period specified
above after its acquisition will not result in the imposition of taxes on
"prohibited transactions" of a REMIC, as defined in Section 860F(a)(2) of the
Code, or cause the related REMIC Pool to fail to qualify as a REMIC at any time
that any Certificates are outstanding. If the Trustee has not received an
Extension or such Opinion of Counsel and the Special Servicer is not able to
sell such REO Property within the period specified above, or if an Extension has
been granted and the Special Servicer is unable to sell such REO Property within
the extended time period, the Special Servicer shall, after consultation with
the Operating Adviser, before the end of such period or extended period, as the
case may be, auction the REO Property to the highest bidder (which may be the
Special Servicer) in accordance with the Servicing Standard; provided, however,
that if an Interested Person intends to bid on the REO Property, (i) the Special
Servicer (or, if such Interested Person is the Special Servicer or an Affiliate
of the Special Servicer, the Trustee) shall promptly obtain, at the expense of
the Trust, an Appraisal of such REO Property (or internal valuation in
accordance with the procedures specified in Section 6.9) and (ii) the Interested
Person shall not bid less than the fair market value set forth in such
Appraisal. The Depositor may not purchase REO Property at a price in excess of
the fair market value thereof.
Notwithstanding the foregoing, no Interested Person shall be
permitted to purchase the REO Property at a price less than an amount equal to
the fair value of the REO Property, as determined by the Special Servicer (or,
if such Interested Person is the Special Servicer or an Affiliate of the Special
Servicer, the Trustee). Prior to the Special Servicer's or Trustee's, as
applicable, determination of fair value referred to above, the fair value of an
REO Property shall be deemed to be an amount equal to the Purchase Price. The
Special Servicer or Trustee, as applicable, shall determine the fair value of an
REO Property as soon as reasonably practical after receipt of notice of an
Interested Party's desire to purchase such REO Property, and the Special
Servicer or Trustee, as applicable, shall promptly notify such Interested Party
(and the Trustee, if applicable) of the fair value. The Special Servicer or
Trustee, as applicable, is required to recalculate the fair value of the REO
Property if there has been a material change in circumstances or the Special
Servicer or Trustee, as applicable, has received new information (including the
receipt of a third party bid to purchase the REO Property), either of which has
a material effect on the fair value, provided that the Special Servicer or
Trustee, as applicable, shall be required to recalculate the fair value of the
REO Property if the time between the date of last determination of the fair
value of the REO Property and the date of the purchase of the REO Property by
such Interested Party has exceeded 60 days. Upon any recalculation, the Special
Servicer or Trustee, as applicable, shall be required to promptly notify in
writing such Interested Party (and the Trustee, if applicable) of the revised
fair value. In determining fair value, the Special Servicer or Trustee, as
applicable, shall take into account, among other factors, the results of any
appraisal or updated appraisal that it or the Master Servicer may have obtained
in accordance with this Agreement within the prior twelve months; the physical
condition of the REO Property; the state of the local economy; any other bids
received with respect to the REO Property; and the Trust's obligation to dispose
of any REO Property as soon as practicable consistent with the objective of
maximizing proceeds for all Certificateholders, but in no event later than the
three-year period (or such extended period) specified in this Section 9.15. In
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performing its obligations under this Section 9.15(a), the Special Servicer or
the Trustee, as applicable, may, at the expense of the party desiring to
purchase the REO Property, engage an appraiser or other expert in real estate
matters to determine the fair value of an REO Property and may rely conclusively
upon such Person's determination, which determination shall take into account
the factors set forth in the preceding sentence.
(b) Within 30 days of the sale of the REO Property, the Special
Servicer shall provide to the Trustee, the Paying Agent and the Master Servicer
a statement of accounting for such REO Property, including without limitation,
(i) the Acquisition Date for the REO Property, (ii) the date of disposition of
the REO Property, (iii) the sale price and related selling and other expenses,
(iv) accrued interest (including interest deemed to have accrued) on the
Specially Serviced Mortgage Loan to which the REO Property related, calculated
from the Acquisition Date to the disposition date, (v) final property operating
statements, and (vi) such other information as the Trustee or the Paying Agent
may reasonably request in writing.
(c) The Liquidation Proceeds from the final disposition of the REO
Property shall be deposited in the applicable Certificate Account within one
Business Day of receipt.
Section 9.16 Realization on Collateral Security
In connection with the enforcement of the rights of the Trust to any
property securing any Specially Serviced Mortgage Loan other than the related
Mortgaged Property, the Special Servicer shall consult with counsel to determine
how best to enforce such rights in a manner consistent with the REMIC Provisions
and shall not, based on a Nondisqualification Opinion addressed to the Special
Servicer and the Trustee (the cost of which shall be an expense of the Trust)
take any action that could result in the failure of any REMIC Pool to qualify as
a REMIC while any Certificates are outstanding, unless such action has been
approved by a vote of 100% of each Class of Certificateholders (including the
Class R-I, Class R-II and Class [R-III] Certificateholders).
Section 9.17 [Reserved]
Section 9.18 [Reserved]
Section 9.19 [Reserved]
Section 9.20 Merger or Consolidation
Any Person into which the Special Servicer may be merged or
consolidated, or any Person resulting from any merger, conversion, other change
in form or consolidation to which the Special Servicer shall be a party, or any
Person succeeding to substantially all of the servicing business of the Special
Servicer, shall be the successor of the Special Servicer hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided, however, that each of the Rating Agencies provides a
Rating Agency Confirmation; provided, further, that for so long as the Trust is
subject to the reporting requirements of the Exchange Act, the Depositor shall
have consented thereto (which consent shall not be unreasonably withheld). If
the conditions to the proviso in the foregoing sentence are not met, the Trustee
may terminate the Special Servicer's servicing of the Specially Serviced
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Mortgage Loans pursuant hereto, such termination to be effected in the manner
set forth in Section 9.31.
Section 9.21 Resignation of the Special Servicer
(a) Except as otherwise provided in Section 9.20 or this Section
9.21, the Special Servicer shall not resign from the obligations and duties
hereby imposed on it unless it determines that the Special Servicer's 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.
Any such determination permitting the resignation of the Special Servicer shall
be evidenced by an Opinion of Counsel to such effect delivered to the Master
Servicer, the Operating Adviser and the Trustee. No such resignation shall
become effective until a successor servicer designated by the Operating Adviser
and the Trustee shall have (i) assumed the Special Servicer's responsibilities
and obligations under this Agreement and (ii) Rating Agency Confirmation shall
have been obtained. Notice of such resignation shall be given promptly by the
Special Servicer to the Master Servicer, the Trustee and the Paying Agent.
Notwithstanding the foregoing, if the Special Servicer shall cease to serve as
such in accordance with this Section 9.21(a) and a successor servicer shall not
have been engaged, the Trustee or an agent of the Trustee shall assume the
duties and obligations of the Special Servicer under this Agreement. If the
Trustee or an agent of the Trustee assumes the duties and obligations of the
Special Servicer pursuant to this Section 9.21(a), the Trustee or such agent
shall be permitted to resign as special servicer if it has been replaced by a
successor servicer satisfying the criteria in the third preceding sentence
above.
(b) The Special Servicer may resign from the obligations and duties
hereby imposed on it, upon 30 days notice to the Trustee and the Paying Agent,
provided that (i) a successor Special Servicer is (x) available, (y) reasonably
acceptable to the Operating Adviser, the Depositor, and the Trustee, and (z)
willing to assume the obligations, responsibilities and covenants to be
performed hereunder by the Special Servicer on substantially the same terms and
conditions, and for not more than equivalent compensation as that herein
provided, (ii) the successor Special Servicer has assets of at least $15,000,000
and (iii) Rating Agency Confirmation is obtained with respect to such
resignation, as evidenced by a letter from each Rating Agency delivered to the
Trustee. Any costs of such resignation and of obtaining a replacement Special
Servicer shall be borne by the Special Servicer and shall not be an expense of
the Trust.
(c) No such resignation under paragraph (b) above shall become
effective unless and until such successor Special Servicer enters into a
servicing agreement with the Trustee assuming the obligations and
responsibilities of the Special Servicer hereunder in form and substance
reasonably satisfactory to the Trustee.
(d) Upon any resignation or termination of the Special Servicer, it
shall retain the right to receive any and all Work-Out Fees payable in respect
of (i) Mortgage Loans for which it acted as Special Servicer that became
Rehabilitated Mortgage Loans during the period that it acted as Special Servicer
and that were still Rehabilitated Mortgage Loans at the time of such resignation
or termination or (ii) any Specially Serviced Mortgage Loan for which the
Special Servicer has cured the event of default under such Specially Serviced
Mortgage Loan
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through a modification, restructuring or workout negotiated by the Special
Servicer and evidenced by a signed writing, but which had not as of the time the
Special Servicer was terminated, become a Rehabilitated Mortgage Loan solely
because it had not been a performing loan for 90 consecutive days and which
subsequently becomes a Rehabilitated Mortgage Loan as a result of the loan being
a performing loan for such 90 consecutive day period (and the successor Special
Servicer shall not be entitled to any portion of such Work-Out Fees), in each
case until such time (if any) as such Mortgage Loan again becomes a Specially
Serviced Mortgage Loan or are no longer included in the Trust or if the related
Mortgaged Property becomes an REO Property.
Section 9.22 Assignment or Delegation of Duties by the Special
Servicer
The Special Servicer shall have the right without the prior written
consent of the Trustee to (A) delegate or subcontract with or authorize or
appoint anyone, or delegate certain duties to other professionals such as
attorneys and appraisers, as an agent of the Special Servicer or Sub-Servicers
(as provided in Section 9.3) to perform and carry out any duties, covenants or
obligations to be performed and carried out by the Special Servicer hereunder or
(B) assign and delegate all of its duties hereunder to a single Person. In the
case of any such assignment and delegation in accordance with the requirements
of clause (A) of this Section, the Special Servicer shall not be released from
its obligations under this Agreement. In the case of any such assignment and
delegation in accordance with the requirements of clause (B) of this Section,
the Special Servicer shall be released from its obligations under this
Agreement, except that the Special Servicer shall remain liable for all
liabilities and obligations incurred by it as the Special Servicer hereunder
prior to the satisfaction of the following conditions: (i) the Special Servicer
gives the Depositor, the Master Servicer, the Operating Adviser and the Trustee
notice of such assignment and delegation; (ii) such purchaser or transferee
accepting such assignment and delegation executes and delivers to the Depositor
and the Trustee an agreement accepting such assignment, which contains an
assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of the Special Servicer, with like effect as if
originally named as a party to this Agreement; (iii) the purchaser or transferee
has assets in excess of $15,000,000; (iv) such assignment and delegation is the
subject of a Rating Agency Confirmation; and (v) the Depositor consents to such
assignment and delegation, such consent not be unreasonably withheld.
Notwithstanding the above, the Special Servicer may appoint Sub-Servicers in
accordance with Section 9.3 hereof.
Section 9.23 Limitation on Liability of the Special Servicer and
Others
(a) Neither the Special Servicer nor any of the partners,
representatives, Affiliates, members, managers, directors, officers, employees
or agents of the Special Servicer shall be under any liability to the
Certificateholders or the Trustee for any action taken or for refraining from
the taking of any action in good faith and using reasonable business judgment,
consistent with the Servicing Standard; provided that this provision shall not
protect the Special Servicer or any such Person against any breach of a
representation or warranty contained herein or any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in its performance of duties hereunder or by reason of negligent disregard of
obligations and duties hereunder. The Special Servicer and any partner,
representative, Affiliate, member, manager, director, officer, employee or agent
of the Special Servicer may rely in good
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faith on any document of any kind prima facie properly executed and submitted by
any Person (including, without limitation, the information and reports delivered
by or at the direction of the Master Servicer or any partner, representative,
Affiliate, member, manager, director, officer, employee or agent of the Master
Servicer) respecting any matters arising hereunder. The Special Servicer shall
not be under any obligation to appear in, prosecute or defend any legal action
which is not incidental to its duties to service the Specially Serviced Mortgage
Loans in accordance with this Agreement; provided that the Special Servicer may
in its sole discretion undertake any such action which it may reasonably deem
necessary or desirable in order to protect the interests of the
Certificateholders and the Trustee in the Specially Serviced Mortgage Loans. In
such event, all legal expenses and costs of such action (other than those that
are connected with the routine performance by the Special Servicer of its duties
hereunder) shall be expenses and costs of the Trust, and the Special Servicer
shall be entitled to be reimbursed therefor as provided by Section 5.2 hereof.
Notwithstanding any term in this Agreement, the Special Servicer shall not be
relieved from the requirement that it act in accordance with the Servicing
Standard by virtue of taking any action at the direction of the Operating
Adviser and shall not be relieved from liability otherwise imposed on the
Special Servicer pursuant to Section 6.3 of this Agreement.
(b) In addition, the Special Servicer shall have no liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to the Special Servicer and conforming to the requirements of
this Agreement. The Special Servicer, or any partner, representative, Affiliate,
member, manager, director, officer, employee or agent, shall not be personally
liable for any error of judgment made in good faith by any officer, unless it
shall be proved that the Special Servicer or such officer was negligent in
ascertaining the pertinent facts. The Special Servicer, or any partner,
representative, Affiliate, member, manager, director, officer, employee or
agent, shall not be personally liable for any action taken, suffered or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement. The Special
Servicer shall be entitled to rely on reports and information supplied to it by
the Master Servicer and the related Mortgagors and shall have no duty to
investigate or confirm the accuracy of any such report or information.
(c) The Special Servicer shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Master Servicer or the Trustee in this Agreement. The Trust shall
indemnify and hold harmless the Special Servicer from any and all claims,
liabilities, costs, charges, fees or other expenses which relate to or arise
from any such breach of representation, warranty or covenant to the extent such
amounts are not recoverable from the party committing such breach.
(d) Except as otherwise specifically provided herein:
(i) the Special Servicer may rely, 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 (in paper or electronic format) believed
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or in good faith believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) the Special Servicer may consult with counsel, and any written
advice or Opinion of Counsel shall be full and complete authorization and
protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) the Special Servicer shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion, rights or powers conferred upon
it by this Agreement; and
(iv) the Special Servicer, in preparing any reports hereunder, may
rely, and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document,
agreement, covenant, notice, request or other paper (in paper or
electronic format) reasonably believed or in good faith believed by it to
be genuine.
(e) The Special Servicer and any partner, representative, Affiliate,
member, manager, director, officer, employee or agent of the Special Servicer
shall be indemnified by the Master Servicer, the Trustee and the Paying Agent,
as the case may be, and held harmless against any and all claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments, and any
other costs, liabilities, fees and expenses incurred in connection with any
legal action or claim relating to the Master Servicer's, the Trustee's or the
Paying Agent's, as the case may be, respective willful misfeasance, bad faith or
negligence in the performance of its respective duties hereunder or by reason of
negligent disregard by such Person of its respective duties hereunder, other
than any loss, liability or expense incurred by reason of willful misfeasance,
bad faith or negligence in the performance of any of the Special Servicer's
duties hereunder or by reason of negligent disregard of the Special Servicer's
obligations and duties hereunder. The Special Servicer shall promptly notify the
Master Servicer, the Trustee and the Paying Agent, if a claim is made by a third
party entitling the Special Servicer to indemnification hereunder, whereupon the
Master Servicer, the Trustee or the Paying Agent, in each case, to the extent
the claim was made in connection with its willful misfeasance, bad faith or
negligence, shall assume the defense of any such claim (with counsel reasonably
satisfactory to the Special Servicer). Any failure to so notify the Master
Servicer, the Trustee or the Paying Agent, shall not affect any rights the
Special Servicer may have to indemnification hereunder or otherwise, unless the
interest of the Master Servicer, the Trustee or the Paying Agent is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the termination or resignation of the Special
Servicer. Such indemnity shall survive the termination of this Agreement or the
resignation or removal of the Special Servicer hereunder. Any payment hereunder
made by the Master Servicer, the Trustee or the Paying Agent, as the case may
be, pursuant to this paragraph to the Special Servicer shall be paid from the
Master Servicer's, the Trustee's or the Paying Agent's, as the case may be, own
funds, without reimbursement from the Trust therefor, except achieved through
subrogation as provided in this Agreement. Any expenses incurred or
indemnification payments made by the Trustee, the Paying Agent or the Master
Servicer shall be reimbursed by the party so paid if a court of competent
jurisdiction makes a final judgment that the conduct of the Trustee, the Paying
Agent or the Master Servicer,
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as the case may be, was not culpable of willful misfeasance, bad faith or
negligence in the performance of its respective duties hereunder or of negligent
disregard of its respective duties hereunder or the indemnified party is found
to have acted with willful misfeasance, bad faith or negligence.
Section 9.24 Indemnification; Third-Party Claims
(a) The Special Servicer and any partner, representative, Affiliate,
member, manager, director, officer, employee or agent of each the Special
Servicer shall be indemnified by the Trust, and held harmless against any and
all claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action or claim relating to (i) this Agreement, any
Mortgage Loan, any REO Property or the Certificates or any exercise of any right
under this Agreement, and (ii) any action taken by the Special Servicer in
accordance with the instruction delivered in writing to the Special Servicer by
the Trustee or the Master Servicer pursuant to any provision of this Agreement,
and the Special Servicer and each of its partners, representatives, Affiliates,
members, managers, directors, officers, employees or agents shall in each case
be entitled to indemnification from the Trust for any loss, liability or expense
(including attorneys' fees) incurred in connection with the provision by the
Special Servicer of any information included by the Special Servicer in the
report required to be provided by the Special Servicer pursuant to this
Agreement, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of negligent disregard of obligations and duties
hereunder. The Special Servicer shall assume the defense of any such claim (with
counsel reasonably satisfactory to the Special Servicer) and the Trust shall
pay, from amounts on deposit in the applicable Certificate Account pursuant to
Section 5.2, all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. The indemnification provided herein
shall survive the termination of this Agreement and the termination or
resignation of the Special Servicer. Any expenses incurred or indemnification
payments made by the Trust shall be reimbursed by the Special Servicer, if a
court of competent jurisdiction makes a final, non-appealable judgment that the
Special Servicer was found to have acted with willful misfeasance, bad faith or
negligence.
(b) The Special Servicer agrees to indemnify the Trust, and the
Trustee, the Depositor, the Master Servicer, the Paying Agent and any partner,
representative, Affiliate, member, manager, director, officer, employee, agent
or Controlling Person of the Trustee, the Depositor and the Master Servicer, and
hold them harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
liabilities, fees and expenses that the Trust or the Trustee, the Depositor, the
Paying Agent or the Master Servicer may sustain arising from or as a result of
the willful misfeasance, bad faith or negligence in the performance of the
Special Servicer's duties hereunder or by reason of negligent disregard of the
Special Servicer's obligations and duties hereunder by the Special Servicer. The
Trustee, the Depositor, the Paying Agent or the Master Servicer shall
immediately notify the Special Servicer if a claim is made by a third party with
respect to this Agreement or the Specially Serviced Mortgage Loans entitling the
Trust or the Trustee, the Depositor, the Paying Agent or the Master Servicer, as
the case may be, to indemnification hereunder, whereupon the Special Servicer
shall assume the defense of any such claim (with counsel
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reasonably satisfactory to the Trustee, the Depositor, the Paying Agent or the
Master Servicer, as the case may be) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the Special Servicer shall not affect any rights
the Trust or the Trustee, the Depositor, the Paying Agent or the Master Servicer
may have to indemnification under this Agreement or otherwise, unless Special
Servicer's defense of such claim is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this Agreement
and the termination or resignation of the Special Servicer, the Paying Agent or
the Trustee. Any expenses incurred or indemnification payments made by the
Special Servicer shall be reimbursed by the party so paid, if a court of
competent jurisdiction makes a final, non-appealable judgment that the conduct
of the Special Servicer was not culpable of willful misfeasance, bad faith or
negligence in the performance of its respective duties hereunder or of negligent
disregard of its respective duties hereunder or the indemnified party is found
to have acted with willful misfeasance, bad faith or negligence.
(c) The Special Servicer and the Depositor expressly agree that the
only information furnished by or on behalf of the Special Servicer for inclusion
in the Free Writing Prospectus and the Final Prospectus Supplement is the
information set forth in the paragraph under the caption ["TRANSACTION
PARTIES--Special Servicer"] of the Free Writing Prospectus and Final Prospectus
Supplement.
Section 9.25 Reserved
Section 9.26 Special Servicer May Own Certificates
The Special Servicer or any agent of the Special Servicer in its
individual capacity or in any other capacity may become the owner or pledgee of
Certificates with the same rights as it would have if they were not the Special
Servicer or such agent. Any such interest of the Special Servicer or such agent
in the Certificates shall not be taken into account when evaluating whether
actions of the Special Servicer are consistent with its obligations in
accordance with the Servicing Standard regardless of whether such actions may
have the effect of benefiting the Class or Classes of Certificates owned by the
Special Servicer.
Section 9.27 Tax Reporting
The Special Servicer shall notify the Master Servicer of (i) any
abandoned Mortgaged Property, (ii) any foreclosure upon a Mortgaged Property or
(iii) any indebtedness that is forgiven, which require reporting to the IRS. The
Special Servicer shall provide the necessary information to the Master Servicer
to allow the Master Servicer to comply with the Mortgagor tax reporting
requirements imposed by Sections 6050H, 6050J and 6050P of the Code with respect
to any Specially Serviced Mortgage Loan. The Special Servicer shall provide to
the Master Servicer copies of any such reports. The Master Servicer shall
forward such reports to the Trustee and the Paying Agent.
Section 9.28 Application of Funds Received
It is anticipated that the Master Servicer will be collecting all
payments with respect to the Mortgage Loans (other than payments with respect to
REO Income). If, however,
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the Special Servicer should receive any payments with respect to any Mortgage
Loan (other than REO Income), it shall, within two Business Days of receipt from
the Mortgagor or otherwise of any amounts attributable to payments with respect
to or the sale of any Mortgage Loan or any Specially Serviced Mortgage Loan, if
any (but not including REO Income, which shall be deposited in the applicable
REO Account as provided in Section 9.14 hereof), forward such payment (endorsed,
if applicable, to the order of the Master Servicer) to the Master Servicer. The
Special Servicer shall notify the Master Servicer of each such amount received
on or before the date required for the making of such deposit or transfer, as
the case may be, indicating the Mortgage Loan or Specially Serviced Mortgage
Loan to which the amount is to be applied and the type of payment made by or on
behalf of the related Mortgagor.
Section 9.29 Compliance with REMIC Provisions and Grantor Trust
Provisions
The Special Servicer shall act in accordance with this Agreement and
the provisions of the Code relating to REMICs in order to create or maintain the
status of any REMIC Pool as a REMIC under the Code or, as appropriate, cooperate
with the Trustee to adopt a plan of complete liquidation. The Special Servicer
shall not take any action or (A) cause any REMIC Pool to take any action that
would (i) endanger the status of any REMIC Pool as a REMIC or the status of the
Class EI Grantor Trust or the Class A-3-1FL Grantor Trust as a grantor trust or
(ii) subject to Section 9.14(e), result in the imposition of a tax upon any
REMIC Pool (including, but not limited to, the tax on prohibited transactions as
defined in Section 860F(a)(2) of the Code or on prohibited contributions
pursuant to Section 860G(d) of the Code) or (B) cause either the Class A-3-1FL
Grantor Trust or Class EI Grantor Trust to take any action that could (i)
endanger its status as a grantor trust or (ii) result in the imposition of any
tax upon the Class A-3-1FL Grantor Trust or Class EI Grantor Trust unless the
Master Servicer and the Trustee have received a Nondisqualification Opinion (at
the expense of the party seeking to take such action) to the effect that the
contemplated action will not endanger such status or result in the imposition of
such tax. The Special Servicer shall comply with the provisions of Article XII
hereof.
Section 9.30 Termination
(a) The obligations and responsibilities of the Special Servicer
created hereby (other than the obligation of the Special Servicer to make
payments to the Master Servicer as set forth in Section 9.28 and the obligations
of the Special Servicer pursuant to Sections 9.8 and 9.24 hereof) shall
terminate on the date which is the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining outstanding
(and final distribution to the Certificateholders) or, (B) the disposition of
all REO Property in respect of any Specially Serviced Mortgage Loan (and final
distribution to the Certificateholders), (ii) 60 days following the date on
which the Trustee or the Operating Adviser has given written notice to the
Special Servicer that this Agreement is terminated pursuant to Section 9.30(b)
or 9.30(c), respectively and (iii) the effective date of any resignation of the
Special Servicer effected pursuant to and in accordance with Section 9.21 or
delegation of the Special Servicer's duties pursuant to clause B of Section 9.22
(but only to the extent specifically set forth in Section 9.22).
(b) The Trustee may terminate the Special Servicer in the event that
(i) the Special Servicer has failed to remit any amount required to be remitted
to the Trustee, the Master
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Servicer, the Paying Agent or the Depositor within one Business Day following
the date such amount was required to have been remitted under the terms of this
Agreement, (ii) the Special Servicer has failed to deposit into any account any
amount required to be so deposited or remitted under the terms of this Agreement
which failure continues unremedied for one Business Day following the date on
which such deposit or remittance was first required to be made; (iii) the
Special Servicer has failed to duly observe or perform in any material respect
any of the other covenants or agreements of the Special Servicer set forth in
this Agreement, and the Special Servicer has failed to remedy such failure
within thirty (30) days after written notice of such failure, requiring the same
to be remedied, shall have been given to the Special Servicer by the Depositor
or the Trustee, provided, however, that if the Special Servicer certifies to the
Trustee and the Depositor that the Special Servicer is in good faith attempting
to remedy such failure, and the Certificateholders would not be affected
thereby, such cure period will be extended to the extent necessary to permit the
Special Servicer to cure such failure; provided, however, that such cure period
may not exceed 90 days; (iv) the Special Servicer has made one or more false or
misleading representations or warranties herein that materially and adversely
affects the interest of any Class of Certificates and has failed to cure such
breach within thirty (30) days after notice of such breach, requiring the same
to be remedied, shall have been given to the Special Servicer by the Depositor
or the Trustee, provided, however, that if the Special Servicer certifies to the
Trustee and the Depositor that the Special Servicer is in good faith attempting
to remedy such failure, such cure period may be extended to the extent necessary
to permit the Special Servicer to cure such failure; provided, however, that
such cure period may not exceed 90 days; (v) 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, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Special Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; (vi) the
Special Servicer shall consent to the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings relating to the Special Servicer or of or relating to all or
substantially all of its property; (vii) the Special Servicer thereof 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; (viii) [a Servicing Officer of the Special
Servicer obtains actual knowledge that Xxxxx'x has (a) qualified, downgraded or
withdrawn any rating then assigned by it to any class of certificates, or (b)
placed any class of certificates on "watch status" in contemplation of possible
rating downgrade or withdrawal (and that "watch status" placement has not have
been withdrawn by it within 60 days of such Servicing Officer obtaining such
knowledge), and, in either case, cited servicing concerns with the Special
Servicer as the sole or a material factor in such rating action] or (ix) [such
special servicer is no longer listed on S&P's Select Servicer List as a U.S.
Commercial Mortgage Special Servicer and is not reinstated to such status within
60 days] [other Rating Agency Default], or (x) the Special Servicer shall fail
to comply with any of its obligations under Article XIII of this Agreement;
provided, however, that if, following the Special Servicer's failure to comply
with any of such obligations under Section 13.7, 13.8, 13.9,
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13.11, 13.12 or 13.13 on or prior to the dates by which such obligations are to
be performed pursuant to, and as set forth in, such Sections, (a) the Special
Servicer subsequently complies with such obligations before the Trustee or the
Depositor gives written notice to it that it is terminated in accordance with
this Section 9.30 and (b) the Special Servicer's failure to comply does not
cause the Paying Agent to fail in its obligations to timely file the related
Form 8-K, Form 10-D or Form 10-K, as the case may be, by the related 8-K Filing
Deadline, 10-D Filing Deadline or 10-K Filing Deadline, then such failure to
comply shall cease to be an Event of Default under this Section 9.30(a)(x) on
the date on which such Form 8-K, Form 10-D or Form 10-K is so filed. Such
termination shall be effective on the date after the date of any of the above
events that the Trustee specifies in a written notice to the Special Servicer
specifying the reason for such termination. The Operating Adviser shall have the
right to appoint a successor if the Trustee terminates the Special Servicer. The
Special Servicer being terminated pursuant to this Section 9.30(b) shall bear
all costs of the transfer of servicing arising from such termination.
(c) The Operating Adviser shall have the right to direct the Trustee
to terminate the Special Servicer, provided that the Operating Adviser shall
appoint a successor Special Servicer who will (i) be reasonably satisfactory to
the Trustee and to the Depositor, and (ii) execute and deliver to the Trustee an
agreement, in form and substance reasonably satisfactory to the Trustee, whereby
the successor Special Servicer agrees to assume and perform punctually the
duties of such terminated Special Servicer specified in this Agreement; and
provided, further, that the Trustee shall have received Rating Agency
Confirmation from each Rating Agency prior to the termination of the Special
Servicer. The Special Servicer shall not be terminated pursuant to this
subsection (c) until a successor Special Servicer shall have been appointed. The
Operating Adviser shall pay any costs and expenses incurred by the Trust in
connection with the removal and appointment of the Special Servicer (unless such
removal is based on any of the events or circumstances set forth in Section
9.30(b)). The Special Servicer being terminated shall execute and deliver such
document acknowledging its termination as may be reasonably required by any
Rating Agency.
Section 9.31 Procedure Upon Termination
(a) Notice of any termination pursuant to clause (i)(B) of Section
9.30(a), specifying the Distribution Date upon which the final distribution
shall be made, shall be given promptly by the Special Servicer to the Trustee
and the Paying Agent no later than the later of (i) five Business Days after the
liquidation of the last REO Property or (ii) the sixth day of the month in which
the final Distribution Date will occur. Upon any such termination, the rights
and duties of the Special Servicer (other than the rights and duties of the
Special Servicer pursuant to Sections 9.8, 9.21, 9.23 and 9.24 hereof) shall
terminate and the Special Servicer shall transfer to the Master Servicer the
amounts remaining in each REO Account and shall thereafter terminate each REO
Account and any other account or fund maintained with respect to the Specially
Serviced Mortgage Loans.
(b) On the date specified in a written notice of termination given
to the Special Servicer pursuant to clause (ii) of Section 9.30(a), all
authority, power and rights of the Special Servicer under this Agreement,
whether with respect to the Specially Serviced Mortgage Loans or otherwise,
shall terminate; provided that in no event shall the termination of the Special
Servicer be effective until the Trustee or other successor Special Servicer
shall have succeeded
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the Special Servicer as successor Special Servicer, notified the Special
Servicer of such designation, and such successor Special Servicer shall have
assumed the Special Servicer's obligations and responsibilities, as set forth in
an agreement substantially in the form hereof, with respect to the Specially
Serviced Mortgage Loans. The Trustee or other successor Special Servicer may not
succeed the Special Servicer as Special Servicer until and unless it has
satisfied the provisions that would apply to a Person succeeding to the business
of the Special Servicer pursuant to Section 9.20 hereof. The Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Special
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination. The Special
Servicer agrees to cooperate with the Trustee in effecting the termination of
the Special Servicer's responsibilities and rights hereunder as Special Servicer
including, without limitation, providing the Trustee all documents and records
in electronic or other form reasonably requested by it to enable the successor
Special Servicer designated by the Trustee to assume the Special Servicer's
functions hereunder and to effect the transfer to such successor for
administration by it of all amounts which shall at the time be or should have
been deposited by the Special Servicer in the applicable REO Account and any
other account or fund maintained or thereafter received with respect to the
Specially Serviced Mortgage Loans.
Section 9.32 Certain Special Servicer Reports
(a) The Special Servicer, for each Specially Serviced Mortgage Loan,
shall provide to the Master Servicer by [2:00 p.m.] (New York time) on the date
that is one Business Day after the Determination Date for each month, the CMSA
Special Servicer Loan File in such electronic format as is mutually acceptable
to the Master Servicer and the Special Servicer and in CMSA format. The Master
Servicer may use such reports or information contained therein to prepare its
reports and the Master Servicer may, at its option, forward such reports
directly to the Depositor and the Rating Agencies.
(b) The Special Servicer shall maintain accurate records, prepared
by a Servicing Officer, of each Final Recovery Determination with respect to any
Mortgage Loan or REO Property and the basis thereof. Each Final Recovery
Determination shall be evidenced by an Officer's Certificate delivered to the
Trustee, the Operating Adviser, the Paying Agent and the Master Servicer no
later than the tenth Business Day following such Final Recovery Determination.
(c) The Special Servicer shall provide to the Master Servicer or the
Paying Agent at the reasonable request in writing of the Master Servicer or the
Paying Agent, any information in its possession with respect to the Specially
Serviced Mortgage Loans which the Master Servicer or Paying Agent, as the case
may be, shall require in order for the Master Servicer or the Paying Agent to
comply with its obligations under this Agreement; provided that the Special
Servicer shall not be required to take any action or provide any information
that the Special Servicer determines will result in any material cost or expense
to which it is not entitled to reimbursement hereunder or will result in any
material liability for which it is not indemnified hereunder. The Master
Servicer shall provide the Special Servicer at the reasonable request of the
Special Servicer any information in its possession with respect to the Mortgage
Loans which
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the Special Servicer shall require in order for the Special Servicer to comply
with its obligations under this Agreement.
(d) Not later than 20 days after the Special Servicer Remittance
Date, the Special Servicer shall forward to the Master Servicer a statement
setting forth the status of each REO Account as of the close of business on the
Special Servicer Remittance Date, stating that all remittances required to be
made by it as required by this Agreement to be made by the Special Servicer have
been made (or, if any required distribution has not been made by the Special
Servicer, specifying the nature and status thereof) and showing, for the period
from the day following the preceding Special Servicer Remittance Date to the
Special Servicer Remittance Date, the aggregate of deposits into and withdrawals
from each REO Account for each category of deposit specified in Section 5.1 of
this Agreement and each category of withdrawal specified in Section 5.2 of this
Agreement.
(e) With respect to Specially Serviced Mortgage Loans, the Special
Servicer shall use reasonable efforts to obtain and, to the extent obtained, to
deliver electronically to the Master Servicer (subject to Section 8.14 herein),
the Paying Agent, the Rating Agencies and the Operating Adviser, on or before
April 15 of each year, commencing with April 15, 20__, (i) copies of the prior
year operating statements and, except with respect to the Co-op Loans, quarterly
statements, if available, for each Mortgaged Property underlying a Specially
Serviced Mortgage Loan or REO Property as of its fiscal year end, provided that
either the related Mortgage Note or Mortgage requires the Mortgagor to provide
such information, or if the related Mortgage Loan has become an REO Property,
(ii) a copy of the most recent rent roll with respect to Mortgage Loans other
than Co-op Mortgage Loans, available for each Mortgaged Property, and (iii) a
table, setting forth the Debt Service Coverage Ratio and occupancy with respect
to each Mortgaged Property covered by the operating statements delivered above.
(f) The Special Servicer shall deliver to the Master Servicer, the
Depositor, the Paying Agent and the Trustee all such other information with
respect to the Specially Serviced Mortgage Loans at such times and to such
extent as the Master Servicer, the Trustee, the Paying Agent or the Depositor
may from time to time reasonably request; provided, however, that the Special
Servicer shall not be required to produce any ad hoc non-standard written
reports with respect to such Mortgage Loans except if any Person (other than the
Paying Agent or the Trustee) requesting such report pays a reasonable fee to be
determined by the Special Servicer.
(g) The Special Servicer shall deliver electronically a written
Inspection Report of each Specially Serviced Mortgage Loan in accordance with
Section 9.4(b) to the Operating Adviser.
(h) Notwithstanding anything to the contrary herein, as a condition
to the Special Servicer making any report or information available upon request
to any Person other than the parties hereto or any Operating Adviser, the
Special Servicer may require that the recipient of such information acknowledge
that the Special Servicer may contemporaneously provide such information to the
Depositor, the Trustee, the Paying Agent, the Master Servicer, the Primary
Servicer, the Sellers, the Placement Agent, any Underwriter, any Rating Agency,
and/or the Certificateholders or Certificate Owners, as applicable. Any
transmittal of information by the Special Servicer to any Person other than the
Trustee, the Paying Agent, the
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Master Servicer, any Primary Servicer, the Rating Agencies, the Operating
Adviser or the Depositor may be accompanied by a letter from the Special
Servicer containing the following provision:
"By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities laws
restrict any Person who possesses material, non-public information
regarding the Trust which issued Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 20__-__ from
purchasing or selling such Certificates in circumstances where the
other party to the transaction is not also in possession of such
information. You also acknowledge and agree that such information is
being provided to you for the purpose of, and such information may
be used only in connection with, evaluation by you or another
Certificateholder, Certificate Owner or prospective purchaser of
such Certificates or beneficial interest therein."
Section 9.33 Special Servicer to Cooperate with the Master Servicer
and Paying Agent
(a) The Special Servicer shall furnish on a timely basis such
reports, certifications, and information as are reasonably requested by the
Master Servicer, the Trustee, the Paying Agent or any Primary Servicer to enable
it to perform its duties under this Agreement or any Primary Servicing
Agreement, as applicable; provided that no such request shall (i) require or
cause the Special Servicer to violate the Code, any provision of this Agreement,
including the Special Servicer's obligation to act in accordance with the
servicing standards set forth in this Agreement and to maintain the REMIC status
of any REMIC Pool or (ii) expose the Special Servicer, the Trust, the Paying
Agent or the Trustee to liability or materially expand the scope of the Special
Servicer's responsibilities under this Agreement. In addition, the Special
Servicer shall notify the Master Servicer of all expenditures incurred by it
with respect to the Specially Serviced Mortgage Loans which are required to be
made by the Master Servicer as Servicing Advances as provided herein, subject to
the provisions of Section 4.4 hereof. The Special Servicer shall also remit all
invoices relating to Servicing Advances promptly upon receipt of such invoices.
(b) The Special Servicer shall from time to time make reports,
recommendations and analyses to the Operating Adviser with respect to the
following matters, the expense of which shall not be an expense of the Trust:
(i) whether the foreclosure of a Mortgaged Property relating to a
Specially Serviced Mortgage Loan would be in the best economic interest of
the Trust;
(ii) if the Special Servicer elects to proceed with a foreclosure,
whether a deficiency judgment should or should not be sought because the
likely recovery will or will not be sufficient to warrant the cost, time
and exposure of pursuing such judgment;
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(iii) whether the waiver or enforcement of any "due-on-sale" clause
or "due-on-encumbrance" clause contained in a Mortgage Loan or a Specially
Serviced Mortgage Loan is in the best economic interest of the Trust;
(iv) in connection with entering into an assumption agreement from
or with a Person to whom a Mortgaged Property securing a Specially
Serviced Mortgage Loan has been or is about to be conveyed, or to release
the original Mortgagor from liability upon a Specially Serviced Mortgage
Loan and substitute a new Mortgagor, and whether the credit status of the
prospective new Mortgagor is in compliance with the Special Servicer's
regular commercial mortgage origination or servicing standard;
(v) in connection with the foreclosure on a Specially Serviced
Mortgage Loan secured by a Mortgaged Property which is not in compliance
with CERCLA, or any comparable environmental law, whether it is in the
best economic interest of the Trust to bring the Mortgaged Property into
compliance therewith and an estimate of the cost to do so; and
(vi) with respect to any proposed modification (which shall include
any proposed release, substitution or addition of collateral), extension,
waiver (except a waiver with respect to immaterial covenants, Late Fees or
default interest), amendment, discounted payoff or sale of a Mortgage
Loan, prepare a summary of such proposed action and an analysis of whether
or not such action is reasonably likely to produce a greater recovery on a
present value basis than liquidation of such Mortgage Loan; such analysis
shall specify the basis on which the Special Servicer made such
determination, including the status of any existing material default or
the grounds for concluding that a payment default is imminent.
Section 9.34 Reserved
Section 9.35 Reserved
Section 9.36 Sale of Defaulted Mortgage Loans
(a) The holder of Certificates evidencing the greatest percentage
interest in the Controlling Class and the Special Servicer (each in such
capacity, together with any assignee, the "Option Holder") shall, in that order,
have the right, at its option (the "Option"), to purchase a Mortgage Loan from
the Trust at a price equal to the Option Purchase Price upon receipt of notice
from the Special Servicer that such Mortgage Loan has become at least 60 days
delinquent as to any monthly debt service payment (or is 90 days delinquent as
to its Balloon Payment). The Option is exercisable, subject to the related
Seller's right (after receiving notice from the Trustee that an Option Holder
intends to exercise its Option) set forth in Section 2.3 to first repurchase
such Mortgage Loan, from that date until terminated pursuant to clause (e)
below, and during that period the Option shall be exercisable in any month only
during the period from the 10th calendar day of such month through the 25th
calendar day, inclusive, of such month. The Trustee on behalf of the Trust shall
be obligated to sell such Mortgage Loan upon the exercise of the Option (whether
exercised by the original holder thereof or by a holder that acquired such
Option by assignment), but shall have no authority to sell such Mortgage Loan
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other than in connection with the exercise of an Option (or in connection with a
repurchase of a Mortgage Loan under Article II, an optional termination pursuant
to Section 10.1 or a qualified liquidation of the REMIC Pools). Any Option
Holder that exercises the Option shall be required to purchase the applicable
Mortgage Loan within 4 Business Days following such exercise. If any Option
Holder desires to waive its right to exercise the Option, then it shall so
notify the Trustee in writing, and the Trustee shall promptly notify the next
party eligible to hold the Option set forth above of its rights hereunder. Any
of the other parties eligible to hold the Option set forth above may at any time
notify the Trustee in writing of its desire to exercise the Option, and the
Trustee shall promptly notify the current Option Holder (and the other parties
eligible to hold the Option). If the Option Holder neither (i) exercises the
Option nor (ii) surrenders its right to exercise the Option within 3 Business
Days of its receipt of that notice, then the Option Holder's right to exercise
the Option shall lapse, and the Trustee shall promptly notify the next party
eligible to hold the Option (and the other parties eligible to hold the Option)
of its rights thereunder.
(b) The "Option Purchase Price" shall be an amount equal to the fair
value of the related Mortgage Loan, as determined by the Special Servicer upon
the request of any holder of the Option. The reasonable, out-of-pocket expenses
of the Special Servicer incurred in connection with any such determination of
the fair value of a Mortgage Loan shall be payable and reimbursed to the Special
Servicer as an expense of the Trust. Prior to the Special Servicer's
determination of fair value referred to above, the fair value of a Mortgage Loan
shall be deemed to be an amount equal to the Purchase Price plus (i) any
prepayment penalty or yield maintenance charge then payable upon the prepayment
of such Mortgage Loan and (ii) the reasonable fees and expenses of the Special
Servicer, the Master Servicer and the Trustee incurred in connection with the
sale of the Mortgage Loan. The Special Servicer shall determine the fair value
of a Mortgage Loan on the later of (A) as soon as reasonably practical upon the
Mortgage Loan becoming 60 days delinquent or upon the Balloon Payment becoming
delinquent and (B) the date that is 75 days after the Special Servicer's receipt
of the Servicer Mortgage File relating to such Mortgage Loan, and the Special
Servicer shall promptly notify the Option Holder (and the Trustee and each of
the other parties set forth above that could become the Option Holder) of the
Option Purchase Price. The Special Servicer is required to recalculate the fair
value of the Mortgage Loan if there has been a material change in circumstances
or the Special Servicer has received new information (including the receipt of a
third party bid to purchase the Option), either of which has a material effect
on the fair value, provided that the Special Servicer shall be required to
recalculate the fair value of the Mortgage Loan if the time between the date of
last determination of the fair value of the Mortgage Loan and the date of the
exercise of the Option has exceeded 60 days. Upon any recalculation, the Special
Servicer shall be required to promptly notify in writing each Option Holder (and
the Trustee and each of the other parties set forth above that could become the
Option Holder) of the revised Option Purchase Price. Any such recalculation of
the fair value of the Mortgage Loan shall be deemed to renew the Option in its
original priority at the recalculated price with respect to any party as to
which the Option had previously expired or been waived, unless the Option has
previously been exercised by an Option Holder at a higher Option Purchase Price.
In determining fair value, the Special Servicer shall take into account, among
other factors, the results of any Appraisal or updated Appraisal that it or the
Master Servicer may have obtained in accordance with this Agreement within the
prior twelve months; any views on fair value expressed by Independent investors
in mortgage loans comparable to the Mortgage Loan (provided that the Special
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Servicer shall not be obligated to solicit such views); the period and amount of
any delinquency on the affected Mortgage Loan; whether to the Special Servicer's
actual knowledge, the Mortgage Loan is in default to avoid a prepayment
restriction; the physical condition of the related Mortgaged Property; the state
of the local economy; the expected recoveries from the Mortgage Loan if the
Special Servicer were to pursue a workout or foreclosure strategy instead of the
Option being exercised; and the Trust's obligation to dispose of any REO
Property as soon as practicable consistent with the objective of maximizing
proceeds for all Certificateholders, but in no event later than the three-year
period (or such extended period) specified in Section 9.15.
(c) Any Option relating to a Mortgage Loan shall be assignable to a
third party by the Option Holder at its discretion at any time after its receipt
of notice from the Special Servicer that an Option is exercisable with respect
to a specified Mortgage Loan, and upon such assignment such third party shall
have all of the rights granted to the Option Holder hereunder in respect of the
Option. Such assignment shall only be effective upon written notice (together
with a copy of the executed assignment and assumption agreement) being delivered
to the Trustee, the Master Servicer and the Special Servicer, and none of such
parties shall be obligated to recognize any entity as an Option Holder absent
such notice.
(d) If the Special Servicer, the holder of Certificates representing
the greatest percentage interest in the Controlling Class or an Affiliate of
either thereof elects to exercise the Option, the Trustee shall be required to
determine whether the Option Purchase Price constitutes a fair price for the
Mortgage Loan. Upon request of the Special Servicer to make such a
determination, the Trustee will do so within a reasonable period of time (but in
no event more than 15 Business Days). In doing so, the Trustee may rely on the
opinion of an Appraiser or other expert in real estate matters retained by the
Trustee at the expense of the party exercising the Option. The Trustee may also
rely on the most recent Appraisal of the related Mortgaged Property that was
prepared in accordance with this Agreement. If the Trustee were to determine
that the Option Purchase Price does not constitute a fair price, then the
Special Servicer shall redetermine the fair value taking into account the
objections of the Trustee.
(e) The Option shall terminate, and shall not be exercisable as set
forth in clause (a) above (or if exercised, but the purchase of the related
Mortgage Loan has not yet occurred, shall terminate and be of no further force
or effect) if the Mortgage Loan to which it relates is no longer delinquent as
set forth above because the Mortgage Loan has (i) become a Rehabilitated
Mortgage Loan, (ii) been subject to a work-out arrangement, (iii) been
foreclosed upon or otherwise resolved (including by a full or discounted
pay-off) or (iv) been purchased by the related Seller pursuant to Section 2.3.
(f) Unless and until an Option Holder exercises an Option, the
Special Servicer shall continue to service and administer the related Mortgage
Loan in accordance with the Servicing Standard and this Agreement, and shall
pursue such other resolution or recovery strategies, including workout or
foreclosure, as is consistent with this Agreement and the Servicing Standard.
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Section 9.37 Operating Adviser; Elections
(a) In accordance with Section 9.37(c), the Certificateholders
representing more than 50% of the Certificate Balance of the Certificates of the
then Controlling Class may elect the operating adviser with respect to Specially
Serviced Mortgage Loans (the "Operating Adviser"). The Operating Adviser shall
be elected for the purpose of receiving reports and information from the Special
Servicer in respect of the Specially Serviced Mortgage Loans.
(b) The initial Operating Adviser is ____________. The Controlling
Class shall give written notice to the Trustee, the Paying Agent and the Master
Servicer of the appointment of any subsequent Operating Adviser (in order to
receive notices hereunder). If a subsequent Operating Adviser is not so
appointed, an election of an Operating Adviser also shall be held. Notice of the
meeting of the Holders of the Controlling Class shall be mailed or delivered to
each Holder by the Paying Agent, not less than 10 nor more than 60 days prior to
the meeting. The notice shall state the place and the time of the meeting, which
may be held by telephone. A majority of Certificate Balance of the Certificates
of the then Controlling Class, present in person or represented by proxy, shall
constitute a quorum for the nomination of an Operating Adviser. At the meeting,
each Holder shall be entitled to nominate one Person to act as Operating
Adviser. The Paying Agent shall cause the election of the Operating Adviser to
be held as soon thereafter as is reasonably practicable.
(c) Each Holder of the Certificates of the Controlling Class shall
be entitled to vote in each election of the Operating Adviser. The voting in
each election of the Operating Adviser shall be in writing mailed, telecopied,
delivered or sent by courier and actually received by the Paying Agent on or
prior to the date of such election. Immediately upon receipt by the Paying Agent
of votes (which have not been rescinded) from the Holders of Certificates
representing more than 50% of the Certificate Balance of the Certificates of the
then Controlling Class which are cast for a single Person, such Person shall be,
upon such Person's acceptance, the Operating Adviser. The Paying Agent shall not
be required to recognize any Person as an Operating Adviser until the Operating
Adviser provides the Paying Agent with written confirmation of its acceptance of
such appointment, written confirmation that it will keep confidential all
information received by it as Operating Adviser hereunder or otherwise with
respect to the Certificates, the Trust and/or this Agreement, an address and
telecopy number for the delivery of notices and other correspondence and a list
of officers or employees of such Person with whom the parties to this Agreement
may deal (including their names, titles, work addresses and telecopy numbers).
The Paying Agent hereby recognizes _________________ as the initial Operating
Adviser. The Paying Agent shall promptly notify the Trustee of the identity of
the Operating Adviser. The Trustee shall promptly deliver such information to
the Master Servicer and the Special Servicer. The Master Servicer and the
Special Servicer shall not be required to recognize any Person as an Operating
Adviser until such information has been delivered by the Trustee. In the event
that an Operating Adviser shall have resigned or been removed and a successor
Operating Adviser shall not have been elected, there shall be no Operating
Adviser.
(d) The Operating Adviser may be removed at any time by the written
vote, copies of which must be delivered to the Paying Agent, of more than 50% of
the Certificate Balance of the Holders of the Certificates of the then
Controlling Class.
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(e) The Paying Agent shall act as judge of each election and, absent
manifest error, the determination of the results of any election by the Paying
Agent shall be conclusive. Notwithstanding any other provisions of this Section
9.37, the Paying Agent may make such reasonable regulations as it may deem
advisable for any election.
(f) Notwithstanding any provision of this Section 9.37 or any other
provision of this Agreement to the contrary, at any time that the Special
Servicer has been elected as Operating Adviser or no Operating Adviser has been
elected, (i) the Special Servicer shall not be required to deliver notices or
information to, or obtain the consent or approval of, the Operating Adviser and
(ii) to the extent any Person other than the Special Servicer is otherwise
required hereunder to provide notices or information to, or obtain the consent
or approval of, the Operating Adviser, such Person shall be required to provide
such notices or information to, or obtain the consent or approval of, the
Special Servicer.
Section 9.38 Limitation on Liability of Operating Adviser
The Operating Adviser shall have no liability to the Trust, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificateholders for any action taken, or for refraining from the
taking of any action, in good faith and using reasonable business judgment
pursuant to this Agreement. By its acceptance of a Certificate, each
Certificateholder (and Certificate Owner) confirms its understanding that the
Operating Adviser may take actions that favor the interests of one or more
Classes of the Certificates over other Classes of the Certificates and that the
Operating Adviser may have special relationships and interests that conflict
with those of Holders of some Classes of the Certificates, and each
Certificateholder (and Certificate Owner) agrees to take no action against the
Operating Adviser based upon such special relationship or conflict.
Section 9.39 Rights of Operating Adviser
(a) Notwithstanding anything to the contrary herein, including but
not limited to Article 8 hereof, the Operating Adviser will receive notice of
and may advise the Special Servicer with respect to the following actions of the
Special Servicer with respect to any Mortgage Loan:
(i) any proposed modification of a Money Term of a Mortgage Loan
other than an extension of the original maturity date for 2 years or less;
(ii) with respect to notice only, any proposed sale of a Defaulted
Mortgage Loan, pursuant to Section 9.36;
(iii) any determination to bring an REO Property into compliance
with Environmental Laws;
(iv) any acceptance of substitute or additional collateral for a
Mortgage Loan not expressly required under such Mortgage Loan (except with
respect to a Defeasance Loan);
(v) any waiver of a "due on-sale" or "due on-encumbrance" clause;
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(vi) any acceptance of an assumption agreement; and
(vii) any release of collateral for a Specially Serviced Mortgage
Loan (other than in accordance with the terms of or upon satisfaction of
such Mortgage Loan).
(b) In addition, notwithstanding anything to the contrary herein,
including but not limited to Article 8 hereof, the Operating Adviser shall have
the right to approve any of the following actions by the Special Servicer:
(i) any actual or proposed foreclosure upon or comparable conversion
(which may include acquisition of an REO Property) of the ownership of
properties securing such of the Specially Serviced Mortgage Loans as come
into and continue in default;
(ii) any acceptance of a discounted payoff; and
(iii) any release of "earn out" or performance reserves listed on
Schedule XI hereof, on deposit in an Escrow Account, other than where such
release does not require the consent of the lender.
In the event that the Special Servicer determines that immediate
action is necessary to protect the interests of the Certificateholders, the
Special Servicer may take any such action without waiting for the Operating
Adviser's advice or approval. No advice or approval or lack of approval of the
Operating Adviser may (and the Special Servicer shall ignore and act without
regard to any such advice or approval or lack of approval that the Special
Servicer has determined, in its reasonable, good faith judgment, would) (A)
require or cause the Special Servicer to violate applicable law, the terms of
any Mortgage Loan or any other Section of this Agreement, including the Special
Servicer's obligation to act in accordance with the Servicing Standard, (B)
result in Adverse REMIC Event with respect to any REMIC Pool, (C) endanger the
status of the Class A-3-1FL Grantor Trust or the Class EI Grantor Trust as a
grantor trust, (D) expose the Trust, the Depositor, the Master Servicer, the
Special Servicer, the Trustee or any of their respective Affiliates, members,
managers, partners, representatives, officers, directors, employees or agents,
to any material claim, suit or liability, or (E) expand the scope of the Master
Servicer's or Special Servicer's responsibilities under this Agreement.
Any notices required to be delivered to the Special Servicer with
respect to items (i) through (vii) of subsection (a) above and items (i) through
(iii) of subsection (b) above by any other party to this Agreement shall be
simultaneously delivered to the Operating Adviser. With respect to items (v),
(vi) and (vii) of subsection (a) above, the Operating Adviser shall be subject
to the same time periods for advising the Special Servicer with respect to any
such matters as are afforded to the Special Servicer pursuant to Section 8.7,
which periods shall be co-terminus with those of the Special Servicer. The
Special Servicer shall provide the Operating Adviser with its recommendations
with respect to the matters set forth in both (a) and (b) above within 5
Business Days of the Special Servicer's receipt of notice thereof. In addition,
the Operating Adviser may direct the Trustee to remove the Special Servicer at
any time upon the appointment and acceptance of such appointment by a successor
to the Special Servicer; provided that, prior to the effectiveness of any such
appointment, the Trustee and the Paying Agent shall have received Rating Agency
Confirmation from each Rating Agency. The Operating Adviser shall pay any
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costs and expenses incurred by the Trust in connection with the removal and
appointment of the Special Servicer (unless such removal is based on any of the
events or circumstances set forth in Section 9.30(b)). The Trustee shall notify
the Paying Agent promptly upon its receipt of the direction set forth above.
Notwithstanding any other provision in this Agreement, the Operating Adviser
shall have the right to appoint a sub-operating adviser with respect to any
particular Mortgage Loan. Such sub-operating adviser shall have the right,
subject to Rating Agency confirmation, to appoint, or serve as, the Special
Servicer with respect to such Mortgage Loan. All references in this Agreement to
the "Operating Adviser" and the "Special Servicer" shall refer to the
sub-operating adviser or the special servicer appointed by the sub-operating
adviser, as applicable; provided, however, that the Special Servicer shall not
have any advancing obligations with respect to such Mortgage Loans.
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of
All Mortgage Loans
(a) The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent, to
make payments to the Class [R-I] Certificateholders, the Class [R-II]
Certificateholders and the REMIC III Certificateholders, as set forth in Section
10.2 and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders), (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b), (iii)
the termination of the Trust pursuant to Section 10.1(c) or (iv) the transfer of
the property held in the Trust in accordance with Section 10.1(d); provided 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.
(b) The Master Servicer shall give the Trustee and the Paying Agent
notice of the date when the aggregate Principal Balance of the Mortgage Loans,
after giving effect to distributions of principal made on the next Distribution
Date, is less than or equal to [1%] of the initial Aggregate Certificate Balance
of the Certificates as of the Closing Date. The Paying Agent shall promptly
forward such notice to the Trustee, the Depositor, the Holder of a majority of
the Controlling Class, the Master Servicer, the Special Servicer and the Holders
of the Class [R-I] Certificates; and the Holder of a majority of the Controlling
Class, the Master Servicer, the Special Servicer and the Holders of the Class
[R-I] Certificates, in such priority (and in the case of the Class [R-I]
Certificateholders, a majority of the Class [R-I] Certificateholders), may
purchase, in whole only, the Mortgage Loans and any other property, if any,
remaining in the Trust. If any party desires to exercise such option, it will
notify the Trustee who will notify any party with a prior right to exercise such
option. If any party that has been provided notice by the Trustee (excluding the
Depositor) notifies the Trustee within ten Business Days after receiving notice
of the proposed purchase that it wishes to purchase the assets of the
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Trust, then such party (or, in the event that more than one of such parties
notifies the Trustee that it wishes to purchase the assets of the Trust, the
party with the first right to purchase the assets of the Trust) may purchase the
assets of the Trust in accordance with this Agreement. Upon the Paying Agent's
receipt of the Termination Price set forth below, the Trustee shall promptly
release or cause to be released to the Master Servicer for the benefit of the
Holder of the majority of the Class [R-I] Certificates, the Special Servicer or
the Master Servicer, as the case may be, the Mortgage Files pertaining to the
Mortgage Loans. The "Termination Price" shall equal 100% of the aggregate
Principal Balances of the Mortgage Loans (other than Mortgage Loans as to which
a Final Recovery Determination has been made) on the day of such purchase plus
accrued and unpaid interest thereon (other than any accrued and unpaid interest
thereon that has been the subject of an Advance) at the applicable Mortgage
Rates (or Mortgage Rates less the Master Servicing Fee Rate if the Master
Servicer is the purchaser), with respect to the Mortgage Loans to the Due Date
for each Mortgage Loan ending in the Collection Period with respect to which
such purchase occurs, plus unreimbursed Advances and interest on such
unreimbursed Advances at the Advance Rate, and the fair market value of any
other property remaining in REMIC I. The Trustee shall consult with the
Placement Agent and the Underwriters or their respective successors, as
advisers, in order for the Trustee to determine whether the fair market value of
the property constituting the Trust has been offered; provided that, if the
Placement Agent or any Underwriter or an Affiliate of the Placement Agent or the
Underwriters is exercising its right to purchase the Trust assets, the Trustee
shall consult with the Operating Adviser in order for the Trustee to determine
the fair market value, provided that the Operating Adviser is not an Affiliate
of the Class R-I Holder, the Special Servicer or the Master Servicer, or the
Trustee (the fees and expenses of which shall be paid for by buyer of the
property). As a condition to the purchase of the Trust pursuant to this Section
10.1(b), the Holder of the majority of the Class [R-I] Certificates, the Special
Servicer or the Master Servicer, as the case may be, must deliver to the Trustee
an Opinion of Counsel, which shall be at the expense of such Holders, the
Special Servicer or the Master Servicer, as the case may be, stating that such
termination will be a "qualified liquidation" under Section 860F(a)(4) of the
Code. Such purchase shall be made in accordance with Section 10.3.
(c) If at any time the Holders of the Class [R-I] Certificates own
100% of the REMIC III Certificates, the Class [A-3-1FL] Certificates and the
Class [EI] Certificates, such Holders may terminate REMIC I (which will in turn
result in the termination of REMIC II and REMIC III), the Class A-3-1FL Grantor
Trust and the Class EI Grantor Trust upon (i) the delivery to the Trustee and
the Depositor of an Opinion of Counsel (which opinion shall be at the expense of
such Holders) stating that such termination will be a "qualified liquidation" of
each REMIC Pool under Section 860F of the Code, and (ii) the payment of any and
all costs associated with such termination. Such termination shall be made in
accordance with Section 10.3.
(d) [Following the date on which the aggregate Certificate Balance
of the Class [A-1], Class [A-1A], Class [A-2], Class [A-3-1], Class [A-3-2],
Class [A-AB], Class [A-4A], Class [A-4B], Class [A-J], Class [B], Class [C],
Class [D], Class [E], Class [F], Class [G] and Class [H] Certificates and the
Class A-3-1FL Regular Interest is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the
Residual Certificates) for all of the Mortgage Loans and each REO Property
remaining in the Trust as contemplated by clause (iv) of Section 10.1(a) by
giving written notice to all the parties
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hereto no later than 60 days prior to the anticipated date of exchange and upon
the delivery to the Trustee and the Depositor of an Opinion of Counsel (which
opinion shall be at the expense of such Sole Certificateholders) stating that
such exchange will be a "qualified liquidation" of each REMIC Pool under Section
860F of the Code. In the event that the Sole Certificateholder elects to
exchange all of its Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and each REO Property remaining in the Trust in accordance
with the preceding sentence, such Sole Certificateholder, not later than the
Distribution Date on which the final distribution on the Certificates is to
occur, shall deposit in the Certificate Account an amount in immediately
available funds equal to all amounts due and owing to the Depositor, the Master
Servicer, the Special Servicer and the Trustee hereunder through the date of the
liquidation of the Trust that may be withdrawn from the Certificate Account, or
an escrow account acceptable to the respective parties hereto or that may be
withdrawn from the Distribution Accounts pursuant to this Agreement but only to
the extent that such amounts are not already on deposit in the Certificate
Account. Upon confirmation that such final deposits have been made and following
the surrender of all its Certificates (other than the Residual Certificates) on
such Distribution Date, the Trustee shall, upon receipt of a Request for Release
from the Master Servicer, release or cause to be released to the Sole
Certificateholder or any designee thereof, the Mortgage Files for the remaining
Mortgage Loans and shall execute all assignments, endorsements and other
instruments furnished to it by the Sole Certificateholder as shall be necessary
to effectuate transfer of the Mortgage Loans and REO Properties remaining in the
Trust, and the Trust shall be liquidated in accordance with Section 10.2. For
federal income tax purposes, the Sole Certificateholder shall be deemed to have
purchased the assets of REMIC I, the Class A-3-1FL Grantor Trust and the Class
EI Grantor Trust, to the extent then outstanding, for an amount equal to the
remaining Certificate Balance of its Certificates (other than the Residual
Certificates), plus accrued, unpaid interest with respect thereto, and the
Trustee shall credit such amounts against amounts distributed in respect of such
Certificates. The remaining Mortgage Loans and REO Properties are deemed
distributed to the Sole Certificateholder in liquidation of the Trust pursuant
to Section 10.2.]
(e) Upon the termination of the Trust, any funds or other property
held by the Class A-3-1FL Grantor Trust shall be distributed to the Holders of
the Class A-3-1FL Regular Interest and any Excess Interest held by the Class EI
Grantor Trust shall be distributed to the Class [EI] Certificateholders, on a
pro rata basis.
Section 10.2 Procedure Upon Termination of Trust
(a) Notice of any termination pursuant to the provisions of Section
10.1, specifying the Distribution Date upon which the final distribution shall
be made, shall be given promptly by the Trustee by first class mail to the
Paying Agent, the Rating Agencies, the Swap Counterparty, the Class R-I, Class
R-II, REMIC Regular, Class [A-3-1FL] and Class [EI] Certificateholders mailed no
later than ten days prior to the date of such termination. Such notice shall
specify (A) the Distribution Date upon which final distribution on the Class
R-I, Class R-II, REMIC Regular, Class [A-3-1FL] and Class [EI] Certificates will
be made, and upon presentation and surrender of the Class [R-I], Class [R-II],
REMIC Regular, Class [A-3-1FL] and Class [EI] Certificates at the office or
agency of the Certificate Registrar therein specified, and (B) that the Record
Date otherwise applicable to such Distribution Date is not applicable,
distribution being made only upon presentation and surrender of the Class [R-I],
Class [R-II],
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REMIC Regular, Class [A-3-1FL] and Class [EI] Certificates at the office or
agency of the Certificate Registrar therein specified. The Trustee shall give
such notice to the Depositor and the Certificate Registrar at the time such
notice is given to Holders of the Class [R-I], Class [R-II], REMIC Regular,
Class [A-3-1FL] and Class [EI] Certificates. Upon any such termination, the
duties of the Certificate Registrar with respect to the Class [R-I], Class
[R-II], REMIC Regular, Class [A-3-1FL] and Class [EI] Certificates shall
terminate and the Trustee shall terminate, or request the Master Servicer and
the Paying Agent to terminate, the Certificate Accounts and the Distribution
Account and any other account or fund maintained with respect to the
Certificates, subject to the Paying Agent's obligation hereunder to hold all
amounts payable to the Class [R-I], Class [R-II], REMIC Regular, Class [A-3-1FL]
and Class [EI] Certificateholders in trust without interest pending such
payment.
(b) In the event that all of the Holders do not surrender their
certificates evidencing the Class [R-I], Class [R-II], REMIC Regular, Class
[A-3-1FL] and Class [EI] Certificates for cancellation within three months after
the time specified in the above-mentioned written notice, the Certificate
Registrar shall give a second written notice to the remaining Class [R-I], Class
[R-II], REMIC Regular, Class [A-3-1FL] and Class [EI] Certificateholders to
surrender their certificates evidencing the Class [R-I], Class [R-II], REMIC
Regular, Class [A-3-1FL] and Class [EI] Certificates for cancellation and
receive the final distribution with respect thereto. If within one year after
the second notice any Class [R-I], Class [R-II], REMIC Regular, Class [A-3-1FL]
and Class [EI] Certificates shall not have been surrendered for cancellation,
the Certificate Registrar may take appropriate steps to contact the remaining
Class [R-I], Class [R-II], REMIC Regular, Class [A-3-1FL] and Class [EI]
Certificateholders concerning surrender of such certificates, and the cost
thereof shall be paid out of the amounts distributable to such Holders. If
within two years after the second notice any such Class [R-I], Class [R-II],
REMIC Regular, Class [A-3-1FL] and Class [EI] Certificates shall not have been
surrendered for cancellation, the Paying Agent shall, subject to applicable
state law relating to escheatment, hold all amounts distributable to such
Holders for the benefit of such Holders. No interest shall accrue on any amount
held by the Trustee and not distributed to a Class [R-I], Class [R-II], REMIC
Regular, Class [A-3-1FL] or Class [EI] Certificateholder due to such
Certificateholder's failure to surrender its Certificate(s) for payment of the
final distribution thereon in accordance with this Section. Any money held by
the Paying Agent pending distribution under this Section 10.2 after 90 days
after the adoption of a plan of complete liquidation shall be deemed for tax
purposes to have been distributed from the REMIC Pools, the Class A-3-1FL
Grantor Trust and the Class EI Grantor Trust and shall be beneficially owned by
the related Holder.
Section 10.3 Additional Trust Termination Requirements
(a) The Trust and each REMIC Pool shall be terminated in accordance
with the following additional requirements, unless at the request of the Master
Servicer or the Class [R-I] Certificateholders, as the case may be, the Trustee
seeks, and the Paying Agent subsequently receives an Opinion of Counsel (at the
expense of the Master Servicer or the Class [R-I] Certificateholders, as the
case may be), addressed to the Depositor, the Trustee and the Paying Agent to
the effect that the failure of the Trust to comply with the requirements of this
Section 10.3 will not (i) result in the imposition of taxes on "prohibited
transactions" on any
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REMIC Pool under the REMIC Provisions or (ii) cause any REMIC Pool to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) Within 89 days prior to the time of the making of the final
payment on the REMIC III, Class [A-3-1FL] and Class [EI] Certificates the
Trustee shall prepare and (on behalf of REMIC I, REMIC II and REMIC III)
shall adopt a plan of complete liquidation of each REMIC Pool, meeting the
requirements of a qualified liquidation under the REMIC Provisions, which
plan need not be in any special form and the date of which, in general,
shall be the date of the notice specified in Section 10.2(a) and shall be
specified in a statement attached to the final federal income tax return
of each REMIC Pool;
(ii) At or after the date of adoption of such a plan of complete
liquidation and at or prior to the time of making of the final payment on
the REMIC III, Class [A-3-1FL] and Class [EI] Certificates, the Trustee
shall sell all of the assets of the Trust for cash at the Termination
Price; provided that if the Holders of the Class [R-I] Certificates are
purchasing the assets of the Trust, the amount to be paid by such Holders
may be paid net of the amount to be paid to such Holders as final
distributions on any Certificates held by such Holders;
(iii) At the time of the making of the final payment on the
Certificates, the Paying Agent shall distribute or credit, or cause to be
distributed or credited, (A) to the Holders of the Class [R-I]
Certificates all assets of REMIC I remaining after such final payment of
the REMIC I Regular Interests, (B) to the Holders of the Class [R-II]
Certificates all remaining assets of REMIC II after such final payment of
the REMIC II Regular Interests and (C) to the Holders of the Class [R-III]
Certificates all remaining assets of REMIC III (in each case other than
cash retained to meet claims), and the Trust shall terminate at that time;
and
(iv) In no event may the final payment on the REMIC I Regular
Interests, REMIC II Regular Interests, REMIC Regular Certificates and the
Class A-3-1FL Regular Interest or the final distribution or credit to the
Holders of the Residual Certificates, respectively, be made after the 89th
day from the date on which the plan of complete liquidation is adopted.
(b) By their acceptance of the Class [R-I], Class [R-II] or [R-III]
Certificates, respectively, the Holders thereof hereby (i) authorize the Trustee
to take such action as may be necessary to adopt a plan of complete liquidation
of each REMIC Pool and (ii) agree to take such other action as may be necessary
to adopt a plan of complete liquidation of the Trust upon the written request of
the Depositor, which authorization shall be binding upon all successor Class
[R-I], Class [R-II] and Class [R-III] Certificateholders, respectively.
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ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
The provisions of this Article XI shall apply to each of the REMIC
Regular Certificateholders, Class [A-3-1FL] Certificateholders and Residual
Certificateholders to the extent appropriate.
Section 11.1 Limitation on Rights of Holders
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
take any action or proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner otherwise control the Master Servicer or
operation and management of the Trust, or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association, nor shall any
Certificateholder be under any liability to any third Person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) If a Certificateholder is also a Mortgagor with respect to any
Mortgage Loan, such Certificateholder shall have no right to vote with respect
to any matters concerning such Mortgage Loan. In addition, if a
Certificateholder is also the Special Servicer, such Certificateholder shall
have no right to vote, in its capacity as a Certificateholder, with respect to
compensation to the Special Servicer or any waiver of a default with respect to
a Mortgage Loan.
(d) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing 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 unless the
Holders of Certificates evidencing not less than 50% of the Aggregate Principal
Amount of the Certificates then outstanding 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 cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty 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 and no direction inconsistent
with such written request has been given the Trustee during such sixty-day
period by such Certificateholders; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing 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, or to enforce any right
under
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this Agreement, except in the manner herein provided and for the 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 11.2 Access to List of Holders
(a) If the Paying Agent is not acting as Certificate Registrar, the
Certificate Registrar will furnish or cause to be furnished to the Trustee and
the Paying Agent, within 15 days after receipt by the Certificate Registrar of a
request by the Trustee or the Paying Agent, as the case may be, in writing, a
list, in such form as the Trustee or the Paying Agent, as the case may be, may
reasonably require, of the names and addresses of the Certificateholders of each
Class as of the most recent Record Date.
(b) If the Depositor, the Operating Adviser, the Special Servicer,
the Master Servicer, the Trustee or three or more Holders (hereinafter referred
to as "applicants," with a single Person which (together with its Affiliates) is
the Holder of more than one Class of Certificates being viewed as a single
"applicant" for these purposes) apply in writing to the Paying Agent and such
application states that the applicants 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 applicants propose to
transmit, then the Paying Agent shall, within five Business Days after the
receipt of such application, send, at such Person's expense, the written
communication proffered by the applicants to all Certificateholders at their
addresses as they appear in the Certificate Register.
(c) Every Holder, by receiving and holding a Certificate, agrees
with the Depositor, the Certificate Registrar, the Paying Agent, the Master
Servicer, the Special Servicer and the Trustee that neither the Depositor, the
Certificate Registrar, the Paying Agent, the Master Servicer, the Special
Servicer nor the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
Section 11.3 Acts of Holders of Certificates
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Depositor and
the Paying Agent. Such instrument or instruments (as the action embodies therein
and evidenced thereby) are herein sometimes referred to as an "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agents shall be sufficient for
any purpose of this Agreement and conclusive in favor of the Trustee, the
Depositor and the Paying Agent, if made in the manner provided in this Section.
The Trustee agrees to promptly notify the Depositor of any such instrument or
instruments received by it, and to promptly forward copies of the same.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments or deeds, certifying that the individual signing
such instrument or writing acknowledged to such notary public or other officer
the execution thereof. Whenever such execution is by an officer of a corporation
or a member of a partnership on behalf of such corporation or partnership, such
certificate or affidavit shall also constitute sufficient proof of such
officer's or member's authority. The fact and date of the execution of any such
instrument or writing, or the authority of the individual executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of
ownership or other writing thereon made by anyone other than the Trustee) shall
be proved by the Certificate Register, and neither the Trustee nor the Depositor
nor the Paying Agent shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Certificate shall bind every future
Holder of the same Certificate and the Holder of every Certificate issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof,
in respect of anything done, omitted or suffered to be done by the Trustee, the
Paying Agent or the Depositor in reliance thereon, whether or not notation of
such action is made upon such Certificate.
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
The provisions of this Article XII shall apply to each REMIC Pool,
the Class A-3-1FL Grantor Trust and the Class EI Grantor Trust, as applicable.
Section 12.1 REMIC Administration
(a) An election will be made by the Paying Agent on behalf of the
Trustee to treat the segregated pool of assets consisting of the Mortgage Loans
(other than Excess Interest payable thereon), such amounts with respect thereto
as shall from time to time be held in the Certificate Accounts, the Interest
Reserve Accounts, the Distribution Account and the Reserve Account, the
Insurance Policies and any related amounts REO Account and any related REO
Properties as a REMIC ("REMIC I") under the Code. Such election will be made on
Form 1066 or other appropriate federal tax or information return or any
appropriate state return for the taxable year ending on the last day of the
calendar year in which the REMIC I Interests are issued. For purposes of such
election, the REMIC I Regular Interests shall each be designated as a separate
class of "regular interests" in REMIC I and the Class [R-I] Certificates shall
be designated as the sole class of "residual interests" in REMIC I.
An election will be made by the Paying Agent to treat the segregated
pool of assets consisting of the REMIC I Regular Interests as a REMIC ("REMIC
II") under the Code. Such election will be made on Form 1066 or other
appropriate federal tax or information return or any appropriate state return
for the taxable year ending on the last day of the calendar year in
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which the REMIC II Interests are issued. For the purposes of such election, the
REMIC II Regular Interests shall be designated as the "regular interests" in
REMIC II and the Class [R-II] Certificates shall be designated as the sole class
of the "residual interests" in REMIC II.
An election will be made by the Paying Agent to treat the segregated
pool of assets consisting of the REMIC II Regular Interests as a REMIC ("REMIC
III") under the Code. Such election will be made on Form 1066 or other
appropriate federal tax or information return or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
REMIC III Certificates are issued. For purposes of such election, the Class
[A-1], Class [A-1A], Class [A-2], Class [A-3-1], Class [A-3-2], Class [A-AB],
Class [A-4A], Class [A-4B], Class [A-1A], Class [A-J], Class [B], Class [C],
Class [D], Class [E], Class [F], Class [G], Class [H], Class [J], Class [K],
Class [L], Class [M], Class [N], Class [O], Class [P], Class [X-1], Class [X-2]
and Class [X-Y] Certificates and the Class A-3-1FL Regular Interest, shall be
designated as the "regular interests" in REMIC III and the Class [R-III]
Certificates shall be designated as the sole class of "residual interests" in
REMIC III.
The Trustee and the Paying Agent shall not permit the creation of
any "interests" (within the meaning of Section 860G of the Code) in any of the
REMIC Pools other than the REMIC I Regular Interests, the REMIC II Regular
Interests, the REMIC III Regular Interests and the Residual Certificates.
(b) 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.
(c) The Paying Agent shall pay all routine tax related expenses (not
including any taxes, however denominated, including any additions to tax,
penalties and interest) of each REMIC Pool, excluding any professional fees or
extraordinary expenses related to audits or any administrative or judicial
proceedings with respect to each REMIC Pool that involve the Internal Revenue
Service or state tax authorities.
(d) The Paying Agent shall cause to be prepared, signed, and timely
filed with the Internal Revenue Service, on behalf of each REMIC Pool, an
application for a taxpayer identification number for such REMIC Pool on Internal
Revenue Service Form SS-4. The Paying Agent, upon receipt from the Internal
Revenue Service of the Notice of Taxpayer Identification Number Assigned, shall
promptly forward a copy of such notice to the Depositor and the Master Servicer.
The Paying Agent shall prepare and file Form 8811 on behalf of each REMIC Pool
and shall designate an appropriate Person to respond to inquiries by or on
behalf of Certificateholders for original issue discount and related information
in accordance with applicable provisions of the Code.
(e) The Paying Agent shall prepare and file, or cause to be prepared
and filed, all of each REMIC Pool's federal and state income or franchise tax
and information returns as such REMIC Pool's direct representative, and the
Trustee shall sign such returns; the expenses of preparing and filing such
returns shall be borne by the Paying Agent, except that if additional state tax
returns are required to be filed in more than three states, the Paying Agent
shall be entitled, with respect to any such additional filings, to (i) be paid a
reasonable fee and (ii) receive
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its reasonable costs and expenses, both as amounts reimbursable pursuant to
Section 5.2(a)(vi) hereof. The Depositor, the Master Servicer and the Special
Servicer shall provide on a timely basis to the Paying Agent or its designee
such information with respect to the Trust or any REMIC Pool as is in its
possession, which the Depositor or the Master Servicer and the Special Servicer
has received or prepared by virtue of its role as Depositor or Master Servicer
and Special Servicer hereunder and reasonably requested by the Paying Agent to
enable it to perform its obligations under this subsection, and the Paying Agent
shall be entitled to conclusively rely on such information in the performance of
its obligations hereunder. The Depositor shall indemnify the Trust, the Trustee
and the Paying Agent or any liability or assessment against any of them or cost
or expense (including attorneys' fees) incurred by them resulting from any error
resulting from bad faith, negligence, or willful malfeasance of the Depositor in
providing any information for which the Depositor is responsible for preparing.
The Master Servicer and the Special Servicer shall indemnify the Trustee, the
Paying Agent, and the Depositor for any liability or assessment against the
Trustee, the Depositor, the Paying Agent or any REMIC Pool and any expenses
incurred in connection with such liability or assessment (including attorneys'
fees) resulting from any error in any of such tax or information returns
resulting from errors in the information provided by the Master Servicer or the
Special Servicer, as the case may be, which errors were caused by the
negligence, willful misconduct or bad faith of the Master Servicer or the
Special Servicer, as the case may be. The Paying Agent shall indemnify the
Master Servicer, the Special Servicer, the Depositor or any REMIC Pool for any
expense incurred by the Master Servicer, the Special Servicer, the Depositor and
any REMIC Pool resulting from any error in any of such tax or information
returns resulting from errors in the preparation of such returns caused by the
negligence, willful misconduct or bad faith of the Paying Agent. Each
indemnified party shall immediately notify the indemnifying party or parties of
the existence of a claim for indemnification under this Section 12.1(e), and
provide the indemnifying party or parties, at the expense of such indemnifying
party or parties, an opportunity to contest the tax or assessment or expense
giving rise to such claim, provided that the failure to give such notification
rights shall not affect the indemnification rights in favor of any REMIC Pool
under this Section 12.1(e). Any such indemnification shall survive the
resignation or termination of the Master Servicer, the Paying Agent or the
Special Servicer, or the termination of this Agreement.
(f) The Paying Agent shall perform on behalf of each REMIC Pool all
reporting and other tax compliance duties that are the responsibility of such
REMIC Pool under the Code, REMIC Provisions, or other compliance guidance issued
by the Internal Revenue Service or any state or local taxing authority. Among
its other duties, the Paying Agent shall provide (i) to the Internal Revenue
Service or other Persons (including, but not limited to, the Transferor of a
Residual Certificate, to a Disqualified Organization or to an agent that has
acquired a Residual Certificate on behalf of a Disqualified Organization) such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any Disqualified Organization and (ii) to
the Certificateholders such information or reports as are required by the Code
or REMIC Provisions.
(g) The Paying Agent shall forward to the Depositor copies of
quarterly and annual REMIC tax returns and Internal Revenue Service Form 1099
information returns and such other information within the control of the Paying
Agent as the Depositor may reasonably request in writing. Moreover, the Paying
Agent shall forward to each Certificateholder such
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forms and furnish such information within its control as are required by the
Code to be furnished to them, shall prepare and file with the appropriate state
authorities as may to the actual knowledge of a Responsible Officer of the
Paying Agent be required by applicable law and shall prepare and disseminate to
Certificateholders Internal Revenue Service Forms 1099 (or otherwise furnish
information within the control of the Paying Agent) to the extent required by
applicable law. The Paying Agent will make available to any Certificateholder
any tax related information required to be made available to Certificateholders
pursuant to the Code and any regulations thereunder.
(h) The Holder of more than 50% of the Percentage Interests in Class
[R-I], Class [R-II] and Class [R-III] Certificates, respectively (or of the
greatest percentage of such Class [R-I], Class [R-II] and Class [R-III]
Certificates if no Holder holds more than 50% thereof), shall be the applicable
REMIC Pool's Tax Matters Person. The duties of the Tax Matters Person for each
of the REMIC Pools are hereby delegated to the Paying Agent and each Residual
Certificateholder, by acceptance of its Residual Certificate, agrees, on behalf
of itself and all successor holders of such Residual Certificate, to such
delegation to the Paying Agent as their agent and attorney in fact. If the Code
or applicable regulations prohibits the Paying Agent from signing any applicable
Internal Revenue Service, court or other administrative documents or from acting
as Tax Matters Person (as an agent or otherwise), the Paying Agent shall take
whatever action is necessary for the signing of such documents and designation
of a Tax Matters Person, including the designation of such Residual
Certificateholder. The Paying Agent shall not be required to expend or risk its
own funds or otherwise incur any other financial liability in the performance of
its duties hereunder or in the exercise of any of its rights or powers (except
to the extent of the ordinary expenses of performing its duties under this
Agreement), 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.
(i) The Trustee, the Paying Agent, the Holders of the Residual
Certificates, the Master Servicer and the Special Servicer shall each exercise
reasonable care, to the extent within its control, and with respect to each of
the Trustee, Paying Agent, the Master Servicer and the Special Servicer, within
the scope of its express duties, and shall each act in accordance with this
Agreement and the REMIC Provisions in order to create and maintain the status of
each REMIC Pool as a REMIC and each of the Class A-3-1FL Grantor Trust and the
Class EI Grantor Trust as a grantor trust or, as appropriate, adopt a plan of
complete liquidation with respect to each REMIC Pool.
(j) The Trustee, the Paying Agent, the Master Servicer, the Special
Servicer, and the Holders of Residual Certificates shall not take any action or
fail to take any action or cause any REMIC Pool to take any action or fail to
take any action if any of such Persons knows or could, upon the exercise of
reasonable diligence, know, that, under the REMIC Provisions such action or
failure, as the case may be, could (i) endanger the status of any REMIC Pool as
a REMIC or (ii) result in the imposition of a tax upon any REMIC Pool (including
but not limited to the tax on prohibited transactions as defined in Section
860F(a)(2)) of the Code or (iii) endanger the status of the Class A-3-1FL
Grantor Trust or the Class EI Grantor Trust as a grantor trust unless the
Trustee and the Paying Agent have received an Opinion of Counsel (at the expense
of the party seeking to take such action) to the effect that the contemplated
action will not endanger such status or result in the imposition of such a tax.
Any action required under this
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section which would result in an unusual or unexpected expense shall be
undertaken at the expense of the party seeking the Trustee, the Paying Agent or
the Holders of the Residual Certificates to undertake such action.
(k) In the event that any tax is imposed on the REMIC I, REMIC II or
REMIC III, including, without limitation, "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 the REMIC I, REMIC II or REMIC III 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 9.14(e)),
such tax, together with all incidental costs and expenses (including, without
limitation, penalties and reasonable attorneys' fees), shall be charged to and
paid by: (i) the Paying Agent, if such tax arises out of or results from a
breach of any of its obligations under this Agreement, which breach constitutes
negligence, willful misconduct or bad faith; (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 this Agreement, which breach constitutes negligence, willful
misconduct or bad faith; (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
this Agreement, which breach constitutes negligence, willful misconduct or bad
faith; and (iv) the Trust in all other instances. Any tax permitted to be
incurred by the Special Servicer pursuant to Section 9.14(e) shall be charged to
and paid by the Trust from the net income generated on the related REO Property.
Any such amounts payable by the Trust in respect of taxes shall be paid by the
Paying Agent out of amounts on deposit in the Distribution Account.
(l) The Paying Agent and, to the extent that records are maintained
by the Master Servicer or the Special Servicer in the normal course of their
businesses, the Master Servicer and the Special Servicer 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, and with respect to the Class
A-3-1FL Grantor Trust and the Class EI Grantor Trust on the cash or accrual
method and so as to enable reporting to Holders of the Class [A-3-1FL]
Certificates and the Class [EI] Certificates, respectively, based on their
annual accounting period. Notwithstanding anything to the contrary contained
herein, except to the extent provided otherwise in the Mortgage Loans or in the
Mortgages, all amounts collected on the Mortgage Loans shall, for federal income
tax purposes, be allocated first to interest due and payable on the Mortgage
Loans (including interest on overdue interest, other than additional interest at
a penalty rate payable following a default). The books and records must be
sufficient concerning the nature and amount of each REMIC Pool's investments to
show that such REMIC Pool has complied with the REMIC Provisions.
(m) Neither the Trustee, the Paying Agent, the Master Servicer nor
the Special Servicer shall enter into any arrangement by which any REMIC Pool
will receive a fee or other compensation for services.
(n) In order to enable the Paying Agent to perform its duties as set
forth herein, the Depositor shall provide, or cause to be provided, to the
Paying Agent within ten days after the Closing Date all information or data that
the Paying Agent reasonably determines to be relevant for tax purposes on the
valuations and offering prices of the Certificates, including,
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without limitation, the yield, prepayment assumption, issue prices and projected
cash flows of the Certificates, as applicable, and the projected cash flows of
the Mortgage Loans. Thereafter, the Depositor shall provide to the Paying Agent
or its designee, promptly upon request therefor, any such additional information
or data within the Depositor's possession or knowledge that the Paying Agent
may, from time to time, reasonably request in order to enable the Paying Agent
to perform its duties as set forth herein. The Paying Agent is hereby directed
to use any and all such information or data provided by the Depositor in the
preparation of all federal and state income or franchise tax and information
returns and reports for each REMIC Pool to Certificateholders as required
herein. The Depositor hereby indemnifies the Trustee, the Paying Agent and each
REMIC Pool for any losses, liabilities, damages, claims, expenses (including
attorneys' fees) or assessments against the Trustee, the Paying Agent and each
REMIC Pool arising from any errors or miscalculations of the Paying Agent
pursuant to this Section that result from any failure of the Depositor to
provide, or to cause to be provided, accurate information or data to the Paying
Agent (but not resulting from the methodology employed by the Paying Agent) on a
timely basis and such indemnification shall survive the termination of this
Agreement and the termination or resignation of the Paying Agent.
The Paying Agent agrees that all such information or data so
obtained by it are to be regarded as confidential information and agrees that it
shall use its reasonable best efforts to retain in confidence, and shall ensure
that its officers, employees and representatives retain in confidence, and shall
not disclose, without the prior written consent of the Depositor, any or all of
such information or data, or make any use whatsoever (other than for the
purposes contemplated by this Agreement) of any such information or data without
the prior written consent of the Depositor, unless such information is generally
available to the public (other than as a result of a breach of this Section
12.1(n)) or is required by law or applicable regulations to be disclosed or is
disclosed (i) to independent auditors and accountants, counsel and other
professional advisers of the Paying Agent and its parent, or (ii) in connection
with its rights and obligations under this Agreement.
(o) At all times as may be required by the Code, the Master Servicer
will to the extent within its control and the scope of its duties more
specifically set forth herein, maintain substantially all of the assets of each
REMIC Pool as "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.
(p) For the purposes of Treasury Regulations Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each Class of REMIC
I Regular Interests, each Class of REMIC II Regular Interests and each Class of
REMIC III Regular Interests is the Final Rated Distribution Date.
Section 12.2 Prohibited Transactions and Activities
Neither the Trustee, the Paying Agent, the Master Servicer nor the
Special Servicer shall permit the sale, disposition or substitution of any of
the Mortgage Loans (except in a disposition pursuant to (i) the foreclosure or
default of a Mortgage Loan, (ii) the bankruptcy or insolvency of any REMIC Pool,
(iii) the termination of any REMIC Pool in a "qualified liquidation" as defined
in Section 860F(a)(4) of the Code, or (iv) a substitution pursuant to
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Article II hereof), nor acquire any assets for the Trust, except as provided in
Article II hereof, nor sell or dispose of any investments in the Certificate
Accounts or Distribution Account for gain, nor accept any contributions to any
REMIC Pool (other than a cash contribution during the 3-month period beginning
on the Startup Day), unless it has received an Opinion of Counsel (at the
expense of the Person requesting such action) to the effect that such
disposition, acquisition, substitution, or acceptance will not (A) affect
adversely the status of any REMIC Pool as a REMIC or of the regular interests
therein, (B) affect the distribution of interest or principal on the
Certificates, (C) result in the encumbrance of the assets transferred or
assigned to any REMIC Pool (except pursuant to the provisions of this Agreement)
or (D) cause any REMIC Pool to be subject to a tax on "prohibited transactions"
or "prohibited contributions" or other tax pursuant to the REMIC Provisions.
Section 12.3 Modifications of Mortgage Loans
Notwithstanding anything to the contrary in this Agreement, neither
the Trustee, the Paying Agent, the Master Servicer nor the Special Servicer
shall permit any modification of a Money Term of a Mortgage Loan that is not in
default or as to which default is not reasonably foreseeable unless (i) the
Trustee, the Special Servicer, Paying Agent and the Master Servicer have
received a Nondisqualification Opinion or a ruling from the Internal Revenue
Service (at the expense of the party making the request that the Master Servicer
or the Special Servicer modify the Mortgage Loan or a Specially Serviced
Mortgage Loan) to the effect that such modification would not be treated as an
exchange pursuant to Section 1001 of the Code (or, if it would be so treated,
would not be treated as a "significant modification" for purposes of Treasury
Regulations Section 1.860G-2(b) of the Code) or (ii) such modification meets the
requirements set forth in Sections 8.18 or 9.5.
Section 12.4 Liability with Respect to Certain Taxes and Loss of
REMIC Status
In the event that any REMIC Pool fails to qualify as a REMIC, loses
its status as a REMIC, or incurs state or local taxes, or tax as a result of a
prohibited transaction or prohibited contribution subject to taxation under the
REMIC Provisions due to the negligent performance by either the Trustee or the
Paying Agent of its respective duties and obligations set forth herein, the
Trustee or the Paying Agent, as the case may be, shall be liable to the REMIC
Pools and the Holders of the Residual Certificates for any and all losses,
claims, damages, liabilities or expenses ("Losses") resulting from such
negligence and relating to the Residual Certificates; provided, however, that
the Trustee, or the Paying Agent, as applicable, shall not be liable for any
such Losses attributable to the action or inaction of the Master Servicer, the
Special Servicer, the Trustee (with respect to the Paying Agent), the Paying
Agent (with respect to the Trustee), the Depositor or the Holders of such
Residual Certificates nor for any such Losses resulting from any actions or
failure to act based upon reliance on an Opinion of Counsel or from
misinformation provided by the Master Servicer, the Special Servicer, the
Trustee (with respect to the Paying Agent), the Paying Agent (with respect to
the Trustee), the Depositor or such Holders of the Residual Certificates on
which the Trustee or the Paying Agent, as the case may be, has relied. The
foregoing shall not be deemed to limit or restrict the rights and remedies of
the Holders of the Residual Certificates now or hereafter existing at law or in
equity. The Trustee or the Paying Agent shall be entitled to intervene in any
litigation in connection with the foregoing and to maintain control over its
defense.
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Section 12.5 Grantor Trust Administration
The assets of the Class EI Grantor Trust, consisting of the right to
any Excess Interest in respect of the ARD Loan (in the case of the Class [EI]
Certificates) and the related amounts in the Excess Interest Sub-account, shall
be held by the Trustee for the benefit of the Holders of the Class [EI]
Certificates, which Class [EI] Certificates will evidence 100% beneficial
ownership of the related assets from and after the Closing Date. The assets of
the Class A-3-1FL Grantor Trust, consisting of the Class A-3-1FL Regular
Interest, the Swap Contract and the related amounts in the Floating Rate
Account, shall be held by the Trustee for the benefit of the Holders of the
Class [A-3-1FL] Certificates, which Class [A-3-1FL] Certificates will evidence
100% beneficial ownership of the related assets from and after the Closing Date.
It is intended that the portions of the Trust consisting of the Class A-3-1FL
Grantor Trust and the Class EI Grantor Trust will be treated as grantor trusts
for federal income tax purposes, within the meaning of subpart E, part I of
subchapter J of the Code, and each of the parties to this Agreement agrees that
it will not take any action that is inconsistent with establishing or
maintaining such treatment. Under no circumstances may the Trustee vary the
assets of the Class A-3-1FL Grantor Trust or Class EI Grantor Trust so as to
take advantage of variations in the market so as to improve the rate of return
of Holders of the Class A-3-1FL or Class [EI] Certificates. The Trustee and the
Paying Agent shall be deemed to hold and shall account for the Class A-3-1FL
Grantor Trust and the Class EI Grantor Trust separate and apart from the assets
of the REMIC I, REMIC II and REMIC III created hereunder. In furtherance of such
intention, the Paying Agent shall furnish or cause to be furnished to the Class
A-3-1FL and Class [EI] Certificateholders and shall file, or cause to be filed
with the Internal Revenue Service, together with Form 1041 or such other form as
may be applicable, information returns with respect to income relating to their
shares of the income and expenses of the Class A-3-1FL Grantor Trust and the
Class EI Grantor Trust, at the time or times and in the manner required by the
Code.
ARTICLE XIII
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 13.1 Intent of the Parties; Reasonableness
Except with respect to Section 13.11, Section 13.12 and Section
13.13, the parties hereto acknowledge and agree that the purpose of Article XIII
of this Agreement is to facilitate compliance by the Depositor with the
provisions of Regulation AB and related rules and regulations of the Commission.
Neither the Depositor nor the Master Servicer shall exercise its rights to
request delivery of information or other performance under these provisions
other than in good faith, or (except with respect to Section 13.11, Section
13.12 or Section 13.13) for purposes other than compliance with the Securities
Act, the Exchange Act, the Xxxxxxxx-Xxxxx Act and, in each case, the rules and
regulations of the Commission thereunder. The parties hereto acknowledge that
interpretations of the
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requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise, and
agree to comply with requests made by the Depositor or the Master Servicer in
good faith for delivery of information under these provisions on the basis of
evolving interpretations of the requirements of Regulation AB. In connection
with the Certificates, each of the Master Servicer, the Special Servicer, the
Primary Servicer, the Trustee and the Paying Agent shall cooperate fully with
the Depositor and the Master Servicer, as applicable, to deliver or make
available to the Depositor or the Master Servicer, as applicable (including any
of their assignees or designees), any and all statements, reports,
certifications, records and any other information in its possession and
necessary in the good faith determination of the Depositor or the Master
Servicer, as applicable, to permit the Depositor to comply with the provisions
of Regulation AB, together with such disclosure relating to the Master Servicer,
the Special Servicer, or the Primary Servicer, the Trustee and the Paying Agent,
as applicable, and any Sub-Servicer, or the Servicing of the Mortgage Loans,
reasonably believed by the Depositor or the Master Servicer, as applicable, to
be necessary in order to effect such compliance.
Section 13.2 Additional Representations and Warranties of the Master
Servicer, the Special Servicer, the Primary Servicer and the Paying Agent
(a) Each of the Master Servicer, the Special Servicer, the Primary
Servicer and the Paying Agent, as applicable, hereby represents and warrants,
each as to itself only, to the Depositor and the Underwriters, as of the Time of
Sale and as of the date of the Prospectus Supplement under Section 13.3 that,
except as disclosed in writing to the Depositor, on or prior to such date: (i)
the Master Servicer, the Special Servicer, the Primary Servicer or the Paying
Agent, as applicable, is not aware and has not received notice that any default,
early amortization or other performance triggering event has occurred as to any
other securitization due to any act or failure to act of the Master Servicer,
the Special Servicer, the Primary Servicer or the Paying Agent, respectively,
other than as disclosed in the Disclosure Documents; (ii) the Master Servicer,
the Special Servicer or the Primary Servicer, as applicable, has not been
terminated as servicer, and the Paying Agent has not been terminated, as paying
agent, in a commercial mortgage loan securitization, either due to (A) in the
case of the Master Servicer, Special Servicer or Primary Servicer, (I) a
servicing default, (II) an application of a servicing performance test or
trigger or (III) a default in any of its Servicing duties, or (B) in the case of
the Paying Agent, a default in any of its Servicing duties, in either case other
than as disclosed in the Final Prospectus Supplement; (iii) no material
noncompliance with the Servicing Criteria applicable to it under any other
commercial mortgage loan securitizations has been disclosed or reported by the
Master Servicer, the Special Servicer, the Primary Servicer or the Paying Agent,
as applicable, other than as disclosed in the Disclosure Documents; (iv) there
is no material risk that the effect on one or more aspects of Servicing
resulting from the financial condition of the Master Servicer, the Special
Servicer, the Primary Servicer or the Paying Agent, as applicable, could have a
material impact on the performance of the Mortgage Loans or the performance of
the Certificates, other than as disclosed in the Final Prospectus Supplement;
(v) there are no legal or governmental proceedings pending (or known to be
contemplated) against the Master Servicer, the Special Servicer, the Primary
Servicer, the Paying Agent, or any Sub-Servicer, as applicable, or with respect
to any of its property that, in each case, would be material to
Certificateholders, other than as disclosed in the Final Prospectus Supplement;
(vi) there are no affiliations, relationships or transactions relating to the
Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent or
any Sub-Servicer, as applicable, on the one hand, and any of the Depositor, the
Trust, any sponsor (as defined in Regulation AB), any Servicer, the Trustee, any
originator (as defined in Regulation AB), any significant obligor (as defined in
Regulation AB), any enhancement or credit support provider for the Certificates
or any other material parties
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related to the Certificates, as provided for in Item 1119(a) of Regulation AB,
on the other hand, other than as disclosed in the Final Prospectus Supplement;
and (vii) the Master Servicer, the Special Servicer, the Primary Servicer or the
Paying Agent, as applicable, has not failed, in any other commercial mortgage
loan securitization, to deliver to the related master servicer or depositor, in
a timely, complete and accurate manner, (i) any disclosure of the type required
to be delivered pursuant to Section 13.13 or (ii) any reports, certifications
and other information of the type required to be delivered by it pursuant to
this Article XIII.
(b) If so requested by the Depositor on any date following the Time
of Sale and the date of the Prospectus Supplement, the Master Servicer, the
Special Servicer, the Primary Servicer and the Paying Agent, as the case may be,
shall, within five Business Days following such request, confirm in writing the
accuracy of the representations and warranties set forth in paragraph (a) of
this Section 13.2 or, if any such representation and warranty is not accurate as
of the date of such request, provide reasonably adequate disclosure of the
pertinent facts, in writing, to the Depositor.
Section 13.3 Information to be Provided by the Master Servicer, the
Special Servicer, the Primary Servicer and the Paying Agent
(a) In connection with the Free Writing Prospectus and the Final
Prospectus Supplement (whether delivered by itself or as part of the Private
Placement Memorandum), the Master Servicer, the Special Servicer, the Primary
Servicer and the Paying Agent (i) as of the Time of Sale and as of the date of
the Prospectus Supplement, have each provided to the Depositor, in writing, the
information and materials specified in paragraph (b) of this Section 13.3, and
(ii) for so long as the Trust is subject to the reporting requirements of the
Exchange Act, as promptly as practicable following written notice to or
discovery by the Master Servicer, the Special Servicer, the Primary Servicer,
the Trustee or the Paying Agent, in each case as to itself, shall provide (and,
the Master Servicer, the Special Servicer, the Primary Servicer and the Paying
Agent as applicable, shall (a) use reasonable efforts to cause each Sub-Servicer
(other than any party to this Agreement) with which it has entered into a
servicing relationship on or prior to the Closing Date with respect to the
Mortgage Loans and (b) cause each Sub-Servicer (other than any party to this
Agreement) with which it has entered into a servicing relationship after the
Closing Date with respect to the Mortgage Loans, to provide) to the Depositor
(in writing and in form and substance reasonably satisfactory to the Depositor)
the information specified in paragraph (c) of this Section 13.3.
(b) The Master Servicer, the Special Servicer, the Primary Servicer,
the Paying Agent and each Sub-Servicer hereby represents and warrants, each as
to itself only, that it has provided such information (as of the Time of Sale
and as of the date of the Prospectus Supplement) regarding itself as a servicer
of the Mortgage Loans (each of the Master Servicer, the Special Servicer, the
Primary Servicer, the Paying Agent and each Sub-Servicer, for purposes of this
paragraph, a "Servicer"), as was reasonably requested by the Depositor for the
purpose of compliance with Items 1108(b), 1108(c), 1117 and 1119 of Regulation
AB. Such information included:
(i) the Servicer's form of organization;
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(ii) a description of how long the Servicer has been servicing
commercial mortgage loans; to the extent material a general discussion of
the Servicer's experience in servicing assets of any type as well as a
more detailed discussion of the Servicer's experience in, and procedures
for, the Servicing function it will perform under this Agreement; to the
extent material, information regarding the size, composition and growth of
the Servicer's portfolio of commercial mortgage loans of a type similar to
the Mortgage Loans and information on factors related to the Servicer that
may be material to any analysis of the Servicing of the Mortgage Loans or
the Certificates, as applicable, including, without limitation:
(A) whether any prior securitizations of mortgage loans of a
type similar to the Mortgage Loans involving the Master Servicer,
the Primary Servicer (if applicable) or the Special Servicer have
defaulted or experienced an early amortization or other performance
triggering event because of the Servicing activities of such
Servicer during the three-year period immediately preceding the
Closing Date;
(B) the extent to which the Servicer outsources any of its
Servicing activities;
(C) whether there has been previous disclosure of material
noncompliance by the Servicer with any Servicing Criteria applicable
to them with respect to other securitizations of commercial mortgage
loans involving the Servicer as a servicer during the three-year
period immediately preceding the Closing Date;
(D) whether the Servicer has been terminated as servicer in a
commercial mortgage loan securitization, either due to a servicing
default or to application of a servicing performance test or trigger
or, in the case of the Paying Agent, a default in the performance of
its Servicing duties; and
(E) such other information as the Depositor reasonably
requested for the purpose of compliance with Items 1108(b), 1108(c),
1117 and 1119 of Regulation AB;
(iii) a description of any material changes during the three-year
period immediately preceding the Closing Date to the Servicer's policies
or procedures with respect to the Servicing function it will perform under
this Agreement for mortgage loans of a type similar to the Mortgage Loans;
(iv) information regarding the Servicer's financial condition, to
the extent that there is a material risk that an adverse financial event
or circumstance involving the Servicer could affect one or more aspects of
servicing so as to have a material adverse effect on the performance of
the Mortgage Loans or the Certificates;
(v) to the extent material, information regarding advances made by
the Master Servicer, the Primary Servicer (if applicable) or the Special
Servicer on such Servicer's overall servicing portfolio of commercial
mortgage loans for the three-year period
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immediately preceding the Closing Date, which may be limited to a
statement by an authorized officer of such Servicer to the effect that
such Servicer has made all advances required to be made on commercial
mortgage loans serviced by it during such period, or, if such statement
would not be accurate, information regarding the percentage and type of
advances not made as required, and the reasons for such failure to
advance;
(vi) a description, to the extent material, of the Master Servicer,
the Primary Servicer (if applicable) or the Special Servicer's processes
and procedures designed to address any special or unique factors involved
in servicing loans of a similar type as the Mortgage Loans; and
(vii) a description, to the extent material, of the Master Servicer,
the Primary Servicer (if applicable) or the Special Servicer's processes
for handling delinquencies, losses, bankruptcies and recoveries, such as
through liquidation of mortgaged properties, sale of defaulted mortgage
loans or workouts.
(c) For so long as the Trust is subject to the reporting
requirements of the Exchange Act, the Master Servicer, the Special Servicer, the
Primary Servicer, the Trustee and the Paying Agent shall (and each of the Master
Servicer, the Special Servicer, the Primary Servicer, the Trustee and the Paying
Agent, as applicable, shall (a) use reasonable efforts to cause each
Sub-Servicer (other than any party to this Agreement) with which it has entered
into a servicing relationship on or prior to the Closing Date with respect to
the Mortgage Loans and (b) cause each Sub-Servicer (other than any party to this
Agreement) with which it has entered into a servicing relationship after the
Closing Date with respect to the Mortgage Loans, to) (i) notify the Depositor in
writing of (A) any litigation or governmental proceedings pending against the
Master Servicer, the Special Servicer, the Primary Servicer, the Trustee, the
Paying Agent or such Sub-Servicer, as the case may be, or with respect to any of
its property, that, in each such case, would be material to Certificateholders
and (B) any affiliations or relationships that develop following the Closing
Date between the Master Servicer, the Special Servicer, the Primary Servicer,
the Trustee or the Paying Agent (or, if applicable, any Sub-Servicer) (and any
other parties identified in writing by the requesting party) and the Master
Servicer, the Special Servicer, the Primary Servicer, the Trustee or the Paying
Agent (or, if applicable, any Sub-Servicer) (and any other parties identified in
writing by the requesting party), as the case may be, as such affiliation or
relationship relates to the Certificates and (ii) provide to the Depositor a
description of such legal proceedings, affiliations or relationships, in each
case, in a form that would enable the Depositor to satisfy its reporting
obligations under Item 1117 or 1119 of Regulation AB, as applicable.
(d) In connection with the succession to the Master Servicer, the
Special Servicer, the Primary Servicer, any Additional Servicer, any
Sub-Servicer or the Trustee as servicer or trustee under this Agreement by any
Person (i) into which the Master Servicer, the Special Servicer, the Primary
Servicer, any Additional Servicer, any Sub-Servicer or the Trustee, as the case
may be, may be merged or consolidated, or (ii) which may be appointed as a
successor to the Master Servicer, the Special Servicer, the Primary Servicer,
any Additional Servicer, any Sub-Servicer or the Trustee, as the case may be,
the Master Servicer, the Special Servicer, the Primary Servicer, any Additional
Servicer, any Sub-Servicer or the Trustee, as the case may be, shall (and each
of the Master Servicer, the Special Servicer, the Primary Servicer or
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the Trustee, as applicable, shall (a) use reasonable efforts to cause each
Additional Servicer and each Sub-Servicer (other than any party to this
Agreement) with which it has entered into a servicing relationship on or prior
to the Closing Date with respect to the Mortgage Loans and (b) cause each
Additional Servicer and each Sub-Servicer (other than any party to this
Agreement) with which it has entered into a servicing relationship after the
Closing Date with respect to the Mortgage Loans, to) provide to the Depositor,
at least 15 calendar days prior to the effective date of such succession or
appointment, as long as such disclosure prior to such effective date would not
be violative of any applicable law or confidentiality agreement, otherwise no
later than the effective date of such succession or appointment, (x) written
notice to the Depositor of such succession or appointment and (y) in writing and
in form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor so that it may comply with its reporting
obligation under Item 6.02 of Form 8-K as it relates to the Servicing Function
with respect to any class of Certificates.
(e) On the Closing Date, each Servicer shall deliver to the
Depositor and the Underwriters, with respect to the disclosure provided by such
Servicer for inclusion in the Disclosure Documents pursuant to this Section
13.3, (i) a 10b-5 legal opinion addressed to the Depositor and the Underwriters,
in form and from counsel reasonably acceptable to the Depositor and the
Underwriters, as to such disclosure and (ii) a legal opinion addressed to the
Depositor and the Underwriters, in form and from counsel reasonably acceptable
to the Depositor and the Underwriters, that such disclosure complies as to form
with the applicable requirements of Regulation AB.
Section 13.4 Information to be Provided by the Trustee
(a) In connection with the Disclosure Documents, the Trustee has
provided the information and materials specified in paragraph (b) of this
Section 13.4.
(b) The Trustee provided such information regarding the Trustee as
the Depositor requested for the purpose of compliance with Item 1108(c)(7) and
Item 1109 of Regulation AB. Such information included:
(i) the Trustee's name and form of organization;
(ii) a description of the extent to which the Trustee has had prior
experience serving as a trustee for asset-backed securities transactions
involving similar pool assets, if applicable;
(iii) a description of the Trustee's duties and responsibilities
regarding the Certificates under applicable law; and
(iv) a description of the Trustee's material arrangements regarding
the safekeeping and preservation of the assets, such as the physical
promissory notes, and procedures to reflect the segregation of the assets
from other serviced assets of the Trust.
(c) On the Closing Date, the Trustee shall deliver to the Depositor
and the Underwriters, with respect to the disclosure provided by the Trustee for
inclusion in the Disclosure Documents pursuant to this Section 13.4, (i) a 10b-5
legal opinion addressed to the
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Depositor and the Underwriters, in form and from counsel reasonably acceptable
to the Depositor and the Underwriters, as to such disclosure and (ii) a legal
opinion addressed to the Depositor and the Underwriters, in form and from
counsel reasonably acceptable to the Depositor and the Underwriters, that such
disclosure complies as to form with the applicable requirements of Regulation
AB.
Section 13.5 Filing Obligations
The Master Servicer, the Special Servicer, the Primary Servicer, the
Paying Agent, the Trustee and each Sub-Servicer shall, and the Master Servicer,
the Special Servicer, the Primary Servicer, the Paying Agent, the Trustee and
each Sub-Servicer, as applicable, shall (a) use reasonable efforts to cause each
Sub-Servicer (other than any party to this Agreement) with which it has entered
into a servicing relationship on or prior to the Closing Date with respect to
the Mortgage Loans and (b) cause each Sub-Servicer (other than any party to this
Agreement) with which it has entered into a servicing relationship after the
Closing Date with respect to the Mortgage Loans, to, reasonably cooperate with
the Depositor in connection with the satisfaction of the Trust's reporting
requirements under the Exchange Act. Such cooperation shall include, without
limitation, allowing the Depositor to perform such due diligence, at such times
and in such manner as the Depositor may reasonably request, regarding, with
respect to each of the Master Servicer, the Special Servicer, the Primary
Servicer, the Paying Agent, the Trustee and each Sub-Servicer, such Person's
performance of its obligations under this Agreement, and such Person's
compliance with the Relevant Servicing Criteria, as the Depositor may determine
to be necessary or desirable in connection with its delivery of the
Xxxxxxxx-Xxxxx Certification.
Section 13.6 Form 10-D Filings
Within 15 days after each Distribution Date (the "10-D Filing
Deadline") (subject to permitted extensions under the Exchange Act), the Paying
Agent shall prepare and file on behalf of the Trust any Form 10-D required by
the Exchange Act, in form and substance as required by the Exchange Act. The
Paying Agent shall file each Form 10-D with a copy of the related Monthly
Certificateholder's Report attached thereto. Any necessary disclosure in
addition to the Monthly Certificateholder's Report that is required to be
included on Form 10-D ("Additional Form 10-D Disclosure") shall, pursuant to the
paragraph immediately below, be reported by the parties set forth on Schedule V
and directed to the Depositor and the Paying Agent for approval by the
Depositor. The Paying Agent will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D Disclosure (other
than such Additional Form 10-D Disclosure which is to be reported by it as set
forth on Schedule V) absent such reporting, direction and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, as set forth on Schedule V hereto, within ___ calendar days
after the related Distribution Date, each Person identified on Schedule V shall
be required to provide to the Depositor and the Paying Agent, to the extent
known by such person, the form and substance of the corresponding Additional
Form 10-D Disclosure set forth on Schedule V, if applicable, and in form readily
convertible to an XXXXX-compatible form, or in such other form as otherwise
agreed by the Depositor, the Paying Agent and such party. Unless otherwise
directed by the Depositor, and
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subject to any comments received to such disclosure from the Depositor by the
___ calendar day after such ___ calendar day after the related Distribution
Date, the Paying Agent shall include the form and substance of the Additional
Form 10-D Disclosure on the related Form 10-D. The Depositor will be responsible
for any reasonable fees charged and out-of-pocket expenses incurred by the
Paying Agent in connection with including any Additional Form 10-D Disclosure on
Form 10-D pursuant to this paragraph. Any notice delivered to the Paying Agent
pursuant to this paragraph shall be delivered by facsimile to [insert facsimile
no.] and by email to [insert email address], or such other address as may
hereafter be furnished by the Paying Agent to the other parties in writing.
On or prior to the ___ calendar day after the related Distribution
Date the Paying Agent shall prepare and deliver electronically the Form 10-D to
the Depositor for review. No later than the end of business on the ___ calendar
day after the related Distribution Date, the Depositor shall sign the Form 10-D
and return an electronic or fax copy of such signed Form 10-D (with an original
executed hard copy to follow by overnight mail) to the Paying Agent. The Paying
Agent shall file such Form 10-D, upon signature thereof as provided in Section
13.16, not later than 5:00 pm (New York City time) on [___ Business Day prior
to] the 15th calendar day after the related Distribution Date. If a Form 10-D
cannot be filed on time or if a previously filed Form 10-D needs to be amended,
the Paying Agent will follow the procedures set forth in Section 13.10(b). After
filing with the Commission, the Paying Agent shall promptly, pursuant to Section
5.4, make available on its internet website a final executed copy of each Form
10-D. The parties to this Agreement acknowledge (and each Additional Servicer
and each Servicing Function Participant shall be required to acknowledge) that
the performance by the Paying Agent of its duties under this Section 13.6
related to the timely preparation and filing of Form 10-D is contingent upon
such parties (and, to the extent applicable, any Additional Servicer or
Servicing Function Participant) observing all applicable deadlines in the
performance of their duties under this Section 13.6. The Paying Agent shall have
no liability for any loss, expense, damage, claim arising out of or with respect
to any failure to properly prepare, arrange for execution or file such Form 10-D
where such failure results from the Paying Agent's inability or failure to
receive on a timely basis any information from any other party hereto needed to
prepare, arrange for execution or file such Form 10-D, not resulting from its
own negligence, bad faith or willful misconduct.
Section 13.7 Form 10-K Filings
Within 90 days after the end of each fiscal year of the Trust or
such earlier date as may be required by the Exchange Act (the "10-K Filing
Deadline") (it being understood that the fiscal year for the Trust ends on
December 31st of each year), commencing in March 20___, the Paying Agent shall
prepare and file on behalf of the Trust a Form 10-K, in form and substance as
required by the Exchange Act. Each such Form 10-K shall include the following
items, in each case to the extent they have been delivered to the Paying Agent
within the applicable time frames set forth in this Agreement, (i) an annual
compliance statement for each Reporting Servicer, as described under Section
13.11, (ii)(A) the annual reports on assessment of compliance
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with Servicing Criteria for each Reporting Servicer, as described under Section
13.12, and (B) if any Reporting Servicer's report on assessment of compliance
with Servicing Criteria described under Section 13.12 identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any Reporting Servicer's report on assessment of compliance
with Servicing Criteria described under Section 13.12 is not included as an
exhibit to such Form 10-K, disclosure that such report is not included and an
explanation as to why such report is not included, (iii)(A) the registered
public accounting firm attestation report for each Reporting Servicer, as
described under Section 13.13, and (B) if any registered public accounting firm
attestation report described under Section 13.13 identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm attestation
report is not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation as to why such report is not included,
and (iv) a Xxxxxxxx-Xxxxx Certification as described in Section 13.8. Any
disclosure or information in addition to (i) through (iv) above that is required
to be included on Form 10-K ("Additional Form 10-K Disclosure") shall, pursuant
to the paragraph immediately below, be reported by the parties set forth on
Schedule VI and directed to the Depositor and the Paying Agent for approval by
the Depositor. The Paying Agent will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-K Disclosure (other
than such Additional Form 10-K Disclosure which is to be reported by it as set
forth on Schedule VI) absent such reporting, direction and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, as set forth on Schedule VI hereto, no later than March ___ of
each year subsequent to the fiscal year that the Trust is subject to the
Exchange Act reporting requirements, commencing in 20___, each Person identified
on such schedule shall be required to provide to the Depositor and the Paying
Agent, to the extent known by such Person, the form and substance of the
corresponding Additional Form 10-K Disclosure as set forth on Schedule VI, if
applicable, and in form readily convertible to an XXXXX-compatible form, or in
such other form as otherwise agreed by the Depositor, the Paying Agent and such
Person. Unless otherwise directed by the Depositor, and subject to any comments
received to such disclosure from the Depositor by March ___, the Paying Agent
shall include the form and substance of the Additional Form 10-K Disclosure on
the related Form 10-K. The Depositor will be responsible for any reasonable fees
charged and out-of-pocket expenses incurred by the Paying Agent in connection
with including any Additional Form 10-K Disclosure on Form 10-K pursuant to this
paragraph. Any notice delivered to the Paying Agent pursuant to this paragraph
shall be delivered by facsimile to [insert facsimile no.] and by email to
[insert email address], or such other address as may hereafter be furnished by
the Paying Agent to the other parties in writing.
On or prior to noon (New York City time) on March 23rd, the Paying
Agent shall prepare and deliver electronically a draft copy of the Form 10-K to
the Depositor for review. No later than 5:00 pm (New York City time) on the ___
Business Day prior to the 10-K Filing Deadline, a senior officer in charge of
securitization of the Depositor shall sign the Form 10-K and return an
electronic or fax copy of such signed Form 10-K (with an original executed hard
copy to follow by overnight mail) to the Paying Agent. If a Form 10-K cannot be
filed on time or if a previously filed Form 10-K needs to be amended, the Paying
Agent will follow the procedures set forth in Section 13.10(b). After filing
with the Commission, the Paying Agent shall, pursuant to Section 5.4, make
available on its internet website a final executed copy of each Form 10-K. The
signing party at the Depositor can be contacted at [insert address]. The parties
to this Agreement acknowledge (and each Additional Servicer and each Servicing
Function Participant shall be required to acknowledge) that the performance by
the Paying Agent of its duties under this Section 13.7 related to the timely
preparation and filing of Form 10-K is
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contingent upon such parties (and, to the extent applicable, any Additional
Servicer or Servicing Function Participant) observing all applicable deadlines
in the performance of their duties under this Article XIII. The Paying Agent
shall have no liability with respect to any failure to properly prepare, arrange
for execution or file such Form 10-K resulting from the Paying Agent's inability
or failure to receive on a timely basis any information from any other party
hereto needed to prepare, arrange for execution or file such Form 10-K on a
timely basis, not resulting from its own negligence, bad faith or willful
misconduct.
Section 13.8 Xxxxxxxx-Xxxxx Certification
Each Form 10-K shall include a certification (the "Xxxxxxxx-Xxxxx
Certification"), exactly as set forth in Exhibit K attached hereto, required to
be included therewith pursuant to the Xxxxxxxx-Xxxxx Act. Each Reporting
Servicer shall, and each Reporting Servicer shall (a) use reasonable efforts to
cause each Servicing Function Participant (other than any party to this
Agreement) with which it has entered into a servicing relationship on or prior
to the Closing Date with respect to the Mortgage Loans and (b) cause each
Servicing Function Participant (other than any party to this Agreement) with
which it has entered into a servicing relationship after the Closing Date with
respect to the Mortgage Loans, to, provide to the Person who signs the
Xxxxxxxx-Xxxxx Certification (the "Certifying Person"), by noon (New York City
time) on March ___ of each year subsequent to the fiscal year in which the Trust
is subject to the reporting requirements of the Exchange Act and otherwise
within a reasonable period of time upon request, a certification (each, a
"Performance Certification"), in the form attached hereto as Exhibit K-1, upon
which the Certifying Person, the entity for which the Certifying Person acts as
an officer, and such entity's officers, directors and Affiliates (collectively
with the Certifying Person, "Certification Parties") can reasonably rely. The
senior officer in charge of securitization of the Depositor shall serve as the
Certifying Person on behalf of the Trust. Such officer of the Certifying Person
can be contacted at [insert contact information]. If any Reporting Servicer is
terminated or resigns pursuant to the terms of this Agreement, or any applicable
sub-servicing agreement or primary servicing agreement, as the case may be, such
Reporting Servicer shall provide a Performance Certification and a reliance
certificate to the Certifying Person pursuant to this Section 13.8 with respect
to the period of time it was subject to this Agreement or the applicable
sub-servicing or primary servicing agreement, as the case may be.
Each Performance Certification shall include a reasonable reliance
provision enabling the Certification Parties to rely upon each (i) annual
compliance statement provided pursuant to Section 13.11, (ii) annual report on
assessment of compliance with Servicing Criteria provided pursuant to Section
13.12 and (iii) registered public accounting firm attestation report provided
pursuant to Section 13.13 and shall include a certification that each such
annual report on assessment of compliance discloses any material instances of
noncompliance described to the registered public accountants of such Reporting
Servicer to enable such accountants to render the attestation provided for in
Section 13.13.
In the event that any Servicing Function Participant (that is not a
party to this Agreement) shall fail to deliver a Performance Certification by
the date that is __ Business Days prior to the 10-K Filing Deadline, whichever
of the Master Servicer, Special Servicer, Primary Servicer or Paying Agent that
has directly or indirectly (through a Sub-Servicer) retained such
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Servicing Function Participant, shall include in its own Performance
Certification a Performance Certification regarding the performance of the
Servicing Function Participant that failed to deliver such Performance
Certification.
Section 13.9 Form 8-K Filings
Within four (4) Business Days after the occurrence of an event
requiring disclosure (the "8-K Filing Deadline") under Form 8-K (each a
"Reportable Event"), the Paying Agent shall prepare and file on behalf of the
Trust any Form 8-K, as required by the Exchange Act, provided that the Depositor
shall file the initial Form 8-K in connection with the issuance of the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included on Form 8-K ("Form 8-K Disclosure
Information") shall, pursuant to the paragraph immediately below, be reported by
any party set forth on Schedule VII to which such Reportable Event relates and
such Form 8-K Disclosure Information shall be directed to the Depositor and the
Paying Agent for approval by the Depositor. The Paying Agent will have no duty
or liability for any failure hereunder to determine or prepare any Form 8-K
Disclosure Information (other than such Form 8-K Disclosure Information which is
to be reported by it as set forth on Schedule VII) absent such reporting,
direction and approval.
As set forth on Schedule VII hereto, for so long as the Trust is
subject to the Exchange Act reporting requirements, no later than noon (New York
City time) on the [2nd] Business Day after the occurrence of a Reportable Event
the applicable Person identified on such Schedule VII shall be required to
provide written notice to the Depositor and the Paying Agent of, to the extent
known by such Person, the form and substance of the corresponding Form 8-K
Disclosure Information, as set forth on Schedule VII, if applicable, and in form
readily convertible to an XXXXX-compatible form, or in such other form as
otherwise agreed by the Depositor, the Paying Agent and such Party. Unless
otherwise directed by the Depositor, and subject to any comments received to
such disclosure from the Depositor by noon on the [3rd] Business Day after such
Reportable Event, the Paying Agent shall include the form and substance of the
Form 8-K Disclosure Information on the related Form 8-K. The Depositor will be
responsible for any reasonable fees charged and out-of-pocket expenses incurred
by the Paying Agent in connection with including any Form 8-K Disclosure
Information on Form 8-K pursuant to this paragraph. Any notice delivered to the
Paying Agent pursuant to this paragraph shall be delivered by facsimile to
[insert facsimile no.] and by email to [insert email address], or such other
address as may hereafter be furnished by the Paying Agent to the other parties
in writing.
No later than noon (New York City time) on the [4th] Business Day
after the Reportable Event, the Paying Agent shall prepare and the Depositor
shall sign the Form 8-K. If so directed by the Depositor, the Paying Agent shall
file such Form 8-K, not later than [5:00] pm (New York City time) on the [4th]
Business Day after the related Reportable Event. If a Form 8-K cannot be filed
on time or if a previously filed Form 8-K needs to be amended, the Paying Agent
will follow the procedures set forth in Section 13.10(b). After filing with the
Commission, the Paying Agent will, pursuant to Section 5.4, make available on
its internet website a final executed copy of each Form 8-K. The parties to this
Agreement acknowledge (and each Additional Servicer and each Servicing Function
Participant shall be required to acknowledge) that the performance by the Paying
Agent of its duties under this Section 13.9
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related to the timely preparation and filing of Form 8-K is contingent upon such
parties (and, to the extent applicable, any Additional Servicer or Servicing
Function Participant) observing all applicable deadlines in the performance of
their duties under this Section 13.9. The Paying Agent shall have no liability
for any loss, expense, damage, claim arising out of or with respect to any
failure to properly prepare and/or timely file such Form 8-K, where such failure
results from the Paying Agent's inability or failure to receive, on a timely
basis, any information from any other party hereto needed to prepare, arrange
for execution or file such Form 8-K, not resulting from its own negligence, bad
faith or willful misconduct.
Notwithstanding the second preceding paragraph, the Master Servicer,
the Special Servicer, the Primary Servicer, the Paying Agent, the Trustee, each
Sub-Servicer and each Servicing Function Participant, shall promptly notify (and
the Master Servicer, the Special Servicer, the Primary Servicer, the Paying
Agent, the Trustee each Sub-Servicer and each Servicing Function Participant
shall (a) use reasonable efforts to cause each Sub-Servicer and each Servicing
Function Participant (other than any party to this Agreement) with which it has
entered into a servicing relationship on or prior to the Closing Date with
respect to the Mortgage Loans and (b) cause each Sub-Servicer and each Servicing
Function Participant (other than any party to this Agreement) with which it has
entered into a servicing relationship after the Closing Date with respect to the
Mortgage Loans, to promptly notify) the Depositor and the Paying Agent, but in
no event later than noon on the [2nd] Business Day after its occurrence, of any
Reportable Event of which it has actual knowledge.
Section 13.10 Form 15 Filing; Incomplete Exchange Act Filings;
Amendments to Exchange Act Reports
(a) On or before January 30 of the first year in which the Paying
Agent is able to do so under applicable law, the Paying Agent shall file a Form
15 Suspension Notification relating to the automatic suspension of reporting in
respect of the Trust under the Exchange Act. After the filing of Form 15, the
obligations of the parties to this Agreement under Sections 13.6, 13.7 and 13.9
(and the obligations of the Primary Servicer under clauses (i), (ii) and (iii)
of Section _____ of the Primary Servicing Agreement) shall be suspended for so
long as the Trust is not subject to the reporting requirements of the Exchange
Act.
(b) The Paying Agent shall promptly notify the Depositor (which
notice may be sent by facsimile or by email and which shall include the identity
of those Reporting Servicers who did not deliver such information) and each
Reporting Servicer that failed to deliver such information required to be
delivered by it under this Agreement, if all, or any portion of, any required
disclosure information to be included in any Form 8-K, Form 10-D or Form 10-K
required to be filed pursuant to this Agreement is not delivered to it within
the delivery deadlines set forth in this Agreement. If the Paying Agent is
unable to timely file with the Commission all or any required portion of any
Form 8-K, Form 10-D or Form 10-K required to be filed by this Agreement because
required disclosure information either was not delivered to it or was delivered
to it after the delivery deadlines set forth in this Agreement or for any other
reason, the Paying Agent shall promptly notify the Depositor (which may be sent
by facsimile or by email, and which notice shall include the identity of those
Reporting Servicers who either did not deliver such information or delivered
such information to it after the delivery deadlines set forth in this Agreement)
and each Reporting Servicer that failed to make such delivery. In the case of
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Form 10-D and Form 10-K, each such Reporting Servicer shall cooperate with the
Depositor and the Paying Agent to prepare and file a Form 12b-25 and a Form
10-DA and Form 10-KA as applicable, pursuant to Rule 12b-25 of the Exchange Act.
In the case of Form 8-K, the Paying Agent shall, upon receipt of all required
Form 8-K Disclosure Information and upon the approval and direction of the
Depositor, include such disclosure information on the Form 10-D that is required
to be filed on behalf of the Trust. In the event that any previously filed Form
8-K, Form 10-D or Form 10-K needs to be amended, the Paying Agent shall notify
the Depositor and such other parties as may be required and such parties shall
cooperate to prepare any necessary Form 8-KA, Form 10-DA or Form 10-KA. Any Form
15, Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K shall be
signed by a senior officer of the Depositor in charge of securitization. The
parties to this Agreement acknowledge that the performance by the Paying Agent
of its duties under this Section 13.10 related to the timely preparation and
filing of Form 15, a Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form
10-K is contingent upon such parties (and, to the extent applicable, any
Additional Servicer or Servicing Function Participant) performing their duties
under this Section. The Paying Agent shall have no liability for any loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare and/or timely file any such Form 15, Form 12b-25 or any amendments to
Forms 8-K, Form 10-D or Form 10-K, where such failure results from the Paying
Agent's inability or failure to receive, on a timely basis, any information from
any other party hereto needed to prepare, arrange for execution or file such
Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K, not resulting
from its own negligence, bad faith or willful misconduct.
Section 13.11 Annual Compliance Statements
The Master Servicer, the Special Servicer, the Primary Servicer and
the Paying Agent and each Sub-Servicer (each a "Certifying Servicer") shall (and
the Master Servicer, the Special Servicer, the Primary Servicer and the Paying
Agent shall (a) use reasonable efforts to cause each Additional Servicer and
each Sub-Servicer with which it has entered into a servicing relationship on or
prior to the Closing Date with respect to the Mortgage Loans and (b) cause each
Additional Servicer and each Sub-Servicer with which it has entered into a
servicing relationship after the Closing Date with respect to the Mortgage
Loans, to) deliver to the Depositor, the Paying Agent and the Trustee on or
before March ___, with respect to any Additional Servicer and each Sub-Servicer
(excluding the Primary Servicer), or March ___ or if such day is not a Business
Day, the immediately preceding Business Day (with no cure period), with respect
to the Master Servicer, the Special Servicer, the Primary Servicer or the Paying
Agent, of each year, commencing in March 20___, an Officer's Certificate
stating, as to the signer thereof, that (A) a review of such Certifying
Servicer's activities during the preceding calendar year or portion thereof and
of such Certifying Servicer's performance under this Agreement, or the
applicable sub-servicing agreement or primary servicing agreement in the case of
an Additional Servicer, has been made under such officer's supervision and (B)
to the best of such officer's knowledge, based on such review, such Certifying
Servicer has fulfilled all its obligations under this Agreement, or the
applicable sub-servicing agreement or primary servicing agreement in the case of
an Additional Servicer, in all material respects throughout such year or portion
thereof, or, if there has been a failure to fulfill any such obligation in any
material respect, specifying each such failure known to such officer and the
nature and status thereof. Each Certifying Servicer shall, and the Master
Servicer, the Special Servicer, the Primary Servicer and the Paying Agent shall
(a) use reasonable efforts to cause each Additional Servicer
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and each Sub-Servicer with which it has entered into a servicing relationship on
or prior to the Closing Date with respect to the Mortgage Loans and (b) cause
each Additional Servicer and each Sub-Servicer with which it has entered into a
servicing relationship after the Closing Date with respect to the Mortgage
Loans, to, forward a copy of each such statement to the Rating Agencies and the
Operating Adviser. Promptly after receipt of each such Officer's Certificate,
the Depositor shall have the right to review such Officer's Certificate and, if
applicable, consult with each Certifying Servicer, as applicable, as to the
nature of any failures by such Certifying Servicer, in the fulfillment of any of
the Certifying Servicer's obligations hereunder or under the applicable
sub-servicing or primary servicing agreement. None of the Certifying Servicers
or any Additional Servicer or any Sub-Servicer shall be required to deliver, or
to endeavor to cause the delivery of, any such Officer's Certificate until April
___, in the case of a Certifying Servicer, or April ___, in the case of any
Additional Servicer (excluding the Primary Servicer) or any Sub-Servicer
(excluding the Primary Servicer), in any given year so long as it has received
written confirmation from the Depositor that a Form 10-K is not required to be
filed in respect of the Trust for the preceding calendar year.
Section 13.12 Annual Reports on Assessment of Compliance with
Servicing Criteria
By March 15 or if such day is not a Business Day, the immediately
preceding Business Day (with no cure period), with respect to the Master
Servicer, the Special Servicer, the Primary Servicer, the Paying Agent and the
Trustee, of each year, commencing in March 20___, the Master Servicer, the
Special Servicer (regardless of whether the Special Servicer has commenced
special servicing of any Mortgage Loan), the Paying Agent, the Primary Servicer
and the Trustee, each at its own expense, shall furnish (and each of the
preceding parties, as applicable, shall (a) use reasonable efforts to cause, by
March ___, each Servicing Function Participant (other than a party to this
Agreement) with which it has entered into a servicing relationship on or prior
to the Closing Date with respect to the Mortgage Loans and (b) cause, by March
___, each Servicing Function Participant (other than a party to this Agreement)
with which it has entered into a servicing relationship after the Closing Date
with respect to the Mortgage Loans, to furnish, each at its own expense), to the
Trustee, the Paying Agent and the Depositor, with a copy to the Rating Agencies
and the Operating Adviser, a report on an assessment of compliance with the
Relevant Servicing Criteria with respect to commercial mortgage backed
securities transactions taken as a whole involving such party that contains (A)
a statement by such Reporting Servicer of its responsibility for assessing
compliance with the Relevant Servicing Criteria, (B) a statement that such
Reporting Servicer used the Servicing Criteria to assess compliance with the
Relevant Servicing Criteria, (C) such Reporting Servicer's assessment of
compliance with the Relevant Servicing Criteria as of and for the period ending
the end of the fiscal year covered by the Form 10-K required to be filed
pursuant to Section 13.7, including, if there has been any material instance of
noncompliance with the Relevant Servicing Criteria, a discussion of each such
failure and the nature and status thereof, and (D) a statement that a registered
public accounting firm has issued an attestation report on such Reporting
Servicer's assessment of compliance with the Relevant Servicing Criteria as of
and for such period.
No later than the end of each fiscal year for the Trust for which a
10-K is required to be filed, the Master Servicer, the Special Servicer, the
Primary Servicer and the Trustee shall
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each forward to the Paying Agent and the Depositor the name and address of each
Servicing Function Participant engaged by it and what Relevant Servicing
Criteria will be addressed in the report on assessment of compliance prepared by
such Servicing Function Participant. When the Master Servicer, the Special
Servicer, the Primary Servicer, the Trustee and each Sub-Servicer submit their
respective assessments by March ___ or March ___, as applicable, to the Paying
Agent, each such party shall also at such time include, in its submission to the
Paying Agent, the assessment (and attestation pursuant to Section 13.13) of each
Servicing Function Participant engaged by it.
Promptly after receipt of each such report on assessment of
compliance, (i) the Depositor shall have the right to review each such report
and, if applicable, consult with the Master Servicer, the Special Servicer, the
Primary Servicer, the Paying Agent, the Trustee and any Servicing Function
Participant as to the nature of any material instance of noncompliance with the
Relevant Servicing Criteria by the Master Servicer, the Special Servicer, the
Paying Agent, the Trustee or any Servicing Function Participant, respectively,
and (ii) the Paying Agent shall confirm that the assessments taken individually
address the Relevant Servicing Criteria for each party as set forth on Schedule
IV and notify the Depositor of any exceptions. None of the Master Servicer, the
Special Servicer, the Primary Servicer, the Trustee or any Servicing Function
Participant shall be required to deliver, or to endeavor to cause the delivery
of, any such reports until April ___ in the case of the Master Servicer, the
Special Servicer, the Primary Servicer or the Trustee, or April ___ in the case
of any Servicing Function Participant, in any given year so long as it has
received written confirmation from the Depositor that a Form 10-K is not
required to be filed in respect of the Trust for the preceding calendar year.
The parties hereto acknowledge that a material instance of noncompliance with
the Relevant Servicing Criteria reported on an assessment of compliance pursuant
to this Section 13.12 by the Master Servicer, the Special Servicer, the Primary
Servicer, the Paying Agent or the Trustee shall not, as a result of being so
reported, in and of itself, constitute a breach of such parties' obligations, as
applicable, under this Agreement unless otherwise provided for in this
Agreement.
Section 13.13 Annual Independent Public Accountants' Servicing
Report
By March ___ or if such day is not a Business Day, the immediately
preceding Business Day (with no cure period), in respect of the Master Servicer,
the Special Servicer, the Primary Servicer, the Paying Agent and the Trustee, of
each year, commencing in March 20___, the Master Servicer, the Special Servicer,
the Primary Servicer, the Paying Agent and the Trustee, each at its own expense,
shall cause (and each of the preceding parties, as applicable, shall (a) use
reasonable efforts to cause, by March ___, each Servicing Function Participant
(other than a party to this Agreement) with which it has entered into a
servicing relationship on or prior to the Closing Date with respect to the
Mortgage Loans and (b) cause, by March ___, each Servicing Function Participant
(other than a party to this Agreement) with which it has entered into a
servicing relationship after the Closing Date with respect to the Mortgage
Loans, to cause, each at its own expense) a registered public accounting firm
(which may also render other services to the Master Servicer, the Special
Servicer, the Paying Agent, the Trustee, such Sub-Servicer or such other
Servicing Function Participant, as the case may be) that is a member of the
American Institute of Certified Public Accountants to furnish a report to the
Trustee, the Paying Agent and the Depositor, with a copy to the Rating Agencies
and the Operating Adviser, to the effect that (i) it has obtained a
representation regarding certain matters from the
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management of such Reporting Servicer, which includes an assessment from such
Reporting Servicer of its compliance with the Relevant Servicing Criteria, and
(ii) on the basis of an examination conducted by such firm in accordance with
standards for attestation engagements issued or adopted by the PCAOB, it is
expressing an opinion as to whether such Reporting Servicer's compliance with
the Relevant Servicing Criteria was fairly stated in all material respects, or
it cannot express an overall opinion regarding such Reporting Servicer's
assessment of compliance with the Relevant Servicing Criteria. If an overall
opinion cannot be expressed, such registered public accounting firm shall state
in such report why it was unable to express such an opinion. Such report must be
available for general use and not contain restricted use language.
Promptly after receipt of such report from the Master Servicer, the
Special Servicer, the Primary Servicer, the Paying Agent or the Trustee (or any
Sub-Servicer or Servicing Function Participant with which the Master Servicer,
the Special Servicer, the Primary Servicer, the Paying Agent or the Trustee has
entered into a servicing relationship with respect to the Mortgage Loans (other
than a party to this Agreement)), (i) the Depositor shall have the right to
review the report and, if applicable, consult with the Master Servicer, the
Special Servicer, the Primary Servicer, the Paying Agent, the Trustee, any
Sub-Servicer or any such Servicing Function Participant as to the nature of any
material instance of noncompliance by the Master Servicer, the Special Servicer,
the Primary Servicer, the Paying Agent, the Trustee or any such Servicing
Function Participant with the Servicing Criteria applicable to such Person, and
(ii) the Paying Agent shall confirm that each assessment submitted pursuant to
Section 13.12 is coupled with an attestation meeting the requirements of this
Section and notify the Depositor of any exceptions. The Master Servicer, the
Special Servicer, the Paying Agent, the Primary Servicer, the Trustee or any
Servicing Function Participant shall not be required to deliver, or to endeavor
to cause the delivery of, such reports until April ___ in the case of the Master
Servicer, the Special Servicer, the Paying Agent, the Primary Servicer or the
Trustee, or April ___ in the case of any Servicing Function Participant, in any
given year so long as it has received written confirmation from the Depositor
that a Form 10-K is not required to be filed in respect of the Trust for the
preceding fiscal year.
Section 13.14 Indemnification
Each of the Master Servicer, the Special Servicer, the Primary
Servicer, the Trustee and the Paying Agent (each an "Indemnifying Party") shall
indemnify and hold harmless each Certification Party and its affiliates, their
respective directors and officers, and each other person who controls any such
entity within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act (each a "Certification Indemnitee"), and each of the
Underwriters, their respective directors and officers, and each other Person who
controls any such entity within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act (each an "Underwriter
Indemnitee"), against any and all expenses, losses, claims, damages and other
liabilities, including without limitation the costs of investigation, legal
defense and any amounts paid in settlement of any claim or litigation arising
out of or based upon (a) in the case of each Certification Indemnitee (i) an
actual breach by the Indemnifying Party of such Indemnifying Party's
representations under this Article XIII, (ii) failure to perform its obligations
under this Article XIII, (iii) negligence, bad faith or willful misconduct on
the part of the Indemnifying Party in the performance of such obligations or
(iv) any untrue statement or
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alleged untrue statement of a material fact, or any omission or alleged omission
to state therein a material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, contained in
the Free Writing Prospectus and the Prospectus Supplement (whether delivered by
itself or as part of the Private Placement Memorandum) but only if and to the
extent that any such untrue statement or alleged untrue statement or omission or
alleged omission relates to information provided by the Indemnifying Party to
the Depositor in accordance with Section 13.3 or Section 13.4, as the case may
be, or (b) in the case of each Underwriter Indemnitee any untrue statement or
alleged untrue statement of a material fact, or any omission or alleged omission
to state therein a material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, contained in
the Free Writing Prospectus and the Prospectus Supplement (whether delivered by
itself or as part of the Private Placement Memorandum) but only if and to the
extent that any such untrue statement or alleged untrue statement or omission or
alleged omission relates to information provided by the Indemnifying Party to
the Depositor in accordance with Section 13.3 or Section 13.4, as the case may
be. The Master Servicer, the Special Servicer, the Primary Servicer, the Paying
Agent and the Trustee shall (a) use reasonable efforts to cause each Additional
Servicer (other than a party to this Agreement) with which it has entered into a
servicing relationship on or prior to the Closing Date with respect to the
Mortgage Loans and (b) cause each Additional Servicer (other than a party to
this Agreement) with which it has entered into a servicing relationship after
the Closing Date with respect to the Mortgage Loans, to indemnify and hold
harmless each Certification Party from and against any losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments and other costs and expenses incurred by such Certification Party
arising out of (i) a breach of its obligations to provide any of the annual
compliance statements or annual assessment of servicing criteria or attestation
reports pursuant to this Agreement, or the applicable sub-servicing or primary
servicing agreement, as applicable, or (ii) negligence, bad faith or willful
misconduct its part in the performance of such obligations thereunder.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Party, then the Master Servicer,
the Special Servicer, the Primary Servicer and the Paying Agent, each Additional
Servicer or other Servicing Function Participant (the "Performing Party") shall
(and the Master Servicer, the Special Servicer, the Primary Servicer, the Paying
Agent and the Trustee shall (a) use reasonable efforts to cause each Additional
Servicer or other Servicing Function Participant with which it has entered into
a servicing relationship on or prior to the Closing Date with respect to the
Mortgage Loans (other than a party to this Agreement) and (b) cause each
Additional Servicing or other Servicing Function Participant with which it has
entered into a servicing relationship after the Closing Date with respect to the
Mortgage Loans (other than a party to this Agreement), to) contribute to the
amount paid or payable to the Certification Party as a result of the losses,
claims, damages or liabilities of the Certification Party in such proportion as
is appropriate to reflect the relative fault of the Certification Party on the
one hand and the Performing Party on the other in connection with a breach of
the Performing Party's obligations pursuant to this Article XIII (or breach of
its representations or obligations under the applicable sub-servicing or primary
servicing agreement to provide any of the annual compliance statements or annual
servicing criteria compliance reports or attestation reports or otherwise comply
with the requirements of this Article XIII) or the Performing Party's
negligence, bad faith or willful misconduct in connection therewith. The Master
Servicer, the Special Servicer, the Primary Servicer, the Paying Agent and the
Trustee
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shall (a) use reasonable efforts to cause each Additional Servicer or Servicing
Function Participant with which it has entered into a servicing relationship on
or prior to the Closing Date with respect to the Mortgage Loans (other than a
party to this Agreement) and (b) cause each Additional Servicer or Servicing
Function Participant with which it has entered into a servicing relationship
after the Closing Date with respect to the Mortgage Loans (other than a party to
this Agreement), to agree to the foregoing indemnification and contribution
obligations.
Section 13.15 Amendments
This Article XIII may be amended by the parties hereto pursuant to
Section 14.3 (without, in each case, any Opinions of Counsel, Officer's
Certificates, Rating Agency Confirmations or the consent of any
Certificateholder, notwithstanding anything to the contrary contained in this
Agreement) for purposes of complying with Regulation AB and/or to conform to
standards developed within the commercial mortgage backed securities market
Section 13.16 Exchange Act Report Signatures
Each Form 8-K report and Form 10-D report shall be signed by the
Depositor, or, if so directed by the Depositor, by the Paying Agent pursuant to
a power of attorney provided to the Paying Agent by the Depositor in accordance
with procedures to be agreed upon by the Depositor and the Paying Agent and
meeting the requirements of Regulation S-K. The Depositor shall provide its
signature or power of attorney to the Paying Agent by electronic or fax
transmission (with hard copy to follow by overnight mail) no later than the ___
calendar day following the related Distribution Date for Form 10-D, and not
later than [noon] on the [date of filing] for Form 8-K (provided, that in each
case the Paying Agent shall not file the related form until the Depositor has
given its approval thereof). If a Form 8-K or Form 10-D cannot be filed on time
or if a previously filed Form 8-K or Form 10-D needs to be amended, the Paying
Agent will follow the procedures set forth in this Article XIII. The signing
party at the Depositor can be contacted at [insert contact information] and the
signing party at the Paying Agent, if applicable, can be contacted at [insert
contact information].
The Paying Agent shall have no liability for any loss, expense,
damage or claim arising out of or with respect to its having signed any Form 8-K
or Form 10-D if the power of attorney provided to it by the Depositor pursuant
to the immediately preceding paragraph was not properly prepared, not resulting
from its own negligence, bad faith or willful misconduct.
Section 13.17 Termination of the Paying Agent and Sub-Servicers
(a) Each of the Master Servicer, the Special Servicer, the Primary
Servicer, the Paying Agent and the Trustee shall terminate, in accordance with
the related sub-servicing agreement, any Sub-Servicer with which it has entered
into such sub-servicing agreement, and the Master Servicer shall terminate the
Primary Servicer in accordance with the terms of the Primary Servicing
Agreement, if such Sub-Servicer or the Primary Servicer, as the case may be, is
in breach of any of its obligations under such sub-servicing agreement or the
Primary Servicing Agreement, as the case may be, whose purpose is to facilitate
compliance by the Depositor of the reporting requirements of the Exchange Act or
with the provisions of Regulation AB and the related rules and regulations of
the Commission.
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(b) Notwithstanding anything to the contrary contained in this
Agreement, the Depositor may immediately terminate the Paying Agent if the
Paying Agent fails to comply with any of its obligations under this Article
XIII; provided that (a) such termination shall not be effective until a
successor paying agent shall have accepted the appointment, (b) the Paying Agent
may not be terminated due to its failure to properly prepare or file on a timely
basis any Form 8-K, Form 10-K or Form 10-D or any amendments to such forms or
any Form 12b-25 where such failure results from the Paying Agent's inability or
failure to receive, within the exact time frames set forth in this Agreement any
information, approval, direction or signature from any other party hereto needed
to prepare, arrange for execution or file any such Form 8-K, Form 10-K or Form
10-D or any amendments to such forms or any form 12b-25 not resulting from its
own negligence, bad faith or willful misconduct and (c) if, following the Paying
Agent's failure to comply with any of such obligations under Sections 13.6,
13.7, 13.9, 13.11, 13.12 or 13.13 on or prior to the dates by which such
obligations are to be performed pursuant to, and as set forth in, such Sections,
(i) the Paying Agent subsequently complies with such obligations before the
Trustee or the Depositor gives written notice to it that it is terminated in
accordance with this Section 13.17(b) and (ii) the Paying Agent's failure to
comply does not cause it to fail in its obligations to timely file the related
Form 8-K, Form 10-D or Form 10-K, as the case may be, by the related 8-K Filing
Deadline, 10-D Filing Deadline or 10-K Filing Deadline, then the Depositor shall
cease to have the right to terminate the Paying Agent under this Section
13.17(b) on the date on which such Form 8-K, Form 10-D or Form 10-K is so filed.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 14.1 Binding Nature of Agreement
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Section 14.2 Entire Agreement
This Agreement contains the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
Section 14.3 Amendment
(a) This Agreement may be amended from time to time by the parties
hereto, without notice to or the consent of any of the Holders, (i) to cure any
ambiguity, (ii) to cause the provisions herein to conform to or be consistent
with or in furtherance of the statements made with respect to the Certificates,
the Trust or this Agreement in the Private Placement Memorandum, the Free
Writing Prospectus, the Final Prospectus Supplement or the Prospectus, or to
correct or supplement any provision herein which may be inconsistent with any
other
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provisions herein, (iii) to amend any provision hereof to the extent necessary
or desirable to maintain the status of each REMIC Pool as a REMIC, or the Class
EI Grantor Trust or the Class A-3-1FL Grantor Trust as a grantor trust) for the
purposes of federal income tax law (or comparable provisions of state income tax
law), (iv) to make any other provisions with respect to matters or questions
arising under or with respect to this Agreement not inconsistent with the
provisions hereof, (v) to modify, add to or eliminate the provisions of Article
III relating to transfers of Residual Certificates, (vi) to amend any provision
herein to the extent necessary or desirable to list the Certificates on a stock
exchange, including, without limitation, the appointment of one or more
sub-paying agents and the requirement that certain information be delivered to
such sub-paying agents, (vii) to cause the provisions herein to conform to the
provisions of the Swap Contract and the related documents, or (viii) to make any
other amendment which does not adversely affect in any material respect the
interests of any Certificateholder (unless such Certificateholder consents). No
such amendment effected pursuant to clause (i), (ii) or (iv) of the preceding
sentence shall (A) adversely affect in any material respect the interests of any
Holder not consenting thereto, without the consent of 100% of the
Certificateholders adversely affected thereby or (B) adversely affect the status
of any REMIC Pool as a REMIC (or the Class EI Grantor Trust or the Class A-3-1FL
Grantor Trust as a grantor trust). Prior to entering into any amendment without
the consent of Holders pursuant to this paragraph, the Trustee may require an
Opinion of Counsel and a Nondisqualification Opinion (in the case of clauses
(i), (ii) and (iii), at the expense of the Depositor, and otherwise at the
expense of the party requesting such amendment, except that if the Trustee
requests such amendment, such amendment shall be at the expense of the
Depositor, if the Depositor consents), to the effect that such amendment is
permitted under this paragraph. Any such amendment shall be deemed not to
adversely affect in any material economic respect any Holder if the Trustee
receives a Rating Agency Confirmation from each Rating Agency (and any Opinion
of Counsel requested by the Trustee in connection with any such amendment may
rely expressly on such confirmation as the basis therefor).
(b) This Agreement may also be amended from time to time by the
agreement of the parties hereto (without the consent of the Certificateholders)
and with the written confirmation of the Rating Agencies that such amendment
would not cause the ratings on any Class of Certificates to be qualified,
withdrawn or downgraded; provided, however, that such amendment may not effect
any of the items set forth in clauses (i) through (iv) of the proviso in
paragraph (c) of this Section 14.3. The Trustee may request, at its option, to
receive a Nondisqualification Opinion and/or an Opinion of Counsel that such
amendment will not result in an Adverse Grantor Trust Event, as applicable, and
an Opinion of Counsel that any amendment pursuant to this Section 14.3(b) is
permitted by this Agreement at the expense of the party requesting the
amendment.
(c) This Agreement may also be amended from time to time by the
parties with the consent of the Holders of not less than 51% of the Aggregate
Certificate Balance of the Certificates then outstanding, 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; provided that no such amendment may (i) reduce in any manner the amount
of, or delay the timing of the distributions required to be made on any
Certificate without the consent of the Holder of such Certificate, (ii) reduce
the aforesaid percentages of Aggregate Certificate Percentage or Certificate
Balance, the Holders of which are required to consent to any
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such amendment without the consent of all the Holders of each Class of
Certificates affected thereby, (iii) no such amendment shall eliminate or reduce
the Master Servicer's or the Trustee's obligation to make an Advance or alter
the Servicing Standard except as may be necessary or desirable to comply with
the REMIC Provisions, (iv) adversely affect the status of any REMIC Pool as a
REMIC for federal income tax purposes (as evidenced by a Nondisqualification
Opinion) and the Class A-3-1FL Grantor Trust or the Class EI Grantor Trust as
grantor trusts without the consent of 100% of the Certificateholders (including
the Class [R-I], Class [R-II] and Class [R-III] Certificateholders), (v)
adversely affect in any material respect the interests of the Holders of the
Certificates in a manner other than as described in the immediately preceding
clause (i), without the consent of the Holders of all Certificates affected
thereby, (vi) significantly change the activities of the Trust, without the
consent of the Holders of Certificates representing more than 50% of all the
Voting Rights or (vii) modify the provisions of this Section 14.3 without the
consent of the Holders of all Certificates then outstanding; provided that no
such amendment may modify Section 8.18 of this Agreement without Rating Agency
Confirmation. The Trustee shall not consent to any amendment to this Agreement
pursuant to this subsection (c) unless it shall have first received a
Nondisqualification Opinion and/or an Opinion of Counsel that such amendment
will not result in an Adverse REMIC Event or an Adverse Grantor Trust Event, as
applicable, and an Opinion of Counsel that any amendment pursuant to this
Section 14.3(c) is permitted by this Agreement at the expense of the party
requesting the amendment.
(d) The costs and expenses associated with any such amendment shall
be borne by the Depositor in the case the Trustee is the party requesting such
amendment or if pursuant to clauses (i), (ii) and (iii) of Section 14.3(a). In
all other cases, the costs and expenses shall be borne by the party requesting
the amendment.
(e) Promptly after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to each
Holder, the Depositor and to the Rating Agencies.
(f) It shall not be necessary for the consent of Holders under this
Section 14.3 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 Holders shall be in the affirmative and in writing and
shall be subject to such reasonable regulations as the Trustee may prescribe.
(g) Notwithstanding anything to the contrary contained in this
Section 14.3, the parties hereto agree that this Agreement may not be amended in
any manner that is reasonably likely to have an adverse effect on any Primary
Servicer without first obtaining the written consent of such Primary Servicer.
Furthermore, notwithstanding any contrary provisions of this Agreement, this
Agreement may not be amended in a manner that would adversely affect the
distributions to the Swap Counterparty or the rights of the Swap Counterparty
under the Swap Contract without the consent of the Swap Counterparty (which
shall not be unreasonably withheld).
(h) Notwithstanding the fact that the provisions in Section 14.3(c)
would otherwise apply, with respect to any amendment that significantly modifies
the permitted
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activities of the Trustee, the Master Servicer or the Special Servicer, any
Certificate beneficially owned by a Seller or any of its Affiliates shall be
deemed not to be outstanding (and shall not be considered when determining the
percentage of Certificateholders consenting or when calculating the total number
of Certificates entitled to consent) for purposes of determining if the
requisite consents of Certificateholders under this Section 14.3 have been
obtained.
(i) Notwithstanding anything to the contrary contained in this
Section 14.3, the parties hereto agree that this Agreement may be amended
pursuant to Section 8.26(d) herein without any notice to or consent of any of
the Certificateholders, Opinions of Counsel, Officer's Certificates or Rating
Agency Confirmation.
Section 14.4 GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 14.5 Notices
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given when received by (A) in the
case of the Depositor, Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxx Friend, with a copy to General Counsel; (B) in
the case of the Trustee, Paying Agent and Certificate Registrar at the Corporate
Trust Office; (C) in the case of the Master Servicer, _______, telecopy number:
(__) _______, Attention: _______; (D) in the case of the Special Servicer,
_______, Attention: _______, telecopy number: (__) _______; (E) in the case of
MSMC, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Friend, with a
copy to General Counsel; (F) in the case of [identify names and addresses of
other Sellers]; and (G) in the case of the Swap Counterparty, [Xxxxxx Xxxxxxx
Capital Services Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Chief
Legal Officer]. Any notice required or permitted to be mailed to a Holder shall
be given by first class mail, postage prepaid, at the address of such Holder as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Holder receives such notice.
Section 14.6 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 14.7 Indulgences; No Waivers
Neither the failure nor any delay on the part of a party to exercise
any right, remedy, power or privilege under this Agreement shall operate as a
waiver thereof, nor shall any
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single or partial exercise of any right, remedy, power or privilege preclude any
other or further exercise of the same or of any other right, remedy, power or
privilege, nor shall any waiver of any right, remedy, power or privilege with
respect to any occurrence be construed as a waiver of such right, remedy, power
or privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
Section 14.8 Headings Not to Affect Interpretation
The headings contained in this Agreement are for convenience of
reference only, and shall not be used in the interpretation hereof.
Section 14.9 Benefits of Agreement
Nothing in this Agreement or in the Certificates, express or
implied, shall give to any Person, other than the parties to this Agreement
(including any Primary Servicer to the extent applicable to such Primary
Servicer) and their successors hereunder and the Holders of the Certificates,
any benefit or any legal or equitable right, power, remedy or claim under this
Agreement; provided, however, that Swap Counterparty and its permitted
successors and assigns shall be intended third-party beneficiaries of this
Agreement and the Swap Counterparty may directly enforce such rights, and the
Underwriters are third parwty beneficiaries of Sections 13,2, 13.3, 13.4 and
13.14. This Agreement may not be amended in any manner that would adversely
affect the rights of any third party beneficiary without its reasonable consent.
Each holder of a right to receive Excess Servicing Fees shall be a third party
beneficiary to this Agreement with respect to its right to receive such Excess
Servicing Fees.
Section 14.10 Special Notices to the Rating Agencies
(a) The Trustee (or the Master Servicer in the case of clauses (vi)
and (vii) below) shall give prompt notice to the Rating Agencies, the Special
Servicer and the Operating Adviser of the occurrence of any of the following
events of which it has notice:
(i) any amendment to this Agreement pursuant to Section 14.3 hereof;
(ii) the Interim Certification and the Final Certification required
pursuant to Section 2.2 hereof;
(iii) notice of the repurchase of any Mortgage Loan pursuant to
Section 2.3(a) hereof;
(iv) any resignation of the Master Servicer, the Special Servicer,
the Paying Agent, the Operating Adviser or the Trustee pursuant to this
Agreement;
(v) the appointment of any successor to the Master Servicer, the
Trustee, the Paying Agent, the Operating Adviser or the Special Servicer
pursuant to Section 7.7, 7.14 or 9.37 hereof;
(vi) waiver of a due-on-sale clause as provided in Section 8.7;
(vii) waiver of a prohibition on subordinate liens on the Mortgaged
Properties;
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(viii) the making of a final payment pursuant to Section 10.3
hereof;
(ix) a Servicing Transfer Event; and
(x) an Event of Default.
(b) All notices to the Rating Agencies shall be in writing and sent
by first class mail, telecopy or overnight courier, as follows:
[If to Moody's, to:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000 0000
Attention: Structured Finance Commercial Real Estate
Monitoring
If to S&P, to:
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Commercial Mortgage Surveillance Manager]
or at such address as shall be provided in writing to the Depositor by such
Rating Agency.
(c) The Trustee, or in the case of clauses (i) and (ii), the
successor trustee shall give prompt notice to the Rating Agencies of the
occurrence of any of the following events:
(i) the resignation or removal of the Trustee pursuant to Section
7.6; or
(ii) the appointment of a successor trustee pursuant to Section 7.7;
or
(iii) the appointment of a successor Operating Adviser pursuant to
Section 9.37.
(d) The Master Servicer shall deliver to the Rating Agencies and the
Depositor any other information as reasonably requested by the Rating Agencies
and the Depositor, and the Master Servicer shall deliver to the Primary
Servicers and the Special Servicer each of the reports required to be delivered
by the Master Servicer to the Primary Servicers and the Special Servicer
pursuant to the terms of this Agreement. The Trustee, the Paying Agent and the
Special Servicer shall deliver to the Rating Agencies and the Depositor any
information as reasonably requested by the Rating Agencies and Depositor, as the
case may be.
(e) Any notice or other document required to be delivered or mailed
by the Depositor, the Master Servicer, the Paying Agent or the Trustee shall be
given by such parties,
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respectively, on a best efforts basis and only as a matter of courtesy and
accommodation to the Rating Agencies, unless otherwise specifically required
herein, and such parties, respectively, shall have no liability for failure to
deliver any such notice or document to the Rating Agencies.
Section 14.11 Counterparts
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, and all of which together shall
constitute one and the same instrument.
Section 14.12 Intention of Parties
It is the express intent of the parties hereto that the conveyance
of the Mortgage Loans and related rights and property to the Trustee, for the
benefit of the Certificateholders, by the Depositor as provided in Section 2.1
be, and be construed as, an absolute sale of the Mortgage Loans and related
property. It is, further, not the intention of the parties that such conveyance
be deemed a pledge of the Mortgage Loans and related property by the Depositor
to the Trustee to secure a debt or other obligation of the Depositor. However,
in the event that, notwithstanding the intent of the parties, the Mortgage Loans
or any related property is held to be the property of the Depositor, or if for
any other reason this Agreement is held or deemed to create a security interest
in the Mortgage Loans or any related property, then this Agreement shall be
deemed to be a security agreement; and the conveyance provided for in Section
2.1 shall be deemed to be a grant by the Depositor to the Trustee, for the
benefit of the Certificateholders, of a security interest in all of the
Depositor's right, title, and interest, whether now owned or hereafter acquired,
in and to:
(i) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit and investment property consisting
of, arising from or relating to any of the property described in clauses
(1)-(4) below: (1) the Mortgage Loans (including the related Mortgage
Notes, Mortgages, security agreements, and title, hazard and other
insurance policies) identified on the Mortgage Loan Schedule, including
all Qualifying Substitute Mortgage Loans, all distributions with respect
thereto payable on and after the Cut-Off Date, and the Mortgage Files; (2)
the Distribution Account, the Floating Rate Account, the Interest Reserve
Accounts, the Reserve Account, all REO Accounts, and the Certificate
Accounts, including all property therein and all income from the
investment of funds therein (including any accrued discount realized on
liquidation of any investment purchased at a discount); (3) the REMIC I
Regular Interests, the REMIC II Regular Interests and the Class A-3-1FL
Regular Interest; and (4) the Mortgage Loan Purchase Agreements;
(ii) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit, investment property, and other
rights arising from or by virtue of the disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or claims
against other Persons with respect to, all or any part of the collateral
described in clause
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(A) above (including any accrued discount realized on liquidation of any
investment purchased at a discount); and
(iii) All cash and non-cash proceeds of the collateral described in
clauses (i) and (ii) above.
The possession by the Trustee of the Mortgage Notes, the Mortgages
and such other goods, letters of credit, advices of credit, instruments, money,
documents, chattel paper or certificated securities shall be deemed to be
possession by the secured party or possession by a purchaser for purposes of
perfecting the security interest pursuant to the Uniform Commercial Code
(including, without limitation, Sections 9-115 and 9-305 thereof) as in force in
the relevant jurisdiction.
Notifications to Persons holding such property, and acknowledgments,
receipts or confirmations from Persons holding such property, shall be deemed to
be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or Persons holding for, the
Trustee, as applicable, for the purpose of perfecting such security interest
under applicable law.
The Depositor and, at the Depositor's direction, the Master Servicer
and the Trustee, shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the property described above, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of the Agreement. The Master Servicer shall file, at the expense of the Trust as
an Additional Trust Expense all filings necessary to maintain the effectiveness
of any original filings necessary under the Uniform Commercial Code as in effect
in any jurisdiction to perfect the Trustee's security interest in such property,
including without limitation (i) continuation statements, and (ii) such other
statements as may be occasioned by any transfer of any interest of the Master
Servicer or the Depositor in such property. In connection herewith, the Trustee
shall have all of the rights and remedies of a secured party and creditor under
the Uniform Commercial Code as in force in the relevant jurisdiction.
Section 14.13 Recordation of Agreement
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, if any, shall be effected by the Master Servicer at the
expense of the Trust as an Additional Trust Expense, but only upon direction of
the Depositor accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders of the Trust.
Section 14.14 Rating Agency Monitoring Fees
The parties hereto acknowledge that on the Closing Date the Sellers
will pay the ongoing monitoring fees of the Rating Agencies relating to the
rating of the
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Certificates and that no monitoring fees are payable subsequent to the Closing
Date in respect of the rating of the Certificates. The Master Servicer shall not
be required to pay any such fees or any fees charged for any Rating Agency
Confirmation (except any confirmation required under Section 8.22, Section 8.23
or in connection with a termination and replacement of the Master Servicer
following an Event of Default of the Master Servicer).
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IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent and the Certificate Registrar have
caused their names to be signed hereto by their respective officers thereunto
duly authorized as of the day and year first above written.
XXXXXX XXXXXXX CAPITAL I INC.,
as Depositor
By:
------------------------------------
Name:
Title:
,
-------
as Master Servicer
By:
------------------------------------
Name:
Title:
,
-------
as Special Servicer
By:
------------------------------------
Name:
Title:
, as Trustee, Paying Agent and
-------
Certificate Registrar
By:
------------------------------------
Name:
Title:
STATE OF )
: ss.:
COUNTY OF )
On the ______ day of _____ in the year 20__, before me, the
undersigned, personally appeared
_________________________________________________, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her capacity, and that by his/her signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument, and that such individual made such appearance
before the undersigned in the ___________________________ (insert the city or
other political subdivision and the state or county or other place the
acknowledgment was taken).
------------------
Signature and Office of individual taking acknowledgment
EXHIBIT A-1
[FORM OF CLASS [A-1] CERTIFICATE]
THIS CLASS [A-1] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [A-1] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE
PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
A-1-1
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
INITIAL PASS-THROUGH RATE: _____% MASTER SERVICER:
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [A-1]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [A-1] CERTIFICATE AS OF
THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [A-1]-1 CUSIP NO.
CLASS [A-1] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [A-1] Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate
A-1-2
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [A-1] Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
A-1-3
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
A-1-4
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser
shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
A-1-5
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-1-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [A-1] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-1-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-1-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-1-9
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
X-0-00
XXXXXXX X-0
[FORM OF CLASS [A-1A] CERTIFICATE]
THIS CLASS [A-1A] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN
INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE
PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [A-1A] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE
PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
A-2-1
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-___
INITIAL PASS-THROUGH RATE: _____% MASTER SERVICER:
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [A-1A]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [A-1A] CERTIFICATE AS OF
THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [A-1A]-1 CUSIP NO.
CLASS [A-1A] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [A-1A] Certificates issued
by the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be
A-2-2
held in the Certificate Account and Distribution Account, the Insurance Policies
and any REO Properties. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [A-1A] Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
A-2-3
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
A-2-4
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser
shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
A-2-5
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-2-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [A-1A] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-2-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-2-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-2-9
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
X-0-00
XXXXXXX X-0
[FORM OF CLASS [A-2] CERTIFICATE]
THIS CLASS [A-2] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [A-2] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE
PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
A-3-1
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
INITIAL PASS-THROUGH RATE: _____% MASTER SERVICER:
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [A-2]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [A-2] CERTIFICATE AS OF
THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [A-2]-1 CUSIP NO.
CLASS [A-2] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [A-2] Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate
A-3-2
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [A-2] Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
A-3-3
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
A-3-4
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Master Servicer, the Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
A-3-5
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-3-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [A-2] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-3-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-3-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-3-9
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
X-0-00
XXXXXXX X-0
[FORM OF CLASS [A-3-1FL] CERTIFICATE]
THIS CLASS [A-3-1FL] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN
INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE
PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [A-3-1FL] REGULAR INTEREST. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE
PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS (I) A "REGULAR
INVESTMENT" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS
A-4-1
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED AND (II) A
SWAP CONTRACT AND CONSTITUTES AN INTEREST IN A GRANTOR TRUST UNDER SUBPART E,
PART I OF SUBCHAPTER J OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
INITIAL PASS-THROUGH RATE: MASTER SERVICER:
LIBOR + _____%
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [A-3-1FL]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [A-3-1FL] CERTIFICATE AS
OF THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [A-3-1FL]-1 CUSIP NO.
CLASS [A-3-1FL] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [A-3-1FL] Certificates
issued by the Trust created pursuant to the Pooling and Servicing Agreement,
dated as specified above (the "Pooling and Servicing Agreement"), among Xxxxxx
Xxxxxxx Capital I Inc. (hereinafter called the "Depositor", which term includes
any successor entity under the Pooling and Servicing
A-4-2
Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master
Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account and Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [A-3-1FL] Certificates. The Certificates are designated as the Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
20__-____ and are issued in the Classes specified in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of the actual number of days in each month and a 360 day year) during
the Interest Accrual Period relating to such Distribution Date at the
Pass-Through Rate on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
A-4-3
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and
A-4-4
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Master Servicer, the Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
A-4-5
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-4-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [A-3-1FL] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-4-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-4-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-4-9
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
X-0-00
XXXXXXX X-0
[FORM OF CLASS [A-3-1] CERTIFICATE]
THIS CLASS [A-3-1] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN
INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE
PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [A-3-1] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE
PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
A-5-1
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
INITIAL PASS-THROUGH RATE: _____% MASTER SERVICER:
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [A-3-1]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [A-3-1] CERTIFICATE AS
OF THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [A-3-1]-1 CUSIP NO.
CLASS [A-3-1] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [A-3-1] Certificates issued
by the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be
A-5-2
held in the Certificate Account and Distribution Account, the Insurance Policies
and any REO Properties. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [A-3-1] Certificates. The Certificates are designated as the Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
20__-____ and are issued in the Classes specified in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
A-5-3
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
A-5-4
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Master Servicer, the Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
A-5-5
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-5-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [A-3-1] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-5-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-5-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-5-9
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
X-0-00
XXXXXXX X-0
[FORM OF CLASS [A-3-2] CERTIFICATE]
THIS CLASS [A-3-2] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN
INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE
PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [A-3-2] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE
PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
A-6-1
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
INITIAL PASS-THROUGH RATE: _____% MASTER SERVICER:
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [A-3-2]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [A-3-2] CERTIFICATE AS
OF THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [A-3-2]-1 CUSIP NO.
CLASS [A-3-2] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [A-3-2] Certificates issued
by the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be
A-6-2
held in the Certificate Account and Distribution Account, the Insurance Policies
and any REO Properties. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [A-3-2] Certificates. The Certificates are designated as the Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
20__-____ and are issued in the Classes specified in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
A-6-3
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
A-6-4
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Master Servicer, the Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
A-6-5
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-6-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [A-3-2] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-6-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-6-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-6-9
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
X-0-00
XXXXXXX X-0
[FORM OF CLASS [A-AB] CERTIFICATE]
THIS CLASS [A-AB] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN
INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE
PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [A-AB] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE
PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
A-7-1
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
THE PASS-THROUGH RATE: _____% MASTER SERVICER:
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [A-AB]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [A-AB] CERTIFICATE AS OF
THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [A-AB]-1 CUSIP No.:
CLASS [A-AB] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [A-AB] Certificates issued
by the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be
A-7-2
held in the Certificate Account and Distribution Account, the Insurance Policies
and any REO Properties. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [A-AB] Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
A-7-3
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
A-7-4
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, The
Master Servicer, the Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
A-7-5
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-7-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [A-AB] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-7-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-7-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-7-9
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
X-0-00
XXXXXXX X-0
[FORM OF CLASS [A-4A] CERTIFICATE]
THIS CLASS [A-4A] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN
INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE
PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [A-4A] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE
PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
A-8-1
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
THE PASS-THROUGH RATE: _____% MASTER SERVICER:
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [A-4A]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [A-4A] CERTIFICATE AS OF
THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [A-4A]-[1][2] CUSIP No.:
CLASS [A-4A] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [A-4A] Certificates issued
by the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be
A-8-2
held in the Certificate Account and Distribution Account, the Insurance Policies
and any REO Properties. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [A-4A] Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
A-8-3
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
A-8-4
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Master Servicer, the Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
A-8-5
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-8-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [A-4A] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-8-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-8-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-8-9
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
X-0-00
XXXXXXX X-0
[FORM OF CLASS [A-4B] CERTIFICATE]
THIS CLASS [A-4B] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN
INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE
PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL
SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [A-4B] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE
PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
A-9-1
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
THE PASS-THROUGH RATE: _____% MASTER SERVICER:
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [A-4B]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [A-4B] CERTIFICATE AS OF
THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [A-4B]-1 CUSIP No.:
CLASS [A-4B] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [A-4B] Certificates issued
by the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be
A-9-2
held in the Certificate Account and Distribution Account, the Insurance Policies
and any REO Properties. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [A-4B] Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
A-9-3
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
A-9-4
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Master Servicer, the Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
A-9-5
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-9-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [A-4B] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-9-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-9-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-9-9
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
A-9-10
EXHIBIT A-10
[FORM OF CLASS [X-2] CERTIFICATE]
THIS CLASS [X-2] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [X-2] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE
PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
A-10-1
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
THE PASS-THROUGH RATE: _____% MASTER SERVICER:
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [X-2]
CERTIFICATES AS OF THE CLOSING DATE: $__________
NOTIONAL AMOUNT OF THIS CLASS [X-2] CERTIFICATE AS OF THE
CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [X-2]-[1][2][3][4] CUSIP No.:
CLASS [X-2] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [X-2] Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate
A-10-2
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [X-2] Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
A-10-3
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
A-10-4
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Master Servicer, the Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
A-10-5
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-10-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [X-2] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-10-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-10-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-10-9
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
A-10-10
EXHIBIT A-11
[FORM OF CLASS [A-J] CERTIFICATE]
THIS CLASS [A-J] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [A-J] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE
PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
A-11-1
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
THE PASS-THROUGH RATE: _____% MASTER SERVICER:
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [A-J]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [A-J] CERTIFICATE AS OF
THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [A-J]-1 CUSIP No.:
CLASS [A-J] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [A-J] Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate
A-11-2
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [A-J] Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
A-11-3
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
A-11-4
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Master Servicer, the Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
A-11-5
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-11-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [A-J] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-11-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-11-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-11-9
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
A-11-10
EXHIBIT A-12
[FORM OF CLASS [B] CERTIFICATE]
THIS CLASS [B] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS [B] CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [B] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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
A-12-1
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
THE PASS-THROUGH RATE: _____% MASTER SERVICER:
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [B]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [B] CERTIFICATE AS OF
THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [B]-1 CUSIP NO.
CLASS [B] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [B] Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
A-12-2
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [B] Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
A-12-3
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and
A-12-4
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser
shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
A-12-5
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-12-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [B] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-12-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-12-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-12-9
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-12-10
EXHIBIT A-13
[FORM OF CLASS [C] CERTIFICATE]
THIS CLASS [C] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS [C] CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [C] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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
A-13-1
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
THE PASS-THROUGH RATE: _____% MASTER SERVICER:
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [C]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [C] CERTIFICATE AS OF
THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [C]-1 CUSIP NO.
CLASS [C] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [C] Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing
A-13-2
Agreement"), among Xxxxxx Xxxxxxx Capital I Inc. (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar,
the Master Servicer and the Special Servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [C] Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
A-13-3
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and
A-13-4
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser
shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
A-13-5
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-13-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [C] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-13-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-13-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-13-9
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-13-10
EXHIBIT A-14
[FORM OF CLASS [D] CERTIFICATE]
THIS CLASS [D] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS [D] CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [D] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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
A-14-1
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
THE PASS-THROUGH RATE: _____% MASTER SERVICER:
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [D]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [D] CERTIFICATE AS OF
THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [D]-1 CUSIP NO.
CLASS [D] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [D] Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing
A-14-2
Agreement"), among Xxxxxx Xxxxxxx Capital I Inc. (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar,
the Master Servicer and the Special Servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [D] Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
A-14-3
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and
A-14-4
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser
shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
A-14-5
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-14-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [D] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-14-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-14-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-14-9
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-14-10
EXHIBIT A-15
[FORM OF CLASS [E] CERTIFICATE]
THIS CLASS [E] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS [E] CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [E] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
A-15-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
--------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
A-15-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
THE PASS-THROUGH RATE ON THE CLASS [F] CERTIFICATES WILL MASTER SERVICER:
BE A PER ANNUM RATE EQUAL THE WEIGHTED AVERAGE NET
MORTGAGE RATE
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [E]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [E] CERTIFICATE AS OF
THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [E]-1 CUSIP NO.
CLASS [E] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [E] Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
A-15-3
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [E] Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
A-15-4
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and
A-15-5
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser
shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
A-15-6
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-15-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [E] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-15-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-15-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-15-10
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-15-11
EXHIBIT A-16
[FORM OF CLASS [F] CERTIFICATE]
THIS CLASS [F] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS [F] CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [F] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
A-16-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
--------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
A-16-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
THE PASS-THROUGH RATE ON THE CLASS [F] CERTIFICATES WILL MASTER SERVICER:
BE A PER ANNUM RATE EQUAL TO THE WEIGHTED AVERAGE NET
MORTGAGE RATE
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [F]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [F] CERTIFICATE AS OF
THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [F]-1 CUSIP NO.
CLASS [F] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [F] Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily
A-16-3
of the Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account and Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [F] Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
A-16-4
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
A-16-5
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser
shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
A-16-6
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-16-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [F] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-16-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-16-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-16-10
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-16-11
EXHIBIT A-17
[FORM OF CLASS [G] CERTIFICATE]
THIS CLASS [G] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE PAYING AGENT, THE
CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR
RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY
OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS [G] CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [G] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
A-17-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
--------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
A-17-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
THE PASS-THROUGH RATE ON THE CLASS [G] CERTIFICATES WILL MASTER SERVICER:
BE A PER ANNUM RATE EQUAL TO THE WEIGHTED AVERAGE NET
MORTGAGE RATE.
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [G]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [G] CERTIFICATE AS OF
THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [G]-1 CUSIP NO.
CLASS [G] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [G] Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily
A-17-3
of the Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account and Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [G] Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
A-17-4
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
A-17-5
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser
shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
A-17-6
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-17-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [G] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-17-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-17-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-17-10
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-17-11
EXHIBIT A-18
[FORM OF CLASS [H] CERTIFICATE]
THIS CLASS [H] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS [H] CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [H] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
A-18-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
--------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
A-18-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
THE PASS-THROUGH RATE ON THE CLASS [H] CERTIFICATES WILL MASTER SERVICER:
BE A PER ANNUM RATE EQUAL TO THE WEIGHTED AVERAGE NET
MORTGAGE RATE.
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [H]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [H] CERTIFICATE AS OF
THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [H]-1 CUSIP NO.
CLASS [H] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [H] Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily
A-18-3
of the Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account and Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [H] Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
A-18-4
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
A-18-5
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser
shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
A-18-6
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-18-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [H] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-18-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-18-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-18-10
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-18-11
EXHIBIT A-19
[FORM OF CLASS [J] CERTIFICATE]
THIS CLASS [J] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS [J] CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [J] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT
A-19-1
PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
--------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
A-19-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
THE PASS-THROUGH RATE ON THE CLASS [J] CERTIFICATES WILL MASTER SERVICER:
BE THE LESSER OF (i) _____% AND (ii) THE WEIGHTED AVERAGE
NET MORTGAGE RATE.
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [J]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [J] CERTIFICATE AS OF
THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [J]-1 CUSIP NO.
CLASS [J] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [J] Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily
A-19-3
of the Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account and Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [J] Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
A-19-4
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
A-19-5
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser
shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
A-19-6
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-19-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [J] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-19-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-19-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-19-10
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-19-11
EXHIBIT A-20
[FORM OF CLASS [K] CERTIFICATE]
THIS CLASS [K] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS [K] CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [K] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT
A-20-1
PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
--------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
A-20-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
THE PASS-THROUGH RATE ON THE CLASS [K] CERTIFICATES WILL MASTER SERVICER:
BE THE LESSER OF (i) _____% AND (ii) THE WEIGHTED AVERAGE
NET MORTGAGE RATE .
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [J]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [J] CERTIFICATE AS OF
THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [K]-1 CUSIP NO.
CLASS [K] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [K] Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the
A-20-3
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [K] Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
A-20-4
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
A-20-5
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser
shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
A-20-6
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-20-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [K] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-20-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-20-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-20-10
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-20-11
EXHIBIT A-21
[FORM OF CLASS [L] CERTIFICATE]
THIS CLASS [L] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS [L] CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [L] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT
A-21-1
PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
--------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
A-21-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
THE PASS-THROUGH RATE ON THE CLASS [L] CERTIFICATES WILL MASTER SERVICER:
BE THE LESSER OF (i) _____% AND (ii) THE WEIGHTED AVERAGE
NET MORTGAGE RATE.
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [J]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [J] CERTIFICATE AS OF
THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [L]-1 CUSIP NO.
CLASS [L] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [L] Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the
A-21-3
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [L] Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
A-21-4
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
A-21-5
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser
shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
A-21-6
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-21-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [L] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-21-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-21-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-21-10
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-21-11
EXHIBIT A-22
[FORM OF CLASS [M] CERTIFICATE]
THIS CLASS [M] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS [M] CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [M] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT
A-22-1
PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
--------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
A-22-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
THE PASS-THROUGH RATE ON THE CLASS [M] CERTIFICATES WILL MASTER SERVICER:
BE THE LESSER OF (i) _____% AND (ii) THE WEIGHTED AVERAGE
NET MORTGAGE RATE.
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [M]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [M] CERTIFICATE AS OF
THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [M]-1 CUSIP NO.
CLASS [M] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [M] Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily
A-22-3
of the Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account and Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [M] Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
A-22-4
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
A-22-5
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Depositor, the Trustee, the Paying Agent, the Master Servicer,
the Special Servicer or the Operating Adviser may treat the Person in whose name
this Certificate is registered as of the related Record Date as the owner hereof
for the purpose of receiving distributions as provided in the Pooling and
Servicing Agreement and for all other purposes whatsoever, and none of the
Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the
Operating Adviser shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
A-22-6
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-22-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [M] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-22-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-22-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-22-10
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-22-11
EXHIBIT A-23
[FORM OF CLASS [N] CERTIFICATE]
THIS CLASS [N] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS [N] CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [N] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT
A-23-1
PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
--------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
A-23-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
THE PASS-THROUGH RATE ON THE CLASS [N] CERTIFICATES WILL MASTER SERVICER:
BE THE LESSER OF (i) _____% AND (ii) THE WEIGHTED AVERAGE
NET MORTGAGE RATE.
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [N]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [N] CERTIFICATE AS OF
THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [N]-1 CUSIP NO.
CLASS [N] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [N] Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily
A-23-3
of the Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account and Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [N] Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
A-23-4
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
A-23-5
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser
shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
A-23-6
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-23-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [N] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-23-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-23-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-23-10
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-23-11
EXHIBIT A-24
[FORM OF CLASS [O] CERTIFICATE]
THIS CLASS [O] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS [O] CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [O] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT
A-24-1
PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
--------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
A-24-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
THE PASS-THROUGH RATE ON THE CLASS [O] CERTIFICATES WILL MASTER SERVICER:
BE THE LESSER OF (i) _____% AND (ii) THE WEIGHTED AVERAGE
NET MORTGAGE RATE.
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [O]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [O] CERTIFICATE AS OF
THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [O]-1 CUSIP NO.
CLASS [O] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [O] Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily
A-24-3
of the Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account and Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [O] Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
A-24-4
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
A-24-5
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser
shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
A-24-6
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-24-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [O] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-24-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-24-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-24-10
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-24-11
EXHIBIT A-25
[FORM OF CLASS [P] CERTIFICATE]
THIS CLASS [P] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR
ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY
SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS [P] CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS [P] CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT
A-25-1
PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
--------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
A-25-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
THE PASS-THROUGH RATE ON THE CLASS [P] CERTIFICATES WILL MASTER SERVICER:
BE THE LESSER OF (i) _____% AND (ii) THE WEIGHTED AVERAGE
NET MORTGAGE RATE.
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE: PAYING AGENT:
CLOSING DATE: TRUSTEE:
FIRST DISTRIBUTION DATE:
AGGREGATE CERTIFICATE BALANCE OF THE CLASS [P]
CERTIFICATES AS OF THE CLOSING DATE: $__________
CERTIFICATE BALANCE OF THIS CLASS [P] CERTIFICATE AS OF
THE CLOSING DATE: $__________ (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. [P]-1 CUSIP NO.
CLASS [P] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [P] Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily
A-25-3
of the Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account and Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class [P] Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the [15th]
day of each month or, if such [15th] day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
A-25-4
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
A-25-5
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser
shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
A-25-6
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-25-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [P] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-25-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-25-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-25-10
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have
been made:
A-25-11
EXHIBIT A-26
[FORM OF CLASS [EI] CERTIFICATE]
THIS CLASS [EI] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A-26-1
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
PERCENTAGE INTEREST OF THIS CLASS [EI] CERTIFICATE: _____% MASTER SERVICER:
DATE OF POOLING AND SERVICING AGREEMENT:
CUT-OFF DATE: SPECIAL SERVICER:
CLOSING DATE:
FIRST DISTRIBUTION DATE:
PAYING AGENT:
TRUSTEE:
No. [EI]-[__] CUSIP NO.:
CLASS [EI] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT JER INVESTORS TRUST INC. is the registered owner
of the interest evidenced by this Certificate in the Class [EI] Certificates
issued by the Trust created pursuant to the Pooling and Servicing Agreement,
dated as specified above (the "Pooling and Servicing Agreement"), among Xxxxxx
Xxxxxxx Capital I Inc. (hereinafter called the "Depositor", which term includes
any successor entity under the Pooling and Servicing Agreement), the Trustee,
the Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
[EI] Certificates specified on the face hereof. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 20__-____ and are issued in the Classes specified in the
Pooling and
A-26-2
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Class [EI] Certificate represents a beneficial ownership interest in
a portion of the Trust that is treated as grantor trust for federal income tax
purposes, and represents a beneficial ownership of Excess Interest in respect of
Mortgage Loans having a hyper-amortization feature. Any amount of Excess
Interest on deposit in the Excess Interest Sub-account for the related
Collection Period will be paid to the holders of the Class [EI] Certificates, to
the extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the [15th] day of each month or, if such [15th] day is not a
Business Day, the next succeeding Business Day (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Paying Agent with wiring instructions on or prior to the related
Record Date or otherwise by check mailed to such Certificateholder.
Notwithstanding the above, the final distribution on any Certificate will be
made only upon presentation and surrender of such Certificate at the location
that will be specified in a notice of the pendency of such final distribution.
A-26-3
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser
shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance
A-26-4
with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the
termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-26-5
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [EI] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-26-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-26-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-26-8
EXHIBIT A-27
[FORM OF CLASS [R-I] CERTIFICATE]
THIS CLASS [R-I] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE
PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR
RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY
OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
PERSON OTHER THAN A UNITED STATES TAX PERSON (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT).
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE CODE OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS [R-I] CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE
A-27-1
PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE REGISTRAR TO THE EFFECT THAT
(1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE POOLING AND SERVICING
AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE HEREOF, (2) SUCH TRANSFEREE
IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY
WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT
FOR FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY ANY SUCH
GOVERNMENTAL UNIT), (B) AN ORGANIZATION (OTHER THAN CERTAIN FARMERS'
COOPERATIVES 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 ON UNRELATED BUSINESS TAXABLE INCOME), (C) A
RURAL ELECTRIC OR TELEPHONE COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE
(ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING
HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS
NOT A "UNITED STATES TAX PERSON," (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR
A NON-UNITED STATES TAX PERSON OR (F) A PERSON WITH RESPECT TO WHOM INCOME FROM
THIS CLASS [R-I] CERTIFICATE IS ATTRIBUTABLE TO A FOREIGN PERMANENT
ESTABLISHMENT OR FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX
TREATY, OF SUCH PERSON OR ANY OTHER UNITED STATES TAX PERSON, AND (3) NO PURPOSE
OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR
COLLECTION OF TAX. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER
OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS [R-I] CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES TAX PERSON, OR TO ANY OTHER
PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF A CLASS [R-I] CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
A-27-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
PERCENTAGE INTEREST OF THIS CLASS [R-I] CERTIFICATE: MASTER SERVICER:
_____%
DATE OF POOLING AND SERVICING AGREEMENT:
CUT-OFF DATE: SPECIAL SERVICER:
CLOSING DATE:
FIRST DISTRIBUTION DATE: PAYING AGENT:
TRUSTEE:
No. [R-I] CUSIP NO.:
CLASS [R-I] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT XXXXXX XXXXXXX & CO. INCORPORATED is the
registered owner of the interest evidenced by this Certificate in the Class
[R-I] Certificates issued by the Trust created pursuant to the Pooling and
Servicing Agreement, dated as specified above (the "Pooling and Servicing
Agreement"), among Xxxxxx Xxxxxxx Capital I Inc. (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar,
the Master Servicer and the Special Servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
[R-I] Certificates specified on the face hereof. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 20__-____ and are issued in the Classes specified in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
A-27-3
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including as
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the [15th] day of each month or, if such [15th] day is not a
Business Day, the next succeeding Business Day (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Paying Agent with wiring instructions on or prior to the related
Record Date or otherwise by check mailed to such Certificateholder.
Notwithstanding the above, the final distribution on any Certificate will be
made only upon presentation and
A-27-4
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser
shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final
A-27-5
distribution to the Certificateholders) and (B) the disposition of all REO
Property (and final distribution to the Certificateholders), (ii) the sale of
the property held by the Trust in accordance with Section 10.1(b) of the Pooling
and Servicing Agreement, (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the
property held in the Trust in accordance with Section 10.1(d) of the Pooling and
Servicing Agreement; provided that in no event shall the Trust continue beyond
the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-27-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [R-I] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-27-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-27-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-27-9
EXHIBIT A-28
[FORM OF CLASS [R-II] CERTIFICATE]
THIS CLASS [R-II] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN
INTEREST IN THE SELLERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
PERSON OTHER THAN A UNITED STATES TAX PERSON (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT).
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE CODE OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS [R-II] CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE
A-28-1
PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE REGISTRAR TO THE EFFECT THAT
(1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE POOLING AND SERVICING
AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE HEREOF, (2) SUCH TRANSFEREE
IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY
WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT
FOR FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY ANY SUCH
GOVERNMENTAL UNIT), (B) AN ORGANIZATION (OTHER THAN CERTAIN FARMERS'
COOPERATIVES 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 ON UNRELATED BUSINESS TAXABLE INCOME), (C) A
RURAL ELECTRIC OR TELEPHONE COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE
(ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING
HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS
NOT A "UNITED STATES TAX PERSON," (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR
A NON-UNITED STATES TAX PERSON OR (F) A PERSON WITH RESPECT TO WHOM INCOME FROM
THIS CLASS [R-II] CERTIFICATE IS ATTRIBUTABLE TO A FOREIGN PERMANENT
ESTABLISHMENT OR FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX
TREATY, OF SUCH PERSON OR ANY OTHER UNITED STATES TAX PERSON, AND (3) NO PURPOSE
OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR
COLLECTION OF TAX. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER
OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS [R-II] CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR A NON-UNITED TAX STATES PERSON OR AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER
PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF A CLASS [R-II] CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
A-28-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
PERCENTAGE INTEREST OF THIS CLASS [R-II] CERTIFICATE: MASTER SERVICER:
_____%
DATE OF POOLING AND SERVICING AGREEMENT:
CUT-OFF DATE: SPECIAL SERVICER:
CLOSING DATE:
FIRST DISTRIBUTION DATE: PAYING AGENT:
TRUSTEE:
No. [R-II] CUSIP NO.:
CLASS [R-II] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT XXXXXX XXXXXXX & CO. INCORPORATED is the
registered owner of the interest evidenced by this Certificate in the Class
[R-II] Certificates issued by the Trust created pursuant to the Pooling and
Servicing Agreement, dated as specified above (the "Pooling and Servicing
Agreement"), among Xxxxxx Xxxxxxx Capital I Inc. (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar,
the Master Servicer and the Special Servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
[R-II] Certificates specified on the face hereof. The Certificates are
designated as the Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 20__-___ and are issued in the Classes specified in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
A-28-3
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the [15th] day of each month or, if such [15th] day is not a
Business Day, the next succeeding Business Day (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Paying Agent with wiring instructions on or prior to the related
Record Date or otherwise by check mailed to such Certificateholder.
Notwithstanding the above, the final distribution on any Certificate will be
made only upon presentation and
A-28-4
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser
shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final
A-28-5
distribution to the Certificateholders) and (B) the disposition of all REO
Property (and final distribution to the Certificateholders), (ii) the sale of
the property held by the Trust in accordance with Section 10.1(b) of the Pooling
and Servicing Agreement, (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the
property held in the Trust in accordance with Section 10.1(d) of the Pooling and
Servicing Agreement; provided that in no event shall the Trust continue beyond
the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-28-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [R-II] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-28-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-28-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-28-9
EXHIBIT A-29
[FORM OF CLASS [R-III] CERTIFICATE]
THIS CLASS [R-III] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN
INTEREST IN THE SELLERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE
AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY
GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
PERSON OTHER THAN A UNITED STATES TAX PERSON (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT).
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE CODE OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS [R-III] CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
CERTIFICATE REGISTRAR TO
A-29-1
THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE
POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE
HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL
SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING
(OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES
ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS
IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION (OTHER THAN
CERTAIN FARMERS' COOPERATIVES 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 ON UNRELATED BUSINESS
TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE COOPERATIVE DESCRIBED IN
SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES
(A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"),
(D) A PERSON THAT IS NOT A "UNITED STATES TAX PERSON," (E) AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES TAX PERSON OR (F) A PERSON WITH
RESPECT TO WHOM THIS CLASS [R-III] CERTIFICATE IS ATTRIBUTABLE TO A FOREIGN
PERMANENT ESTABLISHMENT OR FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE
INCOME TAX TREATY, OF SUCH PERSON OR ANY OTHER UNITED STATES TAX PERSON, AND (3)
NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT
OR COLLECTION OF TAX. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE
REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS [R-III]
CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON OR AN
AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES TAX PERSON, OR TO
ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING
AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT
WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY
PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS
ON THIS CERTIFICATE. EACH HOLDER OF A CLASS [R-III] CERTIFICATE BY ACCEPTANCE OF
THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
A-29-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
PERCENTAGE INTEREST OF THIS CLASS [R-III] CERTIFICATE: MASTER SERVICER:
100%
DATE OF POOLING AND SERVICING AGREEMENT:
CUT-OFF DATE: SPECIAL SERVICER:
CLOSING DATE:
FIRST DISTRIBUTION DATE: PAYING AGENT:
TRUSTEE:
No. [R-III]
CUSIP NO.
CLASS [R-III] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT XXXXXX XXXXXXX & CO. INCORPORATED is the
registered owner of the interest evidenced by this Certificate in the Class
[R-III] Certificates issued by the Trust created pursuant to the Pooling and
Servicing Agreement, dated as specified above (the "Pooling and Servicing
Agreement"), among Xxxxxx Xxxxxxx Capital I Inc. (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar,
the Master Servicer and the Special Servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
[R-III] Certificates specified on the face hereof. The Certificates are
designated as the Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 20__-____ and are issued in the Classes specified in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
A-29-3
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the [15th] day of each month or, if such [15th] day is not a
Business Day, the next succeeding Business Day (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Paying Agent with wiring instructions on or prior to the related
Record Date or otherwise by check mailed to such Certificateholder.
Notwithstanding the above, the final distribution on any Certificate will be
made only upon presentation and
A-29-4
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser
shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final
A-29-5
distribution to the Certificateholders) and (B) the disposition of all REO
Property (and final distribution to the Certificateholders), (ii) the sale of
the property held by the Trust in accordance with Section 10.1(b) of the Pooling
and Servicing Agreement, (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the
property held in the Trust in accordance with Section 10.1(d) of the Pooling and
Servicing Agreement; provided that in no event shall the Trust continue beyond
the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. The parties designated in the
Pooling and Servicing Agreement may exercise their option to purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the Trust
and cause the termination of the Trust in accordance with the requirements set
forth in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-29-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [R-III] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-29-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-29-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-29-9
EXHIBIT A-30
[FORM OF CLASS [X-1] CERTIFICATE]
THIS CLASS [X-1] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE
PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR
RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY
OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS, REALIZED
LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO THE
NOTIONAL AMOUNT OF THIS CLASS [X-1] CERTIFICATE. ACCORDINGLY, THE NOTIONAL
AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY
OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
A-30-1
OF DTC (AND ANY PAYMENT HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
--------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
A-30-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-____
INITIAL PASS-THROUGH RATE: _____% MASTER SERVICER:
INITIAL NOTIONAL AMOUNT OF THIS CLASS [X-1] CERTIFICATE:
$__________, AS OF THE CLOSING DATE
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER:
CUT-OFF DATE:
CLOSING DATE:
FIRST DISTRIBUTION DATE: PAYING AGENT:
AGGREGATE NOTIONAL AMOUNT OF THE CLASS [X-1] CERTIFICATES TRUSTEE:
AS OF THE CLOSING DATE: $__________
No. [X-1]-[1][2][3][4] CUSIP NO.
CLASS [X-1] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [X-1] Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor," which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and
A-30-3
representing an interest in the Class of Certificates specified on the face
hereof equal to the quotient expressed as a percentage obtained by dividing the
Notional Amount of this Certificate specified on the face hereof by the initial
aggregate Notional Amount of the Class [X-1] Certificates. The Certificates are
designated as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 20__-___ and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of
the Available Distribution Amount, to the extent and subject to the limitations
set forth in the Pooling and Servicing Agreement, on the [15th] day of each
month or, if such [15th] day is not a Business Day, the next succeeding Business
Day (a "Distribution Date") commencing on the first Distribution Date specified
above, to the Person in whose name this Certificate is registered at the close
of business on the last Business Day of the month immediately preceding the
month of such distribution (the "Record Date"). All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Notional Amount of this Certificate immediately prior to each Distribution
Date. Interest allocated to this Certificate on any Distribution Date will be in
an amount due to this Certificate's pro rata share of the amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
A-30-4
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class [X-1] Certificates will be issued in denominations of $100,000 initial
Notional Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but
A-30-5
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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser
shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-30-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [X-1] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-30-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-30-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-30-9
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-30-10
EXHIBIT A-31
[FORM OF CLASS [X-Y] CERTIFICATE]
THIS CLASS [X-Y] CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE
AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY
GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS, REALIZED
LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO THE
NOTIONAL AMOUNT OF THIS CLASS [X-Y] CERTIFICATE. ACCORDINGLY, THE NOTIONAL
AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY
OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
A-31-1
OF DTC (AND ANY PAYMENT HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
--------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
A-31-2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 20__-___
INITIAL PASS-THROUGH RATE: _____% MASTER SERVICER:
INITIAL NOTIONAL AMOUNT OF THIS CLASS [X-Y] CERTIFICATE: SPECIAL SERVICER:
$__________ AS OF THE CLOSING DATE
DATE OF POOLING AND SERVICING AGREEMENT: PAYING AGENT:
CUT-OFF DATE: TRUSTEE:
CLOSING DATE:
FIRST DISTRIBUTION DATE:
AGGREGATE NOTIONAL AMOUNT OF THE CLASS [X-Y] CERTIFICATES
AS OF THE CLOSING DATE: $__________
No. [X-Y]-1 CUSIP NO.
CLASS [X-Y] CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the
interest evidenced by this Certificate in the Class [X-Y] Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor," which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
A-31-3
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Notional Amount of this Certificate
specified on the face hereof by the initial aggregate Notional Amount of the
Class [X-Y] Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of
the Available Distribution Amount, to the extent and subject to the limitations
set forth in the Pooling and Servicing Agreement, on the [15th] day of each
month or, if such [15th] day is not a Business Day, the next succeeding Business
Day (a "Distribution Date") commencing on the first Distribution Date specified
above, to the Person in whose name this Certificate is registered at the close
of business on the last Business Day of the month immediately preceding the
month of such distribution (the "Record Date"). All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Notional Amount of this Certificate immediately prior to each Distribution
Date. Interest allocated to this Certificate on any Distribution Date will be in
an amount due to this Certificate's pro rata share of the amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest
A-31-4
shortfalls on the Mortgage Loans allocated to any Class of Certificates will be
allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 therefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class [X-Y] Certificates will be issued in denominations of $100,000 initial
Notional Amount and in any whole dollar denomination in excess thereof.
A-31-5
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but 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 Trustee, the Paying Agent, the Master Servicer, the Special
Servicer or the Operating Adviser may treat the Person in whose name this
Certificate is registered as of the related Record Date as the owner hereof for
the purpose of receiving distributions as provided in the Pooling and Servicing
Agreement and for all other purposes whatsoever, and none of the Trustee, the
Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser
shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders and
the REMIC III Certificateholders, as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust (and final distribution to the Certificateholders) and
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii)
the termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement or (iv) the transfer of the property held in the Trust in
accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust and cause the termination of the
Trust in accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED
A-31-6
BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES APPLIED IN NEW YORK.
A-31-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
[NAME OF CERTIFICATE REGISTRAR],
as Certificate Registrar
By:
----------------------------------
AUTHORIZED SIGNATORY
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [X-Y] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
[NAME OF AUTHENTICATING AGENT],
AUTHENTICATING AGENT
By:
----------------------------------
AUTHORIZED SIGNATORY
A-31-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT............Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as
tenants in common Act..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
------------------------------------
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------- -------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or enlargement
or any change whatever.
------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by
a commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-31-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
___________________________ account number ______________ or, if mailed by
check, to ______________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
A-31-10
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-31-11
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
______ __, 20__
Xxxxxx Xxxxxxx Capital I Inc. [Name of Paying Agent]
0000 Xxxxxxxx [xxxxxxx]
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx Mortgage Capital Inc. [Name of Master Servicer]
0000 Xxxxxxxx [xxxxxxx]
Xxx Xxxx, XX 00000
[Name of Special Servicer]
[address]
[Names and addresses of other sellers]
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 20__-__
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (a) all documents
specified in clause (i) of the definition of "Mortgage File" are in its
possession, (b) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan and (c) each Mortgage Note has
been endorsed as provided in clause (i) of the definition of "Mortgage File" of
the Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
such documents contained in each Mortgage File or any of the Mortgage Loans
identified in the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) whether any such
documents contained in each Mortgage File are appropriate for their represented
purposes, or are other than what they purport to be on their face.
The Trustee acknowledges receipt of notice that the Depositor has
assigned to the Trustee for the benefit of the Certificateholders all of the
Depositor's right, title and interest in and to the Mortgage Loans, the REMIC I
Regular Interests, the REMIC II Regular Interests, and the assets of Class EI
Grantor Trust and that, in the event such assignment is not upheld as an
absolute sale, that the Depositor has granted to the Trustee for the benefit of
Certificateholders a security interest in such items.
Capitalized words and phrases used herein and not otherwise defined
herein shall have the respective meanings assigned to them in the Pooling and
Servicing Agreement. This
B-1-1
Certificate is subject in all respects to the terms of said Pooling and
Servicing Agreement including but not limited to Section 2.2.
[Name of Trustee], as Trustee
By:____________________________________
Name:
Title:
B-1-2
SCHEDULE OF EXCEPTIONS
EXHIBIT B-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
______ __, 20__
Xxxxxx Xxxxxxx Capital I Inc. [Name of Master Servicer]
0000 Xxxxxxxx [xxxxxxx]
Xxx Xxxx, XX 00000
[Name of Special Servicer]
Xxxxxx Xxxxxxx Mortgage Capital Inc. [address]
0000 Xxxxxxxx
Xxx Xxxx, XX 00000 [Name of Paying Agent]
[address]
[Names and addresses of other sellers]
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 20__-__
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (a) all documents
required to be included in the Mortgage File pursuant to clauses (i), (ii),
(iv), (vi), (viii) and (xii) of the definition of "Mortgage File" required to be
in the Mortgage File, and any documents required to be included in the Mortgage
File pursuant to all other clauses of the definition of "Mortgage File" (to the
extent required to be delivered pursuant to the Pooling and Servicing Agreement
and any applicable Primary Servicing Agreement), to the extent actually known by
a Responsible Officer of the Trustee to be required pursuant to the Pooling and
Servicing Agreement (assuming that, with respect to the documents referred to in
clause (xii) of the definition of Mortgage File, an original letter of credit in
the possession of the Trustee is not so required, unless a Responsible Officer
of the Trustee has actual knowledge to the contrary), are in its possession, (b)
such documents have been reviewed by it and have not been materially mutilated,
damaged, defaced, torn or otherwise physically altered, and such documents
relate to such Mortgage Loan, (c) based on its examination and only as to the
Mortgage Note and the Mortgage or the appraisal of the related Mortgaged
Property, the street address of the Mortgaged Property set forth in the Mortgage
Loan Schedule accurately reflects the information contained in the documents in
the Mortgage File, and (d) each Mortgage Note has been endorsed as required by
the terms of the Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File
identified in the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) whether any of
the documents contained in each Mortgage File are
B-2-1
appropriate for their represented purposes, or are other than what they purport
to be on their face or are in recordable form.
The Trustee acknowledges receipt of notice that the Depositor has
assigned to the Trustee for the benefit of the Certificateholders all of the
Depositor's right, title and interest in and to the Mortgage Loans, the REMIC I
Regular Interests, the REMIC II Regular Interests, and the assets of Class EI
Grantor Trust and that, in the event such assignment is not upheld as an
absolute sale, that the Depositor has granted to the Trustee for the benefit of
Certificateholders a security interest in such items.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement. This
Certificate is qualified in all respects by the terms of said Pooling and
Servicing Agreement including but not limited to Section 2.2.
[Name of Trustee], as Trustee
By:____________________________________
Name:
Title:
B-2-2
SCHEDULE OF EXCEPTIONS
EXHIBIT C
FORM OF REQUEST FOR RELEASE
[Date]
[Name and Address of Trustee]
Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 20__-__
In connection with the administration of the Mortgage File held by
or on behalf of you as trustee under a certain Pooling and Servicing Agreement,
dated as of ______, 20__ (the "Pooling and Servicing Agreement"), among Xxxxxx
Xxxxxxx Capital I Inc., as depositor, [Name of Master Servicer], as master
servicer (the "Master Servicer"), [Name of Special Servicer], as special
servicer (the "Special Servicer"), and you as trustee, paying agent and
certificate registrar (in such capacity, the "Trustee"), the undersigned as a
[Master][Special] Servicer 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:
Prospectus No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. Mortgage Loan paid in full.
(Such [Master] [Special] Servicer hereby certifies that all amounts
received in connection with ______________ the Mortgage Loan have been or will
be, following such [Master] [Special] Servicer's release ______________ of the
Trustee Mortgage File, credited to the Certificate Account or the Distribution
Account ______________ pursuant to the Pooling and Servicing Agreement.)
______ 2. Mortgage Loan repurchased.
(Such [Master] [Special] Servicer hereby certifies that the
Purchase Price has been credited to the Distribution Account
pursuant to the Pooling and Servicing Agreement.)
C-1
______ 3. Mortgage Loan Defeased.
______ 4. Mortgage Loan substituted.
(Such [Master] [Special] Servicer hereby certifies that a
Qualifying Substitute Mortgage Loan has been assigned and
delivered to you along with the related Trustee Mortgage File
pursuant to the Pooling and Servicing Agreement.)
______ 5. The Mortgage Loan is being foreclosed.
______ 6. 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 days of our receipt thereof, unless the Mortgage
Loan is being foreclosed, in which case the Mortgage File (or such portion
thereof) will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[Name of applicable [Master] [Special]
Servicer]
By:____________________________________
Name:
Title:
X-0
XXXXXXX X-0
FORM OF TRANSFEROR CERTIFICATE FOR
TRANSFERS TO DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
[Name and address of Certificate Registrar]
Xxxxxx Xxxxxxx Capital I Inc., as depositor, Commercial Mortgage
Pass-Through Certificates, Series 20__-__
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 20__-__, Class [__] (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ___ Certificates [having an initial Certificate Balance or Notional Amount
as of ______ __, 20__ (the "Closing Date") of $__________] [evidencing a ____%
Percentage Interest in the related Class] (the "Transferred Certificates"). The
Transferred Certificates were issued pursuant to the Pooling and Servicing
Agreement, dated as of ______, 20__ (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"), [Name of
Master Servicer], as master servicer, [Name of Special Servicer], as special
servicer, and you as trustee, paying agent and certificate registrar. All terms
used herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the 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 any 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 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 by means of
general advertising or in any other manner, or (e) taken any other action,
which (in the case of any of the acts described in clauses (a) through (e)
hereof) would constitute a distribution of any Transferred Certificate
under the Securities Act of 1933, as amended (the "Securities Act"), or
would render the disposition of any
D-1-1
Transferred Certificate a violation of Section 5 of the Securities Act or
any state securities laws, or would require registration or qualification
of any Transferred Certificate pursuant to the Securities Act or any state
securities laws.
Very truly yours,
____________________________________
(Transferor)
By:____________________________________
Name: ______________________________
Title: _____________________________
EXHIBIT D-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
[Name and address of Certificate Registrar]
Attention: Global Securitization Trust Services Group-- Xxxxxx Xxxxxxx Capital I
Inc., as depositor, Commercial Mortgage Pass-Through Certificates,
Series 20__-__
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 20__-__ (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates [having an initial Certificate Principal Balance or
Notional Amount as of ______ __, 20__ (the "Closing Date") of [$__________]
[evidencing a ____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of ______, 20__
(the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as
depositor (the "Depositor"), [Name of Master Servicer], as master servicer,
[Name of Special Servicer], as special servicer, and you as trustee, paying
agent and certificate registrar. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
you, as Certificate Registrar, 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
of the Transferred Certificates is being made in reliance on Rule 144A.
The Transferee is acquiring the Transferred Certificates for its own
account or for the account of a Qualified Institutional Buyer, and
understands that such Transferred Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed to be a Qualified
Institutional Buyer that purchases for its own account or for the account
of a Qualified Institutional Buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
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, (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 D-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 commercial mortgage pass-through certificate
being transferred (the "Transferred Certificate") 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 purchasing the Transferred Certificate (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 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) 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, as amended.
___ 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 Certificate in the case of a
U.S. bank, and not more than 18 months preceding such date of
sale for 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
D-2A-3
date not more than 16 months preceding the date of sale of the
Certificate in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date
of sale for 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, as amended.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as
amended.
___ 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. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii)
securities that are part of an unsold allotment to or subscription by the
Transferee, if the Transferee 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. For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, the Transferee did not include any
of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of
D-2A-4
such securities to the Transferee, unless the Transferee 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 the Transferee, but only
if such subsidiaries are consolidated with the Transferee in its financial
statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under
the Transferee's direction. However, such securities were not included if
the Transferee is a majority-owned, consolidated subsidiary of another
enterprise and the Transferee 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 Certificate are relying and will continue to rely on the
statements made herein because one or more sales to the Transferee may be
in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate only
for the Yes No 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 Certificate 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.
____________________________________
Print Name of Transferee
By:____________________________________
Name:_______________________________
Title:______________________________
Date:_______________________________
D-2A-5
ANNEX 2 TO EXHIBIT D-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 certificate being
transferred (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 purchasing 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
D-2A-6
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 parties to which this certification is being made 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 Certificates
Yes No 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.
_______________________________________
Print Name of Transferee or Adviser
By:____________________________________
Name:
Title:
IF AN ADVISER:
_______________________________________
Print Name of Transferee
Date:__________________________________
D-2A-7
EXHIBIT D-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
[Name and address of Certificate Registrar]
Attention: Global Securitization Trust Services Group--
Xxxxxx Xxxxxxx Capital I Inc., as depositor, Commercial Mortgage
Pass-Through Certificates, Series 20__-__
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 20__-__ (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Transferor") to ________________________ (the
"Transferee") of Class ___ Certificates [having an initial Certificate Principal
Balance as of ______ __, 20__ (the "Closing Date") of $__________][evidencing a
____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of ______, 20__
(the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as
depositor (the "Depositor"), [Name of Master Servicer], as master servicer,
[Name of Special Servicer], as special servicer, and you, as trustee, paying
agent and certificate registrar. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
you, as Certificate Registrar, 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 Class of Certificates to
which the Transferred Certificates belong has 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) no Transferred Certificate may be resold or transferred unless it is
(i) registered pursuant to the Securities Act and registered or qualified
pursuant any applicable state
D-2B-1
securities laws or (ii) sold or transferred in transactions which are
exempt from such registration and qualification and the Certificate
Registrar has received either: (A) a certificate from the
Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a
certificate from such Certificateholder's prospective transferee
substantially in the form attached either as Exhibit D-2A or as Exhibit
D-2B to the Pooling and Servicing Agreement; or (B) an opinion of counsel
satisfactory to the Certificate Registrar with respect to 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 except in compliance with the
provisions of Section 3.3 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed.
4. Transferee understands that each Transferred Certificate will
bear the following legends:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE
D-2B-2
PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
5. 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 Certificate or any other similar security with any person
in any manner, (d) made any general solicitation 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.
6. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the
Transferred Certificate 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.
D-2B-3
7. 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 Certificate; 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.
Very truly yours,
_______________________________________
(Transferee)
By:____________________________________
Name:_______________________________
Title:______________________________
D-2B-4
EXHIBIT D-3A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 20__-__, Class (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Transferor") to ______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
principal balance or notional amount as of ______, 20__ (the "Closing Date") of
$__________. The Certificates were issued pursuant to the Pooling and Servicing
Agreement, dated as of ______, 20__ (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"), [Name of
Master Servicer], as master servicer, [Name of Special Servicer], as special
servicer, and [Name of Trustee/Paying Agent/Certificate Registrar], as trustee,
paying agent and certificate registrar. All terms used herein and not otherwise
defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, and
for the benefit of the Depositor, the Certificate Registrar and the Trustee,
that:
1. The Transferee is acquiring the Transferred Certificate 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 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 Certificates and (c) no interest in the
Certificates may be sold 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 Owner desiring to effect such transfer has received either
(A) a certification from such Certificate Owner's prospective transferee
(substantially in the form attached to the Pooling and Servicing
Agreement) setting forth the facts surrounding the transfer or (B) an
opinion of counsel with respect to the availability of such exemption,
together with copies of the certification(s) from the transferor and/or
transferee setting forth the facts surrounding the transfer upon which
such opinion is based.
D-3A-1
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except
in compliance with the provisions of Section 3.3 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed.
4. Transferee understands that the Transferred Certificate will bear
legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
5. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any 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 Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (d) made any general solicitation by means
of general advertising or in any other manner, or (e) taken
D-3A-2
any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of any
Certificate under the Securities Act, would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of any
Certificate 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 Certificate, any interest in
any Certificate or any similar security.
6. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the
Transferred Certificate 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.
7. The Transferee is an institutional "accredited investor" as
defined in Rule 501(a) (1), (2), (3) or (7) under the Securities Act and
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
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 an
investment and can afford a complete loss of such investment.
Very truly yours,
_______________________________________
(Transferee)
By:____________________________________
Name:_______________________________
Title:______________________________
D-3A-3
EXHIBIT D-3B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 20__-__, Class (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________ ________ (the "Transferor") to ______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
principal balance or notional amount as of ______ __, 20__ (the "Closing Date")
of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement, dated as of ______, 20__ (the "Pooling and Servicing
Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the
"Depositor"), [Name of Master Servicer], as master servicer, [Name of Special
Servicer], as special servicer, and [Name of Trustee], as trustee, paying agent
and certificate registrar. All terms used herein and not otherwise defined shall
have the meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, and for the benefit
of the Depositor, the Certificate Registrar and the Trustee, that:
1. 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 (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 Certificate for its own
account or for the account of a qualified institutional buyer, and
understands that such Certificate or any interest therein may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for
the account of a qualified institutional buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
2. The Transferee understands that (a) the Class of Certificates to
which the Transferred Certificate belongs 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
Certificates and (c) no interest in the Certificates may be sold 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
D-3B-1
Owner desiring to effect such transfer has received either (A) a
certification from such Certificate Owner's prospective transferee
(substantially in the form attached to the Pooling and Servicing
Agreement) setting forth the facts surrounding the transfer or (B) an
opinion of counsel with respect to the availability of such exemption,
together with copies of the 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 portion of its interest in the Transferred Certificate except
in compliance with the provisions of Section 3.3 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed.
4. Transferee understands that the Transferred Certificate will bear
legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
D-3B-2
5. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the
Transferred Certificate 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.
Very truly yours,
_______________________________________
(Transferee)
By:____________________________________
Name:_______________________________
Title:______________________________
D-3B-3
ANNEX 1 TO EXHIBIT D-3B
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 commercial mortgage pass-through certificate
being transferred (the "Transferred Certificate") 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 purchasing the Transferred Certificate (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 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) 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, as amended.
___ 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 Certificate in the case of a
U.S. bank, and not more than 18 months preceding such date of
sale for 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
D-3B-4
date not more than 16 months preceding the date of sale of the
Certificate in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date
of sale for 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, as amended.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as
amended.
___ 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. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii)
securities that are part of an unsold allotment to or subscription by the
Transferee, if the Transferee 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. For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, the Transferee did not include any
of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of
D-3B-5
such securities to the Transferee, unless the Transferee 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 the Transferee, but only
if such subsidiaries are consolidated with the Transferee in its financial
statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under
the Transferee's direction. However, such securities were not included if
the Transferee is a majority-owned, consolidated subsidiary of another
enterprise and the Transferee 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 Certificate are relying and will continue to rely on the
statements made herein because one or more sales to the Transferee may be
in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate only
Yes No 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 Certificate 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.
_______________________________________
Print Name of Transferee
By:____________________________________
Name:_______________________________
Title:______________________________
D-3B-6
ANNEX 2 TO EXHIBIT D-3B
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 the Depositor, the Certificate
Registrar and the Trustee, with respect to the commercial mortgage pass-through
certificate being transferred (the "Transferred Certificate") 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 purchasing the Transferred Certificate (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).
D-3B-7
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 parties to which this certification is being made 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 Certificate only
Yes No 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
Certificate will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
_______________________________________
Print Name of Transferee or Adviser
By:____________________________________
Name:
Title:
IF AN ADVISER:
_______________________________________
Print Name of Transferee
Date:__________________________________
D-3B-8
EXHIBIT E-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF REMIC RESIDUAL CERTIFICATES
STATE OF )
ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 20__-__, Class [R-I]
[R-II] [R-III], evidencing a ____% Percentage Interest in such Class (the
"Residual Certificates")), a ________________ duly organized and validly
existing under the laws of ____________________, on behalf of which he/she makes
this affidavit. All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement as amended and restated pursuant to which the Residual Certificates
were issued (the "Pooling and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificates, and (ii) is acquiring the
Residual Certificates for its own account or for the account of another
prospective transferee from which it has received an affidavit in substantially
the same form as this affidavit. A "Permitted Transferee" is any Person other
than a "disqualified organization," a possession of the United States or a
person with respect to whom income from the Residual Certificate to be
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other
Person. (For this purpose, a "disqualified organization" means the United
States, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality, all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax unless such organization is subject to the tax on unrelated business
taxable income.
3. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificates to "disqualified organizations" under the
Code that applies to all transfers of the Residual Certificates; (ii) that such
tax would be on the transferor or, if such transfer is through an agent (which
Person includes a broker, nominee or middleman) for a non-Permitted Transferee,
on the agent; (iii) that the Person otherwise liable for the tax shall be
relieved of liability for the tax if the transferee furnishes to such Person an
affidavit that the
E-1-1
transferee is a Permitted Transferee and, at the time of transfer, such Person
does not have actual knowledge that the affidavit is false; and (iv) that the
Residual Certificates may be a "noneconomic residual interest" within the
meaning of Treasury regulation Section 1.860E-1(c) and that the transferor of a
"noneconomic residual interest" will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer is to enable the transferor to impede the assessment or
collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual Certificates if at any time during the taxable year
of the pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass-through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is
_________________.
8. The Transferee has reviewed the provisions of Section 3.3(e) of
the Pooling and Servicing Agreement, a description of which provisions is set
forth in the Residual Certificates (in particular, clause (F) of Section 3.3(e)
which authorizes the Paying Agent or the Trustee to deliver payments on the
Residual Certificate to a Person other than the Transferee and clause (G) of
Section 3.3(e) which authorizes the Trustee to negotiate a mandatory sale of the
Residual Certificates, in either case, in the event that the Transferee holds
such Residual Certificates in violation of Section 3.3(e)); and the Transferee
expressly agrees to be bound by and to comply with such provisions.
9. No purpose of the Transferee relating to its purchase or any sale
of the Residual Certificates is or will be to impede the assessment or
collection of any tax.
10. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Certificates as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Residual
Certificates.
11. The Transferee will, in connection with any transfer that it
makes of the Residual Certificates, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit E-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Residual Certificates to impede the
E-1-2
assessment or collection of any tax and that it has at the time of such transfer
conducted a reasonable investigation of the financial condition of the proposed
transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and
has satisfied the requirements of such provision.
12. The Transferee is a United States Tax Person. For this purpose,
a United States Tax Person is a citizen or resident of the United States, a
corporation or partnership (except to the extent provided in applicable Treasury
Regulations) created or organized in or under the laws of the United States or
any state thereof or the District of Columbia including any entity treated as
such a corporation or partnership for federal income tax purposes, (iii) an
estate the income of which is includible in gross income for United States tax
purposes, regardless of its source or (iv) a trust if a court within the United
States is able to exercise primary supervision over the administration of such
trust, and one or more United States Tax Persons has the authority to control
all substantial decisions of such trust (or to the extent provided in applicable
Treasury Regulations, a trust in existence on August 20, 1996, which is eligible
to be treated as a United States Tax Person).
13. The Transferee will not cause income from the Residual
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of the Transferee
or any other United States Tax Person.
14. Check the applicable paragraph:
__________________The present value of the anticipated tax liabilities
associated with holding the Residual Certificate, as applicable, does not exceed
the sum of:
(i) the present value of any consideration given to the Transferee
to acquire such Residual Certificate;
(ii) the present value of the expected future distributions on such
Residual Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Residual Certificate as the related REMIC
generates losses.
For purposes of this calculation, (i) the Transferee 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 Transferee 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
Transferee.
That the transfer of the Residual Certificate complies with U.S.
Treasury Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
E-1-3
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to
which income from the Residual Certificate will only be taxed
in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Transferee 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 Transferee will transfer the Residual 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 Transferee determined the consideration paid to it to
acquire the Residual 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 Transferee) that it has determined in good faith.
None of the above.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ____________________ and its corporate seal to be hereunto attached this day
of ____________, _____.
[NAME OF TRANSFEREE]
By:____________________________________
[Name of Officer]
[Title of Officer]
E-1-4
EXHIBIT E-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
_______________, 20__
[Name of Certificate Registrar]
Attention: Global Securitization Trust Services Group--
Xxxxxx Xxxxxxx Capital I Inc., as depositor, Commercial Mortgage
Pass-Through Certificates, Series 20__-__
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 20__-__, Class (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
[Class R-I] [Class R-II] [Class R-III] Certificates evidencing a ____%
Percentage Interest in such Class (the "Residual Certificates"). The
Certificates, including the Residual Certificates, were issued pursuant to the
Pooling and Servicing Agreement, dated as of ______, 20__ (the "Pooling and
Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the
"Depositor"), [Name of Master Servicer], as master servicer, [Name of Special
Servicer], as special servicer, and you, as trustee, paying agent and
certificate registrar. 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 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. 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 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 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.
E-2-1
4. The Transferor does not know and has no reason to know that (i)
any of the statements made by the Transferee under the Transfer Affidavit are
false or (ii) the Transferee will not honor the restrictions on subsequent
transfers by the Transferee under the Transfer Affidavit and Agreement,
delivered in connection with this transfer.
Very truly yours,
_______________________________________
(Transferor)
By:____________________________________
Name:_______________________________
Title:______________________________
E-2-2
EXHIBIT F
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF REGULATION S CERTIFICATES
Xxxxxx Xxxxxxx Capital I Inc.
Commercial Mortgage Pass-Through Certificates,
Series 20__-__, Class (the "Certificates")
TO: Xxxxxx Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
or Clearstream Banking, societe anonyme
This is to certify that as of the date hereof, and except as set
forth below, the above-captioned Certificates held by you or on your behalf for
our account are beneficially owned by (a) non-U.S person(s) or (b) U.S.
person(s) who purchased the Certificates in transactions which did not require
registration under the United States Securities Act of 1933, as amended (the
"Securities Act"). As used in this paragraph, the term "U.S. person" has the
meaning given to it by Regulation S under the Securities Act. To the extent that
we hold an interest in any of the Certificates on behalf of person(s) other than
ourselves, we have received certifications from such person(s) substantially
identical to the certifications set forth herein.
We undertake to advise you promptly by tested telex on or prior to
the date on which you intend to submit your certification relating to the
Certificates held by you or on your behalf for our account in accordance with
your operating procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certification excepts and does not relate to $__________ of
such beneficial interest in the above Certificates in respect of which we are
not able to certify and as to which we understand the exercise of any rights to
payments thereon and the exchange for definitive Certificates or for an interest
in definitive Certificates in global form cannot be made until we do so certify.
F-1
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: __________, 20[__]
By: ___________________________________
As, or as agent for, the beneficial
owner(s) of the Certificates to which
this certificate relates.
F-2
EXHIBIT G
FORM OF EXCHANGE CERTIFICATION
__________ __, 200_
TO: The Depository Trust Company
CLEARSTREAM BANK, S. A. or
Xxxxxx Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
[Name of Master Servicer], as Master Servicer
[Name of Special Servicer], as Special Servicer
[Name of Trustee/Paying Agent/Certfiicate Registrar], as Trustee,
Paying Agent and Certificate Registrar
This is to notify you as to the transfer of the beneficial interest
in $_______________ of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 20__-__, Class __(the "Certificates").
The undersigned is the owner of a beneficial interest in the Class
__ [Rule 144A-IAI Global Certificate] [Regulation S Global Certificate] and
requests that on [INSERT DATE], (i) [Euroclear] [CLEARSTREAM] [DTC] debit
account #__________, with respect to $__________ principal denomination of the
Class __ [Rule 144A-IAI Global Certificate] [Regulation S Global Certificate]
and (ii) [DTC] [Euroclear] [CLEARSTREAM] credit the beneficial interest of the
below-named purchaser, account #__________, in the Class __ [Rule 144A-IAI
Global Certificate] [Regulation S Global Certificate] in the same principal
denomination as follows:
Name:
Address:
Taxpayer ID No.:
The undersigned hereby represents that this transfer is being made
in accordance with an exemption from the provisions of Section 5 of the United
States Securities Act of 1933, as amended (the "Securities Act"), which
representation is based upon the reasonable belief that the purchaser is [not a
U.S. Person as defined in Regulation S under the Securities Act][a "qualified
institutional buyer," as defined in Rule 144A under the Securities Act, and that
such purchaser has acquired the Certificates in a transaction effected in
accordance with the exemption from the registration requirements of the
Securities Act provided by Rule 144A and, if the purchaser has purchased the
Certificates for one or more accounts for which it is acting as fiduciary or
agent, each such account is a qualified institutional buyer or an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the
G-1
1933 Act][an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act and in accordance
with any applicable securities laws of any state of the United States and, if
the purchaser has purchased the Certificates for one or more accounts for which
it is acting as fiduciary or agent, each such account is a qualified
institutional buyer or an institutional "accredited investor" within the meaning
of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act] and that the
purchaser is acquiring beneficial interests in the applicable Certificate(1) for
its own account or for one or more institutional accounts for which it is acting
as fiduciary or agent in a minimum amount equivalent to not less than
U.S.[$25,000] [$100,000] and integral multiples of U.S. $1 in excess thereof for
each such account.
Very truly yours,
[NAME OF HOLDER OF CERTIFICATE]
By:____________________________________
[Name], [Chief Financial
or other Executive Officer]
-------------------------
(1) [NOTE: INFORMATION PROVIDED ABOVE WITH RESPECT TO PURCHASER AND THE
FOREGOING REPRESENTATION MUST BE PROVIDED TO THE CERTIFICATE REGISTRAR UPON ANY
TRANSFER OF CERTIFICATES IF THE CERTIFICATES ARE NO LONGER HELD IN GLOBAL FORM.]
G-2
EXHIBIT H
FORM OF EUROCLEAR OR CLEARSTREAM CERTIFICATE
Xxxxxx Xxxxxxx Capital I Inc.
Commercial Mortgage Pass-Through Certificates,
Series 20__-__, Class (the "Certificates")
TO: [Name of Certificate Registrar], as Certificate Registrar
Xxxxxx Xxxxxxx Capital I Inc., as depositor, Commercial
Mortgage Pass-Through _____ Certificates, Series 20__-__
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount of the Certificates set forth below (our "Member
Organizations") substantially to the effect set forth in the Pooling and
Servicing Agreement dated as of ______, 20__ (the "Pooling and Servicing
Agreement") among you, Xxxxxx Xxxxxxx Capital I Inc., [Name of Master Servicer],
[Name of Special Servicer], and [Name of Trustee], U.S. $__________ principal
amount of the above-captioned Certificates held by us or on our behalf are
beneficially owned by (a) non-U.S. person(s) or (b) U.S. person(s) who purchased
the Certificates in transactions that did not require registration under the
United States Securities Act of 1933, as amended (the "Securities Act"). As used
in this paragraph, the term "U.S. person" has the meaning given to it by
Regulation S under the Securities Act.
We further certify that as of the date hereof we have not received
any notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any interest in the
Certificates identified above are no longer true and cannot be relied upon as of
the date hereof.
[On Release Date: We hereby acknowledge that no portion of the Class
__ Regulation S Temporary Global Certificate shall be exchanged for an interest
in the Class __ Regulation S Permanent Global Certificate (as each such term is
defined in the Pooling and Servicing Agreement) with respect to the portion
thereof for which we have not received the applicable certifications from our
Member Organizations.]
[Upon any payments under the Regulation S Temporary Global
Certificate: We hereby agree to hold (and return to the Trustee upon request)
any payments received by us on the Class __ Regulation S Temporary Global
Certificate (as defined in the Pooling and Servicing Agreement) with respect to
the portion thereof for which we have not received the applicable certifications
from our Member Organizations.]
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.
H-1
Dated:
[XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, Brussels office, as operator of the
Euroclear System]
or
[CLEARSTREAM BANK, S.A.]
By:____________________________________
H-2
EXHIBIT I
INVESTOR CERTIFICATION
____________ Date:
Name and address of Certificate Registrar
Xxxxxx Xxxxxxx Capital I Inc., as depositor, Commercial Mortgage
Pass-Through Certificates, Series 20__-__
In accordance with the Pooling and Servicing Agreement, dated as of
______, 20__ (the "Agreement"), by and among Xxxxxx Xxxxxxx Capital I Inc., as
Depositor, [Name of Master Servicer, as Master Servicer, [Name of Special
Servicer], as Special Servicer, and [Name of Trustee/Paying Agent/Certificate
Registrar], as Trustee, Paying Agent and Certificate Registrar (the "Paying
Agent"), with respect to the above referenced certificates (the "Certificates"),
the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner or prospective purchaser of the
Class ___ Certificates.
2. The undersigned is requesting access to the Paying Agent's internet
website containing certain information (the "Information") and/or is
requesting the information identified on the schedule attached hereto
(also, the "information") pursuant to the provisions of the Agreement.
3. In consideration of the Paying Agent's disclosure to the undersigned of
the Information, or access thereto, the undersigned will keep the
Information confidential (except from such outside persons as are
assisting it in making an evaluation in connection with purchasing the
related Certificates, from its accountants and attorneys, and otherwise
from such governmental or banking authorities or agencies to which the
undersigned is subject), and such Information, will not, without the prior
written consent of the Paying Agent, be otherwise disclosed by the
undersigned or by its officers, directors, partners, employees, agents or
representatives (collectively, the "Representative") in any manner
whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in any manner
which could result in a violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or the Securities Exchange Act
of 1934, as amended, or would require registration of any Certificate
pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this agreement by
itself or any of its Representatives and shall indemnify the Depositor,
the Paying Agent and the Trust
I-1
Fund for any loss, liability or expense incurred thereby with respect to
any such breach by the undersigned or any its Representative.
6. Capitalized terms used but not defined herein shall have the respective
meanings assigned thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
__________________________________________
Beneficial Owner or Prospective Purchaser
By:_______________________________________
Title:____________________________________
Company:__________________________________
Phone:____________________________________
I-2
EXHIBIT J
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
For loans having balance of (a) $20,000,000 or less, and (b) less than or
equal to 5% of Aggregate Certificate Balance, whichever is less
To: [Address]
Attn:
From: _____________________________________, in its capacity
as Master Servicer (the "Master Servicer") under the Pooling and Servicing
Agreement dated as of ______, 20__ (the "Pooling and Servicing
Agreement"), among the Servicer, [Name of Trustee], as Trustee,
and others.
Date: _________, 20___
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 20__-__
Mortgage Loan (the "Mortgage Loan") identified by loan number _____
on the Mortgage Loan Schedule attached to the Pooling and Servicing Agreement
and heretofore secured by the Mortgaged Properties identified on the Mortgage
Loan Schedule by the following names:____________________
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement
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 Principal Balance of the Mortgage
Loan; or
____ a partial defeasance of the payments scheduled to be due
in respect of a portion of the Principal Balance of the
Mortgage Loan that represents ___% of the entire
Principal Balance of the Mortgage Loan and, under the
Mortgage, has an allocated loan amount of $____________
or _______% of the entire Principal Balance;
J-1
2. CERTIFY THAT EACH OF THE FOLLOWING IS TRUE, SUBJECT TO THOSE
EXCEPTIONS SET FORTH WITH EXPLANATORY NOTES ON EXHIBIT A
HERETO, WHICH EXCEPTIONS THE SERVICER HAS DETERMINED,
CONSISTENT WITH THE SERVICING STANDARD, WILL HAVE NO MATERIAL
ADVERSE EFFECT ON THE MORTGAGE LOAN OR THE DEFEASANCE
TRANSACTION:
A. THE MORTGAGE LOAN DOCUMENTS PERMIT THE DEFEASANCE, AND
THE TERMS AND CONDITIONS FOR DEFEASANCE SPECIFIED
THEREIN WERE SATISFIED IN ALL MATERIAL RESPECTS IN
COMPLETING THE DEFEASANCE.
B. THE DEFEASANCE WAS CONSUMMATED ON __________, 20__.
C. THE DEFEASANCE COLLATERAL CONSISTS OF SECURITIES THAT
(I) CONSTITUTE "GOVERNMENT SECURITIES" AS DEFINED IN
SECTION 2(A)(16) OF THE INVESTMENT COMPANY ACT OF 1940
AS AMENDED (15 U.S.C. 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, THE PRINCIPAL DUE AT MATURITY CANNOT VARY OR
CHANGE, AND (V) ARE NOT SUBJECT TO PREPAYMENT, CALL OR
EARLY REDEMPTION. SUCH SECURITIES HAVE THE
CHARACTERISTICS SET FORTH BELOW:
CUSIP RATE MAT PAY DATES ISSUED
D. THE SERVICER RECEIVED AN OPINION OF COUNSEL (FROM
COUNSEL APPROVED BY SERVICER IN ACCORDANCE WITH THE
SERVICING STANDARD) THAT THE DEFEASANCE WILL NOT RESULT
IN AN ADVERSE REMIC EVENT.
E. THE SERVICER DETERMINED THAT THE DEFEASANCE COLLATERAL
WILL BE OWNED BY AN ENTITY (THE "DEFEASANCE OBLIGOR") AS
TO WHICH ONE OF THE STATEMENTS CHECKED BELOW IS TRUE:
J-2
____ the related Mortgagor was a Single-Purpose Entity (as
defined in Standard & Poor's Structured Finance Ratings
Real Estate Finance Criteria, as amended to the date of
the defeasance (the "S&P Criteria")) as of the date of
the defeasance, and after the defeasance owns no assets
other than the defeasance collateral and real property
securing Mortgage Loans included in the pool.
____ the related Mortgagor designated a Single-Purpose Entity
(as defined in the S&P Criteria) to own the defeasance
collateral; or
____ the Servicer designated a Single-Purpose Entity (as
defined in the S&P Criteria) established for the benefit
of the Trust to own the defeasance collateral.
F. THE SERVICER RECEIVED A BROKER OR SIMILAR CONFIRMATION
OF THE CREDIT, OR THE ACCOUNTANT'S LETTER DESCRIBED
BELOW CONTAINED STATEMENTS THAT IT REVIEWED A BROKER OR
SIMILAR CONFIRMATION OF THE CREDIT, OF THE DEFEASANCE
COLLATERAL TO AN ELIGIBLE ACCOUNT (AS DEFINED IN THE S&P
CRITERIA) IN THE NAME OF THE DEFEASANCE OBLIGOR, WHICH
ACCOUNT IS MAINTAINED AS A SECURITIES ACCOUNT BY THE
TRUSTEE ACTING AS A SECURITIES INTERMEDIARY.
G. AS SECURITIES INTERMEDIARY, TRUSTEE IS OBLIGATED TO MAKE
THE SCHEDULED PAYMENTS ON THE MORTGAGE LOAN FROM THE
PROCEEDS OF THE DEFEASANCE COLLATERAL DIRECTLY TO THE
SERVICER'S CERTIFICATE ACCOUNT IN THE AMOUNTS AND ON THE
DATES SPECIFIED IN THE MORTGAGE LOAN DOCUMENTS OR, IN A
PARTIAL DEFEASANCE, THE PORTION OF SUCH SCHEDULED
PAYMENTS ATTRIBUTED TO THE ALLOCATED LOAN AMOUNT FOR THE
REAL PROPERTY DEFEASED, INCREASED BY ANY DEFEASANCE
PREMIUM SPECIFIED IN THE MORTGAGE LOAN DOCUMENTS (THE
"SCHEDULED PAYMENTS").
H. THE SERVICER RECEIVED FROM THE MORTGAGOR WRITTEN
CONFIRMATION FROM A FIRM OF INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANTS, WHO WERE APPROVED BY SERVICER IN ACCORDANCE
WITH THE SERVICING STANDARD, STATING THAT (I) REVENUES
FROM PRINCIPAL AND INTEREST PAYMENTS MADE ON THE
DEFEASANCE COLLATERAL (WITHOUT TAKING INTO ACCOUNT ANY
EARNINGS ON
J-3
REINVESTMENT OF SUCH REVENUES) WILL BE SUFFICIENT TO
TIMELY PAY EACH OF THE SCHEDULED PAYMENTS AFTER THE
DEFEASANCE INCLUDING THE PAYMENT IN FULL OF THE MORTGAGE
LOAN (OR THE ALLOCATED PORTION THEREOF IN CONNECTION
WITH A PARTIAL DEFEASANCE) ON ITS MATURITY DATE (OR, IN
THE CASE OF AN ARD LOAN, ON ITS ANTICIPATED REPAYMENT
DATE), (II) THE REVENUES RECEIVED IN ANY MONTH FROM THE
DEFEASANCE COLLATERAL WILL BE APPLIED TO MAKE SCHEDULED
PAYMENTS WITHIN FOUR (4) MONTHS AFTER THE DATE OF
RECEIPT, AND (III) INTEREST INCOME FROM THE DEFEASANCE
COLLATERAL TO THE DEFEASANCE OBLIGOR IN ANY CALENDAR OR
FISCAL YEAR WILL NOT EXCEED SUCH DEFEASANCE OBLIGOR'S
INTEREST EXPENSE FOR THE MORTGAGE LOAN (OR THE ALLOCATED
PORTION THEREOF IN A PARTIAL DEFEASANCE) FOR SUCH YEAR.
I. THE SERVICER RECEIVED OPINIONS FROM COUNSEL, WHO WERE
APPROVED BY 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
J-4
OF MAINTAINING THE EXISTENCE OF THE DEFEASANCE OBLIGOR.
K. THE ENTIRE PRINCIPAL BALANCE OF THE MORTGAGE LOAN AS OF
THE DATE OF DEFEASANCE WAS $___________ [$20,000,000 OR
LESS OR LESS THAN FIVE PERCENT OF POOL BALANCE,
WHICHEVER IS LESS] WHICH IS LESS THAN 5% OF THE
AGGREGATE CERTIFICATE BALANCE OF THE CERTIFICATES AS OF
THE DATE OF THE MOST RECENT PAYING AGENT'S MONTHLY
CERTIFICATEHOLDER REPORT RECEIVED BY US (THE "CURRENT
REPORT").
L. THE DEFEASANCE DESCRIBED HEREIN, TOGETHER WITH ALL PRIOR
AND SIMULTANEOUS DEFEASANCES OF MORTGAGE LOANS, BRINGS
THE TOTAL OF ALL FULLY AND PARTIALLY DEFEASED MORTGAGE
LOANS TO $__________________, WHICH IS _____% OF THE
AGGREGATE CERTIFICATE BALANCE OF THE CERTIFICATES AS OF
THE DATE OF THE CURRENT REPORT.
3. CERTIFY THAT, IN ADDITION TO THE FOREGOING, SERVICER HAS
IMPOSED SUCH ADDITIONAL CONDITIONS TO THE DEFEASANCE, SUBJECT
TO THE LIMITATIONS IMPOSED BY THE MORTGAGE LOAN DOCUMENTS, AS
ARE CONSISTENT WITH THE SERVICING STANDARD.
4. CERTIFY THAT EXHIBIT B HERETO IS A LIST OF THE MATERIAL
AGREEMENTS, INSTRUMENTS, ORGANIZATIONAL DOCUMENTS FOR THE
DEFEASANCE OBLIGOR, AND OPINIONS OF COUNSEL AND INDEPENDENT
ACCOUNTANTS EXECUTED AND DELIVERED IN CONNECTION WITH THE
DEFEASANCE DESCRIBED ABOVE AND THAT ORIGINALS OR COPIES OF
SUCH AGREEMENTS, INSTRUMENTS AND OPINIONS HAVE BEEN
TRANSMITTED TO THE TRUSTEE FOR PLACEMENT IN THE RELATED
MORTGAGE FILE OR, TO THE EXTENT NOT REQUIRED TO BE PART OF THE
RELATED MORTGAGE FILE, ARE IN THE POSSESSION OF THE SERVICER
AS PART OF THE SERVICER'S MORTGAGE FILE.
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.
J-5
6. CERTIFY THAT THE INDIVIDUAL UNDER WHOSE HAND THE SERVICER HAS
CAUSED THIS NOTICE AND CERTIFICATION TO BE EXECUTED DID
CONSTITUTE A SERVICING OFFICER AS OF THE DATE OF THE
DEFEASANCE DESCRIBED ABOVE.
7. AGREE TO PROVIDE COPIES OF ALL ITEMS LISTED IN EXHIBIT B TO
YOU UPON REQUEST.
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:
J-6
EXHIBIT K
Form of Xxxxxxxx-Xxxxx Certification
CERTIFICATION
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 20__-___, issued pursuant to the Pooling and Servicing
Agreement dated as of _____, 20__ (the "Pooling and Servicing Agreement")
between Xxxxxx Xxxxxxx Capital I Inc., as depositor, [Name of Master Servicer],
as master servicer (the "Master Servicer"), [Name of Special Servicer], as
special servicer, [Name of Trustee/Paying Agent/Certificate Registrar], as
trustee (the "Trustee") and as paying agent (the "Paying Agent") and certificate
registrar.
Capitalized terms used but not defined herein have the meanings set forth
in the Pooling and Servicing Agreement.
------------------------------------------
I, [identity of certifying individual], the senior officer in charge of
securitization of the Depositor, hereby certify that:
1. I have reviewed this report on Form 10-K and all reports on Form 10-D
required to be filed in respect of the period covered by this report on Form
10-K of Xxxxxx Xxxxxxx Capital I Trust 20__-___ (the "Exchange Act Periodic
Reports");
2. Based on my knowledge, the Exchange Act Periodic Reports, taken as a
whole do not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by this report;
3. Based on my knowledge, all distribution, servicing and other
information required to be provided under Form 10-D for the period covered by
this report is included in the Exchange Act Periodic Reports;
4. Based on my knowledge and the servicer compliance statement(s) required
in this report under Item 1123 of Regulation AB, and except as disclosed in the
Exchange Act Periodic Reports, the servicer(s) [has/have] fulfilled [its/their]
obligations under the Pooling and Servicing Agreement or the applicable
sub-servicing agreement or primary servicing agreement; and
5. All of the reports on assessment of compliance with servicing criteria
for asset-backed securities and their related attestation reports on assessment
of compliance with servicing criteria for asset-backed securities required to be
included in this report in accordance with Item 1122 of Regulation AB and
Exchange Act Rules 13a-18 and 15d-18 have been included as an exhibit to this
report, except as otherwise disclosed in this report. Any material instances of
noncompliance described in such reports have been disclosed in this report on
Form 10-K.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties;
o [Name of Master Servicer];
o [Name of Special Servicer];
o [Name of Paying Agent];
o [Name of Primary Servicer];
o [Name of Trustee]; and
o [names of sub-servicers]
Date: [___]
By _________________________________
Name:
Title:
EXHIBIT K-1
Form of Xxxxxxxx-Xxxxx Backup Certification
CERTIFICATION
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Name and address of Paying Agent]
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 20__-___, issued pursuant to the Pooling and Servicing
Agreement dated as of _____, 20__ (the "Pooling and Servicing Agreement")
between Xxxxxx Xxxxxxx Capital I Inc., as depositor, [Name of Master Servicer],
as master servicer (the "Master Servicer"), [Name of Special Servicer], as
special servicer, [Name of Trustee/Paying Agent/Certificate Registrar], as
trustee (the "Trustee") and as paying agent (the "Paying Agent") and certificate
registrar. [./; and]
[the Subservicing Agreement, dated as of _____ (the "Subservicing
Agreement") between [identify parties].
Capitalized terms used but not defined herein have the meanings set forth
in the Subservicing Agreement or, if not defined in the Subservicing Agreement,
then the meanings set forth in the Pooling and Servicing Agreement.
------------------------------------------
I, [identity of certifying individual], hereby certify to the Depositor
and the Master Servicer and its officers, directors and Affiliates
(collectively, the "Certification Parties") as follows, with the knowledge and
intent that the Certification Parties will rely on this Certification in
connection with the certification concerning the Trust to be signed by an
officer of the Depositor and submitted to the Securities and Exchange Commission
pursuant to the Xxxxxxxx-Xxxxx Act of 2002:
1. I have reviewed the report of information provided by the [Master
Servicer/Special Servicer/Paying Agent/Trustee/Primary Servicer/Subservicer] for
inclusion in the Annual Report on Form 10-K ("Form 10-K") relating to the Trust
and all reports of information by the [Master Servicer/Special Servicer/Paying
Agent/Trustee/Primary Servicer/Subservicer] for inclusion in the Asset-Backed
Issuer Distribution Reports on Form 10-D ("Form 10-D") relating to the Trust
(such reports by the [Master Servicer/Special Servicer/Paying
Agent/Trustee/Primary Servicer/Subservicer], collectively, the "[Master
Servicer/Special Servicer/Paying Agent/Trustee/Primary Servicer/Subservicer]
Periodic Reports");
2. Based on my knowledge, the [Master Servicer/Special Servicer/Paying
Agent/Trustee/Primary Servicer/Subservicer] Periodic Reports, taken as a whole,
do not contain any untrue statement of a 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 with respect
to the period covered by the Form 10-K;
3. Based on my knowledge, all distribution, servicing and other
information required to be provided in the [Master Servicer/Special
Servicer/Paying Agent/Trustee/Primary Servicer/Subservicer] Periodic Reports
under the provisions of the [Pooling and Servicing/Subservicing] Agreement for
the calendar year preceding the date of the Form 10-K is included in the [Master
Servicer/Special Servicer/Paying Agent/Trustee/Primary Servicer/Subservicer]
Periodic Reports;
4. Based on my knowledge and the compliance review conducted in preparing
the [Master Servicer/Special Servicer/Paying Agent/Trustee/Primary
Servicer/Subservicer]'s compliance statement under the [Pooling and
Servicing/Subservicing] Agreement in connection with Item 1123 of Regulation AB,
and except as disclosed in the [Master Servicer/Special Servicer/Paying
Agent/Trustee/Primary Servicer/Subservicer] Periodic Reports, the [Master
Servicer/Special Servicer/Paying Agent/Trustee/Primary Servicer/Subservicer] has
fulfilled its obligations under the [Pooling and Servicing/Subservicing]
Agreement; and
5. All of the reports on assessment of compliance with servicing criteria
for asset-backed securities and their related attestation reports on assessment
of compliance with servicing criteria for asset-backed securities required under
the [Pooling and Servicing/Subservicing] Agreement to be included in this
certification in connection with Item 1122 of Regulation AB and Exchange Act
Rules 13a-18 and 15d-18, have been included as an exhibit to this certification,
except as otherwise disclosed in this certification. Any material instances of
noncompliance described in such reports have been disclosed in this
certification.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [name of
trustee, name or paying agent, certificate administrator or other similar party;
name of depositor; name of master servicer; name of other subservicer].
This Certification is being signed by me as an officer of the [Master
Servicer/Special Servicer/Paying Agent/Trustee/Primary Servicer/Subservicer]
responsible for reviewing the activities performed by the [Master
Servicer/Special Servicer/Paying Agent/Trustee/Primary Servicer/Subservicer]
under the [Pooling and Servicing/Subservicing] Agreement.
Date: [___]
By _________________________________
Name:
Title:
SCHEDULE I
LOAN SCHEDULE
Sch.I-1
SCHEDULE II
RATES USED IN DETERMINATION OF CLASS X-1 AND CLASS X-2 PASS-THROUGH RATES
SCHEDULE III
CLASS A-AB PLANNED PRINCIPAL BALANCE
XIV-1
SCHEDULE IV
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered shall address, at a minimum,
the criteria identified below as "Relevant Servicing Criteria":
---------------------------------------------------------------------------------------------------
Applicable
Relevant Servicing Criteria Party(ies)
---------------------------------------------------------------------------------------------------
Reference Criteria
---------------------------------------------------------------------------------------------------
General Servicing Considerations
---------------- ----------------
---------------- ----------------
Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
1122(d)(1)(i) accordance with the transaction agreements.
---------------- ----------------
If any material servicing activities are outsourced to third
parties, policies and procedures are instituted to monitor the
third party's performance and compliance with such servicing
1122(d)(1)(ii) activities.
---------------- ----------------
Any requirements in the transaction agreements to maintain a
1122(d)(1)(iii) back-up servicer for the mortgage loans are maintained.
---------------- ----------------
A fidelity bond and errors and omissions policy is in effect on
the party participating in the servicing function throughout
the reporting period in the amount of coverage required by and
otherwise in accordance with the terms of the transaction
1122(d)(1)(iv) agreements.
---------------- ----------------
Cash Collection and Administration
---------------- ----------------
Payments on mortgage loans are deposited into the appropriate
custodial bank accounts and related bank clearing accounts no
more than two business days following receipt, or such other
1122(d)(2)(i) number of days specified in the transaction agreements.
---------------- ----------------
Disbursements made via wire transfer on behalf of an obligor or
1122(d)(2)(ii) to an investor are made only by authorized personnel.
---------------- ----------------
Advances of funds or guarantees regarding collections, cash
flows or distributions, and any interest or other fees charged
for such advances, are made, reviewed and approved as specified
1122(d)(2)(iii) in the transaction agreements.
---------------- ----------------
The related accounts for the transaction, such as cash reserve
accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g., with
respect to commingling of cash) as set forth in the transaction
1122(d)(2)(iv) agreements.
---------------- ----------------
Each custodial account is maintained at a federally insured
depository institution as set forth in the transaction
agreements. For purposes of this criterion, "federally insured
depository institution" with respect to a foreign financial
institution means a foreign financial institution that meets
the requirements of Rule 13k-1(b)(1) of the Securities Exchange
1122(d)(2)(v) Act.
---------------- ----------------
Unissued checks are safeguarded so as to prevent unauthorized
1122(d)(2)(vi) access.
---------------- ----------------
Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts. These
reconciliations are (A) mathematically accurate; (B) prepared
within 30 calendar days after the bank statement cutoff date,
or such other number of days specified in the transaction
agreements; (C) reviewed and approved by someone other than the
person who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling items are
resolved within 90 calendar days of their original
identification, or such other number of days specified in the
1122(d)(2)(vii) transaction agreements.
---------------- ----------------
XV-1
---------------------------------------------------------------------------------------------------
Applicable
Relevant Servicing Criteria Party(ies)
---------------------------------------------------------------------------------------------------
Reference Criteria
---------------------------------------------------------------------------------------------------
and approved by someone other than the person who prepared the
reconciliation; and (D) contain explanations for reconciling
items. These reconciling items are resolved within 90 calendar
days of their original identification, or such other number of
days specified in the transaction agreements.
---------------- ----------------
Investor Remittances and Reporting
---------------- ----------------
Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements.
Specifically, such reports (A) are prepared in accordance with
timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance
with the terms specified in the transaction agreements; (C) are
filed with the Commission as required by its rules and
regulations; and (D) agree with investors' or the trustee's
records as to the total unpaid principal balance and number of
1122(d)(3)(i) mortgage loans serviced by the Servicer.
---------------- ----------------
Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and other
1122(d)(3)(ii) terms set forth in the transaction agreements.
---------------- ----------------
Disbursements made to an investor are posted within two
business days to the Servicer's investor records, or such other
1122(d)(3)(iii) number of days specified in the transaction agreements.
---------------- ----------------
Amounts remitted to investors per the investor reports agree
with cancelled checks, or other form of payment, or custodial
1122(d)(3)(iv) bank statements.
---------------- ----------------
Pool Asset Administration
---------------- ----------------
Collateral or security on mortgage loans is maintained as
required by the transaction agreements or related mortgage loan
1122(d)(4)(i) documents.
---------------- ----------------
Mortgage loan and related documents are safeguarded as required
1122(d)(4)(ii) by the transaction agreements.
---------------- ----------------
Any additions, removals or substitutions to the asset pool are
made, reviewed and approved in accordance with any conditions
1122(d)(4)(iii) or requirements in the transaction agreements.
---------------- ----------------
Payments on mortgage loans, including any payoffs, made in
accordance with the related mortgage loan documents are posted
to the Servicer's obligor records maintained no more than two
business days after receipt, or such other number of days
specified in the transaction agreements, and allocated to
principal, interest or other items (e.g., escrow) in accordance
1122(d)(4)(iv) with the related mortgage loan documents.
---------------- ----------------
The Servicer's records regarding the mortgage loans agree with
the Servicer's records with respect to an obligor's unpaid
1122(d)(4)(v) principal balance.
---------------- ----------------
Changes with respect to the terms or status of an obligor's
mortgage loans (e.g., loan modifications or re-agings) are
made, reviewed and approved by authorized personnel in
accordance with the transaction agreements and related pool
1122(d)(4)(vi) asset documents.
---------------- ----------------
Loss mitigation or recovery actions (e.g., forbearance plans,
modifications and deeds in lieu of foreclosure, foreclosures
and repossessions, as applicable) are initiated, conducted and
concluded in accordance with the timeframes or other
1122(d)(4)(vii) requirements established by the transaction agreements.
---------------- ----------------
XV-2
---------------------------------------------------------------------------------------------------
Applicable
Relevant Servicing Criteria Party(ies)
---------------------------------------------------------------------------------------------------
Reference Criteria
---------------------------------------------------------------------------------------------------
Records documenting collection efforts are maintained during
the period a mortgage loan is delinquent in accordance with the
transaction agreements. Such records are maintained on at least
a monthly basis, or such other period specified in the
transaction agreements, and describe the entity's activities in
monitoring delinquent mortgage loans including, for example,
phone calls, letters and payment rescheduling plans in cases
where delinquency is deemed temporary (e.g., illness or
1122(d)(4)(viii) unemployment).
---------------- ----------------
Adjustments to interest rates or rates of return for mortgage
loans with variable rates are computed based on the related
1122(d)(4)(ix) mortgage loan documents.
---------------- ----------------
Regarding any funds held in trust for an obligor (such as
escrow accounts): (A) such funds are analyzed, in accordance
with the obligor's mortgage loan documents, on at least an
annual basis, or such other period specified in the transaction
agreements; (B) interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan documents
and state laws; and (C) such funds are returned to the obligor
within 30 calendar days of full repayment of the related
mortgage loans, or such other number of days specified in the
1122(d)(4)(x) transaction agreements.
---------------- ----------------
Payments made on behalf of an obligor (such as tax or insurance
payments) are made on or before the related penalty or
expiration dates, as indicated on the appropriate bills or
notices for such payments, provided that such support has been
received by the servicer at least 30 calendar days prior to
these dates, or such other number of days specified in the
1122(d)(4)(xi) transaction agreements.
---------------- ----------------
Any late payment penalties in connection with any payment to be
made on behalf of an obligor are paid from the servicer's funds
and not charged to the obligor, unless the late payment was due
1122(d)(4)(xii) to the obligor's error or omission.
---------------- ----------------
Disbursements made on behalf of an obligor are posted within
two business days to the obligor's records maintained by the
servicer, or such other number of days specified in the
1122(d)(4)(xiii) transaction agreements.
---------------- ----------------
Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
1122(d)(4)(xiv) agreements.
---------------- ----------------
Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is
1122(d)(4)(xv) maintained as set forth in the transaction agreements.
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
XV-3
SCHEDULE V
ADDITIONAL FORM 10-D DISCLOSURE
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 13.3 of the Pooling and Servicing Agreement to disclose to the
Depositor and the Paying Agent any information described in the corresponding
Form 10-D Item described in the "Item on Form 10-D" column to the extent such
party has knowledge (and in the case of financial statements required to be
provided in connection with Item 6 below, possession) of such information (other
than information as to itself).
-----------------------------------------------------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
-----------------------------------------------------------------------------------------------------------------------------
Item 1A: Distribution and Pool Performance Information: o Master Servicer
o Item 1121(a)(13) of Regulation AB o Paying Agent/Trustee
-----------------------------------------------------------------------------------------------------------------------------
Item 1B: Distribution and Pool Performance Information: o Paying Agent/Trustee
o Item 1121 (a)(14) of Regulation AB o Depositor
-----------------------------------------------------------------------------------------------------------------------------
Item 2: Legal Proceedings: o Master Servicer (as to itself)
o Item 1117 of Regulation AB o Special Servicer (as to itself)
o Paying Agent (as to itself)
o Trustee (as to itself)
o Depositor (as to itself)
o Primary Servicer (as to itself)
o Any other Reporting Servicer (as to itself)
o Trustee/Paying Agent/Master
Servicer/Depositor/Special Servicer as to the Trust
o Each Seller as sponsor (as defined in Regulation AB)
o Originators under Item 1110 of Regulation AB
o Party under Item 1100(d)(1) of Regulation AB
-----------------------------------------------------------------------------------------------------------------------------
Item 3: Sale of Securities and Use of Proceeds o Depositor
-----------------------------------------------------------------------------------------------------------------------------
Item 4: Defaults Upon Senior Securities o Paying Agent
o Trustee
-----------------------------------------------------------------------------------------------------------------------------
Item 5: Submission of Matters to a Vote of Security o Paying Agent
Holders
o Trustee
-----------------------------------------------------------------------------------------------------------------------------
Item 6: Significant Obligors of Pool Assets o Depositor
XV-4
o Sponsor
o Mortgage Loan Seller
o Master Servicer
o Primary Servicer (as to loans serviced by it)
-----------------------------------------------------------------------------------------------------------------------------
Item 7: Significant Enhancement Provider Information o Depositor
o Each Seller as sponsor (as defined in Regulation AB)
-----------------------------------------------------------------------------------------------------------------------------
Item 8: Other Information o Paying Agent
o Any other party responsible for disclosure items on
Form 8-K
-----------------------------------------------------------------------------------------------------------------------------
Item 9: Exhibits o Paying Agent
o Depositor
o Master Servicer
o Special Servicer
o Trustee
o Primary Servicer
-----------------------------------------------------------------------------------------------------------------------------
XV-5
SCHEDULE VI
ADDITIONAL FORM 10-K DISCLOSURE
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 13.4 of the Pooling and Servicing Agreement to disclose to the
Depositor and the Paying Agent any information described in the corresponding
Form 10-K Item described in the "Item on Form 10-K" column to the extent such
party has knowledge (and in the case of financial statements required to be
provided in connection with 1112(b) below, possession) of such information
(other than information as to itself).
-----------------------------------------------------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
-----------------------------------------------------------------------------------------------------------------------------
Item 1B: Unresolved Staff Comments o
-----------------------------------------------------------------------------------------------------------------------------
Item 9B: Other Information o
-----------------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits, Financial Statement Schedules o
-----------------------------------------------------------------------------------------------------------------------------
Additional Item: o
Disclosure per Item 1117 of Regulation AB
-----------------------------------------------------------------------------------------------------------------------------
Additional Item: o
Disclosure per Item 1119 of Regulation AB
-----------------------------------------------------------------------------------------------------------------------------
Additional Item: o
Disclosure per Item 1112(b) of Regulation AB
-----------------------------------------------------------------------------------------------------------------------------
Additional Item: o
Disclosure per Items 1114(b)(2) and 1115(b) of
Regulation AB
-----------------------------------------------------------------------------------------------------------------------------
XV-6
SCHEDULE VII
Form 8-K Disclosure Information
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 13.6 of the Pooling and Servicing Agreement to report to the
Depositor and the Paying Agent the occurrence of any event described in the
corresponding Form 8-K Item described in the "Item on Form 8-K" column to the
extent such party has knowledge of such information (other than information as
to itself).
-----------------------------------------------------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
-----------------------------------------------------------------------------------------------------------------------------
Item 1.01- Entry into a Material Definitive Agreement o
-----------------------------------------------------------------------------------------------------------------------------
Item 1.02- Termination of a Material Definitive Agreement o
-----------------------------------------------------------------------------------------------------------------------------
Item 1.03- Bankruptcy or Receivership o
-----------------------------------------------------------------------------------------------------------------------------
Item 2.04- Triggering Events that Accelerate or Increase o
a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement
-----------------------------------------------------------------------------------------------------------------------------
Item 3.03- Material Modification to Rights of Security o
Holders
-----------------------------------------------------------------------------------------------------------------------------
Item 5.03- Amendments of Articles of Incorporation or o
-----------------------------------------------------------------------------------------------------------------------------
Bylaws; Change of Fiscal Year
-----------------------------------------------------------------------------------------------------------------------------
Item 6.01- ABS Informational and Computational Material o
-----------------------------------------------------------------------------------------------------------------------------
Item 6.02- Change of Servicer or Trustee o
-----------------------------------------------------------------------------------------------------------------------------
Item 6.03- Change in Credit Enhancement or External o
Support
-----------------------------------------------------------------------------------------------------------------------------
Item 6.04- Failure to Make a Required Distribution o
-----------------------------------------------------------------------------------------------------------------------------
Item 6.05- Securities Act Updating Disclosure o
-----------------------------------------------------------------------------------------------------------------------------
Item 7.01- Regulation FD Disclosure o
-----------------------------------------------------------------------------------------------------------------------------
Item 8.01 o
-----------------------------------------------------------------------------------------------------------------------------
Item 9.01 o
-----------------------------------------------------------------------------------------------------------------------------
XV-7
