==============================================================================
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Depositor,
GMAC Commercial Mortgage Corporation,
Master Servicer,
ORIX Real Estate Capital Markets, LLC,
Special Servicer,
and
State Street Bank and Trust Company,
Trustee
--------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2001
--------------------------------
$1,014,816,337
Mortgage Pass-Through Certificates
Series 2001-CIBC1
==============================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS.............................................................................................3
Section 1.01 Defined Terms...................................................................................3
Accepted Master Servicing Practices......................................................................3
Accepted Special Servicing Practices.....................................................................3
Acquisition Date.........................................................................................4
Additional Master Servicing Compensation.................................................................4
Additional Special Servicing Compensation................................................................4
Additional Trust Fund Expense............................................................................4
Adjusted Available Distribution Amount...................................................................4
Advance..................................................................................................4
Advance Rate.............................................................................................5
Adverse REMIC Event......................................................................................5
Affiliate................................................................................................5
Agreement................................................................................................5
Allocated Net Prepayment Premium.........................................................................5
Allocation Fraction......................................................................................5
Anticipated Repayment Date...............................................................................5
Appraisal Estimate.......................................................................................5
ARD Loan.................................................................................................5
Asset Strategy Report....................................................................................5
Assignment of Leases and Rents...........................................................................6
Assignment of Mortgage...................................................................................6
Available Distribution Amount............................................................................6
Balloon Mortgage Loan....................................................................................6
Balloon Payment..........................................................................................6
Basic Special Servicing Fee..............................................................................6
Basic Special Servicing Fee Rate.........................................................................6
Bankruptcy Code..........................................................................................6
Book-Entry Certificate...................................................................................7
Business Day.............................................................................................7
Canadian Loan............................................................................................7
Certificate..............................................................................................7
Certificate Account......................................................................................7
Certificate Balance......................................................................................7
Certificateholder........................................................................................7
Holder...................................................................................................7
Certificate Owner........................................................................................7
Certificate Register.....................................................................................7
Certificate Registrar....................................................................................7
CIBC.....................................................................................................7
Class....................................................................................................8
Class A1 Certificate.....................................................................................8
Class A2 Certificate.....................................................................................8
Class A3 Certificate.....................................................................................8
Class B Certificate......................................................................................8
Class Balance............................................................................................8
Class C Certificate......................................................................................8
Class D Certificate......................................................................................8
Class E Certificate......................................................................................8
Class F Certificate......................................................................................8
Class G Certificate......................................................................................8
Class H Certificate:.....................................................................................8
Class J Certificate......................................................................................8
Class K Certificate......................................................................................8
Class L Certificate......................................................................................8
Class M Certificate......................................................................................9
Class NR Certificate.....................................................................................9
Class Notional Amount....................................................................................9
Class Portion............................................................................................9
Class Prepayment Fraction................................................................................9
Class R-I Certificate....................................................................................9
Class R-II Certificate...................................................................................9
Class R-III Certificate.................................................................................10
Class X Certificate.....................................................................................10
Class X Component.......................................................................................10
Class X1 Component......................................................................................10
Class X2 Component......................................................................................15
CMSA....................................................................................................16
CMSA Bond Level File....................................................................................16
CMSA Collateral Summary File............................................................................17
CMSA Comparative Financial Status Report................................................................17
CMSA Delinquent Loan Status Report......................................................................17
CMSA Financial File.....................................................................................18
CMSA Historical Liquidation Report......................................................................18
CMSA Historical Loan Modification Report................................................................18
CMSA IRP................................................................................................18
CMSA Loan Periodic Update File..........................................................................18
CMSA Loan Setup File....................................................................................19
CMSA NOI Adjustment Worksheet...........................................................................19
CMSA Operating Statement Analysis Report................................................................19
CMSA Property File......................................................................................19
CMSA REO Status Report..................................................................................20
CMSA Servicer Watch List................................................................................20
CMSA Website............................................................................................20
Code....................................................................................................20
Collateral Value Adjustment.............................................................................20
Collateral Value Adjustment Event.......................................................................21
Collection Account......................................................................................21
Collection Period.......................................................................................22
Condemnation Proceeds...................................................................................22
Corporate Trust Office..................................................................................22
Corrected Mortgage Loan.................................................................................22
Cross Collateralized Loan...............................................................................22
Custodian...............................................................................................22
Cut-off Date............................................................................................22
Cut-off Date Balance....................................................................................22
Defaulted Mortgage Loan.................................................................................22
Defeasance Collateral...................................................................................23
Deficient Valuation.....................................................................................23
Definitive Certificate..................................................................................23
Delivery Date...........................................................................................23
Depositor...............................................................................................23
Depository..............................................................................................23
Depository Participant..................................................................................23
Determination Date......................................................................................23
Directing Certificateholder.............................................................................23
Directly Operate........................................................................................23
Disqualified Organization...............................................................................24
Distribution Date.......................................................................................24
DSCR....................................................................................................24
Due Date................................................................................................24
Eligible Account........................................................................................24
Environmental Laws......................................................................................25
Escrow Account..........................................................................................26
Escrow Payments.........................................................................................26
Event of Default........................................................................................26
Exception Report........................................................................................26
Excess Cash Flow........................................................................................26
Excess Condemnation Proceeds............................................................................26
Excess Insurance Proceeds...............................................................................26
Excess Interest.........................................................................................27
Excess Rate.............................................................................................27
FDIC....................................................................................................27
Final Recovery Determination............................................................................27
Fitch...................................................................................................27
Foreign Currency Exchange Contract......................................................................27
F/X Assignment Agreement................................................................................27
F/X Counterparty........................................................................................27
F/X Payment Date........................................................................................27
F/X Market Rate.........................................................................................27
GACC....................................................................................................27
GMACCM..................................................................................................27
Hazardous Materials.....................................................................................28
Holder..................................................................................................28
Certificateholder.......................................................................................28
Independent.............................................................................................28
Independent Contractor..................................................................................28
Initial Certification...................................................................................29
Initial Subservicer.....................................................................................29
Insurance Policy........................................................................................29
Insurance Proceeds......................................................................................29
Interest Accrual Amount.................................................................................29
Interest Distribution Amount............................................................................29
Interest Reserve Account................................................................................30
Interest Reserve Loan...................................................................................30
Interested Person.......................................................................................30
Law.....................................................................................................30
Liquidation Event.......................................................................................30
Liquidation Fee.........................................................................................30
Liquidation Fee Rate....................................................................................30
Liquidation Proceeds....................................................................................30
Loan Number.............................................................................................30
Loss Mortgage Loan......................................................................................30
MAI.....................................................................................................30
Master Remittance Date..................................................................................31
Master Servicer.........................................................................................31
Master Servicing Fee....................................................................................31
Master Servicing Fee Rate...............................................................................31
Maturity Date...........................................................................................31
MGT.....................................................................................................31
Minimum Master Servicing Fee Rate.......................................................................31
Monitoring Certificateholder............................................................................31
Monitoring Class........................................................................................31
Monthly Payment.........................................................................................31
Mortgage................................................................................................31
Mortgage Loan...........................................................................................31
Mortgage Loan Documents.................................................................................32
Mortgage Loan File......................................................................................32
Mortgage Loan Purchase Agreements.......................................................................32
Mortgage Loan Schedule..................................................................................32
Mortgage Loan Sellers...................................................................................32
Mortgage Note...........................................................................................32
Mortgage Rate...........................................................................................32
Mortgaged Property......................................................................................32
Mortgagor...............................................................................................33
Most Subordinate Class of Certificates..................................................................33
Net Assumption Fee......................................................................................33
Nonrecoverable Advance..................................................................................33
Nonrecoverable Advance Certificate......................................................................33
Non-United States Person................................................................................33
Non-U.S. Treasury Net Prepayment Premium................................................................33
NRSRO...................................................................................................33
Officers' Certificate...................................................................................33
Opinion of Counsel......................................................................................33
Original Class Balance..................................................................................33
ORECM...................................................................................................34
Ownership Xxxxxxxx......................................................................................00
X&X Advance.............................................................................................34
Pass-Through Rate.......................................................................................34
Payment Reserve.........................................................................................34
Percentage Interest.....................................................................................34
Permitted Investments...................................................................................34
Person..................................................................................................35
Phase I.................................................................................................35
Pool Factor.............................................................................................35
Prepayment Assumption...................................................................................35
Prepayment Interest Excess..............................................................................35
Prepayment Interest Shortfall...........................................................................36
Prepayment Premium......................................................................................36
Primary Servicing Fees..................................................................................36
Prime Rate..............................................................................................36
Principal Distribution Amount...........................................................................36
Principal Prepayment....................................................................................36
Private Certificates....................................................................................37
Property Improvement Expenses...........................................................................37
Property Inspection Report..............................................................................37
Property Protection Expenses............................................................................37
Purchase Price..........................................................................................38
Qualified Insurer.......................................................................................38
Rated Final Distribution Date...........................................................................38
Rating Agency...........................................................................................38
Realized Loss...........................................................................................39
Record Date.............................................................................................39
REMIC...................................................................................................39
REMIC I.................................................................................................39
REMIC I Uncertificated Interests........................................................................39
REMIC II................................................................................................39
REMIC II Uncertificated Interests.......................................................................39
REMIC III...............................................................................................39
REMIC Provisions........................................................................................40
Remittance Period.......................................................................................40
Remittance Rate.........................................................................................40
Rents from Real Property................................................................................40
REO Account.............................................................................................40
REO Acquisition.........................................................................................40
REO Mortgage Loan.......................................................................................40
REO Proceeds............................................................................................40
REO Property............................................................................................41
REO Tax.................................................................................................41
Repair and Remediation Reserve..........................................................................41
Replacement Reserve.....................................................................................41
Replacement Special Servicer............................................................................41
Request for Release and Receipt of Documents............................................................41
Required Appraisal Date.................................................................................41
Required Rating.........................................................................................41
Residual Certificate....................................................................................41
Responsible Officer.....................................................................................41
Restricted Period.......................................................................................42
Revised Rate............................................................................................42
S&P.....................................................................................................42
Second Certification....................................................................................42
Security Agreement......................................................................................42
Servicer................................................................................................42
Servicing Advance.......................................................................................42
Servicing Fee...........................................................................................42
Servicing Fee Rate......................................................................................42
Servicing Officer.......................................................................................42
Servicing Transfer Date.................................................................................42
Servicing Transfer Event................................................................................42
Single-Purpose Entity...................................................................................43
SPE.....................................................................................................43
Sole Certificateholder(s)...............................................................................43
Specially Serviced Mortgage Loan........................................................................43
Special Servicer........................................................................................43
Startup Day.............................................................................................43
State Tax Laws..........................................................................................44
Stated Principal Balance................................................................................44
Tax Matters Person......................................................................................45
Tax Returns.............................................................................................45
Tenant Improvement and Leasing Commissions Reserve......................................................45
Transfer Date...........................................................................................45
Trust Fund..............................................................................................45
Trustee.................................................................................................45
Trustee Fee.............................................................................................45
Trustee Fee Rate........................................................................................45
UCC Financing Statement.................................................................................45
Uncertificated Interest I...............................................................................45
Uncertificated Interest II..............................................................................45
Uncertificated Interest IIIA............................................................................45
Uncertificated Interest IV..............................................................................46
Uncertificated Interest V...............................................................................46
Uncertificated Interest VI..............................................................................46
Uncertificated Interest VII.............................................................................46
Uncertificated Interest VIII............................................................................46
Uncertificated Interest IX..............................................................................46
Uncertificated Interest X...............................................................................46
Uncertificated Interest XI..............................................................................46
Uncertificated Interest XII.............................................................................46
Uncertificated Interest XIII............................................................................46
Uncertificated Interest XIV.............................................................................46
Uncertificated Interest XV..............................................................................47
Underwriter.............................................................................................47
United States Person....................................................................................47
U.S. Treasury Net Prepayment Premium....................................................................47
Voting Rights...........................................................................................47
Weighted Average Remittance Rate........................................................................47
Withheld Amount.........................................................................................47
Workout Fee.............................................................................................48
Workout Fee Rate........................................................................................48
Section 1.02 Calculations...................................................................................48
Section 1.03 Rules of Construction..........................................................................48
Section 1.04 Canadian Loan..................................................................................48
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES.......................................48
Section 2.01 Conveyance of Mortgage Loans...................................................................48
Section 2.02 Acceptance by Trustee..........................................................................53
Section 2.03 Representations and Warranties of the Depositor, the Master Servicer and the Special
Servicer; Assignment of Rights.................................................................56
Section 2.04 Repurchase of Mortgage Loans for Breaches of Representation and Warranty.......................61
Section 2.05 Execution of Certificates......................................................................63
ARTICLE III GENERAL SERVICING AND ADMINISTRATION.................................................................63
Section 3.01 Access to Certain Documentation Regarding the Mortgage Loans and This Agreement................63
Section 3.02 Annual Statement As to Compliance..............................................................63
Section 3.03 Annual Independent Public Accountants' Servicing Report........................................64
Section 3.04 Merger or Consolidation of Any Servicer........................................................64
Section 3.05 Limitation on Liability of the Servicers and Others............................................65
Section 3.06 Resignation of Servicers.......................................................................66
Section 3.07 Maintenance of Errors and Omissions and Fidelity Coverage......................................67
Section 3.08 Indemnity......................................................................................67
Section 3.09 Information Systems............................................................................69
Section 3.10 Successor to a Servicer........................................................................69
Section 3.11 REMIC Administration and Other Tax Matters.....................................................71
Section 3.12 Notices to Mortgagors..........................................................................74
Section 3.13 Subservicing...................................................................................75
Section 3.14 Record Title to Mortgage Loans, Etc............................................................76
Section 3.15 Release of Documents and Instruments of Satisfaction...........................................76
Section 3.16 Additional Servicing Restrictions; Defeasance..................................................77
Section 3.17 Interest Reserve Account.......................................................................78
Section 3.18 Modifications, Waivers, Amendments and Consents................................................79
Section 3.19 Directing Certificateholder Contact with Servicers.............................................84
ARTICLE IV MASTER SERVICING......................................................................................85
Section 4.01 The Master Servicer............................................................................85
Section 4.02 Collection Account; Collection of Certain Mortgage Loan Payments...............................87
Section 4.03 Permitted Withdrawals from the Collection Account..............................................89
Section 4.04 Remittances to the Trustee.....................................................................92
Section 4.05 Master Servicer Advances.......................................................................93
Section 4.06 Escrow Accounts................................................................................95
Section 4.07 Maintenance of Insurance.......................................................................97
Section 4.08 Enforcement of "Due-on-Sale" Clauses; Assumption Agreements....................................98
Section 4.09 Review of Property Inspections, Operating Statements and Rent Rolls...........................101
Section 4.10 Reports of the Master Servicer and the Trustee................................................102
Section 4.11 Confirmation of Balloon Payment...............................................................104
Section 4.12 Master Servicer Compensation..................................................................104
Section 4.13 Adjustment of Master Servicer's Compensation..................................................106
Section 4.14 Implementation of Operations and Maintenance Plans............................................106
Section 4.15 [RESERVED]....................................................................................106
Section 4.16 Foreign Currency Exchange Contract............................................................106
ARTICLE V [RESERVED]............................................................................................107
ARTICLE VI SPECIAL SERVICING....................................................................................107
Section 6.01 The Special Servicer..........................................................................107
Section 6.02 Transfer to Special Servicing.................................................................107
Section 6.03 Servicing of Specially Serviced Mortgage Loans................................................108
Section 6.04 Management of REO Property....................................................................113
Section 6.05 Sale of REO Property and Specially Serviced Mortgage Loans....................................115
Section 6.06 REO Account; Collection of REO Proceeds.......................................................118
Section 6.07 Remittance to Master Servicer of Non-REO Proceeds.............................................119
Section 6.08 Remittances to Master Servicer from the REO Account...........................................119
Section 6.09 Specially Serviced Mortgage Loan Status Reports, REO Status Reports and Other Reports.........120
Section 6.10 Special Servicer Advances.....................................................................121
Section 6.11 Environmental Considerations..................................................................121
Section 6.12 Restoration of Specially Serviced Mortgage Loans..............................................123
Section 6.13 Special Servicer Compensation.................................................................124
Section 6.14 Limitations on the Special Servicer with Respect to ARD Loans.................................126
Section 6.15 Collateral Value Adjustments..................................................................126
Section 6.16 Replacement Special Servicer..................................................................127
ARTICLE VII PAYMENTS TO CERTIFICATEHOLDERS......................................................................128
Section 7.01 Certificate Account; Remittances to the Trustee...............................................128
Section 7.02 Distributions.................................................................................128
Section 7.03 Statements to Certificateholders..............................................................133
Section 7.04 Distribution of Reports to the Trustee and the Depositor; Advances by the Master
Servicer......................................................................................137
Section 7.05 Allocations of Realized Losses................................................................138
ARTICLE VIII THE CERTIFICATES...................................................................................138
Section 8.01 The Certificates..............................................................................138
Section 8.02 Registration of Transfer and Exchange of Certificates.........................................141
Section 8.03 Mutilated, Destroyed, Lost or Stolen Certificates.............................................145
Section 8.04 Persons Deemed Owners.........................................................................145
ARTICLE IX THE DEPOSITOR........................................................................................145
Section 9.01 Liability of the Depositor....................................................................145
Section 9.02 Merger, Consolidation or Conversion of the Depositor..........................................145
Section 9.03 Limitation on Liability of the Depositor and Others...........................................146
ARTICLE X DEFAULT...............................................................................................146
Section 10.01 Events of Default.............................................................................146
Section 10.02 Trustee to Act; Appointment of Successor......................................................149
Section 10.03 Notification to Certificateholders............................................................150
Section 10.04 Waiver of Events of Default...................................................................150
Section 10.05 Additional Remedies of Trustee Upon Event of Default..........................................150
ARTICLE XI CONCERNING THE TRUSTEE...............................................................................151
Section 11.01 Duties of the Trustee.........................................................................151
Section 11.02 Monitoring Certificateholders and Directing Certificateholder; Certain Rights and
Powers of Directing Certificateholder.........................................................152
Section 11.03 Powers of Attorney............................................................................155
Section 11.04 Certification by Certificate Owners...........................................................155
Section 11.05 Certain Matters Affecting the Trustee.........................................................156
Section 11.06 The Trustee Not Liable for Certificates or Mortgage Loans.....................................157
Section 11.07 Trustee May Own Certificates..................................................................157
Section 11.08 Fees and Expenses of Trustee; Indemnification of Trustee......................................157
Section 11.09 Eligibility Requirements for Trustee..........................................................159
Section 11.10 Resignation and Removal of Trustee............................................................159
Section 11.11 Successor Trustee.............................................................................160
Section 11.12 Merger or Consolidation of Trustee............................................................161
Section 11.13 Appointment of Co-Trustee or Separate Trustee.................................................161
Section 11.14 Appointment of Custodians.....................................................................162
Section 11.15 Representations and Warranties of the Trustee.................................................164
Section 11.16 SEC Filings...................................................................................165
Section 11.17 Massachusetts Filings.........................................................................165
ARTICLE XII TERMINATION.........................................................................................165
Section 12.01 Termination Upon Repurchase or Liquidation of All Mortgage Loans..............................165
ARTICLE XIII MISCELLANEOUS PROVISIONS...........................................................................167
Section 13.01 Amendment.....................................................................................167
Section 13.02 Recordation of Agreement; Counterparts........................................................169
Section 13.03 Limitation on Rights of Certificateholders....................................................169
Section 13.04 Governing Law.................................................................................170
Section 13.05 Notices...................................................................................... 170
Section 13.06 Severability of Provisions....................................................................171
Section 13.07 Grant of a Security Interest..................................................................171
Section 13.08 Successors and Assigns........................................................................172
Section 13.09 Article and Section Headings..................................................................172
Section 13.10 Notices and Information to Rating Agencies and Directing Certificateholder....................172
Section 13.11 Certificateholders' List......................................................................173
Section 13.12 Protection of Assets..........................................................................174
EXHIBITS
Exhibit A Form of Certificate............................................................................A1
Exhibit B Form of Asset Strategy Report.................................................................B-1
Exhibit C Form of Transferor Certificate................................................................C-1
Exhibit D-1 Form of Investment Letter - Qualified Institutional Buyer...................................D-1-1
Exhibit D-2 Form of Investment Letter - Regulation S....................................................D-2-1
Exhibit E Form of Investment Letter - Accredited Investor...............................................E-1
Exhibit F-1 Form of Transfer Affidavit..................................................................F-1-1
Exhibit F-2 Form of Transferor Certificate..............................................................F-2-1
Exhibit G Mortgage Loan Schedule........................................................................G-1
Exhibit H CMSA Property Information Reports.............................................................H-1
Exhibit I Form of Mortgage Loan Purchase Agreement....................................................I-1-1
Exhibit J Form of Acknowledgment........................................................................J-1
Exhibit K Confidentiality Agreement for Asset Strategy Report...........................................K-1
Exhibit L Form of Special Servicer Letter Pursuant to Section 4.01(e)...................................L-1
Exhibit M Form of Property Inspection Report Pursuant to Section 4.09(a)................................M-1
Exhibit N-1 Form of Confidentiality Letter (Certificate Owners).........................................N-1-1
Exhibit N-2 Form of Confidentiality Letter (Prospective Owners).........................................N-2-1
Exhibit O Form of Notice and Certification Regarding Defeasance of
Mortgage Loan Pursuant to Section 3.16........................................................O-1
Exhibit P Foreign Currency Exchange Contract, Summary of U.S.$ Cash Flows...............................P-1
Exhibit Q [RESERVED]....................................................................................Q-1
Exhibit R [RESERVED]....................................................................................R-1
Exhibit S Form of Notice Regarding Transfer to Special Servicing Pursuant to Section 6.02(a)............S-1
Exhibit T Form of Notification of Servicing Transfer....................................................T-1
Exhibit U [RESERVED]....................................................................................U-1
Exhibit V [RESERVED]....................................................................................V-1
Exhibit W Form of Special Servicer Notice Pursuant to Section 6.12(a)...................................W-1
Exhibit X Form of Special Servicer Notice Pursuant to Section 6.12(b)...................................X-1
Exhibit Y Form of Request for Release and Receipt of Documents Pursuant to Section 11.14................Y-1
Exhibit Z REO Account Letter Pursuant to Section 6.09(b)................................................Z-1
This Pooling and Servicing Agreement, dated and effective as of March
1, 2001, among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., a
Delaware corporation, as Depositor, GMAC Commercial Mortgage Corporation, a
California corporation, as Master Servicer, ORIX Real Estate Capital Markets,
LLC, a Delaware limited liability company, as Special Servicer and State
Street Bank and Trust Company, a Massachusetts trust company, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through certificates, to
be issued hereunder in multiple classes, which in the aggregate will evidence
the entire beneficial ownership interest in the Mortgage Loans (as defined
below). The Mortgage Loans will be serviced pursuant to the terms hereof. The
Depositor hereby assigns to the Trustee, acting on behalf of the
Certificateholders, its interests and rights in the Mortgage Loans, including
with respect to the Canadian Loan (as defined below) the Foreign Currency
Exchange Contract (as defined below). As provided herein, the Trustee will
elect that the segregated pool of assets subject to this Agreement (including,
without limitation, the Mortgage Loans) be treated for federal income tax
purposes as a real estate mortgage investment conduit (a "REMIC") and such
segregated pool of assets will be designated as "REMIC I". One hundred
sixty-five partial undivided beneficial ownership interests in each of the
Mortgage Loans (the "REMIC I Uncertificated Classes") will be designated as
the "regular interests" in REMIC I and the Class R-I Certificates will be the
sole class of "residual interests" in REMIC I, for purposes of the REMIC
Provisions (as defined herein) under federal income tax law. A segregated pool
of assets consisting of the REMIC I Uncertificated Classes will be designated
as "REMIC II" and the Trustee will make a separate REMIC election with respect
thereto. Sixteen partial undivided beneficial ownership interests in REMIC II
(the "REMIC II Uncertificated Classes") will be designated as the "regular
interests" in REMIC II and the Class R-II Certificates will be the sole class
of "residual interests" in REMIC II, for purposes of the REMIC Provisions
under federal income tax laws. Each of the REMIC II Uncertificated Classes,
except for Uncertificated Interests IIIA and IIIB, will be allocated
distributions of principal and Realized Losses on each Distribution Date in an
amount equal to the aggregate amount of principal distributions and Realized
Losses allocated to the related Class of Certificates. In addition, each of
the REMIC II Uncertificated Classes, except for Uncertificated Interests IIIA
and IIIB, will be allocated distributions on interest in the same order of
priority as the related Class of Certificates. For purposes of the preceding
two sentences, each REMIC II Uncertificated Class will be deemed related to
the Class of Certificates referenced in the definition thereof. On each
Distribution Date, (i) Uncertificated Interest IIIA will be allocated all
payments of principal allocated to the Class A3 Certificate until retired, and
all additional principal paid to the Class A3 Certificates will be allocated
to Uncertificated Interest IIIB, (ii) Uncertificated Interest IIIB will be
allocated all Realized Losses allocated to the Class A3 Certificate until
eliminated, and all additional Realized Losses allocated to the Class A3
Certificates will be allocated to Uncertificated Interest IIIA. Each of
Uncertificated Interests IIIA and IIIB will be allocated interest allocable to
the Class A3 Certificates pro rata based upon their principal balance as of
the immediately preceding Distribution Date. A segregated pool of assets
consisting of the REMIC II Uncertificated Classes will be designated as "REMIC
III" and the Trustee will make a separate REMIC election with respect thereto.
The Class A1, Class A2, Class A3, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class NR, Certificates
and each of the Class X Components will be designated as the "regular
interests" in REMIC III, and the Class R-III Certificates will be the sole
class of "residual interests" therein for purposes of the REMIC Provisions
under federal income tax law. The following table sets forth the designation,
Pass-Through Rate and Original Class Balance for each Class of Certificates
comprising the interests in the Trust Fund created hereunder.
Initial
Class Designation Pass-Through Rate Original Class Balance
----------------- ----------------- ----------------------
Class A1 5.2880% $50,000,000
Class A2 6.0010% $132,000,000
Class A3 6.2600% $607,020,000
Class B 6.4460% $43,129,000
Class C 6.6330% $40,593,000
Class D 6.7510% $12,685,000
Class E 7.2535%(1) $25,371,000
Class F 7.7225%(2) $13,953,000
Class X1 1.0912%(3) $1,014,816,337(4)
Class X2 1.5305%(3) $596,778,000(4)
Class G 5.7750% $29,176,000
Class H 5.7750% $10,149,000
Class J 5.7750% $7,611,000
Class K 5.7750% $12,685,000
Class L 5.7750% $5,074,000
Class M 5.7750% $5,074,000
Class NR 5.7750% $20,296,337
Class R-I NA NA
Class R-II NA NA
Class R-III NA NA
----------------------------------------------------------------------------
(1) The Pass-Through Rate for the Class E Certificates for any Distribution
Date will be the Weighted Average Remittance Rate on the Mortgage Loans
for such Distribution Date minus 0.947%.
(2) The Pass-Through Rate for the Class F Certificates for any Distribution
Date will be the Weighted Average Remittance Rate on the Mortgage Loans
for such Distribution Date minus 0.478%.
(3) Initial Pass-Through Rate. The Pass-Through Rate for the Class X1 and
Class X2 Certificates will be as set forth in the definitions for each of
the Class X1 Component and the Class X2 Component, respectively.
(4) Class Notional Amount.
As of close of business on the Cut-off Date, the Mortgage Loans had
an aggregate Cut-off Date Balance equal to $1,014,816,338.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the Trustee agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"Accepted Master Servicing Practices": The procedures that the Master
Servicer follows in servicing and administering the Mortgage Loans on behalf
of the Trustee and in the best interests of and for the benefit of the
Certificateholders (as determined by the Master Servicer in its good faith and
reasonable judgment), in accordance with applicable law, the terms of this
Agreement and the terms of the respective Mortgage Loans and, to the extent
consistent with the foregoing, further as follows: (i) with the same skill,
care and diligence as is normal and usual in its general mortgage servicing
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, (ii) with a view to the timely collection of all scheduled payments of
principal and interest under the Mortgage Loans and (iii) without regard to:
(a) any relationship that the Master Servicer or any Affiliate of
the Master Servicer may have with any Mortgagor;
(b) the Master Servicer's obligations to make Advances with respect
to the Mortgage Loans;
(c) the right of the Master Servicer (or any Affiliate thereof) to
receive reimbursement of costs, or the sufficiency of any compensation
payable to it hereunder or with respect to any particular transaction;
(d) the ownership, servicing or management for others or itself by
the Master Servicer of any other mortgage loans or property; or
(e) the ownership by the Master Servicer or any Affiliate of any
Certificates or other securities.
To the extent consistent with the foregoing and subject to the
express limitations set forth in this Agreement, the procedures followed by
the Master Servicer shall seek to maximize the timely and complete recovery of
principal and interest on the Mortgage Loans.
"Accepted Special Servicing Practices": The procedures that the
Special Servicer follows in servicing, administering and disposing of
distressed Mortgage Loans and related real property on behalf of the Trustee
and in the best interests of and for the benefit of the Certificateholders (as
determined by the Special Servicer in its good faith and reasonable judgment),
in accordance with applicable law, the terms of this Agreement and the terms
of the respective Mortgage Loans and, further as follows: (i) with the same
skill, care and diligence with which the Special Servicer services,
administers and disposes of, distressed mortgage loans and related property on
behalf of third parties or on behalf of itself, whichever is higher, with
respect to mortgage loans and related property that are comparable to the
Mortgage Loans, Mortgaged Property and REO Property (ii) so as to maximize the
net present value of recoveries on the Mortgage Loans, and (iii) and, to the
extent consistent with the foregoing, without regard to:
(a) any relationship that the Special Servicer or any Affiliate
of the Special Servicer, as applicable, may have with any Mortgagor
or any Affiliate of any Mortgagor or any other party to this
Agreement;
(b) the Special Servicer's obligations to make Advances with
respect to the Mortgage Loans, if any;
(c) the right of the Special Servicer (or any Affiliate
thereof) to receive reimbursement of costs, or the sufficiency of
any compensation payable to it hereunder or with respect to any
particular transaction;
(d) the ownership, servicing or management for itself or others
by the Special Servicer of any other mortgage loans or property;
(e) the ownership by the Special Servicer or any Affiliate of
any Certificates or other securities; or
(f) any debt that the Special Servicer has extended to any
Mortgagor.
"Acquisition Date": With respect to any REO Property, the first day
on which such REO Property is considered to be acquired by the Trust Fund
within the meaning of Treasury Regulation Section 1.856-6(b)(1), which is the
first day on which the Trust Fund is treated as the owner of such REO Property
for federal income tax purposes.
"Additional Master Servicing Compensation": As defined in Section
4.12.
"Additional Special Servicing Compensation" : As defined in Section
6.13(g).
"Additional Trust Fund Expense": Any unanticipated expense within the
meaning of Treasury Regulation Section 1.860G-1(b)(3)(iii) experienced with
respect to the Trust Fund and not otherwise included in the calculation of a
Realized Loss, that would result in the Certificateholders receiving less than
the full amount of principal and/or interest to which they are entitled on any
Distribution Date.
"Adjusted Available Distribution Amount": With respect to any
Distribution Date, the Available Distribution Amount net of any aggregate
Allocated Net Prepayment Premiums.
"Advance": A P&I Advance or Servicing Advance.
"Advance Rate": An annual rate equal to the Prime Rate in effect from
time to time.
"Adverse REMIC Event": Any action or omission which would cause the
termination of REMIC I, REMIC II or REMIC III or the imposition of a tax on
REMIC I, REMIC II or REMIC III other than a tax on income expressly permitted
or contemplated to be received by the terms of this Agreement.
"Affiliate": With respect to any specified Person, any other Person
controlling, controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Allocated Net Prepayment Premium": With respect to any Distribution
Date and any Mortgage Loan , the excess (but not less than zero) of (a) any
Prepayment Premium on such Mortgage Loan received prior to the Master
Remittance Date and not previously distributed over (b) the pro rata portion,
based on the Prepayment Premium collected on each of the Mortgage Loans during
the same period, of the sum of (i) the excess of any Prepayment Interest
Shortfall over any Prepayment Interest Excess for such Distribution Date and
(ii) any amounts required to reimburse the Master Servicer on such
Distribution Date for reductions in its compensation pursuant to Section 4.13
(but not less than zero).
"Allocation Fraction": For any Class of Certificates, any Mortgage
Loan and any Distribution Date shall equal a fraction (not greater than one
and not less than zero) (x) the numerator of which is the excess of (a) the
Pass-Through Rate of such Class of Certificates over (b) the discount rate
used to calculate the related Prepayment Premium and (y) the denominator of
which is the excess of (a) the Mortgage Rate on the related Mortgage Loan over
(b) the discount rate referenced in clause (x) above.
"Anticipated Repayment Date": With respect to any ARD Loan,
designated as such on the Mortgage Loan Schedule, the date upon which such ARD
Loan starts to accrue interest at its Revised Rate.
"Appraisal Estimate": With respect to any Mortgage Loan having a
principal balance of less than $2,000,000, (a) the Special Servicer's good
faith estimate of the value of the related Mortgaged Properties securing such
Mortgage Loan as certified to the Master Servicer on or before the Required
Appraisal Date or (b) with the consent of the Directing Certificateholder, an
Independent MAI appraisal.
"ARD Loan": A Loan that is designated as such on the Mortgage Loan
Schedule.
"Asset Strategy Report": The report prepared pursuant to Section
6.03(c).
"Assignment of Leases and Rents": With respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar agreement
executed by the Mortgagor, assigning to the mortgagee all of the income, rents
and profits derived from the ownership, operation, leasing or disposition of
all or a portion of such Mortgaged Property, in the form which was duly
executed, acknowledged and delivered, as amended, modified, renewed or
extended through the date hereof and from time to time hereafter.
"Assignment of Mortgage": An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
effect the transfer of the Mortgage to the Trust Fund, which assignment,
notice of transfer or equivalent instrument may be in the form of one or more
blanket assignments covering the Mortgage Loans secured by Mortgaged
Properties located in the same jurisdiction, if permitted by law.
"Available Distribution Amount": With respect to any Distribution
Date, (a) the amount on deposit in the Certificate Account as of the close of
business on the related Master Remittance Date immediately preceding such
Distribution Date, after giving effect to expenses of the Trust Fund (other
than distributions on the Certificates) pursuant to this Agreement, plus any
P&I Advances deposited in the Certificate Account with respect to such
Distribution Date and (b) with respect to the Distribution Date occurring in
March of each calendar year, the Withheld Amounts with respect to the Interest
Reserve Loans deposited in the Interest Reserve Account by the Trustee in
January and/or February of such calendar year in accordance with Section 3.17;
net of, (i) with respect to the Distribution Date occurring in (A) January of
each calendar year that is not a leap year and (B) February of each calendar
year, the Withheld Amounts with respect to the Interest Reserve Loans
deposited in the Interest Reserve Account by the Trustee with respect to such
Distribution Date in accordance with Section 3.17 and (ii) Excess Interest.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original terms
or by virtue of any modification provides for an amortization schedule
extending beyond its Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the amount outstanding on the Maturity Date of such
Mortgage Loan in excess of the related Monthly Payment.
"Basic Master Servicing Fee Rate": With respect to each Mortgage
Loan, a per annum rate equal to 0.10% per annum.
"Basic Special Servicing Fee": The compensation the Special Servicer
is entitled to receive at the Basic Special Servicing Fee Rate pursuant to
Section 6.13.
"Basic Special Servicing Fee Rate": With respect to each Specially
Serviced mortgage loan, a per annum rate equal to 0.25% per annum.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking and savings and loan institutions in the States of
Massachusetts, New York, Texas or the Commonwealth of Pennsylvania are
authorized or obligated by law or executive order to remain closed.
"Canadian Loan": The Mortgage Loan identified in the Mortgage Loan
Schedule attached hereto as Exhibit G as Loan Number 19.
"Certificate": Any Class A1, Class A2, Class A3, Class B, Class C,
Class D, Class E, Class F, Class X1 Class X2, Class G, Class H, Class J, Class
K, Class L, Class M, Class NR, Class R-I, Class R-II or Class R-III
Certificate.
"Certificate Account": The segregated trust account or accounts
created and maintained by the Trustee pursuant to Section 7.01 in trust for
Certificateholders, which shall be entitled "State Street Bank and Trust
Company, as Trustee, in trust for registered holders of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., Mortgage Pass-Through Certificates,
Series 2001-CIBC1".
"Certificate Balance": With respect to any Class A1, Class A2, Class
A3, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M or Class NR, as of any date of determination, the
then outstanding principal amount of such Certificate equal to the product of
(a) the Percentage Interest evidenced by such Certificate, multiplied by (b)
the then Class Balance of the Class of Certificates to which such Certificate
belongs. None of the Class X or Residual Certificates have a Certificate
Balance.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, except that, solely for
the purposes of giving any consent, approval or waiver pursuant to this
Agreement, any Certificate registered in the name of the Master Servicer,
Special Servicer, the Depositor or any Affiliate thereof shall be deemed not
to be outstanding with respect to Sections 10.04 and 13.01. The Trustee shall
be entitled to request and rely upon a certificate of the Master Servicer,
Special Servicer or the Depositor in determining whether a Certificate is
registered in the name of an Affiliate of such Person.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent, if any, and otherwise on the books of a Depository
Participant, if any, and otherwise on the books of the Depository.
"Certificate Register" or "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 8.02. The initial
Certificate Registrar shall be the Trustee.
"CIBC": CIBC Inc.
"Class": Collectively, all of the Certificates bearing the same
capital letter designation.
"Class A1 Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class A2 Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class A3 Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class B Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class Balance": With respect to any Class, the aggregate principal
amount of such Class outstanding as of any date of determination equal to the
Original Class Balance thereof minus any amounts allocated or distributed to
such Class in reduction of its Class Balance pursuant to the terms hereof.
"Class C Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class D Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class E Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class F Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class G Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class H Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class J Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class K Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class L Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class M Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class NR Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class Notional Amount": With respect to:
(i) the Class X1 Certificates and any Distribution Date, the
sum of the Class Balances of the Class A1, Class A2, Class
A3, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M and Class NR
Certificates immediately preceding such Distribution Date;
and
(ii) the Class X2 Certificates and any Distribution Date from
the Delivery Date through the Distribution Date in March
2008, the sum of (A) the lesser of the Class Balance of
the Class A3 Certificates immediately preceding such
Distribution Date and $475,000,000 and (B) the Class
Balances of the Class B, Class C, Class D and Class E
Certificates immediately preceding such Distribution Date.
The Class Notional Amount for the Class X2 Certificates
will be $0 after the Distribution Date in March 2008.
"Class Portion": With respect to any U.S. Treasury Net Prepayment
Premium on any Mortgage Loan and any Distribution Date and (a) any Class of
Certificates, other than the Class X Certificates and the Residual
Certificates, the product of (x) any U.S. Treasury Net Prepayment Premium for
such Mortgage Loan and Distribution Date, (y) the related Class Prepayment
Fraction for such Distribution Date and (z) the related Allocation Fraction
for such Mortgage Loan and Distribution Date and (b) the Class X1
Certificates, the excess of any U.S. Treasury Net Prepayment Premiums for such
Distribution Date over the amounts calculated pursuant to clause (a). The
Class X2 Certificates and the Residual Certificates will not have a Class
Portion.
"Class Prepayment Fraction": For any Class of Certificates and any
Distribution Date shall equal a fraction the numerator of which is the amount
of principal paid to such Class in reduction of the Class Balance thereof on
such Distribution Date and the denominator of which is the amount of principal
paid to all Classes of Certificates in reduction of their respective Class
Balances on such Distribution Date.
"Class R-I Certificate": Any of the Certificates issued hereunder and
designated as such.
"Class R-II Certificate": Any of the Certificates issued hereunder
and designated as such.
"Class R-III Certificate": Any of the Certificates issued hereunder
and designated as such.
"Class X Certificate": Any of the Class X1 Certificates and Class X2
Certificates issued hereunder and designated as such.
"Class X Component": Any of the Class X1 and Class X2 Components.
"Class X1 Component": Each of the following components of the Class X
Certificates:
(i) from the Delivery Date through the Distribution Date in March
2008:
(a) the Class A1X Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class A1 Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class A1 Certificates immediately prior to such Distribution
Date;
(b) the Class A2X Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class A2 Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class A2 Certificates immediately prior to such Distribution
Date;
(c) the Class A3AX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate of the Class A3 Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the excess, if
any, of the Class Balance of the Class A3 Certificates immediately
prior to such Distribution Date over $475,000,000;
(d) the Class A3BX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the sum of the
Pass-Through Rate of the Class A3 Certificates and the Class A3X2
Component and a notional amount solely for purposes of calculating
interest thereon equal to the lesser of the Class Balance of the
Class A3 Certificates immediately prior to such Distribution Date
and $475,000,000;
(e) the Class BX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the sum of the
Pass-Through Rate of the Class B Certificates and the Class BX2
Component and a notional amount solely for purposes of calculating
interest thereon equal to the Class Balance of the Class B
Certificates immediately prior to such Distribution Date;
(f) the Class CX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the sum of the
Pass-Through Rate of the Class C Certificates and the Class CX2
Component and a notional amount solely for purposes of calculating
interest thereon equal to the Class Balance of the Class C
Certificates immediately prior to such Distribution Date;
(g) the Class DX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the sum of the
Pass-Through Rate of the Class D Certificates and the Class DX2
Component and a notional amount solely for purposes of calculating
interest thereon equal to the Class Balance of the Class D
Certificates immediately prior to such distribution Date;
(h) the Class EX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the sum of the
Pass-Through Rate of the Class E Certificates and the Class EX2
Component and a notional amount solely for purposes of calculating
interest thereon equal to the Class Balance of the Class E
Certificates immediately prior to such Distribution Date;
(i) the Class FX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class F Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class F Certificates immediately prior to such Distribution
Date;
(j) the Class GX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class G Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class G Certificates immediately prior to such Distribution
Date;
(k) the Class HX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class H Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class H Certificates immediately prior to such Distribution
Date;
(l) the Class JX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class J Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class J Certificates immediately prior to such Distribution
Date;
(m) the Class KX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class K Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class K Certificates immediately prior to such Distribution
Date;
(n) the Class LX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class L Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class L Certificates immediately prior to such Distribution
Date;
(o) the Class MX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class M Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class M Certificates immediately prior to such Distribution
Date; and
(p) the Class NRX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class NR Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class NR Certificates immediately prior to such Distribution
Date.
The Pass Through Rates in respect of the Class A3BX1, Class BX1,
Class CX1, Class DX1 and Class EX1 Components may also be expressed as the
excess of (A) the Weighted Average Remittance Rate over (B) the Weighted
Average Remittance Rate less 0.01%; provided, that the amount specified in
this clause (B) is subject to a cap equal to the sum of the Pass Through Rates
of: (i) the Class A3 Certificates and 1.61% in the case of the Class A3BX1
Component, (ii) the Class B Certificates and 1.42% in the case of the Class
BX1 Component, (iii) the Class C Certificates and 1.24% in the case of the
Class CX1 Component, (iv) the Class D Certificates and 1.12% in the case of
the Class DX1 Component, and (v) the Class E Certificates and 0.90% in the
case of the Class EX1 Component, and their respective Pass Through Rates will
be so construed for federal income tax purposes.
(ii) from the Distribution Date in April 2008 through the final
Distribution Date:
(a) the Class A1X Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class A1 Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class A1 Certificates immediately prior to such Distribution
Date;
(b) the Class A2X Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class A2 Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class A2 Certificates immediately prior to such Distribution
Date;
(c) the Class A3AX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class A3 Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the excess of, if
any, the Class Balance of the Class A3 Certificates immediately
prior to such Distribution Date over $475,000,000;
(d) the Class A3BX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class A3 Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the excess of, if
any, the Class Balance of the Class A3 Certificates immediately
prior to such Distribution Date over $475,000,000;
(e) the Class BX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class B Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class B Certificates immediately prior to such Distribution
Date;
(f) the Class CX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class C Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class C Certificates immediately prior to such Distribution
Date;
(g) the Class DX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class D Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class D Certificates immediately prior to such distribution
Date;
(h) the Class EX1 Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class E Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class E Certificates immediately prior to such Distribution
Date;
(i) the Class FX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class F Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class F Certificates immediately prior to such Distribution
Date;
(j) the Class GX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class G Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class G Certificates immediately prior to such Distribution
Date;
(k) the Class HX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class H Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class H Certificates immediately prior to such Distribution
Date;
(l) the Class JX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class J Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class J Certificates immediately prior to such Distribution
Date;
(m) the Class KX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class K Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class K Certificates immediately prior to such Distribution
Date;
(n) the Class LX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class L Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class L Certificates immediately prior to such Distribution
Date;
(o) the Class MX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class M Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class M Certificates immediately prior to such Distribution
Date; and
(p) the Class NRX Component, with a Pass-Through Rate for any
Distribution Date equal to the excess of the Weighted Average
Remittance Rate for such Distribution Date over the Pass-Through
Rate for the Class NR Certificates and a notional amount solely for
purposes of calculating interest thereon equal to the Class Balance
of the Class NR Certificates immediately prior to such Distribution
Date.
"Class X2 Component": From the Delivery Date through the Distribution
Date in March 2008, each of the following components of the Class X
Certificates:
(a) the Class A3X2 Component, with a Pass-Through Rate for any
Distribution Date equal to the lesser of (i) 1.61 % per annum and
(ii) the excess of the Weighted Average Remittance Rate less 0.01%
for such Distribution Date over the Pass-Through Rate for the Class
A3 Certificates and a notional amount solely for purposes of
calculating interest thereon equal to the lesser of the Class
Balance of the Class A3 Certificates immediately prior to such
Distribution Date and $475,000,000;
(b) the Class BX2 Component, with a Pass-Through Rate for any
Distribution Date equal to the lesser of (i) 1.42% per annum and
(ii) the excess of the Weighted Average Remittance Rate less 0.01%
for such Distribution Date over the Pass-Through Rate for the Class
B Certificates and a notional amount solely for purposes of
calculating interest thereon equal to the Class Balance of the Class
B Certificates immediately prior to such Distribution Date;
(c) the Class CX2 Component, with a Pass-Through Rate for any
Distribution Date equal to the lesser of (i) 1.24% per annum and
(ii) the excess of the Weighted Average Remittance Rate less 0.01%
for such Distribution Date over the Pass-Through Rate for the Class
C Certificates and a notional amount solely for purposes of
calculating interest thereon equal to the Class Balance of the Class
C Certificates immediately prior to such Distribution Date;
(d) the Class DX2 Component, with a Pass-Through Rate for any
Distribution Date equal to the lesser of (i) 1.12% per annum and
(ii) the excess of the Weighted Average Remittance Rate less 0.01%
for such Distribution Date over the Pass-Through Rate for the Class
D Certificates and a notional amount solely for purposes of
calculating interest thereon equal to the Class Balance of the Class
D Certificates immediately prior to such distribution Date;
(e) the Class EX2 Component, with a Pass-Through Rate for any
Distribution Date equal to the lesser of (i) 0.90% per annum and
(ii) the excess of the Weighted Average Remittance Rate less 0.01%
for such Distribution Date over the Pass-Through Rate for the Class
E Certificates and a notional amount solely for purposes of
calculating interest thereon equal to the Class Balance of the Class
E Certificates immediately prior to such Distribution Date;
The Pass Through Rates in respect of the Class A3X2, Class BX2, Class
CX2, Class DX2 and Class EX2 Components may also be expressed as the excess of
(A) the Weighted Average Remittance Rate less 0.01% subject to a cap equal to
the sum of the Pass Through Rates of: (i) the Class A3 Certificates and 1.61%
in the case of the Class A3X2 Component, (ii) the Class B Certificates and
1.42% in the case of the Class BX2 Component, (iii) the Class C Certificates
and 1.24% in the case of the Class CX2 Component, (iv) the Class D
Certificates and 1.12% in the case of the Class DX2 Component, and (v) the
Class E Certificates and 0.90%in the case of the Class EX2 Component over (B)
the Pass Through Rates of: (i) the Class A3 Certificates in the case of the
Class A3X2 Component, (ii) the Class B Certificates in the case of the Class
BX2 Component, (iii) the Class C Certificates in the case of the Class CX2
Component, (iv) the Class D Certificates in the case of the Class DX2
Component, and (v) the Class E Certificates in the case of the Class EX2
Component, and their respective Pass Through Rates will be so construed for
federal income tax purposes.
Notwithstanding the foregoing, the Class X2 Certificates will not
receive distributions after the Distribution Date in March 2008.
"CMSA": The Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, issuers, placement agents and
underwriters generally involved in the commercial mortgage loan securitization
industry, which is the principal such association or organization in the
commercial mortgage loan securitization industry and one of whose principal
purposes is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors
holding or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in
one of the preceding sentences of this definition does not exist, "CMSA" shall
be deemed to refer to such other association or organization as shall be
selected by the Master Servicer and reasonably acceptable to the Trustee, the
Special Servicer and the Directing Certificateholder.
"CMSA Bond Level File": The monthly report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Bond Level File" available as of the Delivery Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as such
report requires the presentation of information in addition to that called for
by the form of the "Bond Level File" available as of the Delivery Date on the
CMSA Website, is reasonably acceptable to the Trustee.
"CMSA Collateral Summary File": The report substantially in the form
of, and containing the information called for in the downloadable form of the
"Collateral Summary File" available as of the Delivery Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and,
insofar as such report requires the presentation of information in addition to
that called for by the form of the "Collateral Summary File" available as of
the Delivery Date on the CMSA Website, is reasonably acceptable to the
Trustee.
"CMSA Comparative Financial Status Report": A report substantially in
the form of, and containing the information called for in, the downloadable
form of the "Comparative Financial Status Report" available as of the Delivery
Date on the CMSA Website, or such other form for the presentation of such
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and, insofar as such report
requires the presentation of information in addition to that called for by the
form of the "Comparative Financial Status Report" available as of the Delivery
Date on the CMSA Website, is reasonably acceptable to the Master Servicer or
the Special Servicer, as applicable, and in any event, setting forth among
other things (a) the occupancy and debt service coverage ratio for each
Mortgage Loan or related Mortgaged Property, as applicable, as of the date of
the latest financial information (covering no less than twelve (12)
consecutive months) available immediately preceding the preparation of such
report; and (b) the revenue, expense and net operating income or net cash flow
for each of the following periods (to the extent such information is in the
Master Servicer's or the Special Servicer's possession or under its control):
(i) the most current available year-to-date, (ii) each of the previous two (2)
full fiscal years stated separately; and (iii) the "base year" (representing,
in the case of any Mortgage Loan, the original analysis of information used as
of the end of the initial Collection Period. For the purposes of the
production by Master Servicer or the Special Servicer of any such report that
is required to state information with respect to any Mortgage Loan for any
period prior to the end of the initial Collection Period, the Master Servicer
or the Special Servicer, as the case may be, may conclusively rely (without
independent verification), absent manifest error, on information provided to
it by the related Mortgage Loan Seller, by the related Mortgagor or (x) in the
case of such a report produced by the Master Servicer, by the Special
Servicer, (if other than the Master Servicer or an Affiliate thereof) and (y)
in the case of such a report produced by the Special Servicer, by the Master
Servicer (if other than the Special Servicer or an Affiliate thereof).
"CMSA Delinquent Loan Status Report": A report substantially in the
form of, and containing the information called for in, the downloadable form
of the "Delinquent Loan Status Report" available as of the Delivery Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be
recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as such report requires the presentation of information
in addition to that called for by the form of the "Delinquent Loan Status
Report" available as of the Delivery Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Financial File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the
"Financial File" available as of the Delivery Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as such
report requires the presentation of information in addition to that called for
by the form of the "Financial File" available as of the Delivery Date on the
CMSA Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA Historical Liquidation Report": A report substantially in the
form of, and containing the information called for in, the downloadable form
of the "Historical Liquidation Report" available as of the Delivery Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be
recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as such report requires the presentation of information
in addition to that called for by the form of the "Historical Liquidation
Report" available as of the Delivery Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Historical Loan Modification Report": A report substantially in
the form of, and containing the information called for in, the downloadable
form of the "Historical Loan Modification Report" available as of the Delivery
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage securities
transactions generally and, insofar as such report requires the presentation
of information in addition to that called for by the form of the "Historical
Loan Modification Report" available as of the Delivery Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA IRP": shall mean, collectively
(a) the following six electronic files: (i) CMSA Loan Setup
File, (ii) CMSA Loan Periodic Update File, (iii) CMSA Property File,
(iv) CMSA Bond Level File, (v) CMSA Financial File and (vi) CMSA
Collateral Summary File; and
(b) the following eight supplemental reports: (i) CMSA
Delinquent Loan Status Report, (ii) CMSA Historical Loan
Modification Report, (iii) CMSA Historical Liquidation Report, (iv)
CMSA REO Status Report, (v) CMSA Operating Statement Analysis
Report, (vi) CMSA Comparative Financial Status Report, (vii)
Servicer Watch List and (viii) CMSA NOI Adjustment Worksheet.
"CMSA Loan Periodic Update File": The monthly report substantially in
the form of, and containing the information called for in, the downloadable
form of the "Loan Periodic Update File" available as of the Delivery Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be
recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as such report requires the presentation of information
in addition to that called for by the form of the "Loan Periodic Update File"
available as of the Delivery Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable, and
the Trustee.
"CMSA Loan Setup File": The report substantially in the form of, and
containing the information called for in, the downloadable form of the "Loan
Setup File" available as of the Delivery Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as such
report requires the presentation of information in addition to that called for
by the form of the "Loan Setup File" available as of the Delivery Date on the
CMSA Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable, and the Trustee.
"CMSA NOI Adjustment Worksheet": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"NOI Adjustment Worksheet" available as of the Delivery Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and,
insofar as such report requires the presentation of information in addition to
that called for by the form of the "NOI Adjustment Worksheet" available as of
the Delivery Date on the CMSA Website, is acceptable to the Master Servicer or
the Special Servicer, as applicable, and in any event, shall present the
computations made in accordance with the methodology described in such form to
"normalize" the full year net operating income and debt service coverage
numbers used in the other reports required by this Agreement.
"CMSA Operating Statement Analysis Report": A report substantially in
the form of, and containing the information called for in, the downloadable
form of the "Operating Statement Analysis Report" available as of the Delivery
Date on the CMSA Website or in such other form for the presentation of such
information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage-backed securities
transactions generally and, insofar as such report requires the presentation
of information in addition to that called for by the form of the "Operating
Statement Analysis Report" available as of the Delivery Date on the CMSA
Website, is reasonably acceptable to the Master Servicer.
"CMSA Property File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the
"Property File" available as of the Delivery Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as such
report requires the presentation of information in addition to that called for
by the form of the "Property File" available as of the Delivery Date on the
CMSA Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA REO Status Report": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "REO
Status Report" available as of the Delivery Date on the CMSA Website, or in
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as such
report requires the presentation of information in addition to that called for
by the form of the "REO Status Report" available as of the Delivery Date on
the CMSA Website, is reasonably acceptable to the Master Servicer or the
Special Servicer, as applicable.
"CMSA Servicer Watch List": For any Determination Date, a report
substantially in the form of, and containing the information called for in,
the downloadable form of the "Servicer Watch List" available as of the
Delivery Date on the CMSA Website, or in such other form for the presentation
of such information and containing such additional information as may from
time to time be recommended by the CMSA for commercial mortgage securities
transactions generally and, insofar as such report requires the presentation
of information in addition to that called for by the form of the "Servicer
Watch List" available as of the Delivery Date on the CMSA Website, is
reasonably acceptable to the Master Servicer or Special Servicer, as
applicable, and in any event, which report shall identify all Mortgage Loans
that constitute one of the following types of Mortgage Loans as of such
Determination Date: (i) a Mortgage Loan that has a then current debt service
coverage ratio that is less than 1.10x; (ii) a Mortgage Loan as to which any
required inspection of the related Mortgaged Property conducted by the Master
Servicer indicates, or the Master Servicer otherwise has actual knowledge of,
a problem that the Master Servicer determines can reasonably be expected to
materially adversely affect the cash flow generated by such Mortgaged
Property; (iii) a Mortgage Loan as to which the Master Servicer has actual
knowledge of material damage or waste at the related Mortgaged Property; (iv)
a Mortgage Loan as to which it has come to the Master Servicer's attention in
the performance of its duties under this Agreement (without any expansion of
such duties by reason thereof) that any tenant or tenants occupying 25% or
more of the space in, or responsible for 20% or more of total rental revenue
from, the related Mortgaged Property (A) has or have vacated such space
(without being replaced by a comparable tenant and lease) or (B) has or have
declared bankruptcy; (v) a Mortgage Loan that is at least 30 days delinquent
in payment (without regard to any grace period); (vi) a Mortgage Loan as to
which the net operating income as stated in the most recent twelve-month
operating statement has decreased 25% or more from the net operating income at
origination; and (vii) a Mortgage Loan that is within 60 days of maturity.
"CMSA Website": The CMSA Website located at "xxx.xxxx.xxx" or such
other primary website as CMSA may establish for dissemination of its report
forms.
"Code": The Internal Revenue Code of 1986, as amended.
"Collateral Value Adjustment": With respect to a Mortgage Loan as to
which a Collateral Value Adjustment Event has occurred, an amount equal to the
excess of (a) the Stated Principal Balance of the Mortgage Loan as of the date
of the Collateral Value Adjustment Event over (b) the excess of (i) 90% of the
current appraised value of the related Mortgaged Property as determined by an
Independent MAI appraisal thereof prepared in accordance with 12 CFR ss.
225.62 (or, in the case of Mortgage Loans having a principal balance under
$2,000,000, an Appraisal Estimate), over (ii) the sum of (A) to the extent not
previously advanced by a Servicer, all unpaid interest on such Mortgage Loan
at a per annum rate equal to the Mortgage Rate, (B) all unreimbursed Advances
and interest thereon at the Advance Rate, and (C) all currently due and
delinquent real estate taxes and assessments, insurance premiums and, if
applicable, ground rents in respect of such Mortgaged Property (net of any
amount escrowed or otherwise available for payment of any amounts due on the
related Mortgage Loans with respect to such Mortgage Loan or REO Property).
Notwithstanding the foregoing, a Collateral Value Adjustment will be zero with
respect to such Mortgage Loan if (i) the event giving rise to such Collateral
Value Adjustment is the extension of the maturity of such Mortgage Loan, (ii)
the payments on such Mortgage Loan were not delinquent during the twelve
months preceding such extension and (iii) the payments on such Mortgage Loan
were then-current, provided that if at any later date there occurs a
delinquency in payment with respect to such Mortgage Loan, the Collateral
Value Adjustment will be recalculated and applied as described above.
Notwithstanding the forgoing, if an appraisal is not obtained within ninety
(90) days after the Required Appraisal Date, until such appraisal is obtained
there shall be a Collateral Value Adjustment with respect to the related
Mortgage Loan equal 25% of the Stated Principal Balance of such Mortgage Loan;
provided, however, that upon the subsequent receipt of an appraisal, the
Collateral Value Adjustment for such Mortgage Loan will be recalculated in
accordance with this definition without regard to this sentence.
"Collateral Value Adjustment Event": With respect to any Mortgage
Loan the earliest to occur of (i) 90 days after the date on which an uncured
delinquency occurs in respect of such Mortgage Loan, (ii) the date on which a
receiver is appointed in respect of the related Mortgaged Property, (iii) the
date on which the related Mortgaged Property becomes an REO Property, (iv) the
date on which the payment rate, Mortgage Rate, principal balance, amortization
terms or Maturity Date of a Specially Serviced Mortgage Loan has been changed
or otherwise materially modified pursuant to and in accordance with the terms
hereof, (v) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any present
or future federal or state bankruptcy, insolvency or similar law or the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the related Mortgagor and such decree or order shall have
remained in force undischarged, undismissed or unstayed for a period of 60
days or (vi) the related Mortgagor shall have admitted in writing its
inability to pay its debts generally as they become due or filed a petition to
take advantage of any applicable insolvency or reorganization statute.
"Collection Account": The separate accounts, which shall be Eligible
Accounts, created and maintained for the Mortgage Loans pursuant to Section
4.02 hereof, which shall be entitled "GMAC Commercial Mortgage Corporation, as
Master Servicer, for the benefit of State Street Bank and Trust Company, in
trust for the registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp. Mortgage Pass-Through Certificates Series 2001-CIBC1
Collection Account".
"Collection Period": With respect to any Distribution Date, the
period beginning on and including the second day of the month preceding the
month of such Distribution Date (or, in the case of the initial Distribution
Date, the Cut-off Date) and ending on and including the first day of the month
of such Distribution Date.
"Condemnation Proceeds": With respect to each Mortgage Loan, all
awards or settlements in respect of a Mortgaged Property, partial or entire,
on account of the exercise of the power of eminent domain or condemnation,
held in an Escrow Account or in a trust account, which is an Eligible Account
(to the extent consistent with the terms of the related Mortgage Loan
Documents) related to such Mortgaged Property and applied or to be applied to
the restoration or repair of such Mortgaged Property or required to be
released to a Mortgagor or a third party in accordance with the terms of the
related Mortgage Loan Documents or, to the extent not expressly provided
therein, in accordance with Accepted Master Servicing Practices or Accepted
Special Servicing Practices, as applicable, and applicable law.
"Corporate Trust Office": With respect to the Trustee, the principal
corporate trust office of the Trustee at which at any particular time its
corporate trust business with respect to this Agreement shall be administered,
which office at the date of the execution of this Agreement is located at
State Street Bank and Trust Company, 0 Xxxxxx xx Xxxxxxxxx; Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Corporate Trust Service (CMBS), X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp. Series 2001-CIBC1.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has ceased to be such in accordance with
Section 6.12 (other than by reason of a Liquidation Event occurring in respect
of such Mortgage Loan or a related Mortgaged Property becoming an REO
Property).
"Cross Collateralized Loan": Any Mortgage Loan that is
cross-collateralized or cross-defaulted with any other Mortgage Loan.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 11.14 as a document custodian for the Mortgage Loan Files,
which Person shall not be the Depositor, the Person which originated, or sold
the related Mortgage Loan to the Depositor, the related Mortgagor or an
Affiliate of any of the foregoing. The initial Custodian shall be the Trustee.
"Cut-off Date": March 1, 2001.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-off Date,
net of the principal portion of all unpaid Monthly Payments due on or before
such date.
"Defaulted Mortgage Loan": Any Mortgage Loan which (a) is more than
60 days delinquent in whole or in part in respect of any Monthly Payment or
(b) is delinquent for more than 90 days in whole or in part in respect of the
related Balloon Payment, if any, unless the Master Servicer reasonably expects
the related Mortgagor will continue to make Monthly Payments and the Master
Servicer receives written evidence from the related Mortgagor (which written
evidence the Master Servicer shall promptly deliver to the Special Servicer
and which written evidence shall be reasonably acceptable to the Special
Servicer) indicating that the related Mortgagor has obtained a binding
commitment from an institutional lender to refinance the Mortgage Loan in
which case the Mortgage Loan shall not become a Defaulted Mortgage Loan until
the earlier of (x) of 150 days from the Due Date of the Balloon Payment and
(y) the date on which the Mortgage Loan is expected to be paid in full from
proceeds of the refinancing loan.
"Defeasance Collateral": As defined in Section 3.16 hereof.
"Deficient Valuation": With respect to any Mortgage Loan, a valuation
by a court of competent jurisdiction of the Mortgaged Property in an amount
less than the then outstanding principal balance of the Mortgage Loan, or any
reduction in the amount of principal to be paid in connection with any
scheduled Monthly Payment that constitutes a permanent forgiveness of
principal, which valuation results from a proceeding initiated under the
Bankruptcy Code or a state court deficiency proceeding.
"Definitive Certificate": Any certificated, fully registered
certificate.
"Delivery Date": March 29, 2001.
"Depositor": X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
or its successor in interest.
"Depository": The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(3) of the Uniform Commercial Code of
the State of New York and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Securities Exchange Act of 1934, as amended.
The initial Depository shall be The Depository Trust Company, the nominee of
which is CEDE & Co.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to any Distribution Date, the
fourth Business Day preceding the related Distribution Date.
"Directing Certificateholder": The Monitoring Certificateholder
selected by a majority of the Monitoring Certificateholders, by Certificate
Balance, as certified by the Trustee from time to time; provided, that, absent
such selection, or (i) until a Directing Certificateholder is so selected, or
(ii) upon receipt of notice from a majority of the Monitoring
Certificateholders, by Certificate Balance, that a Directing Certificateholder
is no longer so designated, the Monitoring Certificateholder(s) which owns the
largest aggregate Certificate Balance, of one or more Monitoring Classes shall
be the Directing Certificateholder. Allied Capital Corporation shall serve as
the initial Directing Certificateholder.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management or operation
of such REO Property, the holding of such REO Property primarily for sale to
customers, the performance of any construction work thereon or any use of such
REO Property in a trade or business conducted by the Trust Fund other than
through an Independent Contractor; provided, however, that the Trustee (or the
Master Servicer or the Special Servicer on behalf of the Trustee) shall not be
considered to Directly Operate an REO Property solely because the Trustee (or
the Master Servicer or the Special Servicer on behalf of the Trustee)
establishes rental terms, chooses tenants, enters into or renews leases, deals
with taxes and insurance, or makes decisions as to repairs or capital
expenditures with respect to such REO Property.
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (ii)
any organization (other than a cooperative described in Section 521 of the
Code) which is exempt from the tax imposed by Chapter 1 of the Code unless
such organization is subject to the tax imposed by Section 511 of the Code, or
(iii) any organization described in Section 1381(a)(2)(C) of the Code. A
corporation will not be treated as an instrumentality of the United States or
of any State or any political subdivision thereof if all of its activities are
subject to tax and, with the exception of the Federal Home Loan Mortgage
Corporation (a corporate instrumentality of the United States), a majority of
its board of directors is not selected by a governmental unit.
"Distribution Date": The fifteenth (15th) day (or if any such day is
not a Business Day, the Business Day immediately succeeding such fifteenth
(15th) day) of each month beginning in April 2001.
"DSCR": With respect to any Mortgage Loan, the ratio of (a) monthly
operating revenues minus monthly operating expenses (as determined for
purposes of Section 4.10) for the related Mortgaged Property after giving
effect to replacement reserves, capital expenditures, tenant improvements,
leasing commissions, and without giving effect to debt service, depreciation,
amortization and similar non-operating items to (b) the related Monthly
Payments (net of Escrow Payments).
"Due Date": With respect to any Mortgage Loan, the day of the month
set forth in the related Mortgage Note on which each Monthly Payment thereon
is scheduled to be due.
"Eligible Account": Either:
(a) an account or accounts maintained with a federal or state
chartered depository institution or trust company (including the
Trustee) (i) to the extent funds are on deposit in such account for
a period not in excess of 30 days, the commercial paper, short-term
debt obligations or other short-term deposits of which have the
Required Rating or (ii) to the extent funds are on deposit in such
account for a period of more than 30 days, the long-term unsecured
debt obligations of which have a long term rating of at least "AA-"
by S&P and if rated by Fitch, a long-term rating of "AA-" by Fitch;
provided that if any such depository institution ceases to satisfy
the requirements set forth above, then each of such accounts that
are held by such depository institution shall be transferred to a
depository institution which satisfies such requirements within 30
days; or
(b) a segregated trust account or accounts maintained with the
corporate trust department of a federal depository institution or
state chartered depository institution or a U.S. trust company
(including the Trustee) subject to regulations regarding fiduciary
funds on deposit set forth in or similar to 12 C.F.R. ss.9.10(b)
which, in either case, has corporate trust powers, acting in its
fiduciary capacity and (A) whose accounts are fully insured by
FDIC's Bank Insurance Fund or Savings Associations Insurance Fund or
under the National Credit Union Administration's Share Insurance
Fund, (B) which are rated "C" or better by Thomson Bankwatch, Inc.
or "75" or better by IDC Financial Publishing, Inc., or (C) whose
long-term unsecured debt obligations are rated "AAA" or its
equivalent by each Rating Agency (or if such obligations are not
rated by Fitch, then an equivalent rating from at least two other
NRSROs) covering such debt obligation. In connection with
determining whether a depository institution satisfies the criteria
set forth in clauses (B) or (C) of the preceding sentence, each
Servicer and the Trustee shall each use ratings that have been
issued within the three-month period preceding the date of such
determination, and shall re-check the applicable ratings of any
depository institution with whom they have established an account no
less often than every three months. If any such depository
institution ceases to satisfy the requirements set forth above, then
each of such accounts that are held by such depository institution
shall be transferred to a depository institution which satisfies
such requirements within 30 days; or
(c) an account or accounts of a depository institution
acceptable to each Rating Agency (as evidenced in writing by each
Rating Agency that use of any such account as the Certificate
Account, Escrow Account, REO Account or Collection Account will not
result in a downgrading, qualification (if applicable) or withdrawal
of the ratings then assigned to the Certificates).
"Environmental Laws": Any present or future U.S. or Canadian federal,
state, provincial or local law, statute, regulation or ordinance, and any
judicial or administrative order or judgment thereunder, pertaining to health,
industrial hygiene, Hazardous Materials or the environment, including, but not
limited to, each of the following, as enacted as of the date hereof or as
hereafter amended:
(i) the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42
U.S.C. ss.ss.9601-9657;
(ii) the Resource Conservation and Recovery Act of 1976,
42 U.S.C. ss.ss.6901-6991i;
(iii) the Toxic Substance Control Act, 15
U.S.C. ss.ss.2601-2629;
(iv) the Water Pollution Control Act (also known as the
Clean Water Act), 33 U.S.C. ss.1251 et seq.;
(v) the Clean Air Act, 42 U.S.C. ss.7401 et seq.;
(vi) the Hazardous Materials Transportation Act, 49
U.S.C. ss.1801 et seq.; and
(vii) comparable Canadian federal, provincial or other
local laws applicable to any of the Mortgaged
Properties securing the Canadian Loan.
"Escrow Account": Each separate account or subaccount, each of which
shall be an Eligible Account (to the extent consistent with the related
Mortgage Loan Documents), created and maintained for the Mortgage Loans
pursuant to Section 4.06 hereof, each of which shall be entitled "GMAC
Commercial Mortgage Corporation, as Master Servicer, for the benefit of X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp. Mortgage Pass-Through
Certificates, Series 2001-CIBC1, Escrow Account".
"Escrow Payments": With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, fire and hazard insurance premiums, Payment Reserve,
Replacement Reserve, Repair and Remediation Reserve, Tenant Improvement and
Leasing Commissions Reserve and any other payments, in each case, to the
extent required to be escrowed by the Mortgagor pursuant to the Mortgage or
any other document included in the Mortgage Loan File.
"Event of Default": One or more of the events described in Section
10.01.
"Exception Report": As defined in Section 2.02(b) hereof.
"Excess Cash Flow": Subject to the related Mortgage Loan Documents,
cash flow from the Mortgaged Property securing an ARD Loan after (i) payments
of interest (at the Mortgage Rate) and principal (based on the amortization
schedule), (ii) required payments for the tax and insurance fund and ground
lease escrows fund, (iii) payments to any other required escrow funds, (iv)
payment of operating expenses pursuant to the terms of an annual budget
approved by the Master Servicer (or the Special Servicer with respect to
Specially Serviced Mortgage Loans) or in an amount which is capped at 1/12 of
105% of the prior year's operating expenses, and (vi) Excess Interest.
"Excess Condemnation Proceeds": With respect to each Mortgage Loan,
all awards or settlements in respect of a Mortgaged Property, whether
permanent or temporary, partial or entire, on account of the exercise of the
power of eminent domain or condemnation, other than any such awards or
settlements held in an Escrow Account or in a trust account, which shall be an
Eligible Account (to the extent consistent with the terms of the related
Mortgage Loan Documents) related to such Mortgaged Property and applied or to
be applied to the restoration or repair of such Mortgaged Property or required
to be released to a Mortgagor in accordance with the terms of the related
Mortgage Loan documents or, to the extent not expressly provided therein, in
accordance with Accepted Master Servicing Practices or Accepted Special
Servicing Practices, as applicable, and applicable law.
"Excess Insurance Proceeds": With respect to each Mortgage Loan,
proceeds of any primary hazard insurance policy required to be maintained
pursuant to Section 4.07, title insurance policy or any other Insurance Policy
covering such Mortgage Loan or the related Mortgaged Property, other than any
proceeds to be held in an Escrow Account or in a trust account, which shall be
an Eligible Account (to the extent consistent with the terms of the related
Mortgage Loan Documents) related to such Mortgage Loan and applied or to be
applied to the restoration or repair of the related Mortgaged Property or
required to be released to the related Mortgagor in accordance with the terms
of the related Mortgage Loan Documents or, to the extent not expressly
provided therein, in accordance with Accepted Master Servicing Practices or
Accepted Special Servicing Practices, as applicable, and applicable law.
"Excess Interest": Any accrued interest on an ARD Loan allocable to
the Excess Rate and, to the extent permitted by law, interest thereon at the
Revised Rate. For federal income tax purposes, any Excess Interest will be an
asset of the grantor trust created pursuant to Section 3.11(q) and will be
neither an asset nor an obligation of REMIC I, REMIC II or REMIC III.
"Excess Rate": With respect to each ARD Loan after the related
Anticipated Repayment Date, the excess of (i) the applicable Revised Rate over
(ii) the applicable Mortgage Rate in effect prior to the Anticipated Repayment
Date.
"FDIC": The Federal Deposit Insurance Corporation, or any successor
thereto.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Defaulted Mortgage Loan or REO Mortgage Loan, as
certified in writing by a Servicing Officer setting forth such determination
and the procedures and considerations of the Special Servicer forming the
basis of such determination, that there has been a recovery of all REO
Proceeds, Liquidation Proceeds and other payments or recoveries that the
Special Servicer, in its reasonable good faith judgment, expects to be
ultimately recoverable.
"Fitch": Fitch, Inc.
"Foreign Currency Exchange Contract": With respect to the Canadian
Loan, the ISDA Master Agreement dated as of March 29, 2001, as amended and
supplemented from time to time, between the F/X Counterparty and the Depositor
and the related schedules and confirmations dated March 29 , 2001 in the
manner assigned to the Trustee for the benefit of the Certificateholders
pursuant to the F/X Assignment Agreement.
"F/X Assignment Agreement": The assignment agreement dated as of
March 29, 2001 by and among the Depositor, the F/X Counterparty and the
Trustee in the form delivered by the Depositor on the Delivery Date.
"F/X Counterparty": MGT, as a party to the Foreign Currency Exchange
Contract.
"F/X Payment Date": As defined in Section 4.16.
"F/X Market Rate": As defined in Section 4.16.
"GACC": German American Capital Corporation.
"GMACCM": GMAC Commercial Mortgage Corporation.
"Hazardous Materials": All materials subject to any Environmental
Law, including, without limitation, materials listed in 49 C.F.R. ss. 172.010,
materials defined as hazardous pursuant to ss. 101(14) of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
flammable, explosive or radioactive materials, hazardous or toxic wastes or
substances, lead-based materials, petroleum or petroleum distillates or
asbestos or material containing asbestos, polychlorinated biphenyls ("PCBs"),
radon gas, urea formaldehyde and any substances classified as being "in
inventory", "usable work in process" or similar classification that would, if
classified as unusable, be included in the foregoing definition.
"Holder" or "Certificateholder": The Person in whose name a
Certificate is registered in the Certificate Register, except that, solely for
the purposes of giving any consent, approval or waiver pursuant to this
Agreement, any Certificate registered in the name of the Master Servicer,
Special Servicer, the Depositor or any Affiliate thereof shall be deemed not
to be outstanding with respect to Sections 10.04 and 13.01. The Trustee shall
be entitled to request and rely upon a certificate of the Master Servicer, the
Special Servicer or the Depositor in determining whether a Certificate is
registered in the name of an Affiliate of such Person.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Mortgage Loan Sellers and any
and all Affiliates thereof, (ii) does not have any direct financial interest
in or any material indirect financial interest in any of the Depositor, the
Master Servicer, the Special Servicer, the Mortgage Loan Sellers or any
Affiliate thereof, and (iii) is not connected with the Depositor, the Master
Servicer, the Special Servicer, the Mortgage Loan Sellers or any Affiliate
thereof as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership tests set forth in that section shall be
considered to be met by any Person that owns, directly or indirectly 35% or
more of any Class or 35% or more of the aggregate value of all Classes of
Certificates), provided that the Trust Fund does not receive or derive any
income from such Person and the relationship between such Person and the Trust
Fund is at arm's length all within the meaning of Treasury Regulations Section
1.856-4(b)(5) (except that the Special Servicer shall not be considered to be
an Independent Contractor under the definition in this clause (i) unless an
Opinion of Counsel (obtained at the expense of the Special Servicer) addressed
to the Special Servicer and the Trustee has been delivered to the Trustee to
the effect that the Special Servicer meets the requirements of such
definition) or (ii) any other Person (including the Special Servicer) if the
Special Servicer, on behalf of itself and the Trustee, has received an Opinion
of Counsel (obtained at the expense of the party seeking to be deemed an
Independent Contractor) to the effect that the taking of any action in respect
of any REO Property by such Person, subject to any conditions therein
specified, that is otherwise herein contemplated to be taken by an Independent
Contractor will not cause such REO Property to cease to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(determined without regard to the exception applicable for purposes of Section
860D(a) of the Code) or cause any income realized with respect of such REO
Property to fail to qualify as Rents from Real Property (provided that such
income would otherwise so qualify).
"Initial Certification": As defined in Section 2.02(c) hereof.
"Initial Subservicer": With respect to each Mortgage Loan that is
subject to a subservicing agreement with the Master Servicer as of the
Delivery Date, the subservicer under any such subservicing agreement.
"Insurance Policy": With respect to any Mortgage Loan, any insurance
policy, including, without limitation, any environmental insurance policy,
required to be maintained under this Agreement or the related Mortgage Loan
Documents.
"Insurance Proceeds": With respect to each Mortgage Loan, proceeds of
any primary hazard insurance policy required to be maintained pursuant to
Section 4.07 hereof, or any other Insurance Policy covering such Mortgage Loan
or the related Mortgaged Property, to be held in an Escrow Account or in a
trust account, which is an Eligible Account (to the extent consistent with the
related Mortgage Loan Documents) related to such Mortgage Loan and applied or
to be applied to the restoration or repair of the related Mortgaged Property
or required to be released to the related Mortgagor in accordance with the
terms of the related Mortgage Loan Documents, or, to the extent not expressly
provided therein, in accordance with Accepted Master Servicing Practices or
Accepted Special Servicing Practices, as applicable, and applicable Law.
"Interest Accrual Amount": With respect to each Distribution Date and
any Class of Certificates (other than the Class X Certificates and the
Residual Certificates), interest accrued during the period from and including
the first day of the month preceding the month of the Distribution Date (or
the Cut-off Date with respect to the initial Distribution Date) to and
including the last day of the month preceding the month of the Distribution
Date (calculated on the basis of a 360-day year consisting of twelve 30-day
months) on the Class Balance outstanding immediately prior to such
Distribution Date at the then applicable Pass-Through Rate applicable to such
Class of Certificates for such Distribution Date. With respect to the Class X1
and Class X2 Certificates, respectively, the sum of interest accrued
(calculated pursuant to the first sentence hereof) for each of the Class X1
Components and the Class X2 Components, respectively.
"Interest Distribution Amount": With respect to each Distribution
Date and any Class, the Interest Accrual Amount for such Distribution Date and
such Class (x) reduced by the product of (a) the sum of (I) any excess of
Prepayment Interest Shortfalls for such Distribution Date over the sum of (x)
Prepayment Interest Excess, (y) Prepayment Premiums then available and (z) the
amounts available as a result of an adjustment to the Master Servicer's
compensation pursuant to Section 4.13 calculated for the related Distribution
Date and (II) any interest not collectible pursuant to the Soldiers' and
Sailors' Civil Relief Act of 1940 and (b) the Interest Accrual Amount for such
Class divided by the Interest Accrual Amount for all Classes of Certificates
for such Distribution Date and (y) increased by any undistributed portion of
the Interest Distribution Amount for the prior Distribution Date plus interest
thereon at the related Pass-Through Rate. The Interest Distribution Amount for
the Class with the lowest priority with respect to the order of payment of
interest or principal shall be reduced further by the portion of any interest
deferred with respect to any Mortgage Loans. Such deferred amount, together
with interest at the related Pass-Through Rate, shall be payable to the extent
it is collected after such Distribution Date.
"Interest Reserve Account": The separate account, which shall be an
Eligible Account, created and maintained by the Trustee pursuant to Section
3.17 in trust for the Certificateholders, which shall be entitled "State
Street Bank and Trust Company, as Trustee, in trust for registered holders of
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Mortgage Pass-Through
Certificates, Series 2001-CIBC1-- Interest Reserve Account."
"Interest Reserve Loan": Any Mortgage Loan bearing interest computed
on an actual/360 basis.
"Interested Person": As of any date of determination with respect to
any Mortgage Loan, the Mortgagor, the related Mortgage Loan Seller, the
Depositor, the Special Servicer or the Master Servicer.
"Law": Any judgment, order, decree, writ, injunction, award, statute,
rule, regulation or requirement of any federal, provincial, state, local or
other agency, commission, instrumentality, tribunal, governmental authority,
arbitrator or court having or asserting jurisdiction over any particular
Person, property or matter applicable to such particular Person, property or
matter.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made with respect to such Mortgage Loan; (iii) such
Mortgage Loan is repurchased by the Depositor pursuant to Section 2.04 or
Section 12.01; or (iv) such Mortgage Loan is purchased by the Master Servicer
or the Special Servicer pursuant to Section 12.01.
"Liquidation Fee": With respect to each Specially Serviced Mortgage
Loan, the fee designated as such and payable to the Special Servicer pursuant
to Section 6.13.
"Liquidation Fee Rate": With respect to each Specially Serviced
Mortgage Loan or REO Property as to which a Liquidation Fee is payable, 1.00%.
"Liquidation Proceeds": Cash (excluding any Insurance Proceeds)
received in connection with the discounted, whole or partial liquidation of a
Defaulted Mortgage Loan, whether through the sale or assignment of such
Defaulted Mortgage Loan or REO Property, trustee's sale, foreclosure sale or
otherwise.
"Loan Number": The designation of a Mortgage Loan as set forth in the
Mortgage Loan Schedule.
"Loss Mortgage Loan": Any Mortgage Loan (a) as to which a Liquidation
Event has occurred resulting in a Realized Loss, or (b) with respect to which
a Deficient Valuation has been made or a portion of the principal balance
thereof has been otherwise permanently forgiven.
"MAI": Member of Appraisal Institute.
"Master Remittance Date": With respect to each Distribution Date, one
Business Day preceding such Distribution Date.
"Master Servicer": GMAC Commercial Mortgage Corporation, its
successor in interest, or any successor servicer appointed as such as herein
provided.
"Master Servicing Fee": As defined in Section 4.12 hereof.
"Master Servicing Fee Rate": With respect to each Mortgage Loan, the
sum of the Basic Master Servicing Fee Rate and the related rate set forth
under "Additional Servicing Fee Rate" in the Mortgage Loan Schedule.
"Maturity Date": With respect to any Mortgage Loan as of any date of
determination, the date on which the last payment of principal is due and
payable under the related Mortgage Note.
"MGT": Xxxxxx Guaranty Trust Company of New York, and its successors
in interest.
"Minimum Master Servicing Fee Rate": A rate of 0.02% per annum.
"Monitoring Certificateholder": Each Holder (or Certificate Owner, if
applicable) of a Certificate of a Monitoring Class as certified to the Trustee
from time to time by such Holder or Certificate Owner.
"Monitoring Class": As defined in Section 11.02(c).
"Monthly Payment": With respect to any Mortgage Loan and any Due
Date, the scheduled monthly payment with respect to such Mortgage Loan,
including any Escrow Payments but excluding any Balloon Payment, which is
payable by a Mortgagor under the related Mortgage Note (or if modified, as
modified in accordance with this Agreement) and applicable Law and, with
respect to a Balloon Mortgage Loan for which a Balloon Payment is due and has
not been made, the monthly payment with respect to such Balloon Mortgage Loan
that would be payable on and after the related Maturity Date based on the full
amortization schedule determined by the Master Servicer.
"Mortgage": The mortgage, deed of trust or other instrument creating
a first lien on an estate in fee simple or leasehold Interest In real property
securing a Mortgage Note, including the assignment of leases and rents related
thereto.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee for the benefit of the Certificateholders pursuant to Section
2.01 or Section 2.02 and from time to time held in the Trust Fund, the
Mortgage Loans so held pursuant to Sections 2.01 and 2.02 being identified on
the Mortgage Loan Schedule (including, any successor REO Mortgage Loan). As
used herein, the term "Mortgage Loan" includes the related Mortgage Note,
Mortgage and other security documents contained in the related Mortgage Loan
File.
"Mortgage Loan Documents": With respect to each Mortgage Loan, to the
extent applicable, the Mortgage, Mortgage Note, Assignment of Mortgage,
Assignment of Leases and Rents (if separate from the Mortgage), any security
agreements, any UCC Financing Statements, any intercreditor agreements, the
title insurance policy, all surveys, all insurance policies (including all
environmental insurance policies), any environmental liabilities agreements,
any escrow agreements for improvements, any guaranties related to such
Mortgage Loan, any prior assignments of mortgage in the event that the
originator is not the originator of record, any collateral assignments of
property management agreements and other services agreements required by the
applicable commitment, with respect to the Canadian Loan, the Foreign Currency
Exchange Contract and other loan documents and all modification, consolidation
and extension agreements, if any.
"Mortgage Loan File": In connection with any Mortgage Loan, all the
documents held or required to be held by the Custodian pertaining to such
Mortgage Loan, including the Mortgage Loan Documents, the related appraisal,
reports regarding physical and structural characteristics and condition of the
related Mortgaged Property, reports regarding environmental condition of the
related Mortgaged Property, ground leases, lease subordination agreements and
tenant estoppel and related opinions of counsel.
"Mortgage Loan Purchase Agreements": Collectively, (i) the mortgage
loan purchase agreement, dated as of March 1, 2001 between MGT and the
Depositor related to the transfer and assignment of the Mortgage Loans listed
on Exhibit A thereto; (ii) the mortgage loan purchase agreement, dated as of
March 1, 2001 between CIBC and the Depositor related to the transfer and
assignment of the Mortgage Loans listed on Exhibit A thereto; and (iii) the
mortgage loan purchase agreement, dated as of March 1, 2001 between GACC and
the Depositor related to the transfer and assignment of the Mortgage Loans
listed on Exhibit A thereto. A form Mortgage Loan Purchase Agreement is
attached hereto as Exhibit I.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred to
the Trustee as part of the Trust Fund, attached hereto as Exhibit G.
"Mortgage Loan Sellers": Collectively, MGT, CIBC and GACC, each in
its capacity as mortgage loan seller under the related Mortgage Loan Purchase
Agreement. Any one of the foregoing is referred to herein as a "Mortgage Loan
Seller".
"Mortgage Note": The note or other evidence of indebtedness of a
Mortgagor under a Mortgage Loan, together with all riders thereto and
amendments thereof.
"Mortgage Rate": With respect to any Mortgage Loan, the annual rate
at which interest accrues on such Mortgage Loan in accordance with the terms
of the related Mortgage Loan absent default and without giving effect to any
Excess Rate on an ARD Loan.
"Mortgaged Property": The underlying property (including any REO
Property) that secures a Mortgage Loan, in each case consisting of a fee
simple or leasehold interest in a parcel or parcels of land improved by a
commercial and/or multifamily building or facility, together with any personal
property, fixtures, leases and other property or rights pertaining thereto.
"Mortgagor": The obligor or obligors on a Mortgage Note.
"Most Subordinate Class of Certificates": At the time of
determination, the Class to which any Realized Losses would be first allocated
as of such time in accordance with Section 7.05.
"Net Assumption Fee": As defined in Section 4.08(d).
"Nonrecoverable Advance": Any Advance previously made or proposed to
be made by the Master Servicer or the Trustee, as applicable, in respect of a
Mortgage Loan, which together with interest thereon, in the reasonable good
faith judgment of such Person, will not, or, in the case of a proposed
Advance, would not, be ultimately recoverable by such Person from net proceeds
or collections received solely with respect to such Mortgage Loan or the
related Mortgaged Property, including related Liquidation Proceeds, REO
Proceeds, Excess Insurance Proceeds, Excess Condemnation Proceeds and escrowed
amounts.
"Nonrecoverable Advance Certificate": A certificate signed by a
Servicing Officer setting forth the determination of a Nonrecoverable Advance
and the procedures and considerations of the Master Servicer forming the basis
of such determination (accompanied by information such as related income and
expense statements, rent rolls, occupancy status, property inspections, and an
Independent MAI appraisal of the related Mortgaged Property obtained within
the preceding twelve months). With respect to the Canadian Loan, such
determination may also be based upon and take into account the then-current
foreign exchange rate and any potential fluctuations thereto in the future,
whether the Foreign Currency Exchange Contract remains in effect and whether
the related Mortgaged Property may be realized upon in compliance with Section
6.03(i).
"Non-United States Person": Any person other than a United States
Person.
"Non-U.S. Treasury Net Prepayment Premium": With respect to any
Distribution Date, any Allocated Net Prepayment Premiums for such Distribution
Date which are not U.S. Treasury Net Prepayment Premiums.
"NRSRO": A nationally recognized statistical rating organization.
"Officers' Certificate": With respect to any Servicer, a certificate
signed by a Servicing Officer of such Servicer.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the Master Servicer or
Special Servicer, acceptable and delivered to the Trustee, except that any
opinion of counsel relating to (a) the qualification of the Trust Fund as a
REMIC, (b) compliance with the REMIC Provisions, or (c) any actions or duties
which can not be undertaken or are no longer permitted under applicable law,
must be an opinion of counsel who is in fact Independent.
"Original Class Balance": As to any Class of Certificates with a
Class Balance, the Original Class Balance set forth in the Preliminary
Statement.
"ORECM": ORIX Real Estate Capital Markets, LLC, and its successors in
interest.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate, including any interest in such
Certificate as the Holder thereof and any other interest therein, whether
direct or indirect, legal or beneficial, as owner or as pledgee.
"P&I Advance": Any amounts identified in Section 4.05(a) as a P&I
Advance.
"Pass-Through Rate": With respect to any Distribution Date and any
Class, other than the Class X and the Residual Certificates, a per annum rate
equal to the corresponding Pass-Through Rate as set forth in the Preliminary
Statement. With respect to any Distribution Date and the Class X Certificates,
a per annum rate equal to the corresponding Pass-Through Rate as set forth in
the definitions of "Class X1 Components" and "Class X2 Components". The
Residual Certificates will not have a Pass-Through Rate.
"Payment Reserve": With respect to a Mortgage Loan, the amount, if
any, of principal and interest payable thereon required, pursuant to the
related Mortgage Loan Documents, to be deposited into an escrow account to
cover a portion of the related Mortgagor's debt service obligations
thereunder.
"Percentage Interest": With respect to any Class of Certificates, the
portion of the relevant Class evidenced by such Certificate, expressed as a
percentage, the numerator of which is the initial Certificate Balance or
initial notional amount of such Certificate as of the Delivery Date, as
specified on the face thereof, and the denominator of which is the Original
Class Balance or Class Notional Amount of the relevant Class.
"Permitted Investments": Any one or more of the obligations and
securities listed below that provide for a date of maturity of not more than
30 days but in any event not later than the date prior to the date such funds
will be required to be distributed:
(i) direct obligations of, and obligations fully
guaranteed by, the United States of America, or any
agency or instrumentality of the United States of
America the obligations of which are backed by the
full faith and credit of the United States of
America;
(ii) federal funds, demand and time deposits in, unsecured
certificates of deposits of, or bankers' acceptances
issued by, any depository institution or trust
company incorporated or organized under the laws of
the United States of America or any state thereof and
subject to supervision and examination by federal
and/or state banking authorities, the commercial
paper or other short-term debt obligations of such
depository institution or trust company (or, in the
case of a depository institution or trust company
which is the principal subsidiary of a holding
company, the commercial paper or other short-term
debt obligations of such holding company) which are
rated at xxxxx "X0" by S&P and "F-1+" by Fitch;
(iii) commercial or finance company paper (including both
non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on
a specified date not more than 270 days after the
date of issuance thereof) that has the Required
Rating for short-term debt;
(iv) repurchase obligations with respect to any security
described in clause (i) above entered into with a
depository institution or trust company (acting as
principal) meeting the rating standards described in
clause (ii) above and having maturities of not more
than 365 days;
(v) units of investment funds (including money market
funds) rated in the highest long-term category by
Fitch and S&P or if not rated by Fitch and S&P then
otherwise approved by Fitch and S&P;and
(vi) any other obligation or security acceptable to each
Rating Agency, as indicated in writing, that would
not result in a downgrading, qualification (if
applicable) or withdrawal of the ratings then
assigned to the Certificates;
provided, however, that no such instrument shall be a Permitted Investment (v)
if such instrument evidences a right to receive either (A) only interest
payments with respect to the obligations underlying such instrument or (B)
both principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations; (w) if its terms do not have a
predetermined fixed dollar amount of principal due at maturity that cannot
vary or change; (x) to the extent rated, an "r" highlighter is affixed to its
rating; (y) to the extent the related interest rate is variable, interest
thereon is not tied to a single interest rate index plus a single fixed spread
(if any), or does not move proportionately with that index; or (z) if such
instrument is purchased at a premium over par. Any obligations or securities
described above of the Trustee, in its commercial capacity, if otherwise
qualified, shall be Permitted Investments hereunder.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability corporation, limited liability company, limited liability
partnership, or government or any agency or political subdivision thereof.
"Phase I" : A Phase I environmental site assessment report prepared
in accordance with the American Society of Testing Material's Standard E
1527-94, as amended, and including radon and asbestos reports.
"Pool Factor": With respect to any Distribution Date, the fraction,
expressed as a percentage, the numerator of which is the aggregate Class
Balance of the Certificates, after giving effect to distributions made or to
be made on such Distribution Date and the denominator of which is the
aggregate original Class Balance of the Certificates.
"Prepayment Assumption": With respect to all Mortgage Loans other
than the ARD Loans, it is assumed for purposes of Section 3.11(o) that there
are no prepayments on the Mortgage Loans. With respect to all ARD Loans, it is
assumed for purposes of Section 3.11(o) that the ARD Loans will be fully
prepaid on their related Anticipated Repayment Dates.
"Prepayment Interest Excess": With respect to any Distribution Date,
for each Mortgage Loan that was subject to a Principal Prepayment in full or
in part prior to the related Determination Date and after the preceding Due
Date, the amount of interest accrued at the Remittance Rate for such Mortgage
Loan on the amount of such Principal Prepayment during the period from and
after such Due Date, to the extent collected.
"Prepayment Interest Shortfall": With respect to any Distribution
Date, for each Mortgage Loan that was subject to a Principal Prepayment in
full or in part after the related Determination Date and prior to the
following Due Date, the amount of interest that would have accrued at the
Remittance Rate for such Mortgage Loan on the amount of such Principal
Prepayment during the period commencing on the date as of which such Principal
Prepayment was applied to the unpaid principal balance of the Mortgage Loan
and ending on the day immediately preceding such Due Date, inclusive.
"Prepayment Premium": Any premium, penalty or fee paid or payable, as
set forth in the related Mortgage Note, by a Mortgagor in connection with a
Principal Prepayment.
"Primary Servicing Fees": The monthly fee payable by the Master
Servicer from the Master Servicing Fee to each Initial Subservicer, which
monthly fee accrues at the rate per annum specified as such in the Mortgage
Loan Schedule.
"Prime Rate": As of any day, the per annum rate reported in the Money
Rates section of The Wall Street Journal on the immediately preceding Business
Day as the prime rate.
"Principal Distribution Amount": With respect to any Distribution
Date an amount equal to, in each case to the extent not previously advanced,
the aggregate of (a) all scheduled payments of principal (other than Balloon
Payments) due on the Mortgage Loans on the related Due Date whether or not
received and all scheduled Balloon Payments received during the related
Remittance Period, (b) if the scheduled Balloon Payment is not received, with
respect to any Balloon Loans on and after the Maturity Date thereof, the
principal payment that would need to be received in the related month in order
to fully amortize such Balloon Loan with level monthly payments by the end of
the term used to derive scheduled payments of principal due prior to the
related Maturity Date, (c) to the extent not previously advanced, any
unscheduled principal recoveries received during the related Remittance Period
in respect of the Mortgage Loans, whether in the form of Liquidation Proceeds,
Excess Insurance Proceeds, Excess Condemnation Proceeds, REO Proceeds, amounts
received as a result of the purchase of any Mortgage Loan out of the Trust
Fund or receipt of overdue payments, and (d) any other portion of the Adjusted
Available Distribution Amount remaining undistributed after payment of any
interest payable on the Certificates pursuant to clause (xxiii) of Section
7.02(a) for the related or any prior Distribution Date, including any
Prepayment Interest Excess not offset by any Prepayment Interest Shortfall
occurring during the related Remittance Period or otherwise required to
reimburse the Master Servicer and interest distributions on the Mortgage
Loans, in excess of interest distributions on the Certificates, resulting from
the allocation of amounts described in this clause (d) to principal
distributions on the Certificates.
"Principal Prepayment": Any payment or other recovery of principal on
a Mortgage Loan that is received in advance of its scheduled Due Date which is
not accompanied by an amount of interest representing scheduled interest due
on any date or dates in any month or months subsequent to the month of
prepayment.
"Private Certificates": The Class X1, Class X2, Class G, Class H,
Class J, Class K, Class L, Class M, Class NR, Class R-I, Class R-II and Class
R-III Certificates.
"Property Improvement Expenses": Any costs and expenses for repairs,
replacements or improvements which the Special Servicer deems advisable under
the circumstances, but only to the extent that they are paid to third Persons
in arms' length arrangements, which Persons may, to the extent expressly
approved in the related Asset Strategy Report, be Affiliates who are generally
in the business of providing such goods and services, and that such expenses
are reasonable for the types of goods or services provided in the geographical
area in which such goods or services are provided, designed to maintain or
improve the value of a Mortgaged Property or REO Property but not immediately
necessary to operate it, that are incurred for the purpose of facilitating the
sale of the related Specially Serviced Mortgage Loan or REO Property and
maximizing the proceeds thereof, including but not limited to the following:
(a) cosmetic improvements such as painting and landscaping; (b) build-out or
modification to suit a particular prospective or actual tenant or buyer; (c)
replacement of items which are obsolescent or wearing out but which may not be
dysfunctional; and (d) moneys paid to a tenant or buyer for a purpose similar
to a Property Improvement Expense.
"Property Inspection Report": The report prepared pursuant to Section
4.09(a) hereof substantially in the form of Exhibit M hereto.
"Property Protection Expenses": The following costs and expenses,
but, with respect to items (b) through (n) below, only to the extent that they
are paid to third persons in arms' length arrangements, which Persons may, to
the extent expressly approved in the related Asset Strategy Report, be
Affiliates who are generally in the business of providing such goods and
services, and that such expenses are reasonable for the types of goods or
services provided in the geographical area in which such goods or services are
provided: (a) real estate taxes, assessments and similar charges; (b) premiums
for insurance; (c) utility costs; (d) payments required under service
contracts, including but not limited to service contracts for heating,
ventilation and air conditioning systems, elevators, landscape maintenance,
pest extermination, security, model furniture, swimming pool service, trash
removal, answering service, credit checks and monitoring the satisfaction of
real estate tax assessments and the designation from time to time of special
flood hazard areas; (e) payroll costs and benefits for on-site maintenance
personnel, including but not limited to housekeeping employees, porters and
general maintenance and security employees; (f) property management fees; (g)
usual and customary leasing and sales brokerage expenses and commissions and
other costs and expenses associated with marketing, selling or otherwise
disposing of Specially Serviced Mortgage Loans or REO Properties including,
without limitation, marketing brochures, auction services, reasonable legal
fees, surveys, title insurance premiums and other title company costs; (h)
permits, licenses and registration fees and costs; (i) any expense necessary
in order to prevent or cure a breach under a lease, contract or agreement, if
the consequences of failure to prevent or cure could, in the sole judgment of
the Special Servicer, have a material adverse effect with respect to the
Mortgage Loan, REO Property or Mortgaged Property; (j) any expense necessary
in order to prevent or cure a material violation of any applicable law,
regulation, code or ordinance with respect to any Mortgaged Property,
including without limitation any environmental remediation; (k) costs and
expenses of appraisals, valuations, surveys, inspections, environmental
assessments, credit reports, or market studies (including, in each case,
review thereof); (l) transportation, lodging and other travel related costs
incurred by the Special Servicer in performing its duties under this
Agreement, provided that the travel expenses of the Special Servicer's
employees providing services under this Agreement shall be limited to the
lesser of actual expenses or a reasonable budgeted amount for each calendar
year mutually agreed upon by the Trustee and the Special Servicer; (m) other
such reasonable marketing, legal, accountants, expert witness fees and other
fees and expenses incurred by the Special Servicer in connection with the
enforcement, collection, foreclosure, management and operation of Specially
Serviced Mortgage Loans or REO Properties, the bankruptcy of any related
Mortgagor, and the performance of their servicing duties under this Agreement;
and (n) such other expenses as are reasonable and immediately necessary to
operate, maintain, preserve or protect the Mortgaged Property or REO Property.
"Purchase Price": With respect to any Mortgage Loan to be purchased
pursuant to Section 2.02(c), Section 2.04, Section 6.05(a) or Section 12.01,
the outstanding principal balance thereof as of the date of purchase, together
with (i) all accrued and unpaid interest at the Mortgage Rate on such Mortgage
Loan to but not including the date of purchase, (ii) all related unreimbursed
Servicing Advances and (iii) all accrued and unpaid interest on related
Advances and unpaid Basic Special Servicing Fees and any Additional Trust Fund
Expense allocable to such Mortgage Loan, including any expense arising out of
the enforcement of the repurchase obligation and any costs and Liquidation
Fees associated with such repurchase.
"Qualified Insurer": An insurance company:
a)(i) duly authorized and, if required, licensed in such state to
transact the applicable insurance business and to write the
insurance provided;
(ii) whose claims paying ability is rated either (A) not less than
(x) the lower of "A" or one rating category below the highest
rating for the outstanding Certificates, but not less than "A",
by S&P, if rated by S&P and (y) "A" by Fitch, if rated by
Fitch, or (B) "A-(IX)" by AM Best, Inc. or whose obligations
are guaranteed or backed by a company with a claims paying
ability satisfying (A) or (B) of this Clause (ii); and
(iii) with respect to any insurance required pursuant to Section
6.03(b), duly qualified as such under the laws of the state in
which the related Mortgaged Property is located; or
(b) acceptable to each Rating Agency (as evidenced in writing by each
Rating Agency that use of any such Qualified Insurer will not result in a
downgrading, qualification (if applicable) or withdrawal of the ratings then
assigned to the Certificates).
"Rated Final Distribution Date": The Distribution Date in March 2033,
which is the first Distribution Date succeeding the second anniversary of the
date at which the Stated Principal Balance of all the Mortgage Loans would be
reduced to zero, assuming no prepayments, defaults or delinquencies, and that
the Mortgage Loans which are Balloon Mortgage Loans or ARD Loans fully
amortize according to their amortization schedule without a Balloon Payment or
final payment on the Anticipated Repayment Date, respectively.
"Rating Agency": Each of Fitch and S&P.
"Realized Loss": With respect to any Distribution Date and each Loss
Mortgage Loan (or REO Mortgage Loan) as to which a Final Recovery
Determination has occurred during the related Collection Period, an amount
(not less than zero) equal to (i) the outstanding principal balance of the
Loss Mortgage Loan (or REO Mortgage Loan) as of the beginning of the
Collection Period, plus (ii) all accrued and unpaid interest on related
Advances, plus (iii) all accrued and unpaid interest without taking the items
in (iv) into account, minus (iv) the proceeds, if any, received prior to the
Determination Date immediately preceding such Distribution Date, to the extent
applied as recoveries of interest and to principal of the Mortgage Loan. With
respect to each Mortgage Loan which has become the subject of a Deficient
Valuation, the difference between the principal balance of the Mortgage Loan
outstanding immediately prior to such Deficient Valuation and the principal
balance of the Mortgage Loan as reduced by the Deficient Valuation.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs, except for the first Distribution Date in which case
the Delivery Date will be the Record Date.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC I": The segregated pool of assets subject hereto, constituting
the trust created hereby and to be administered hereunder, consisting of: (a)
the Mortgage Loans as from time to time are subject to this Agreement and all
payments under and proceeds of the Mortgage Loans received after the Cut-off
Date (other than payments of principal and interest due and payable on the
Mortgage Loans on or before the Cut-off Date), together with all documents
included in the related Mortgage Loan File; (b) such funds or assets as from
time to time are deposited in the Certificate Account (other than funds
collected in respect of Excess Interest); (c) such funds or assets as from
time to time are deposited in the Collection Account, Escrow Account or REO
Account; (d) any REO Property; and (e) the rights of the mortgagee under all
Insurance Policies with respect to the Mortgage Loans listed on the Mortgage
Loan Schedule.
"REMIC I Uncertificated Interests": Each of the one hundred
sixty-five interests with a principal balance and interest rate equal to that
of one of the Mortgage Loans.
"REMIC II": A segregated pool of assets consisting of one hundred
sixty-five uncertificated regular interests issued under REMIC I.
"REMIC II Uncertificated Interests": Each of Uncertificated Interest
I, Uncertificated Interest II, Uncertificated Interest IIIA, Uncertificated
Interest IIIB, Uncertificated Interest IV, Uncertificated Interest V,
Uncertificated Interest VI, and Uncertificated Interest VII, Uncertificated
Interest VIII, Uncertificated Interest IX, Uncertificated Interest X,
Uncertificated Interest XI, Uncertificated Interest XII, Uncertificated
Interest XIII, Uncertificated Interest XIV and Uncertificated Interest XV.
"REMIC III": A segregated pool of assets consisting of Uncertificated
Interest I, Uncertificated Interest II, Uncertificated Interest III,
Uncertificated Interest IV, Uncertificated Interest V, Uncertificated Interest
VI, Uncertificated Interest VII, Uncertificated Interest VIII, Uncertificated
Interest IX, Uncertificated Interest X, Uncertificated Interest XI and
Uncertificated Interest XII.
"REMIC Provisions": Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and proposed, temporary and final Treasury regulations and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Remittance Period": For any Distribution Date is the period
beginning after a Determination Date in the immediately preceding month (or
the Cut-off Date, in the case of the first Distribution Date) through the
related Determination Date.
"Remittance Rate": With respect to any Mortgage Loan, the per annum
rate equal to the excess of the related Mortgage Rate (without giving affect
to any modification or other reduction thereof following the Cut-off Date)
over the related Servicing Fee Rate. For this purpose, if the related Mortgage
Rate is calculated other than on the basis of a 360-day year consisting of
twelve 30-day months (a "30/360 basis"), such Mortgage Rate will be
recalculated on a 30/360 basis (except for Remittance Rates for the one-month
periods preceding the Due Dates in January of each calendar year that is not a
leap year and February); provided, however, that with respect to the Interest
Reserve Loans, (i) the Remittance Rate for the one-month period preceding the
Due Dates in (a) January of each calendar year that is not a leap year and (b)
February of each calendar year, will be determined net of the Withheld Amounts
and (ii) the Remittance Rate for the one-month period preceding the Due Dates
in March of each calendar year will be determined after taking into account
the addition of the Withheld Amount; provided, further, however, that with
respect to the Canadian Loan, the Remittance Rate shall be equal to the
interest rate derived from interest payments made by the F/X Counterparty in
U.S. dollars specified in the Foreign Currency Exchange Contract over the
related Servicing Fee Rate.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": One or more accounts established pursuant to Section
6.06.
"REO Acquisition": The acquisition by the Special Servicer on behalf
of the Trustee for the benefit of the Certificateholders of any Mortgaged
Property.
"REO Mortgage Loan": Any Mortgage Loan as to which the related
Mortgaged Property has been acquired by the Special Servicer on behalf of the
Trustee through foreclosure or by deed in lieu of foreclosure, until the
Special Servicer has determined that all amounts that it reasonably expects to
recover from or on account of such Mortgage Loan have been recovered, whether
from Condemnation Proceeds, Insurance Proceeds, Liquidation Proceeds, REO
Proceeds or otherwise (in which case such Mortgage Loan shall no longer be an
REO Mortgage Loan).
"REO Proceeds": Proceeds (net of any directly related expenses,
including without limitation, Property Protection Expenses and Property
Improvement Expenses, incurred by the Special Servicer for the proper
operation, management and maintenance of the related REO Property) received in
respect of any REO Property (including, without limitation, proceeds from the
rental of the related Mortgaged Property) and cash received in connection with
the final liquidation of the related REO Property.
"REO Property": A Mortgaged Property acquired by the Special Servicer
on behalf of the Trust Fund through foreclosure or by deed in lieu of
foreclosure.
"REO Tax": As defined in Section 6.04(e).
"Repair and Remediation Reserve": With respect to any Mortgage Loan,
the amounts required to be paid by the Mortgagor, pursuant to the Mortgage
Loan Documents, contemporaneously with the execution thereof, for payment of
costs and expenses relating to certain maintenance, repairs and/or remedial or
corrective work.
"Replacement Reserve": With respect to any Mortgage Loan, the amounts
required to be paid by the Mortgagor pursuant to the Mortgage Loan Documents
for payment of costs and expenses in connection with the performance of work
on the roofs, chimneys, gutters, downspouts, paving, curbs, ramps, driveways,
balconies, porches, patios, exterior walls, exterior doors and doorways,
windows, elevators and mechanical and HVAC equipment or other repairs on the
related Mortgaged Property.
"Replacement Special Servicer": As defined in Section 6.16.
"Request for Release and Receipt of Documents": A written Request for
Release and Receipt of Documents, substantially in the form of Exhibit Y
hereto.
"Required Appraisal Date": With respect to any Mortgage Loan within
30 days of (a) any Collateral Value Adjustment Event or (b) the occurrence of
any event giving rise to a subsequent Collateral Value Adjustment (including
the delinquency referred to in clause (iii) of the last sentence of the
definition of "Collateral Value Adjustment") more than twelve months after an
appraisal was obtained with respect to a previous Collateral Value Adjustment.
"Required Rating": The following ratings:
(a) with respect to commercial paper, short-term debt obligations or
other short-term deposits, "A-1" by S&P and "F-1+" by Fitch; or
(b) with respect to long-term debt obligations, the long-term rating
of "AA-" by Fitch and "AA-" by S&P.
"Residual Certificate": Any of the Class R-I, Class R-II or Class
R-III Certificates.
"Responsible Officer": When used with respect to the Trustee, any
officer assigned to and working in its corporate trust department and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"Restricted Period": The period of 40 consecutive days from the later
of (i) the day on which the Certificates are first offered to persons other
than distributors (as defined in Regulation S) in reliance on Regulation S and
(ii) the Delivery Date.
"Revised Rate": With respect to any ARD Loan, the increased interest
rate after the Anticipated Repayment Date (in the absence of a default) for
each applicable Mortgage Loan, as calculated and set forth in the related
Mortgage Loan Documents.
"S&P": Standard & Poor's Ratings Services.
"Second Certification": As defined in Section 2.02(b).
"Security Agreement": With respect to any Mortgage Loan, any security
agreement or equivalent instrument, whether contained in the related Mortgage
or executed separately, creating in favor of the holder of such Mortgage a
security interest in the personal property constituting security for repayment
of such Mortgage Loan.
"Servicer": The Master Servicer or the Special Servicer, as
applicable.
"Servicing Advance": Any expenses identified in this Agreement as a
Servicing Advance which are incurred by the Master Servicer consistent with
Accepted Master Servicing Practices or by the Special Servicer consistent with
Accepted Special Servicing Practices, as applicable, with respect to any
Mortgage Loan. For the avoidance of doubt, any fee or expense (including
reasonable attorney's fees and disbursements) incurred by a Servicer in
connection with monitoring or enforcing the Foreign Currency Exchange Contract
in accordance with Accepted Master Servicing Practices or Accepted Special
Servicing Practices, as applicable, shall be a Servicing Advance.
"Servicing Fee": With respect to any Mortgage Loan, the Master
Servicing Fee and/or the Basic Special Servicing Fee, as applicable.
"Servicing Fee Rate": With respect to any Mortgage Loan, shall equal
the sum of the related Master Servicing Fee Rate and the Trustee Fee Rate.
"Servicing Officer": With respect to any Servicer, any Assistant
Treasurer, Assistant Secretary, Assistant Vice President, Vice President or
other employee of such Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans under this Agreement and
authorized to act on behalf of such Servicer, as designated by inclusion on a
list of such Persons furnished to the Trustee and each other Servicer by the
related Servicer, as such list may from time to time be amended.
"Servicing Transfer Date": The date after the occurrence of a
Servicing Transfer Event on which the Special Servicer receives the
information, documents and records required to be delivered thereto pursuant
to Section 6.02(c).
"Servicing Transfer Event": The occurrence of any of the following
with respect to a Mortgage Loan: (i) such Mortgage Loan becomes a Defaulted
Mortgage Loan; (ii) the related Mortgagor has entered into or consented to
bankruptcy, appointment of a receiver or conservator or a similar insolvency
or similar proceeding, or the Mortgagor has become the subject of a decree or
order for such proceeding which shall have remained in force undischarged,
undismissed or unstayed for a period of 60 days; (iii) the Master Servicer or
the Special Servicer shall have received notice of the foreclosure or proposed
foreclosure of any other lien on the Mortgaged Property; (iv) the related
Mortgagor admits in writing its inability to pay its debts generally as they
become due, files a petition to take advantage of any applicable insolvency or
reorganization statute, makes an assignment for the benefit of its creditors,
or voluntarily suspends payment of its obligations; (v) any other default has
occurred which has materially and adversely affected the value of the related
Mortgaged Loan and has continued unremedied for the applicable grace period
specified in the related Mortgage or Mortgage Note, as applicable; (vi) the
related Mortgaged Property becomes REO Property; (vii) if for any reason, the
Mortgaged Property is transferred and an assumption agreement pursuant to
Section 4.08 cannot be entered into; or (viii) the Master Servicer has
determined in its good faith reasonable judgment that a default in the making
of any payment under the related Mortgage Loan is likely to occur within 30
days and is likely to remain uncured for at least 60 days, or in the case of a
Balloon Mortgage Loan at least 90 days.
"Single-Purpose Entity" or "SPE": A person, other than an individual,
whose organizational documents provide that it is formed solely for the
purpose of assuming a Mortgage Loan and owning and pledging Defeasance
Collateral; does not engage in any business unrelated to such Mortgage Loan
and Defeasance Collateral; does not have any assets other than those related
to its interest in the Mortgage Loan and Defeasance Collateral or any
indebtedness other than as permitted by the related Mortgage; maintains its
own books, records and accounts, in each case which are separate and apart
from the books, records and accounts of any other person; conducts business in
its own name and uses separate stationery, invoices and checks; does not
guarantee or assume the debts or obligations of any other person; does not
commingle its assets or funds with those of any other person; transacts
business with affiliates on an arm's length basis pursuant to written
agreements; holds itself out as being a legal entity, separate and apart from
any other person. The SPE's organizational documents must provide that any
dissolution and winding up or insolvency filing for such entity requires the
unanimous consent of all partners or members, as applicable, and that such
documents may not be amended with respect to the Single-Purpose Entity
requirements during the term of the Mortgage Loan.
"Sole Certificateholder(s)" : Any Holder or group of Holders, as the
case may be, of 100% of the Private Certificates.
"Specially Serviced Mortgage Loan": Any Mortgage Loan, and, at the
Directing Certificateholder's option, any Cross Collateralized Loan that is
cross-collateralized with such Mortgage Loan, with respect to which a
Servicing Transfer Event has occurred and which has not ceased to be a
Specially Serviced Mortgage Loan pursuant to Section 6.12.
"Special Servicer": ORIX Real Estate Capital Markets, LLC, a Delaware
limited liability company, its successor in interest, or any successor
servicer appointed as such as herein provided.
"Startup Day": The Delivery Date.
"State Tax Laws": The laws of the states of New York and
Massachusetts as well as any state the applicability of which to the Trust or
the REMICs shall have been confirmed to the Trustee in writing either by the
delivery to the Trustee of an Opinion of Counsel to such effect (provided that
the Trustee shall have no obligation to seek or pay for any such Opinion of
Counsel), or by the delivery to the Trustee of a written notification to such
effect by the taxing authority of such state.
"Stated Principal Balance": With respect to any Mortgage Loan (other
than an REO Mortgage Loan), as of any date of determination, (a) the Cut-off
Date Balance, minus (b) the sum, without duplication, of:
(i) the principal portion of each Monthly Payment and
Balloon Payment due on such Mortgage Loan after the
Cut-off Date, to the extent received from the
Mortgagor or advanced and distributed to
Certificateholders before such date of determination;
(ii) all Principal Prepayments received with respect to
such Mortgage Loan after the Cut-off Date, to the
extent distributed to Certificateholders before such
date of determination;
(iii) the principal portion of unscheduled payments (other
than Principal Prepayments) including all Insurance
Proceeds and Liquidation Proceeds received with
respect to such Mortgage Loan after the Cut-off Date,
to the extent distributed to Certificateholders
before such date of determination; and
(iv) any reduction in the outstanding principal balance of
such Mortgage Loan resulting from the allocation of a
Realized Loss.
With respect to any REO Mortgage Loan, as of any date of determination, an
amount (not less than zero) equal to (x) the Stated Principal Balance of the
related Mortgage Loan as of the date of the related REO Acquisition, minus (y)
the sum of:
(i) the principal portion of each P&I Advance made with
respect to such REO Mortgage Loan that was
distributed to Certificateholders before such date of
determination;
(ii) the principal portion of all Insurance Proceeds,
Liquidation Proceeds and REO Proceeds received with
respect to such REO Mortgage Loan, to the extent
distributed to Certificateholders before such date of
determination; and
(iii) any reduction in the outstanding principal balance
of such Mortgage Loan resulting from the allocation
of a Realized Loss.
A Mortgage Loan shall be deemed to be part of the Trust Fund and to have an
outstanding Stated Principal Balance through and including the Distribution
Date on which the proceeds, if any, received in connection with a Liquidation
Event in respect thereof are to be distributed to Certificateholders.
"Tax Matters Person": The "tax matters person" (as defined in the
REMIC Provisions) of each REMIC created hereunder.
"Tax Returns": The federal income tax return on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor
forms, to be filed on behalf of the Trust Fund due to its classification as a
REMIC under the REMIC Provisions, together with any and all other information,
reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal or
State Tax Laws.
"Tenant Improvement and Leasing Commissions Reserve": With respect to
any Mortgage Loan, the amounts required to be paid by the Mortgagor pursuant
to the Mortgage Loan Documents to refit and release either vacant space or
blocks of space anticipated to be vacated during the term of financing.
"Transfer Date": With respect to any Mortgage Loan, shall have the
meaning set forth herein.
"Trust Fund": REMIC I, REMIC II and REMIC III.
"Trustee": State Street Bank and Trust Company, a Massachusetts trust
company or its successor in interest in its capacity as Trustee hereunder, or
any successor trustee appointed as herein provided.
"Trustee Fee": The fee payable to the Trustee in accordance with
Section 11.08(a).
"Trustee Fee Rate": Shall have the meaning set forth in Section
11.08(a).
"UCC Financing Statement": A financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in the relevant
jurisdiction, or, in the case of Louisiana or the Commonwealth of Puerto Rico,
the comparable provisions of Louisiana or Puerto Rico law, as applicable.
"Uncertificated Interest I": An interest in REMIC II with a principal
balance equal to the Class Balance of the Class A1 Certificates which accrues
interest at the Weighted Average Remittance Rate.
"Uncertificated Interest II": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class A2 Certificates
which accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest IIIA": An interest in REMIC II with a
principal balance equal to the excess of the Class Balance of the Class A3
Certificates over $475,000,000 which accrues interest at the Weighted Average
Remittance Rate.
"Uncertificated Interest IIIB": An interest in REMIC II with a
principal balance equal to the lesser of the Class Balance of the Class A3
Certificates and $475,000,000 and which accrues interest at the Weighted
Average Remittance Rate.
"Uncertificated Interest IV": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class B Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest V": An interest in REMIC II with a principal
balance equal to the Class Balance of the Class C Certificates which accrues
interest at the Weighted Average Remittance Rate.
"Uncertificated Interest VI": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class D Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest VII": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class E Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest VIII": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class F Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest IX": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class G Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest X": An interest in REMIC II with a principal
balance equal to the Class Balance of the Class H Certificates which accrues
interest at the Weighted Average Remittance Rate.
"Uncertificated Interest XI": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class J Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest XII": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class K Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest XIII": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class L Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest XIV": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class M Certificates which
accrues interest at the Weighted Average Remittance Rate.
"Uncertificated Interest XV": An interest in REMIC II with a
principal balance equal to the Class Balance of the Class NR Certificates
which accrues interest at the Weighted Average Remittance Rate.
"Underwriter": Each of Chase Securities, Inc., CIBC World Markets
Corp., Deutsche Banc Alex. Xxxxx Inc. and Xxxxxx Xxxxxxx & Co. Incorporated.
"United States Person": A citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States, any state thereof or the District of Columbia
(except in the case of a partnership, to the extent provided in regulation
under the Code), or an estate whose income from sources without the United
States is includible in gross income for United States federal income tax
purposes regardless of its connection with the conduct of a trade or business
within the United States, or a trust as defined in ss. 7701(a)(30) of the
Code.
"U.S. Treasury Net Prepayment Premium": With respect to any Mortgage
Loan, other than the Canadian Loan, and any Distribution Date, any Allocated
Net Prepayment Premiums for such Distribution Date calculated under the
related Mortgage Loan Documents by reference to a U.S. Treasury rate. With
respect to the Canadian Loan and any Distribution Date, any Allocated Net
Prepayment Premiums for such Distribution Date calculated under the Related
Mortgage Loan Documents by reference to a Canadian Treasury Note rate.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the
term of this Agreement, 97.0% of all the Voting Rights shall be allocated
among the Class A1, Class A2, Class A3, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M and Class NR
Certificates in proportion to the respective Class Balances, 1.00% of all
Voting Rights shall be allocated to the Class X1 Certificates, 1.00% of all
Voting Rights shall be allocated to the Class X2 Certificates, and 0.33 2/3%
of all Voting Rights shall be allocated to each of the Class R-I, Class R-II
and Class R-III Certificates. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective
Certificates. Allocations of Realized Losses and any other event which changes
such Class Balance will result in a corresponding change to such Class' Voting
Rights. Collateral Value Adjustments will not result in a change to a Class'
Voting Rights.
"Weighted Average Remittance Rate": With respect to any Distribution
Date, the rate per annum equal to the weighted average, expressed as a
percentage and rounded to four decimal places, of the Remittance Rates in
effect for the Mortgage Loans as of the commencement of the related Collection
Period, weighted on the basis of the respective Stated Principal Balances of
such Mortgage Loans outstanding immediately following the Distribution Date in
the related Collection Period.
"Withheld Amount": With respect to (a) each Interest Reserve Loan and
(b) each Distribution Date occurring in (i) January of each calendar year that
is not a leap year and (ii) February of each calendar year, an amount equal to
one day's interest at the related Mortgage Rate (less any Master Servicing Fee
and Trustee Fee payable therefrom) on the respective Stated Principal Balance
as of the Due Date in the month in which such Distribution Date occurs, to the
extent that a Monthly Payment or P&I Advance is made in respect thereof.
"Workout Fee": With respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to Section
6.13.
"Workout Fee Rate": With respect to each Corrected Mortgage Loan as
to which a Workout Fee is payable, 1.00%.
Section 1.02 Calculations.
Unless otherwise specified herein or in the related Mortgage Loan
Documents, all calculations described herein shall be made on the basis of a
360-day year consisting of twelve 30-day months.
Section 1.03 Rules of Construction.
Any action or delivery which is required pursuant to the terms hereof
which falls on a day which is not a Business Day will be due on the
immediately following Business Day, except as otherwise expressly provided
herein.
Section 1.04 Canadian Loan.
(a) All Servicing Advances with respect to the Canadian Loan will be
made in the currency in which the related underlying payments are required to
be paid.
(b) For purposes of preparing the reports and making calculations
hereunder in respect of the Certificates and the servicing of the Mortgage
Loans on behalf of the Certificateholders, all dollar amounts with respect to
the Canadian Loan (e.g., Stated Principal Balances, Cut-off Date Balances,
Monthly Payments, Remittance Rate calculations, Prepayment Interest
Shortfalls, Prepayment Interest Excesses, Purchase Price, Servicing Fees,
etc.) shall be converted to U.S. dollars at the foreign currency exchange rate
specified in the related Foreign Currency Exchange Contract; provided,
however, that with respect to any amounts collected on the Canadian Loan, if
the Foreign Currency Exchange Contract is terminated, or if the F/X
Counterparty is in default thereunder, or if such amounts are not permitted to
be exchanged under the related F/X Currency Exchange Agreement (e.g., late
fees or assumption fees), such amounts shall be determined based on the F/X
Market Rate.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby establish the Trust Fund, appoint the Trustee as trustee
of the Trust Fund and assign to the Trustee without recourse all the right,
title and interest of the Depositor, including any security interest therein
for the benefit of the Depositor, in, to and under the mortgage loans
identified on the Mortgage Loan Schedule (the "Mortgage Loans"), with respect
to the Canadian Loan, the Foreign Currency Exchange Contract, and all other
assets included or to be included in the Trust Fund, to be held in trust for
the benefit of the Certificateholders. Such assignment includes all interest
and principal received or receivable on or with respect to the Mortgage Loans
(other than payments of principal and interest due and payable on the Mortgage
Loans on or before the Cut-off Date) and, with respect to the Canadian Loan,
the Foreign Currency Exchange Contract. The transfer of the Mortgage Loans and
related property accomplished hereby is absolute and, notwithstanding Section
13.07, is intended by the parties to constitute a sale.
(b) In connection with the Depositor's assignment, the Depositor does
hereby deliver to, and deposit with, the Trustee, as the initial Custodian,
the following documents or instruments (or copies thereof as permitted by this
Section) for each Mortgage Loan so assigned:
(i) the original or, if accompanied by a "lost note"
affidavit and indemnity, a copy of the Mortgage Note,
executed by the Mortgagor and endorsed by the related
Mortgage Loan Seller or the prior holder of record,
in blank or to the order of "State Street Bank and
Trust Company, as Trustee for X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp. Mortgage
Pass-Through Certificates Series 2001-CIBC1" and
showing a complete chain of endorsements from the
originator;
(ii) the original Mortgage, and any intervening
assignments (or certified copies of such assignments)
thereof, in each case with evidence of recording
indicated thereon, or certified copies thereof if not
returned from the applicable recording office;
(iii) originals or certified copies of any related
Assignment of Leases and Rents and any related
Security Agreement (if, in either case, such item is
a document separate from the Mortgage), any
intervening assignments of each such document or
instrument, and any related UCC Financing Statements;
(iv) an original assignment of the Mortgage, executed by
the related Mortgage Loan Seller or the prior holder
of record in blank or to the order of the Trustee,
with the assignment to the Trustee in the following
form: "State Street Bank and Trust Company, as
Trustee for X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp. Mortgage Pass-Through Certificates
Series 2001-CIBC1", in complete and recordable form,
including recording information; provided, however,
that if the underlying Mortgage has not been returned
by the applicable recording jurisdiction, recording
information related thereto may be provided by the
related Mortgage Loan Seller immediately upon receipt
subsequent to the Delivery Date; provided, further,
that if the related Mortgage Loan Seller is obligated
to forward the original assignment of Mortgage to the
applicable recording jurisdiction for recording, such
Mortgage Loan Seller may deliver to the Trustee a
certified copy of such assignment of Mortgage;
(v) assignments of any related Assignment of Leases and
Rents and any related Security Agreement (if, in
either case, such item is a document separate from
the Mortgage), executed by the related Mortgage Loan
Seller or the prior holder of record in blank or to
the order of the Trustee, with the assignment to the
Trustee in the following form: "State Street Bank and
Trust Company, as Trustee for X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp. Mortgage
Pass-Through Certificates Series 2001-CIBC1", in
complete and recordable form, including recording
information; provided, however, that if the
underlying Assignment of Leases and Rents and/or any
related Security Agreement has not been returned by
the applicable recording jurisdiction, recording
information related thereto may be provided by the
related Mortgage Loan Seller immediately upon receipt
subsequent to the Delivery Date; provided, further,
that if the related Mortgage Loan Seller is obligated
to forward the original assignment of Assignment of
Leases and Rents and/or any related Security
Agreement to the applicable recording jurisdiction
for recording, such Mortgage Loan Seller may deliver
to the Trustee a certified copy of such assignment of
Assignment of Leases and Rents and/or any related
Security Agreement;
(vi) originals or certified copies of all assumption,
modification and substitution agreements in those
instances where the terms or provisions of the
Mortgage or Mortgage Note have been modified or the
Mortgage or Mortgage Note has been assumed with
evidence of recording;
(vii) the originals or certificates of a lender's title
insurance policy issued on the date of the
origination of such Mortgage Loan;
(viii) with respect to any Mortgage Loan secured by a
leasehold interest, a certified copy of the related
ground lease and any amendments and modifications
thereto and ground lease estoppel;
(ix) either (i) the originals of all intervening
assignments, including warehousing assignments, with
evidence of recording thereon, (ii) copies of such
assignments certified by a title company or escrow
company to be true and complete copies thereof where
the originals have been transmitted for recording
until such time as the originals are returned by the
public recording office or (iii) copies of such
assignments certified by the public recording offices
where such assignments were recorded to be true and
complete copies thereof in those instances where the
public recording offices retain the original or where
the original recorded assignments are lost;
(x) either (i) originals or copies of the UCC-1 financing
statements and any related continuation statements,
each showing the mortgagors as debtor and the
originator as secured party and each with evidence of
filing thereon, together with a copy of each
intervening UCC-2 or UCC-3 financing statement
showing a complete chain of assignment from the
secured party named in such UCC-1 financing statement
to the Trustee with evidence of filing thereon
disclosing the assignment to the Trustee of the
security interest in the personal property securing
the Mortgage Loan or (ii) copies of such financing
statements certified to be true and complete copies
thereof in instances where the original financing
statements have been sent to the appropriate public
filing office for filing;
(xi) any original appraisal;
(xii) any escrow, guarantee, insurance policy,
environmental liability agreement, environmental
insurance policy, intercreditor agreement, management
agreement, or lockbox arrangement, in each case if
any such document exists;
(xiii) the original standby letter of credit, if any,
together with any original assignment thereof;
(xiv) any original Phase I or other environmental
assessment;
(xv) the original franchise agreement (or, if the original
has been retained by the related Mortgagor, a copy
certified by such Mortgagor to be true and correct)
and franchisor comfort letter(s), if any;
(xvi) any collateral assignments of property management
agreements and other servicing agreements; and
(xvii) with respect to the Canadian Loan, the Foreign
Currency Exchange Contract; together with an
Assignment and Assumption Agreement with respect
thereto, which the Trustee shall execute and deliver
in the form presented to it.
If the related Mortgage Loan Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, the original or a copy of the related
lender's title insurance policy referred to in clause (vii) above solely
because such policy has not yet been issued, the delivery requirements of this
Section 2.01(b) shall be deemed to be satisfied as to such missing item, and
such missing item shall be deemed to have been included in the related
Mortgage File, provided that the related Mortgage Loan Seller shall have
delivered to the Trustee or a Custodian appointed thereby, on or before the
Delivery Date, a commitment for title insurance "marked-up" at the closing of
such Mortgage Loan marked as binding and executed by the title insurer or its
agent (or a "marked-up" report of title together with the corresponding escrow
or similar agreement, accepted and executed by the title insurer or its agent
at the closing of such Mortgage Loan) and the related Mortgage Loan Seller
shall deliver to the Trustee or such Custodian, promptly following the receipt
thereof, the original related lender's title insurance policy (or a copy
thereof).
(c) The Depositor, or if directed by the Depositor, the related
Mortgage Loan Seller, shall, as to each Mortgage Loan on the Mortgage Loan
Schedule, promptly (and in any event within 45 Business Days of the Delivery
Date) cause (i) the assignment of the Mortgage and the Assignment of Leases
and Rents specified in clauses (iv) and (v) respectively, above to be
submitted for recording or filing, at the expense of the related Mortgage Loan
Seller, in the appropriate public office for real property records; and (ii)
the UCC-2 or UCC-3 Assignments of Financing Statements specified in clause (x)
above to be submitted for recording or filing, at the expense of the related
Mortgage Loan Seller, in the appropriate public office for UCC Assignments.
Any such assignment delivered in blank shall be completed to the order of the
Trustee, in the following form: "State Street Bank and Trust Company, as
Trustee for X.X. Xxxxxx Chase Commercial Mortgage Securities Corp. Mortgage
Pass-Through Certificates Series 2001-CIBC1" prior to recording. Each such
assignment shall reflect that it should be returned by the public recording
office following recording to State Street Bank and Trust Company as the
initial Custodian. If any such assignment is lost or returned unrecorded or
unfiled because of a defect therein, the Depositor shall promptly (but in no
event later than ten Business days of notice thereof) prepare or cause to be
prepared a substitute therefor or cure such defect, as the case may be, and
thereafter cause the same to be duly recorded or filed.
(d) The Depositor shall complete the endorsements on those Mortgage
Notes delivered in blank (or cause such to be completed) to the order of the
Trustee.
(e) In connection with the Depositor's assignment, the Depositor does
hereby deliver to, and deposit with the Master Servicer originals or copies of
the fully executed Mortgage Loan Purchase Agreements.
(f) In connection with the Depositor's assignment, the Depositor does
hereby deliver to the Master Servicer copies of the Mortgage Loan Files.
Section 2.02 Acceptance by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt, subject to the provisions of Section 2.01, and clause
(b) below, of the documents specified in clauses (i), (ii), (iv), (vii),
(viii) and (xiii) of Section 2.01(b), and declares that it or the Custodian on
its behalf holds and will hold such documents and the other documents
delivered to it or the Custodian constituting the Mortgage Loan Files, and
that it holds or will hold such other assets included in the Trust Fund, in
trust for the exclusive use and benefit of all present and future
Certificateholders. In connection with the assignment of the Canadian Loan and
the related Foreign Currency Exchange Contract, the Trustee will execute and
deliver the F/X Assignment Agreement.
(b) Within fifteen (15) Business Days of the Delivery Date, the
Trustee shall deliver, or cause the Custodian to deliver, to the Depositor and
the Directing Certificateholder, an exception report (the "Exception Report")
with respect to the documents specified in clauses (i), (ii), (iv), (vii),
(viii) and (xiii) of Section 2.01(b). Immediately upon receipt, the Depositor
shall provide a copy of the Exception Report to each Mortgage Loan Seller.
Within three (3) Business Days of the receipt of the Exception Report, the
Depositor shall, or shall cause the related Mortgage Loan Seller to, cure any
exception listed therein (for the avoidance of doubt, any deficiencies with
respect to the documents specified in clauses (ii) and (iv) resulting solely
from a delay in the return of the related documents from the applicable
recording office, shall be cured in the time and manner described in Section
2.02(f)). If such exception is not so cured, the Depositor shall, or shall
cause the related Mortgage Loan Seller to, either (1) repurchase the related
Mortgage Loan, (2) with respect to exceptions relating to clause (xiii),
deposit with the Trustee an amount, to be held in trust in a segregated
Eligible Account, equal to the amount of the undelivered letter of credit (in
the alternative, the Depositor or related Mortgage Loan Seller, as the case
may be, may deliver to the Trustee a letter of credit for the benefit of the
Trustee and upon the same terms and conditions as the undelivered letter of
credit) which the Trustee may use (or draw upon, as the case may be) under the
same circumstances and conditions as the Trustee would have been entitled to
draw on the undelivered letter of credit, or (3) with respect to any of the
other documents, deposit with the Trustee an amount, to be held in trust in a
segregated Eligible Account, equal to 25% of the Stated Principal Balance of
the related Mortgage Loan. Any funds deposited pursuant to clause (3) shall be
held by the Trustee until the earlier of (x) the date on which the Master
Servicer certifies to the Trustee and the Directing Certificateholder that
such exception has been cured, at which time such funds shall be returned to
the Depositor or the related Mortgage Loan Seller, as applicable and (y)
thirty (30) Business Days after the Delivery Date; provided, however, that if
such exception is not cured within such thirty (30) Business Days, the
Depositor shall, or shall cause the related Mortgage Loan Seller to,
repurchase the related Mortgage Loan in accordance with the terms and
conditions of this Section 2 or the related Mortgage Loan Purchase Agreement,
at which time such funds shall be applied to the Purchase Price of the related
Mortgage Loan.
(c) On or prior to 60 days following the Delivery Date, the Trustee
shall deliver to the Depositor, the Directing Certificateholder, the Master
Servicer, the Special Servicer and each of the Mortgage Loan Sellers, or shall
cause the Custodian to deliver to the Depositor, the Directing
Certificateholder, the Trustee, the Master Servicer, and the Special Servicer
and each of the Mortgage Loan Sellers, an initial certification in a form
acceptable to the Depositor (the "Initial Certification") to the effect that
it has reviewed the Mortgage Loan Documents delivered to it hereunder and has
determined that all documents required to be delivered pursuant to Section
2.01(b) have been received by the Trustee, subject to any exceptions
identified in an exception report delivered with the Initial Certification. On
or prior to 90 days following the Delivery Date, the Trustee shall deliver, or
cause the Custodian to deliver, a report as to any remaining document
deficiencies (the "Second Certification"), and thereafter quarterly updates
for such certification (through the second anniversary of the Delivery Date)
to the effect that it has reviewed the Mortgage Loan Documents delivered to it
hereunder and has determined that all documents required to be delivered
pursuant to Section 2.01(b) have been received by the Trustee, subject to any
exceptions identified in an exception report delivered with the Initial
Certification, the Second Certification and each quarterly certification. Upon
delivery of the Second Certification,
(i) in the case of any document deficiency relating to
any Mortgage Loan not described in clauses (ii) or
(iii) below, on or before the 270th day following the
Delivery Date; or
(ii) in the case of any document deficiency relating to a
Specially Serviced Mortgage Loan when the related
Servicing Transfer Event occurred on or before the
180th day following the Delivery Date, on or before
the 90th day following such Servicing Transfer Event;
or
(iii) in the case of any document deficiency relating to a
Specially Serviced Mortgage Loan when the related
Servicing Transfer Event occurred after the 180th day
and on or before the 270th day following the Delivery
Date, on or before the earlier of (A) the 45th day
following the related Servicing Transfer Event and
(B) the 270th day following the Delivery Date,
the Depositor shall either: (i) cause such document deficiency to be cured;
(ii) cause to be delivered to the Trustee an Opinion of Counsel reasonably
acceptable to the Special Servicer to the effect that such document deficiency
is not material to the value of the Mortgage Loan, the related Mortgaged
Property, the enforcement of rights under the related Mortgage Loan Documents
or to the rights of the Trustee or the Certificateholders; or (iii) repurchase
(or cause the related Mortgage Loan Seller to repurchase) the related Mortgage
Loan pursuant to Section 2.04. In performing the reviews called for herein,
the Trustee and Custodian, acting on its behalf, may conclusively assume the
due execution and genuineness of any such document and the genuineness of any
signature thereon. It is understood that the scope of the review called for is
limited solely to confirming, after receipt of the documents listed in Section
2.01, that such documents have been executed, received and recorded, if
applicable, and relate to the Mortgage Loans identified in the Mortgage Loan
Schedule. Neither the Trustee nor any Custodian makes any representation as to
(i) the validity, legality, sufficiency, enforceability or genuineness of any
such documents contained in each Mortgage Loan File or any of the Mortgage
Loans identified in the Mortgage Loan Schedule or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
(d) If, in the process of reviewing the Mortgage Loan Files, the
Trustee or the Custodian or any party hereto (or any other Person) finds any
document or documents constituting a part of a Mortgage Loan File not to have
been properly executed, or to be missing or fails to materially conform to the
information provided on the Mortgage Loan Schedule or to be defective on its
face in any material respect, the Trustee shall promptly so notify, or shall
cause the Custodian to promptly notify the Master Servicer, the Special
Servicer, the Directing Certificateholder and the Depositor. If the Depositor
does not correct or cure such omission or defect within 90 days from the date
of such notice the Depositor shall repurchase (or cause the related Mortgage
Loan Seller to repurchase) such Mortgage Loan from the Trust Fund at its
Purchase Price within 90 days from the date of such notice. The Purchase Price
for any such Mortgage Loan shall be deposited or caused to be deposited by the
Master Servicer into the Collection Account and, upon receipt by the Trustee
of written notification of such deposit, signed by a Servicing Officer, the
Trustee or the Custodian, as the case may be, shall release to the Depositor
the related Mortgage Loan File and such Mortgage Loan (including, with respect
to the Canadian Loan, the Foreign Currency Exchange Contract) and the Trustee
shall execute and deliver such instruments of transfer or assignment prepared
by the Master Servicer (at the expense of the Depositor or the related
Mortgage Loan Seller), in each case without recourse, as shall be necessary to
vest in the Depositor or its designee, as the case may be, any Mortgage Loan
(including, if applicable, the Foreign Currency Exchange Contract) released
pursuant hereto and thereafter such Mortgage Loan (including, if applicable,
the Foreign Currency Exchange Contract) shall not be part of the Trust Fund
and not subject to the servicing terms hereof. It is understood and agreed
that the obligation of the Depositor to so cure or purchase any Mortgage Loan
as to which a material defect in or omission of a constituent document exists
shall constitute the sole remedy under this Agreement respecting such defect
or omission available to Certificateholders or the Trustee on behalf of the
Certificateholders. References to any Mortgage Loan in this clause (c) shall
include, in respect of the Canadian Loan, the related Foreign Currency
Exchange Contract.
(e) The Depositor shall cause a Mortgage Loan Seller to repurchase
any Cross Collateralized Loan that is cross-collateralized with any Mortgage
Loan repurchased pursuant to clause (b), (c) or (d) of this Section 2.02.
Notwithstanding the foregoing, if the related Mortgage Loan Documents provide
for the partial release of one or more of the Cross Collateralized Loans, the
Depositor may cause the related Mortgage Loan Seller to repurchase only that
Mortgage Loan required to be repurchased pursuant to this Section 2.02,
pursuant to the partial release provisions of the related Mortgage Loan
Documents; provided, however, that (i) the remaining Mortgage Loan(s) fully
comply with the terms and conditions of the related Mortgage Loan Documents,
this Agreement and the related Mortgage Loan Purchase Agreement, (ii) in
connection with such partial release, the related Mortgage Loan Seller obtains
an Opinion of Counsel (at such Mortgage Loan Seller's expense) to the effect
that the contemplated action will not, with respect to either REMIC I, REMIC
II or REMIC III created hereunder, endanger such status or, unless such party
determines in its sole discretion to indemnify the Trust Fund against any
resultant tax, result in the imposition of any tax and (iii) in connection
with such partial release, the related Mortgage Loan Seller delivers or causes
to be delivered to the Custodian original modifications to the Mortgage Loan
Documents prepared and executed in connection with such partial release.
(f) Notwithstanding anything contained in this Section 2.02 to the
contrary, in the case of a deficiency in any of the documents specified in
clauses (ii) through (vi), (ix), and (x), resulting solely from a delay in the
return of the related documents from the applicable recording office, which
deficiency (i) is continuing for (a) in the case of any Mortgage Loan that is
not a Specially Serviced Mortgage Loan, for more than eighteen (18) months
following the Delivery Date or (b) in the case of any Specially Serviced
Mortgage Loan, ninety (90) days following a Servicing Transfer Event, and (ii)
impairs or prohibits in any material way any Servicer's ability to act upon,
or enforce, any of the Trust Fund's rights and remedies under the related
Mortgage Loan, or Specially Serviced Mortgage Loan, as applicable, at the time
such Servicer attempts to act upon, or enforce, any such right or remedy the
Directing Certificateholder in its sole judgment may permit the Depositor or
the related Mortgage Loan Seller, in lieu of repurchasing the related Mortgage
Loan, to deposit with the Trustee an amount, to be held in trust in a
segregated Eligible Account, equal to 25% of the Stated Principal Balance of
the related Mortgage Loan (in the alternative, the Depositor or the related
Mortgage Loan Seller, as the case may be, may deliver to the Trustee a letter
of credit for the benefit of the Trustee in such amount). Such funds (or
letter of credit) shall be held by the Trustee (i) until the date on which the
Master Servicer certifies to the Trustee that such document deficiency has
been cured, at which time the Trustee shall return such funds (or letter of
credit) to the Depositor or the related Mortgage Loan Seller, as the case may
be or (ii) if such document deficiency has not been cured by the date which is
eighteen (18) months following the Delivery Date and the Depositor or the
related Mortgage Loan Seller, as the case may be, shall be required to
repurchase the related Mortgage Loan in accordance with the terms and
conditions of this Section 2.02 or the related Mortgage Loan Purchase
Agreement. In that event, upon such date, the Trustee shall deposit, or cause
the Master Servicer to deposit, such funds, or shall draw upon the letter of
credit and deposit the proceeds of such draw, into the Collection Account to
be applied to the Purchase Price in accordance with clause (d) above. All such
funds deposited with the Trustee may be invested in Permitted Investments, at
the direction of the Depositor or the related Mortgage Loan Seller, as the
case may be.
Section 2.03 Representations and Warranties of the Depositor, the
Master Servicer and the Special Servicer; Assignment of Rights.
(a) The Depositor hereby represents and warrants to and covenants
with the Trustee, the Master Servicer and the Special Servicer, as of the
Delivery Date, that:
(i) The Depositor is a corporation duly organized,
validly existing and in good standing under the laws
of the State of Delaware.
(ii) The execution and delivery of this Agreement by the
Depositor, and the performance and compliance with
the terms of this Agreement by the Depositor, will
not violate the Depositor's charter or bylaws or
constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a
default) under, or result in the breach of, any
material agreement or other instrument to which it is
a party or which is applicable to it or any of its
assets.
(iii) The Depositor has the full power and authority to
enter into and consummate all transactions
contemplated by this Agreement, the execution,
delivery and performance of this Agreement by the
Depositor has been duly authorized, and the Depositor
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and delivery by the Trustee, the Master Servicer and
the Special Servicer, constitutes a valid, legal and
binding obligation of the Depositor, enforceable
against the Depositor in accordance with the terms
hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights
generally, and (B) general principles of equity,
regardless of whether such enforcement is considered
in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its
execution and delivery of this Agreement and its
performance and compliance with the terms of this
Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or
any order, regulation or demand of any federal, state
or local governmental or regulatory authority, or any
of the provisions of any indenture, mortgage,
contract, instrument, or other document to which such
Depositor is a party or by which it is bound, or
result in the creation or imposition of any lien,
charge, or encumbrance upon any of its property
pursuant to the terms of any such indenture,
mortgage, contract, instrument, or other document
which violation, in the Depositor's good faith and
reasonable judgment, is likely to affect materially
and adversely either the ability of the Depositor to
perform its obligations under this Agreement or the
financial condition of the Depositor.
(vi) The transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval,
other than any such approvals as have been obtained,
and is not subject to any bulk transfer or similar
law in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the
Depositor's knowledge, threatened against the
Depositor which, if determined adversely to the
Depositor, would prohibit the Depositor from entering
into this Agreement or, in the Depositor's good faith
reasonable judgment, is likely to materially and
adversely affect either the ability of the Depositor
to perform its obligations under this Agreement or
the financial condition of the Depositor.
(viii) At the time of the assignment of the Mortgage Loans
to the Trust Fund hereunder, the Depositor had good
title to and was the sole owner of, each Mortgage
Loan, free and clear of any pledge, lien, encumbrance
or security interest (other than the rights to
servicing and related compensation) and such
assignment validly transfers ownership of the
Mortgage Loans to the Trust Fund free and clear of
any pledge, lien, encumbrance or security interest.
(b) Each of the Master Servicer and the Special Servicer hereby
represents and warrants or covenants to the
Trustee and the Depositor, as of the Delivery Date, that:
(i) Due Organization and Authority.
(A) such Servicer has or shall obtain, or, with
respect to the Canadian Loan, shall cause an affiliate to
obtain, all licenses necessary to carry on its business as
now being conducted and is or will become licensed,
qualified and in good standing in each state or
jurisdiction where a Mortgaged Property is located, if the
laws of such state or jurisdiction require licensing or
qualification in order to conduct business of the type
conducted by such Servicer and if such failure to be
licensed or qualified could have a material and adverse
effect on the ability of the Servicer to perform its
obligations under this Agreement or enforce the Mortgage
Loan Documents; no license, consent, approval,
authorization or order of, or registration or filing with,
or notice to any court or governmental agency or body is
required for the execution, delivery and performance by
such Servicer of or compliance by such Servicer with this
Agreement or the consummation of the transactions of such
Servicer contemplated by this Agreement, or if such
license, consent, approval, authorization or order of or
registration or filing with or notice to any court or
governmental agency or body is required, such Servicer has
obtained the same or will obtain the same prior to the
time necessary for such Servicer to perform its
obligations under this Agreement relative thereto; and in
any event such Servicer is in compliance with the laws of
any such state to the extent necessary to ensure the
enforceability of the servicing of such Mortgage Loan in
accordance with the terms of this Agreement and the
failure to have any such license not yet obtained does not
and will not materially adversely affect the rights of the
Certificateholders hereunder or under the Mortgage Loan
Documents;
(B) such Servicer has the full power, authority and
legal right to execute and deliver this Agreement and to
fully perform its obligations in accordance herewith; the
execution, delivery and performance of this Agreement
(including all instruments to be delivered pursuant to
this Agreement) by such Servicer and the consummation of
the transactions contemplated hereby by such Servicer have
been duly and validly authorized and the Servicer has duly
executed and delivered this Agreement;
(C) this Agreement and all agreements contemplated
hereby to which such Servicer is or will be a party,
assuming the due authorization, execution and delivery by
each of the other parties thereto, evidence the valid,
legal, binding and enforceable obligations of such
Servicer, regardless of whether such enforcement is sought
in a proceeding in equity or at law subject, as to
enforceability, to applicable bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar
laws relating to or affecting the rights and remedies of
creditors and to the effect of general principles of
equity, whether enforcement is considered in a proceeding
in equity or at law; and all requisite corporate action
has been taken by such Servicer to make this Agreement and
all agreements contemplated hereby to which such Servicer
is or will be a party valid and binding upon such Servicer
in accordance with their terms and conditions; and
(D) such Servicer is duly authorized, validly
existing and in good standing as a corporation under the
laws of the State of California, in the case of the Master
Servicer and as a limited liability company under the laws
of the State of Delaware in the case of the Special
Servicer;
(ii) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in
the ordinary course of business of such Servicer;
(iii) Conflicts. Neither the execution and delivery of
this Agreement by such Servicer, the acquisition of
the servicing responsibilities by such Servicer, nor
the transactions of such Servicer contemplated
hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement by such
Servicer, will (a) conflict with or result in a
breach of any of the terms, conditions or provisions
of such Servicer's charter or by-laws or any legal
restriction or, in any material respect, any
agreement or instrument to which such Servicer is now
a party or by which it is bound, or (b) constitute a
default (or an event which, with notice or lapse of
time, or both, would constitute a default) or result
in an acceleration under any of the foregoing, or (c)
result in the violation of, and such Servicer is not
in violation of, any law, rule, regulation, order,
judgment or decree to which such Servicer or its
property is subject, or (d) result in the creation or
imposition of any lien, charge or encumbrance upon
any of its properties pursuant to the terms of any
mortgage, contract, deed of trust or other
instrument, or (e) impair the ability of the Trustee
to realize on the Mortgage Loans, which, in the case
of any of (a), (b), (c) or (d), would have a material
adverse effect upon the financial condition of such
Servicer or its properties taken as a whole or upon
the ability of the Servicer to perform under the
terms and conditions of this Agreement;
(iv) Ability to Service. To the best of such Servicer's
knowledge no event has occurred (including but not
limited to, any change in insurance coverage) which
would make such Servicer unable to comply with
Accepted Master Servicing Practices or Accepted
Special Servicing Practices, as applicable. Such
Servicer has the facilities, procedures, and
experienced personnel necessary for the prudent
servicing of multifamily and commercial mortgage
loans of the same type as the Mortgage Loans;
(v) Servicing Fee. Such Servicer agrees that the
Servicing Fee payable to it with respect to each
Mortgage Loan is reasonable compensation for its
services hereunder;
(vi) Ability to Perform. Such Servicer believes (and there
are no facts or circumstances known to the Servicer
contrary to such belief) that it can perform each and
every covenant made by it in this Agreement;
(vii) Subservicing Agreements. Such Servicer covenants
that the terms of any subservicing agreement entered
into by such Servicer pursuant to Section 3.13 shall
be in all material respects consistent with the terms
of this Agreement; and
(viii) No Litigation. No litigation is pending or, to the
best of such Servicer's knowledge, threatened against
such Servicer, the outcome of which in such
Servicer's good faith and reasonable judgement, would
prohibit such Servicer from entering into this
Agreement or that, in such Servicer's good faith and
reasonable judgment, could reasonably be expected to
materially and adversely affect either the ability of
such Servicer to perform its obligations under this
Agreement or the financial condition of such
Servicer.
(c) The Depositor, as assignee of the Mortgage Loan Sellers under the
Mortgage Loan Purchase Agreements, hereby assigns to the Trustee for the
benefit of the Certificateholders all of its rights, title and interest (but
none of its obligations) under the Mortgage Loan Purchase Agreements,
including the Depositor's right to require the Mortgage Loan Sellers to cure
any material breach of a representation or warranty by a Mortgage Loan Seller
with respect to each Mortgage Loan it sold or repurchase such Mortgage Loan.
(d) It is understood and agreed that the representations and
warranties set forth in this Section 2.03 shall (i) survive the execution and
delivery of this Agreement and (ii) not be diminished by any limitation in any
assignment, endorsement or allonge relating to any Mortgage Loan Document, and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by the
Depositor, the Master Servicer, the Special Servicer or the Trustee of any
breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the other parties,
the Directing Certificateholder and each Rating Agency.
Section 2.04 Repurchase of Mortgage Loans for Breaches of
Representation and Warranty.
(a) Within 90 days of the earlier of, the discovery by the Depositor
of, or receipt by the Depositor of written notice from the Master Servicer,
the Special Servicer, the Trustee or any Certificateholder, specifying in
reasonable detail the existence of a breach of any representation or warranty
of the Depositor set forth in Section 2.03(a), or of a Mortgage Loan Seller
under the related Mortgage Loan Purchase Agreement, assigned to the Trustee
pursuant to Section 2.03(c) for the benefit of the Certificateholders, which
materially and adversely affects the value of any Mortgage Loan, the related
Mortgaged Property or the interest of the Trustee or any Certificateholder
therein, the Depositor shall at its option (i) (A) in all material respects
cure such breach or (B) purchase the affected Mortgage Loan from the Trust
Fund at the Purchase Price or (ii) cause the related Mortgage Loan Seller at
its option (A) in all material respects to cure such breach or (B) to purchase
the affected Mortgage Loan from the Trust Fund at the Purchase Price.
(b) The purchase of any Mortgage Loan by the Depositor or a Mortgage
Loan Seller pursuant to Section 2.04(a) or (e), shall be effected by
delivering the Purchase Price therefor to the Master Servicer for deposit in
the Collection Account. The Trustee, upon receipt of an Officers' Certificate
from the Master Servicer to the effect that such deposit has been made, shall
release or cause to be released to the Depositor, the related Mortgage Loan
Seller or its designee, as applicable, the related Mortgage Loan File and
shall execute and deliver such instruments of transfer or assignment as shall
be provided to it (in recordable form if recording is appropriate), in each
case without recourse, as shall be necessary to vest in the Depositor, the
related Mortgage Loan Seller or its designee, as applicable, any Mortgage Loan
(including with respect to the Canadian Loan, the Foreign Currency Exchange
Contract) released pursuant hereto. In connection with such repurchase, the
Master Servicer, and the Special Servicer, as applicable, shall release to the
Depositor or the related Mortgage Loan Seller all documents and records
maintained by such Servicer and requested by the Depositor or such Mortgage
Loan Seller; provided, that such Servicer may retain copies of such documents
and records at its own expense. The Depositor shall be responsible for the
payment of all reasonable expenses of the Trustee and the Servicers incurred
in connection with such repurchase, including any reasonable expenses expended
to evidence the occurrence of the breach causing such obligation to repurchase
to the extent not covered in the definition of Purchase Price.
(c) It is understood and agreed that the provisions set forth in
Section 2.04(a) of this Agreement shall constitute the sole remedies available
to the Certificateholders, or the Trustee on behalf of the Certificateholders
under this Agreement, respecting any breach of the representations and
warranties contained in Section 2.03(a) of this Agreement or in the Mortgage
Loan Purchase Agreements.
(d) The Depositor shall cause a Mortgage Loan Seller to repurchase
any Cross Collateralized Loan that is cross-collateralized with any Mortgage
Loan repurchased pursuant to this Section 2.04. Notwithstanding the foregoing,
if the related Mortgage Loan Documents provide for the partial release of one
or more of the Cross Collateralized Loans, the Depositor may cause the related
Mortgage Loan Seller to repurchase only that Mortgage Loan required to be
repurchased pursuant to this Section 2.04, pursuant to the partial release
provisions of the related Mortgage Loan Documents; provided, however, that (i)
the remaining Mortgage Loan(s) fully comply with the terms and conditions of
the related Mortgage Loan Documents, this Agreement and the related Mortgage
Loan Purchase Agreement, (ii) in connection with such partial release, the
related Mortgage Loan Seller obtains an Opinion of Counsel (at such Mortgage
Loan Seller's expense) to the effect that the contemplated action will not,
with respect to either REMIC I, REMIC II or REMIC III created hereunder,
endanger such status or, unless such party determines in its sole discretion
to indemnify the Trust Fund against any resultant tax, result in the
imposition of any tax and (iii) in connection with such partial release, the
related Mortgage Loan Seller deliver or cause to be delivered to the Custodian
original modifications to the Mortgage Loan Documents prepared and executed in
connection with such partial release.
(e) The Depositor shall cause the related Mortgage Loan Seller to
repurchase the Mortgage Loan identified in the Mortgage Loan Schedule attached
hereto as Exhibit G as Loan Number 99 pursuant to this Section 2.04 in the
event that the related Mortgagor of such Mortgage Loan exercises its
defeasance right prior to March 29, 2003. The Depositor shall cause any such
repurchase to be completed at the Purchase Price and prior to the completion
of any such defeasance.
(f) Without limiting the Trustee's duties under this Section 2.04 the
Trustee hereby irrevocably designates the Master Servicer (in the case of
Mortgage Loans that are not Specially Serviced Mortgage Loans) and the Special
Servicer (in the case of Specially Serviced Mortgage Loans), for the benefit
of Certificateholders to enforce (at their respective options after notifying
the Trustee) any of the obligations of each Mortgage Loan Seller under Section
6 of the related Mortgage Loan Purchase Agreement. Such enforcement including,
without limitation, the legal prosecution of claims, shall be carried out in
such form, to such extent and at such time as the Master Servicer or the
Special Servicer, as applicable, shall determine are in the best interests of
the Certificateholders (taken as a collective whole). All out-of-pocket
expenses incurred by the Special Servicer in carrying out its obligations
pursuant to this Section 2.04(e) shall be a Servicing Advance.
Section 2.05 Execution of Certificates.
The Trustee acknowledges the assignment to it of the Mortgage Loans
and the Mortgage Loan Purchase Agreements to the extent set forth herein and,
concurrently with such assignment, has, at the direction of the Depositor,
executed and caused the Certificate Registrar to authenticate and deliver to
or upon the order of the Depositor, in exchange for the Mortgage Loans,
Certificates in authorized denominations evidencing beneficial ownership of
the entire Trust Fund.
ARTICLE III
GENERAL SERVICING AND ADMINISTRATION
Section 3.01 Access to Certain Documentation Regarding the Mortgage
Loans and This Agreement.
Upon reasonable advance written notice, each Servicer shall give the
Trustee, the other Servicer, the Rating Agencies, the Depositor, the Directing
Certificateholder and such Person's agents or representatives, during normal
business hours at such Servicer's offices, reasonable access to all reports,
information and documentation relating to any Mortgage Loan, REO Property,
this Agreement, and the rights and obligations of the Certificateholders and
any of the Servicers hereunder (including the right to make copies or extracts
therefrom at their expense, except as to the Rating Agencies) and access to
officers of such Servicer responsible for such obligations; provided, however,
that each Servicer shall have no obligation to disclose or provide access to
any computer programs or procedures manuals which are proprietary to such
Servicer or access to which is limited by licensing agreements. In addition,
with respect to this or any other provision of this Agreement which requires a
Servicer to transmit documents, information or reports to any Person, the
Servicer shall be entitled to include in its transmittal letter or other data
transmission format a statement that the enclosed information should not be
disseminated or otherwise used in any manner contrary to any federal or state
laws.
Section 3.02 Annual Statement As to Compliance.
Each Servicer shall deliver to the Depositor and the Trustee, in the
case of the Master Servicer, on or before April 30 of each year and in the
case of the Special Servicer, on or before June 30 of each year, beginning
after the first anniversary of the Delivery Date, a statement, signed by a
Servicing Officer thereof, stating that (a) a review of the activities of such
Servicer during the preceding calendar year (or during the period from the
date of commencement of its duties hereunder until the end of such preceding
calendar year in the case of the first such certificate) and of its
performance under this Agreement has been made under such Servicing Officer's
supervision; and (b) to the best of such Servicing Officer's knowledge, based
on such review, such Servicer has fulfilled all of its material obligations
under this Agreement throughout such period, or if there has been a default in
the fulfillment of any such obligation, specifying each such default known to
such Servicing Officer and the nature and status thereof.
Section 3.03 Annual Independent Public Accountants' Servicing Report.
(a) On or before April 30 of each year, beginning in 2002, the Master
Servicer at its expense shall cause a firm of independent public accountants
(which may also render other services to the Master Servicer) and that is a
member of the American Institute of Certified Public Accountants to furnish a
statement to the Trustee and to the Depositor to the effect that (i) it has
obtained a letter of representation regarding certain matters from the
management of the Master Servicer, which includes an assertion that the Master
Servicer has complied with certain minimum mortgage loan servicing standards
(to the extent applicable to commercial and multifamily mortgage loans),
identified in the Uniform Single Attestation Program for Mortgage Bankers
established by the Mortgage Bankers Association of America, with respect to
the servicing of commercial and multifamily mortgage loans during the most
recently completed calendar year and (ii) on the basis of an examination
conducted by such firm in accordance with standards established by the
American Institute of Certified Public Accountants, such representation is
fairly stated in all material respects, subject to such exceptions and other
qualifications that may be appropriate. In rendering its report such firm may
rely, as to matters relating to the direct servicing of commercial and
multifamily mortgage loans by sub-servicers, upon comparable reports of firms
of independent certified public accountants rendered on the basis of
examinations conducted in accordance with the same standards (rendered within
one year of such report) with respect to those sub-servicers.
The Special Servicer will deliver an annual accountants' report only
if, and in such form as may be, requested by the Rating Agencies or if the
Special Servicer and the Master Servicer are not the same Person. In either
case, such report shall be furnished on or before June 30 of each year that
such report is requested or required, as applicable.
(b) Notwithstanding anything contained in this Section 3.03 to the
contrary, the Master Servicer shall be required to furnish or cause to be
furnished to the Trustee and the Depositor the report described in clause (a)
above by March 15 of any year that the Master Servicer has received written
confirmation from the Depositor on or before January 31 of that year that a
report on Form 10-K is required to be filed with the Securities and Exchange
Commission in respect of the preceding calendar year.
Section 3.04 Merger or Consolidation of Any Servicer.
(a) Each Servicer shall keep in full force and effect its existence,
rights and franchises as a limited liability company, a limited partnership,
an association or corporation under the laws of the state of its organization
except as permitted in this Section 3.04 and shall obtain and preserve its
qualification to do business in each jurisdiction in which such qualification
is or shall be necessary to protect the validity and enforceability of this
Agreement or any of the Mortgage Loans and to perform its duties under this
Agreement.
(b) Any Person into which a Servicer may be merged, converted, or
consolidated, or any Person resulting from any merger, conversion or
consolidation to which a Servicer shall be a party, or any Person succeeding
to all or substantially all of the business of a Servicer, shall be the
successor of such Servicer hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that the successor
or surviving Person shall be an entity whose business includes the servicing
of commercial mortgage loans, shall service multifamily and/or commercial
mortgage loans, as applicable, in accordance with Accepted Master Servicing
Practices or Accepted Special Servicing Practices, as applicable, and shall
satisfy the requirements of Section 3.10(d) hereof with respect to the
qualifications of a successor to a Servicer.
Section 3.05 Limitation on Liability of the Servicers and Others.
(a) Neither the Servicers nor any of the members, managers,
directors, officers, employees or agents thereof nor any general partner
thereof shall be under any liability for any action taken or for refraining
from taking any action in accordance with Accepted Master Servicing Practices
or Accepted Special Servicing Practices, as applicable, in good faith pursuant
to this Agreement or for errors in judgment (not constituting negligence or
willful misconduct); provided, however, that this provision shall not protect
any Servicer or agents of such Servicer against any liability resulting from
any breach of any representation or warranty made herein, or from any
liability specifically imposed on such Servicer herein; and provided, further,
that this provision shall not protect any Servicer or agents of such Servicer
against any liability that would otherwise be imposed by reason of the willful
misfeasance, bad faith or negligence in the performance of duties or by reason
of reckless disregard of the obligations or duties hereunder. Each Servicer
and any member, manager, director, officer, employee or agent thereof may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any other Servicer, the Depositor, the Trustee or the Custodian
respecting any matters arising hereunder. No Servicer shall be under any
obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement; provided, however, that any Servicer may undertake any such action
that it may deem necessary or desirable in respect to this Agreement and any
Mortgage Loan and the rights and duties of the parties hereto or the interest
of the Certificateholders. In such event, the reasonable legal expenses and
costs of such action and any liability resulting therefrom shall be expenses,
costs and liabilities of the Trust Fund, and such Servicer shall be entitled
to be reimbursed therefor from the Trust Fund upon written demand.
(b) Notwithstanding anything to the contrary contained herein,
neither the Master Servicer nor any of its members, managers, directors,
officers, employees, agents or general partners shall be under any liability
for any decision to take or not take any action, in either case, (i) if such
action or inaction required the Special Servicer's consent or direction
pursuant to this Agreement and (ii) the Master Servicer in taking or failing
to take such action acted in accordance with the Special Servicer's consent or
direction; provided the Master Servicer has delivered its recommendation and
analysis together with all related information provided to or gathered by it
to the Special Servicer in connection with soliciting the Special Servicer's
consent and such recommendation and analysis of the Master Servicer was
prepared in accordance with Accepted Master Servicing Practices. In addition,
neither the Special Servicer nor any of its members, managers, directors,
officers, employees, agents or general partners shall be under any liability
for its decision to give or not give its consent to any action or inaction
requiring such consent, or for giving any direction to the Master Servicer, so
long as in making such decision or in giving such direction the Special
Servicer acted in accordance with Accepted Special Servicing Practices.
Section 3.06 Resignation of Servicers.
(a) Except as set forth in this Section 3.06, neither the Master
Servicer nor the Special Servicer shall resign as such or delegate (except
that this provision shall not preclude the hiring by a Servicer of a third
party to perform property inspections, without diminution of the obligation or
liability of the related Servicer under this Agreement) its rights or duties
hereunder or any portion thereof except upon the determination that its duties
hereunder are no longer permissible under applicable law or are in material
conflict by reason of applicable law with any other activities carried on by
it (the other activities of the Master Servicer or the Special Servicer, as
the case may be, so causing such a conflict being of a type and nature carried
on by the Master Servicer or the Special Servicer, as the case may be, at the
date of this Agreement) and such incapacity cannot be cured by such Servicer.
Any determination pursuant to the immediately preceding sentence permitting
the resignation of a Servicer shall be evidenced by an Opinion of Counsel to
such effect delivered to the Trustee. Notwithstanding the foregoing, the
Master Servicer may resign subject to the requirements set forth below in this
Section 3.06; provided that unless applicable law requires the Master
Servicer's or the Special Servicer's, as the case may be, resignation to be
effective immediately, and the Opinion of Counsel delivered pursuant to the
preceding sentence so states, no such resignation shall become effective until
a successor shall have assumed such Servicer's responsibilities and
obligations hereunder in the manner provided in Section 3.10 hereof. Any such
successor Servicer must be an established mortgage loan servicing institution
which meets the eligibility requirements for a successor Servicer pursuant to
Section 3.10. All costs associated with such resignation shall be borne by the
resigning Servicer and shall not be an expense of the Trust Fund. If no
successor Servicer shall have been appointed and have accepted appointment
pursuant to this Section 3.06 within 60 days after the Master Servicer or the
Special Servicer, as the case may be, has given notice of such resignation and
the Trustee shall have failed to succeed to and assume such Servicer's
responsibilities or appoint a successor servicer pursuant to Section 3.10, the
resigning Master Servicer or Special Servicer, as applicable, may petition any
court of competent jurisdiction for the appointment of a successor Servicer.
(b) In addition, the Master Servicer and the Special Servicer shall
each have the right to resign at any other time, provided that (i) a willing
successor thereto (including any such successor proposed by the resigning
party) reasonably acceptable to the Depositor and the Trustee has been found,
(ii) each Rating Agency confirms to the Trustee in writing that the
successor's appointment will not result in a downgrading, qualification (if
applicable) or withdrawal of the ratings then assigned to the Certificates,
(iii) the resigning party pays all costs and expenses in connection with such
transfer, and (iv) the successor Servicer accepts its appointment prior to the
effectiveness of such resignation.
Section 3.07 Maintenance of Errors and Omissions and Fidelity Coverage.
(a) Each Servicer shall obtain and maintain at its own expense, and
keep in full force and effect throughout the term of this Agreement, a blanket
fidelity bond and an errors and omissions insurance policy issued by a
Qualified Insurer covering such Servicer's officers and employees in
connection with its activities under this Agreement. The Trustee shall be
designated as an additional insured under such policy. The amount of coverage
shall be determined in accordance with Accepted Master Servicing Practices and
Accepted Special Servicing Practices and be at least equal to the coverage
that would be required by the Federal National Mortgage Association (FNMA) or
the Federal Home Loan Mortgage Corporation (FHLMC), whichever is greater, with
respect to the Master Servicer or Special Servicer, as the case may be, if the
Master Servicer or Special Servicer, as the case may be, were servicing and
administering the Mortgage Loans and/or REO Properties for which it is
responsible hereunder for FNMA or FHLMC. Coverage of the Master Servicer or
the Special Servicer under a policy or bond obtained by an Affiliate of such
Person and providing the coverage required by this Section 3.07(a) shall
satisfy the requirements of this Section 3.07(a).
All insurance coverage required to be maintained by the Master
Servicer or Special Servicer, as applicable, under this Section 3.07 shall be
obtained from Qualified Insurers.
In the event that any such bond or policy ceases to be in effect,
such Servicer shall immediately obtain a comparable replacement bond or
policy. Notwithstanding the foregoing, so long as the long term unsecured debt
obligations of such Servicer have the Required Rating for long term
investments on Eligible Accounts, such Servicer shall be entitled to provide
self-insurance or obtain from its parent adequate insurance, as applicable,
with respect to its obligation to maintain a blanket fidelity bond or an
errors and omissions insurance policy.
(b) From time to time, upon the request of the Trustee, each Servicer
shall furnish the Trustee copies of all binders or certificates evidencing
that the bond and policy described in clause (a) above are in full force and
effect. Each Servicer shall promptly report in writing to the Trustee and each
other Servicer any change in such coverage resulting in a failure to satisfy
the requirements of clause (a) above and all cases of embezzlement or fraud or
irregularities of operation if such events involve such Servicer and funds
relating to the Mortgage Loans. The total losses, regardless of whether claims
are filed with the applicable insurer or surety, shall be disclosed in such
reports together with the amount of such losses covered by insurance. If a
bond or insurance claim report is filed with any of such Servicer's bonding
companies or insurers, a copy of such report (which report may omit any
references to individuals suspected of embezzlement, fraud or irregularities
of operation) shall be promptly furnished to the Trustee and each other
Servicer.
Section 3.08 Indemnity.
(a) Subject to Section 3.05, each Servicer shall indemnify the
Depositor, the other Servicer (and each of their respective directors,
members, managers, officers, employees and agents) and the Trust Fund against
any and all costs, expenses, losses, damages, claims and liabilities,
including reasonable fees and expenses of counsel and expenses of litigation,
arising from claims or actions that were caused by or resulted from a breach
of any of such Servicer's representations and warranties contained in this
Agreement, the failure of such Servicer to perform its duties and to service
the Mortgage Loans in accordance with the terms of this Agreement or actions
taken by such Servicer pursuant to a power of attorney granted in accordance
with Section 4.01(b) or arising out of the Servicer's willful misfeasance, bad
faith or negligence.
(b) Each Servicer and its respective officers, directors, members,
managers, employees, general partner and agents shall be entitled to
indemnification from the Trust Fund for any and all costs, expenses, losses,
damages, claims and liabilities, including reasonable fees and expenses of
counsel and expenses of litigation, incurred in connection with any claim or
legal action relating to any Mortgage Loan, any asset of the Trust Fund or
this Agreement, other than any cost, expense, loss, damage, claim or liability
incurred by reason of willful misfeasance, bad faith or negligence of such
Servicer in the performance of its duties hereunder or by reason of reckless
disregard of obligations or duties of such Servicer hereunder.
(c) As soon as reasonably practicable after receipt by the Depositor
or any Servicer of a notice of any complaint or the commencement of any action
or proceeding with respect to which indemnification is being sought under
clause (a) or (b) above (each, an "Indemnified Party"), such Indemnified Party
shall notify each Servicer from which indemnification is sought pursuant to
clause (a) above and the Trustee if indemnification is sought from the Trust
Fund (each of the Servicers and the Trust Fund, an "Indemnifying Party") in
writing of such complaint or of the commencement of such action or proceeding,
but failure so to notify the Indemnifying Party shall not relieve the
Indemnifying Party from any liability which the Indemnifying Party may have
hereunder or otherwise, except to the extent that such failure materially
prejudices the rights of the Indemnifying Party. If the Indemnifying Party so
elects or is requested by such Indemnified Party, the Indemnifying Party shall
assume the defense of such action or proceeding, including the employment of
counsel reasonably satisfactory to each Indemnified Party and the payment of
reasonable fees and disbursements of such counsel. In the event, however, such
Indemnified Party reasonably determines in its judgment that having common
counsel would present such counsel with a conflict of interest or that having
common counsel would in any other way disadvantage such Indemnified Party or
if the Indemnifying Party fails to assume the defense of the action or
proceeding in a timely manner, then such Indemnified Party may employ separate
counsel to represent or defend it in any such action or proceeding and the
Indemnifying Party shall pay reasonable fees and disbursements of such
counsel; provided, however, that the Indemnifying Party shall not be required
to pay the fees and disbursements of more than one separate counsel for all
Indemnified Parties in any jurisdiction in any single action or proceeding. In
any action or proceeding the defense of which the Indemnifying Party assumes
and in which an Indemnified Party is not entitled to separate counsel pursuant
to the immediately preceding sentence, such Indemnified Party shall have the
right to participate in such litigation and to retain its own counsel at such
Indemnified Party's expense. The Indemnifying Party shall not, without the
prior consent of each Indemnified Party, settle or compromise or consent to
the entry of any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder
(whether or not the Indemnified Party is an actual or potential party to such
claim, action, suit or proceeding) unless such settlement, compromise or
consent includes an unconditional release of each Indemnified Party from all
liability arising out of such claim, action, suit or proceeding.
Section 3.09 Information Systems.
Each Servicer shall maintain a data storage and retrieval system
capable of maintaining, updating and providing reports with respect to all
relevant information with respect to each Mortgage Loan that may be required
to satisfy the terms of this Agreement. Each Servicer shall update the data on
such system to reflect any information available thereto from time to time.
Section 3.10 Successor to a Servicer.
(a) Within thirty (30) days or another period agreed to by the
Trustee in writing (not to exceed sixty (60) days) after the termination of
any Servicer's responsibilities and duties pursuant to the first two sentences
of Section 3.06 or pursuant to Section 10.01 hereof, the Trustee shall either
(i) succeed (as of the date of such succession) to and assume all of such
Servicer's responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor that shall succeed (as of the date of
such succession) to all rights and assume all of the responsibilities and
duties of such Servicer under this Agreement. In connection with such
appointment and assumption, the Trustee shall be entitled to all the same
compensation as to which such Servicer may be entitled hereunder, and may make
such arrangements for the compensation of such successor therefrom as it and
such successor shall agree; provided, however, that the fees of the successor
Servicer with respect to the Mortgage Loans shall not be higher than the fees
of the predecessor Servicer. In the event that any Servicer's duties and
responsibilities under this Agreement are terminated pursuant to the
aforementioned Sections, such Servicer shall discharge such duties and
responsibilities during the period from the date it acquires knowledge of such
termination until the effective date thereof (if such dates are not the same)
in accordance with Accepted Master Servicing Practices or Accepted Special
Servicing Practices, as applicable, and shall take no action whatsoever that
might impair or prejudice the rights or financial condition of its successor,
any other Servicer or the Trustee. The termination of a Servicer's
responsibilities and duties under this Agreement pursuant to the
aforementioned Sections (or portions thereof) shall not become effective until
a successor shall be appointed pursuant to this Section 3.10 (or until the
Trustee succeeds to and assumes all of such Servicer's responsibilities under
this Agreement) and shall in no event relieve such Servicer of the covenants,
representations and warranties made herein and the remedies available to the
Trustee under this Agreement. The provisions of Sections 3.05 and 3.08 hereof
shall be applicable to each Servicer, to the extent of claims against the
Servicer arising out of the Servicer's actions or failure to act prior to
termination, notwithstanding any termination of such Servicer's
responsibilities and duties under this Agreement or the termination of this
Agreement. A successor Servicer shall not, by reason of its appointment or
assumption of the duties and responsibilities of another Servicer, assume any
of the liabilities of such Servicer. All costs incurred in connection with the
resignation by a Servicer or termination of a Servicer pursuant to an Event of
Default shall be paid by the predecessor Servicer upon presentation of
reasonable documentation of such costs. If such predecessor Servicer defaults
in its obligation to pay such costs, such costs shall be paid by the successor
Servicer (in which case, the successor Servicer shall be entitled to
reimbursement therefor from the assets of the Trust Fund). The predecessor
Servicer shall remain liable to the Trust Fund for such costs.
(b) Any successor appointed as provided herein shall execute,
acknowledge and deliver to each Servicer and the Trustee, an instrument
accepting such appointment, whereupon such successor shall become fully vested
with all the rights, powers, duties, responsibilities and obligations of the
Servicer it is succeeding, with like effect as if originally named as a party
to this Agreement. Any resignation or termination of a Servicer pursuant to
Section 3.06, Section 6.16, Section 10.01 or Section 12.01 hereof shall not
affect any rights or claims that the Trustee or any Servicer may have against
the Trust Fund, Trustee or another Servicer, in any case arising prior to any
such termination or resignation.
(c) Upon its termination or resignation, the terminated or resigning
Servicer shall immediately deliver to the successor the funds in any account
maintained by such Servicer pursuant to this Agreement (net of all unpaid
Servicing Fees and any additional compensation payable to it pursuant to this
Agreement, unreimbursed Advances advanced by it and interest on such Advances
at the Advance Rate), any Mortgage Loan Documents in such Servicer's
possession and related documents and statements held by it hereunder and such
Servicer shall account for all funds. Such Servicer shall execute and deliver
such instruments and do all such other things as may reasonably be required to
more fully and definitely vest and confirm in the successor all such rights,
powers, duties, responsibilities, obligations and liabilities of such
Servicer. The successor shall promptly make arrangements to reimburse such
Servicer for amounts such Servicer actually expended, unreimbursed Advances
and amounts owed to such Servicer in respect of unpaid Servicing Fees and any
additional compensation pursuant to this Agreement that would otherwise have
been recovered by such Servicer pursuant to this Agreement but for the
appointment of the successor servicer, net of any amounts owed by such
Servicer hereunder.
(d) Notwithstanding anything contained herein, a successor Servicer
shall be an established housing and home finance institution or mortgage
servicing institution (x) which is in the business of servicing commercial
mortgage loans similar to the Mortgage Loans and is qualified to service
multifamily loans on behalf of the Federal National Mortgage Association
(FNMA) or the Federal Home Loan Mortgage Corporation (FHLMC) and (y) as to
which each Rating Agency has given written confirmation stating that if the
designated replacement (including the Trustee) were to serve as successor
Servicer, none of the then-current rating or ratings of all outstanding
Classes of the Certificates would be qualified (if applicable), downgraded or
withdrawn as a result thereof.
(e) 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 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
subclause (B), (i) the Master Servicer gives the Depositor, the Special
Servicer 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; (iii)
each Rating Agency confirms in writing that such assignment and delegation
will not result in the qualification (if applicable), downgrade or withdrawal
of its then-current ratings of the Certificates; and (iv) the Depositor
consents to such assignment and delegation, such consent not to 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. In the case of any such assignment and delegation in accordance with
the requirements of subclause (A) of this Section, the Master Servicer shall
not be released from its obligations under this Agreement. Notwithstanding the
above, the Master Servicer may appoint sub-Servicers in accordance with
Section 3.13 hereof.
Section 3.11 REMIC Administration and Other Tax Matters.
(a) The Trustee shall make an election to treat each of REMIC I,
REMIC II and REMIC III as a REMIC under the Code and if necessary, under State
Tax Laws. Each such election will be made on Form 1066 or other appropriate
federal tax or information return (including Form 8811) or any appropriate
state return for the taxable year ending on the last day of the calendar year
in which the Certificates are issued. For the purposes of the REMIC I election
in respect of the Trust Fund, the REMIC I Uncertificated Interests shall be
designated as the "regular interests" and the Class R-I Certificates shall be
designated as the sole class of "residual interest" in REMIC I. For the
purposes of the REMIC II election in respect of the Trust Fund, the REMIC II
Uncertificated Interests shall be designated as the "regular interests" and
the Class R-II Certificates shall be designated as the sole class of "residual
interest" in REMIC II. For the purposes of the REMIC III election in respect
of the Trust Fund, the Class A1, Class A2, Class A3, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M and
Class NR Certificates and the Class X Components shall be designated as the
"regular interests" and the Class R-III Certificates shall be designated as
the sole class of "residual interest" in REMIC III. To the extent the affairs
of the Trust Fund are within their control, the Master Servicer and the
Trustee shall not permit the creation of any "interests" (within the meaning
of Section 860G of the Code) in REMIC I, REMIC II or REMIC III other than the
REMIC I Uncertificated Interests, the REMIC II Uncertificated Interests and
the Certificates.
(b) The Delivery Date is hereby designated as the "Startup Day" of
the REMIC within the meaning of Section 860G(a)(9) of the Code.
(c) The Holder of the Class R-I Certificate is hereby designated, and
by the acceptance of the Class R-I Certificate agrees to act, as Tax Matters
Person for REMIC I. The Holder of the Class R-II Certificate is hereby
designated, and by the acceptance of the Class R-II Certificate agrees to act,
as Tax Matters Person for REMIC II. The Holder of the R-III Certificate is
hereby designated, and by acceptance of the Class R-III Certificate, agrees to
act, as Tax Matters Person for REMIC III.
(d) Each Tax Matters Person hereby irrevocably authorizes the Trustee
to be its attorney-in-fact for purposes of signing all Tax Returns. This grant
of power of attorney is coupled with an interest and is therefore properly
irrevocable.
(e) The Trustee shall prepare or cause to be prepared all of the Tax
Returns that it reasonably determines are required with respect to REMIC I,
REMIC II or REMIC III created hereunder and shall sign and file such Tax
Returns in a timely manner. The ordinary expenses of preparing such returns
shall be borne by the Trustee without any right of reimbursement therefor.
(f) The Trustee shall provide (i) to any Transferor of a Class R-I,
Class R-II or Class R-III Certificate such information as is necessary for the
application of any tax relating to the transfer of a Class R-I, Class R-II and
Class R-III Certificate to any Person who is not a Permitted Transferee, (ii)
to the Certificateholders such information or reports as are required by the
Code, the REMIC Provisions or State Tax Laws including reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption) and (iii) to the Internal Revenue Service the name,
title, address and telephone number of the person who will serve as the
representative of each of REMIC I, REMIC II and REMIC III.
(g) The Trustee shall take such actions and shall cause each of REMIC
I, REMIC II and REMIC III created hereunder to take such actions as are
reasonably within the Trustee's control and the scope of its duties more
specifically set forth herein as shall be necessary to maintain the status
thereof as REMICs under the REMIC Provisions (and the Master Servicer shall
assist the Trustee, to the extent reasonably requested by the Trustee to do
so). None of the Master Servicer, the Special Servicer or the Trustee shall
knowingly or intentionally take any action, cause either of REMIC I, REMIC II
or REMIC III to take any action or fail to take (or fail to cause to be taken)
any action reasonably within its control and the scope of duties more
specifically set forth herein, that, under the REMIC Provisions, if taken or
not taken, as the case may be, could (i) endanger the status of either REMIC
I, REMIC II or REMIC III as a REMIC or (ii) subject to Section 6.04, result in
the imposition of a tax under the REMIC Provisions upon either REMIC I, REMIC
II or REMIC III (including but not limited to the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code) (either
such event, an "Adverse REMIC Event") unless such party receives an Opinion of
Counsel (at the expense of the party seeking to take such action or, if such
party fails to pay such expense, and such party determines that taking such
action is in the best interest of the Trust Fund and the Certificateholders,
at the expense of the Trust Fund, but in no event at the expense of such
party) to the effect that the contemplated action will not, with respect to
either REMIC I, REMIC II or REMIC III created hereunder, endanger such status
or, unless such party determines in its sole discretion to indemnify the Trust
Fund against such tax, result in the imposition of such a tax.
(h) In the event that any tax is imposed on "prohibited transactions"
of REMIC I, REMIC II or REMIC III created hereunder as defined in Section
860F(a)(2) of the Code, on "net income from foreclosure property" of REMIC I,
REMIC II or REMIC III as defined in Section 860G(c) of the Code, or any other
tax is imposed by the Code or any applicable provisions of state or local tax
laws, such tax shall be charged (i) to a Servicer, if such tax arises out of
or results from a breach by such Servicer of any of its obligations under this
Agreement, (ii) to the Trustee, if such tax arises out of or results from a
breach by the Trustee of any of its obligations under this Agreement (iii)
otherwise, against amounts on deposit in the Certificate Account and on the
Distribution Date(s) following such reimbursement the aggregate of such taxes
shall be allocated in reduction of the Interest Distribution Amount on each
Class entitled thereto in the same manner as if such taxes constituted a
Prepayment Interest Shortfall.
(i) The Trustee shall, for federal income tax purposes, maintain
books and records with respect to REMIC I, REMIC II and REMIC III on a
calendar year and on an accrual basis or as otherwise may be required by the
REMIC Provisions.
(j) Following the Startup Day, neither any Servicer nor the Trustee
shall accept any contributions of assets to REMIC I, REMIC II or REMIC III
unless the Master Servicer and the Trustee shall have received an Opinion of
Counsel (at the expense of the party seeking to make such contribution) to the
effect that the inclusion of such assets in REMIC I, REMIC II or REMIC III
will not cause any of REMIC I, REMIC II or REMIC III to fail to qualify as
REMICs at any time that any Certificates are outstanding or subject any of
REMIC I, REMIC II or REMIC III to any tax under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(k) Neither the Master Servicer, the Special Servicer nor the Trustee
shall enter into any arrangement by which REMIC I, REMIC II or REMIC III will
receive a fee or other compensation for services nor, to the extent reasonably
within their control, permit either such REMIC to receive an income from
assets other than "qualified mortgages" as defined in Section 860G(a)(3) of
the Code or "permitted investments" as defined in Section 860G(a)(5) of the
Code.
(l) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury regulations, the "latest possible maturity date" by which the Class
Balance of each Class of Certificates representing a regular interest in REMIC
III and the Uncertificated Class would be reduced to zero is the Distribution
Date in March, 2034, which is the first Distribution Date following the second
anniversary of the date on which the Stated Principal Balance of all the
Mortgage Loans would be zero, assuming no prepayments and that the Balloon
Mortgage Loans fully amortize according to their amortization schedule and no
Balloon Payment is made.
(m) Within 30 days after the Delivery Date, the Trustee shall prepare
and file with the Internal Revenue Service Form 8811, "Information Return for
Real Estate Mortgage Investment Conduits (REMIC) and Issuers of Collateralized
Debt Obligations" for REMIC I, REMIC II and REMIC III.
(n) None of the Trustee, the Master Servicer or the Special Servicer
shall sell or dispose of any of the Mortgage Loans (except in connection with
(i) the default, imminent default or foreclosure of a Mortgage Loan, including
but not limited to, the acquisition or sale of a Mortgage Property acquired by
deed in lieu of foreclosure, (ii) the bankruptcy of REMIC I, REMIC II and
REMIC III, (iii) the termination of REMIC I, REMIC II and REMIC III pursuant
to Article XII of this Agreement or (iv) a purchase of Mortgage Loans pursuant
to Article II of this agreement), nor acquire any assets for REMIC I, REMIC II
and REMIC III, nor sell or dispose of any investments in the Collection
Account for gain, nor accept any contributions to REMIC I, REMIC II and REMIC
III after the Delivery Date, in each case unless it has received an Opinion of
Counsel that such sale or disposition will not affect adversely the status of
REMIC I, REMIC II and REMIC III as REMICs.
(o) The Depositor shall provide or cause to be provided to the
Trustee, within ten (10) days after the Delivery Date, and thereafter on an
ongoing basis, all information or data requested by the Trustee that the
Trustee reasonably determines to be relevant for tax purposes as to the
valuations and issue prices of the Certificates, including without limitation,
the price, yield, original issue discount, market discount or premium,
Prepayment Assumption and projected cash flow (based upon the Prepayment
Assumption) of the Certificates. In addition, the Master Servicer, the Special
Servicer and the Depositor shall provide on a timely basis to the Trustee or
its designee such information with respect to the Trust Fund as is in its
possession and reasonably requested by the Trustee to enable it to perform its
obligations under this Article. The Trustee shall be entitled to rely
conclusively upon all such information so provided to it without recalculation
or other investigation.
(p) The Trustee shall be entitled to the reimbursement of its
reasonable expenses incurred in the performance of its duties under this
Section 3.11 as may be agreed upon by the Trustee and the Depositor, provided
that the Trustee shall pay out of its own funds, without any right of
reimbursement, any and all ordinary expenses of the Trust Fund incurred in the
performance of its duties under this Article but shall be reimbursed, except
as otherwise expressly provided for herein by the Trust Fund for any of its
extraordinary expenses, including any taxes or tax-related payments, any
expenses involved in any tax examination, audit or proceeding, and the expense
of any tax-related Opinion of Counsel or other professional advice requested
by the Trustee for the benefit or protection of the Certificateholders.
(q) The Trust shall treat the rights of the Class NR Certificates, in
the portion of the Trust Fund consisting of Excess Interest collected on ARD
Loans, as the beneficial interest in a grantor trust and not as an interest in
or an obligation of REMIC I, REMIC II or REMIC III for federal income tax
purposes.
(r) At the direction of the Depositor, the Trustee hereby identifies
the hedging transactions set forth in the Foreign Currency Exchange Contract
as qualified hedging transactions in accordance with the identification
requirements of Treas. Reg. ss. 1.988-5(a)(8) and agrees to treat such hedging
transactions and the Canadian Loan they hedge as being synthetic U.S. dollar
debt instruments with respect to the REMIC for United States federal income
tax purposes as provided in Treas. Reg ss. 1.988-5. The qualifying debt
instrument and hedging transactions were entered into on the Delivery Date and
that date is hereby identified as the effective date for each of the qualified
debt instrument and hedging transactions. The qualifying debt instrument and
hedging transactions are described in the foreign Currency Exchange Contract
and a summary of the U.S.$ cash flows from the debt instrument and hedging
transactions is provided in Exhibit P.
Section 3.12 Notices to Mortgagors.
The Master Servicer shall, within ten (10) Business Days of the
Delivery Date for any Mortgage Loan, send by first class mail or by hand
delivery written notice to the related Mortgagor that the Master Servicer has
been engaged to service such Mortgage Loan, which notice shall direct such
Mortgagor to make further payments and to send all future notices with respect
to such Mortgage Loan directly to the Master Servicer. Notwithstanding the
foregoing, the Master Servicer shall not be required to send such notice with
respect to any given Mortgage Loan if the Master Servicer was the servicer of
such Mortgage Loan prior to the Delivery Date or if the Mortgage Loans shall
be subserviced pursuant to Section 3.13 by a subservicer which was the
servicer of such Mortgage Loan prior to the Delivery Date, and there is no
change in where the Mortgagor is required to send payments under the Mortgage
Loan.
Section 3.13 Subservicing.
The Master Servicer may enter into subservicing agreements with one
or more subservicers (including subsidiaries or affiliates of the Master
Servicer or the Depositor) for the servicing and administration of the
Mortgage Loans. The Special Servicer may enter into subservicing agreements
with one or more subservicers (including subsidiaries or affiliates of the
Special Servicer or the Depositor) for the servicing and administration of the
Mortgage Loans; provided, however, that after the Delivery Date, the Special
Servicer shall not enter into a subservicing agreement with a new subservicer
without the Directing Certificateholder's prior written consent and unless
either (a) Fitch shall have confirmed in writing to the Trustee that such
contract will not result in a qualification, downgrade or withdrawal of the
then current ratings on the Certificates or (b) such contract relates to the
Canadian Loan or (c) such contract relates to less than 25% of the Mortgage
Loans by outstanding principal balance, calculated as of the most recent
Distribution Date. References in this Agreement to actions taken or to be
taken by the Master Servicer or the Special Servicer in servicing the Mortgage
Loans include actions taken or to be taken by a subservicer on behalf of such
Master Servicer or Special Servicer.
Notwithstanding any subservicing agreement, any of the provisions of
this Agreement relating to agreements or arrangements between either Servicer
and a subservicer or reference to actions taken through such Persons or
otherwise, such Servicer shall remain obligated and liable to the Trustee and
Certificateholders for the servicing and administering of the Mortgage Loans
in accordance with the provisions of this Agreement without diminution of such
obligation or liability by virtue of such subservicing agreements or
arrangements, or by virtue of indemnification from a subservicer, and to the
same extent and under the same terms and conditions as if such Servicer alone
were servicing and administering the Mortgage Loans and such Servicer shall
pay the fees for any subservicer from its own funds. Each Servicer shall be
entitled to enter into any agreement with a subservicer for indemnification of
such Servicer and nothing contained in this Agreement shall be deemed to limit
or modify such indemnification.
Any subservicing agreement that may be entered into and any other
transactions or servicing arrangements relating to the Mortgage Loans
involving a subservicer shall be deemed to be between the subservicer and the
related Servicer, and none of the Trustee, the Certificateholders nor the
Depositor shall be deemed parties thereto and none of such Persons shall have
claims or rights (except as specified below), nor obligations, duties or
liabilities with respect to the subservicer; provided that the Trustee and the
Certificateholders may rely upon the representations and warranties of the
subservicer contained therein and each of the Trustee and the Depositor shall
be a third party beneficiary of the covenants and other provisions setting
forth obligations of the subservicer therein.
If the Trustee or any successor Servicer assumes the obligations of
the Master Servicer or the Special Servicer, as applicable, in accordance with
this Agreement, the Trustee or such successor Servicer may, at its option, (i)
terminate any subservicing agreement entered into by the Master Servicer or
Special Servicer, with cause without payment of a termination fee, or (ii)
assume and succeed to all of the rights and obligations of the Master Servicer
or Special Servicer under any subservicing agreement, subject to the terms of
the related subservicing agreement. In the event the Trustee or such successor
Servicer assumes the obligations of the Master Servicer or the Special
Servicer hereunder, it shall be deemed to have assumed all of the interest of
the Master Servicer or Special Servicer therein (but not any liabilities or
obligations in respect of acts or omissions of the Master Servicer or Special
Servicer prior to such deemed assumption) and to have replaced the Master
Servicer or the Special Servicer, as applicable, as a party to such
subservicing agreement to the same extent as if such subservicing agreement
had been assigned to the Trustee or such successor Servicer, except that the
Master Servicer or the Special Servicer shall not thereby be relieved of any
liability or obligations under such subservicing agreement that accrued prior
to the assumption of duties hereunder by the Trustee or such successor
Servicer.
No subservicer may modify the terms of a Mortgage Loan or initiate
foreclosure proceedings with respect to any Mortgaged Property without the
approval of the related Servicer. In the event that the Trustee or any
successor Servicer assumes the servicing obligations of the Master Servicer or
the Special Servicer, as applicable, upon request of the Trustee or such
successor Servicer, the Master Servicer or Special Servicer shall, at its own
expense, promptly deliver to the Trustee or such successor Servicer all
documents and records relating to any subservicing agreement and the Mortgage
Loans then being serviced thereunder, and the Servicer will otherwise use its
best efforts to effect the orderly and efficient transfer of any subservicing
agreement to the Trustee or such successor Servicer.
Section 3.14 Record Title to Mortgage Loans, Etc.
No Servicer shall hold record title to any Mortgage or any Mortgage
Note.
Section 3.15 Release of Documents and Instruments of Satisfaction.
The Trustee (or any Custodian appointed by the Trustee) may, subject
to the terms hereof, upon receipt of a Request for Release and Receipt of
Documents provided by any Servicer substantially in the form set forth on
Exhibit Y, release to such Servicer the related Mortgage Loan File or the
documents from a Mortgage Loan File set forth in such request. Each Servicer
acknowledges that during all times that any Mortgage Loan File or any contents
thereof are in the physical possession of such Servicer, such Mortgage Loan
File and the documents contained therein shall be held by the Servicer in
trust for the benefit of the Certificateholders.
Subject to any state law requirement or court order, each Servicer
hereby agrees to return to the Trustee or, if the Trustee is not the
Custodian, the Custodian each and every document previously requested from the
Mortgage Loan File when such Servicer's need therefor in connection with such
foreclosure or servicing no longer exists, unless the related Mortgage Loan
shall be liquidated or paid in full, in which case, upon receipt of the
Request for Release and Receipt of Documents from either Servicer, the
Custodian may release the related Servicer's prior request form, together with
all other documents still retained by the Custodian with respect to such
Mortgage Loan, to such Servicer.
Upon receipt of the payment in full of any Mortgage Loan, or upon the
receipt by the Master Servicer or Special Servicer of a notification that
payment in full will be escrowed in a manner customary for such purposes, such
Servicer shall promptly deliver to the Trustee or, if the Trustee is not the
Custodian, the Custodian a Request for Release and Receipt of Documents
substantially in the form set forth on Exhibit S requesting delivery to such
Servicer of the Mortgage Loan File for such Mortgage Loan and indicating that
all amounts received in connection with such payment that are required to be
deposited in the Collection Account pursuant to Section 4.02 hereof have been
or will be so deposited.
The Master Servicer and the Special Servicer (the latter, with a copy
to the Master Servicer) shall forward to the Trustee or, if the Trustee is not
the Custodian, the Custodian original documents evidencing an assumption,
modification, consolidation or extension of any Mortgage Loan entered into by
such Servicer in accordance with this Agreement within ten (10) Business Days
of the execution thereof and the delivery of such instrument to such Servicer;
provided, however, that such Servicer may, in lieu thereof, provide the
Trustee or, if the Trustee is not the Custodian, the Custodian with a
certified true copy of any such document submitted for recordation within five
(5) Business Days of its execution, in which event such Servicer shall provide
the Trustee or, if the Trustee is not the Custodian, the Custodian with the
original of any document submitted for recordation or a copy of such document
certified by the appropriate public recording office to be a true and complete
copy of the recorded original within five (5) Business Days of receipt thereof
by such Servicer.
Upon any payment in full of a Mortgage Loan, the Master Servicer or
Special Servicer may execute an instrument of satisfaction regarding the
related Mortgage and any other related Mortgage Loan Documents, which
instruments of satisfaction shall be recorded by such Servicer if required by
applicable law and shall be delivered to the Person entitled thereto, it being
understood and agreed that all reasonable expenses incurred by such Servicer
in connection with such instruments of satisfaction shall be deemed a
Servicing Advance, which shall be reimbursed pursuant to the terms of this
Agreement, but solely to the extent not otherwise chargeable to and paid by
the related Mortgagor. Such Servicer shall notify the Trustee of an instrument
of satisfaction described above as soon as practicable.
Section 3.16 Additional Servicing Restrictions; Defeasance.
With respect to each Mortgage Loan that provides for defeasance, to
the extent permitted by the terms of such Mortgage Loan in connection with
effecting a defeasance, the Master Servicer shall require the related
Mortgagor to (i) deliver to the Trustee replacement collateral consisting of
U.S. government securities within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i) in an amount sufficient to make all scheduled payments under
the Mortgage Note when due ("Defeasance Collateral"), (ii) deliver a written
certification from an independent certified public accounting firm certifying
that the Defeasance Collateral is sufficient to make such payments, (iii)
designate a Single-Purpose Entity (which may be a subsidiary of the Depositor
or the Master Servicer established for the purpose of assuming all defeased
Mortgage Loans) to assume the Mortgage Loan and own the Defeasance Collateral
and (iv) provide an opinion of counsel that the Trustee has a perfected
security interest in the Defeasance Collateral. All expenses of the defeasance
shall be charged to the Mortgagor or other responsible party to the extent
permitted by the terms of such Mortgage Loan and/or applicable law.
To the extent not inconsistent with the Mortgage Loan Documents, no
Servicer shall allow a Mortgagor to defease a Mortgage Loan if as of such time
the Stated Principal Balance of such Mortgage Loan or the aggregate
outstanding Stated Principal Balances of such Mortgage Loan and each other
related outstanding Cross-Collateralized Mortgage Loan and each other
outstanding Mortgage Loan with a related Mortgagor would (a) be one of the top
ten Mortgage Loans or Mortgage Loan groups, as applicable, by outstanding
principal balance, unless such Servicer shall have obtained written
confirmation from Fitch stating that upon such defeasance none of the then
current rating or ratings of all outstanding Classes of the Certificates would
be qualified (if applicable), downgraded or withdrawn by Fitch as a result
thereof, (b) be greater than $5,000,000 or 1% of the aggregate Stated
Principal Balance of all of the Mortgage Loans, unless such Servicer shall
have obtained written confirmation from S&P stating that upon such defeasance
none of the then current rating or ratings of all outstanding Classes of the
Certificates would be qualified (if applicable), downgraded or withdrawn by
S&P as a result thereof, or (c) be equal to or less than $5,000,000 or 1% of
the aggregate Stated Principal Balance of all of the Mortgage Loans, unless
such Servicer delivers to the Trustee and the Rating Agencies a certificate in
the form of Exhibit O attached hereto. All costs and expenses incurred
pursuant to the prior sentence which are not permitted by applicable law or
required under the related Mortgage Loan Document to be paid by the related
Mortgagor shall be a Servicing Advance. Notwithstanding the foregoing, the
Special Servicer has no obligation to take any action described under this
second paragraph of Section 3.16, other than in connection with a Specially
Serviced Mortgage Loan.
Section 3.17 Interest Reserve Account.
(a) The Trustee shall establish and maintain the Interest Reserve
Account, which shall be an Eligible Account, in the name of the Trustee on
behalf of the Certificateholders in trust for the benefit of the
Certificateholders. The Interest Reserve Account shall be maintained as a
segregated account, separate and apart from trust funds for mortgage
pass-through certificates of other series administered by the Trustee and
other accounts of the Trustee. Funds in the Interest Reserve Account shall be
held uninvested.
(b) On each Master Remittance Date occurring in (i) January of each
calendar year that is not a leap year and (ii) February of each calendar year,
the Trustee shall calculate the Withheld Amount with respect to each Interest
Reserve Loan. On each such Master Remittance Date, the Trustee shall withdraw
from the Certificate Account and deposit in the Interest Reserve Account an
amount equal to the aggregate of the Withheld Amounts calculated in accordance
with the previous sentence. If the Trustee shall deposit in the Interest
Reserve Account any amount not required to be deposited therein, it may at any
time withdraw such amount from the Interest Reserve Account, any provision
herein to the contrary notwithstanding. On or prior to the Master Remittance
Date in March of each calendar year, the Trustee shall transfer to the
Certificate Account the aggregate of all Withheld Amounts on deposit in the
Interest Reserve Account.
Section 3.18 Modifications, Waivers, Amendments and Consents.
(a) The Special Servicer (solely as to Specially Serviced Mortgage
Loans) and the Master Servicer (solely as to Mortgage Loans that are not
Specially Serviced Mortgage Loans) each may (consistent with Accepted Master
Servicing Practices or Accepted Special Servicing Practices, as applicable)
agree to any modification, waiver or amendment of any term of, extend the
maturity of, defer or forgive interest (including default interest and Excess
Interest) on and principal of, defer or forgive late payment charges and
Prepayment Premiums on, permit the release, addition or substitution of
collateral securing, and/or permit the release, addition or substitution of
the Mortgagor on or any guarantor of, any Mortgage Loan it is required to
service and administer hereunder, subject, however, to Sections 4.08 and
Section 11.02 and, further to each of the following limitations, conditions
and restrictions:
(i) other than as provided herein, the Master Servicer
shall not agree to any modification, waiver or
amendment of any term of, or take any of the other
acts referenced in this Section 3.18(a) with respect
to any Mortgage Loan that would affect the amount or
timing of any related payment of principal, interest
or other amount payable under such Mortgage Loan or
affect the security for such Mortgage Loan, unless
the Master Servicer has obtained the consent of the
Special Servicer (it being understood and agreed that
(A) the Master Servicer shall promptly provide the
Special Servicer with notice of any Mortgagor request
for such modification, waiver or amendment, the
Master Servicer's recommendations and analysis, and
with all information reasonably available to the
Master Servicer that the Special Servicer may
reasonably request in order to withhold or grant any
such consent, (B) the Special Servicer shall decide
whether to withhold or grant such consent in
accordance with Accepted Special Servicing Practices
and (C) if any such consent has not been expressly
denied within fifteen (15) Business Days of the
Special Servicer's receipt from the Master Servicer
of the Master Servicer's recommendations and analysis
and all information reasonably requested thereby and
reasonably available to the Master Servicer in order
to make an informed decision (or, if the Special
Servicer did not request any information, within
fifteen (15) Business Days from such notice), such
consent shall be deemed to have been granted);
(ii) other than as provided in Sections 4.08, 3.18(f) and
6.03, the Special Servicer shall not agree to (or, in
the case of a Mortgage Loan that is not a Specially
Serviced Mortgage Loan, consent to the Master
Servicer's agreeing to) any modification, waiver or
amendment of any term of, or take (or, in the case of
a Mortgage Loan that is not a Specially Serviced
Mortgage Loan, consent to the Master Servicer's
taking) any of the other acts referenced in this
Section 3.18(a) with respect to, any Mortgage Loan
that would affect the amount or timing of any related
payment of principal, interest or other amount
payable thereunder or, in the reasonable, good faith
judgment of the Special Servicer, would materially
impair the security for such Mortgage Loan, unless a
material default on such Mortgage Loan has occurred
or, in the reasonable, good faith judgment of the
Special Servicer, a default in respect of payment on
such Mortgage Loan is reasonably foreseeable, and
such modification, waiver, amendment or other action
is reasonably likely to produce a greater recovery to
Certificateholders (as a collective whole) on a
present value basis (the relevant discounting of
anticipated collections that will be distributable to
Certificateholders to be done at the related Mortgage
Rate), than would liquidation;
(iii) the Special Servicer shall not extend (or, in the
case of a Mortgage Loan that is not a Specially
Serviced Mortgage Loan, consent to the Master
Servicer's extending) the maturity date of any
Specially Serviced Mortgage Loan other than in
accordance with Section 6.03(b);
(iv) neither the Master Servicer nor the Special Servicer
shall make or permit any modification, waiver or
amendment of any term of, or take any of the other
acts referenced in this Section 3.18(a) unless it has
received an Opinion of Counsel that taking any such
act will not adversely affect the status of REMIC I,
REMIC II and REMIC III as REMICs;
(v) subject to applicable law, the Mortgage Loan
Documents and Accepted Master Servicing Practices and
Accepted Special Servicing Practices, as applicable,
neither the Master Servicer nor the Special Servicer
shall permit any modification, waiver or amendment of
any term of any Mortgage Loan unless all related fees
and expenses are paid by the Mortgagor;
(vi) the Special Servicer shall not permit (or, in the
case of a Mortgage Loan that is not a Specially
Serviced Mortgage Loan, consent to the Master
Servicer's permitting) any Mortgagor to add or
substitute any real estate collateral for its
Mortgage Loan unless the Special Servicer shall have
first (A) determined in its reasonable, good faith
judgment, based upon a Phase I environmental site
assessment (and any additional environmental testing
that the Special Servicer deems necessary and
prudent) conducted by an Independent Person who
regularly conducts Phase I environmental site
assessments, at the expense of the Mortgagor, that
such additional or substitute collateral is in
compliance with applicable environmental laws and
regulations and that there are no circumstances or
conditions present with respect to such new
collateral relating to the use, management or
disposal of any Hazardous Materials for which
investigation, testing, monitoring, containment,
clean-up or remediation would be required under any
then applicable environmental laws or regulations,
(B) received an Opinion of Counsel that such addition
or substitution would not adversely affect the status
of REMIC I, REMIC II and REMIC III as REMICs and (C)
with respect to any Mortgage Loan with a Stated
Principal Balance equal to (1) $20,000,000 or
greater, or (2) 2% or more of the current outstanding
Certificate Balance (verified by the Trustee),
received written confirmation from each Rating Agency
that such addition or substitution of collateral will
not, in and of itself, result in a qualification (if
applicable), downgrade or withdrawal of the
then-current ratings on the Certificates; and
(vii) the Special Servicer shall not release (or, in the
case of a Mortgage Loan that is not a Specially
Serviced Mortgage Loan, consent to the Master
Servicer's releasing), including in connection with a
substitution contemplated by clause (vi) above, any
collateral securing an outstanding Mortgage Loan,
except as provided in Section 6.05, or except where a
Mortgage Loan (or, in the case of a Cross
Collateralized Loan, where any other Mortgage Loan
cross-collateralized therewith) is satisfied, or
except in the case of a release where (A) either (1)
the loss of the collateral to be released will not,
in the good faith and reasonable judgment of the
Special Servicer, materially and adversely affect the
net operating income being generated by or the use of
the related Mortgaged Property, or (2) there is a
corresponding principal pay down of such Mortgage
Loan in an amount at least equal to the appraised
value of the collateral to be released (or substitute
collateral with an appraised value at least equal to
that of the collateral to be released, is delivered),
(B) the remaining Mortgaged Property (together with
any substitute collateral) is, in the Special
Servicer's good faith and reasonable judgment,
adequate security for the remaining Mortgage Loan,
(C) received an Opinion of Counsel that such addition
or substitution would not adversely affect the status
of REMIC I, REMIC II and REMIC III as REMICs and (D)
with respect to any Mortgage Loan with a Stated
Principal Balance equal to (1) $20,000,000 or
greater, or (2) 2% or more of the current outstanding
Certificate Balance (verified by the Trustee), such
release would not, in and of itself, result in a
qualification (if applicable), downgrade or
withdrawal of the then-current ratings on the
Certificates (as confirmed in writing to the Trustee
by each Rating Agency);
provided that the limitations, conditions and restrictions set forth in
clauses (i) through (vii) above shall not apply to any act or event
(including, without limitation, a release, substitution or addition of
collateral) in respect of any Mortgage Loan that either occurs
automatically, or results from the exercise of a unilateral option by the
related Mortgagor within the meaning of Treasury Regulations Section
1.1001-3(c)(2)(iii), in any event under the terms of such Mortgage Loan
in effect on the Delivery Date; and provided, further, that,
notwithstanding clauses (i) through (vii) above, neither the Master
Servicer nor the Special Servicer shall be required to oppose the
confirmation of a plan in any bankruptcy or similar proceeding involving
a Mortgagor if, in its reasonable, good faith judgment, such opposition
would not ultimately prevent the confirmation of such plan or one
substantially similar; and provided, further, that notwithstanding clause
(vii) above, neither the Master Servicer nor the Special Servicer shall
be required to obtain any confirmation of the Certificate ratings from
the Rating Agencies in order to grant easements that do not materially
affect the use or value of a Mortgaged Property or the Mortgagor's
ability to make any payments with respect to the related Mortgage Loan.
(b) Neither the Master Servicer (with respect to Mortgage Loans that
are not Specially Serviced Mortgage Loans) nor the Special Servicer (with
respect to Special Serviced Mortgage Loans) shall have any liability to the
Trust Fund, the Certificateholders or any other Person if its analysis and
determination that the modification, waiver, amendment or other action
contemplated by Section 3.18(a) is reasonably likely to produce a greater
recovery to Certificateholders on a present value basis than would liquidation
should prove to be wrong or incorrect, so long as the analysis and
determination were made on a reasonable basis in good faith by the Master
Servicer or the Special Servicer and consistent with Accepted Master Servicing
Practices or Accepted Special Servicing Practices, as applicable.
(c) Any payment of interest, which is deferred pursuant to Section
3.18(a), shall not, for purposes of calculating monthly distributions and
reporting information to Certificateholders, be added to the unpaid principal
balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit or that such
interest may actually be capitalized; provided, however, that this sentence
shall not limit the rights of the Master Servicer or the Special Servicer on
behalf of the Trust Fund to enforce any obligations of the related Mortgagor
under such Mortgage Loan.
(d) Each of the Master Servicer and the Special Servicer may, as a
condition to its granting any request by a Mortgagor for consent,
modification, waiver or indulgence or any other matter or thing, the granting
of which is within the Master Servicer's or the Special Servicer's, as the
case may be, discretion pursuant to the terms of the related Mortgage Loan
Documents and is permitted by the terms of this Agreement, require that such
Mortgagor pay to it a reasonable or customary fee (which shall in no event
exceed 1.0% of the unpaid principal balance of the related Mortgage Loan) for
the additional services performed in connection with such request, together
with any related costs and expenses incurred by it. All such fees collected by
the Master Servicer and/or the Special Servicer shall be allocable between
such parties, as Additional Master Servicing Compensation and Additional
Special Servicing Compensation, respectively, as provided in Sections 4.12 and
6.13. Neither the Master Servicer nor the Special Servicer shall waive, in
full or part, any such fee to the extent it would constitute additional
compensation payable to the other Servicer pursuant to Section 4.12 or Section
6.13, as applicable, without first obtaining the consent of such other
Servicer.
(e) All modifications, amendments, material waivers and other
material actions entered into or taken in respect of the Mortgage Loans
pursuant to this Section 3.18 shall be in writing. Each of the Special
Servicer and the Master Servicer shall notify the other such party, each
Rating Agency, the Trustee and the Directing Certificateholder, in writing, of
any modification, waiver, amendment or other action entered into or taken
thereby in respect of any Mortgage Loan pursuant to this Section 3.18 and the
date thereof, and shall deliver to the Trustee or the related Custodian for
deposit in the related Mortgage Loan File (with a copy to the other such
party), an original counterpart of the agreement relating to such
modification, waiver, amendment or other action, promptly (and in any event
within ten (10) Business Days) following the execution thereof. In addition,
following the execution of any modification, waiver or amendment agreed to by
the Special Servicer, or by the Master Servicer with any required consent of
the Special Servicer, pursuant to Section 3.18(a) above, the Special Servicer
or the Master Servicer, as applicable, shall deliver to the other such party,
the Trustee and the Rating Agencies an Officer's Certificate certifying that
all of the requirements of Section 3.18(a) have been met and setting forth in
reasonable detail the basis of the determination made by it pursuant to
Section 3.18(a)(ii); provided that, if such modification, waiver or amendment
involves an extension of the maturity of any Mortgage Loan, such Officer's
Certificate shall be delivered to the Master Servicer or Special Servicer, as
applicable, the Trustee and the Rating Agencies before the modification,
waiver or amendment is agreed to.
(f) Notwithstanding anything in this Section 3.18 or Section 4.01 to
the contrary, the Master Servicer shall not be required to seek the consent of
the Special Servicer or any Certificateholder or obtain any confirmation of
the Certificate rating from the Rating Agencies in order to approve the
following modifications, waivers or amendments of the Mortgage Loans: (i)
waivers of minor covenant defaults (other than financial covenants), including
late financial statements; (ii) releases of parcels of a Mortgaged Property
(provided that any such releases are releases as to which the related Mortgage
Loan Documents expressly require the mortgagee thereunder to make such
releases upon the satisfaction of certain condition and such releases shall be
made as required by the Mortgage Loan Documents); and (iii) grants of
easements that do not materially affect the use or value of the Mortgaged
Property or the Mortgagor's ability to make any payments with respect to the
related Mortgage Loan; provided, however, that any such modification, waiver
or amendment, or agreeing to any such modification, waiver or amendment, (w)
would not in any way affect a payment term of the Certificates, (x) would not
constitute a "significant modification" of such Mortgage Loan pursuant to
Treasury Regulations Section 1.860G-2(b) and, based upon an Opinion of
Counsel, would not otherwise adversely affect the status of REMIC I, REMIC II
and REMIC III as REMICs, (y) would be consistent with Accepted Master
Servicing Practices, and (z) shall not violate the terms, provisions or
limitations of this Agreement or any other document contemplated hereby.
The Master Servicer shall not terminate or replace, or consent to the
termination or replacement of, any property manager with respect to any
Mortgaged Property, and the Master Servicer shall not terminate or change or
consent to the termination or change of the franchise for any Mortgage
Property operated as a hospitality property, in any event without the prior
written consent of the Special Servicer (it being understood and agreed that
(A) the Master Servicer shall promptly provide the Special Servicer with its
analysis, recommendations and all information that the Special Servicer may
reasonably request and which information is in the possession of the Master
Servicer, in order to withhold or grant any such consent, (B) the Special
Servicer shall decide whether to withhold or grant such consent in accordance
with Accepted Special Servicing Practices and (C) if any such consent has not
been expressly denied within fifteen (15) Business Days of the Special
Servicer's receipt from the Master Servicer of such analysis, recommendation
and all information reasonably requested thereby in order to make an informed
decision (or, if the Special Servicer did not request any information, within
fifteen (15) Business Days from such notice), such consent shall be deemed to
have been granted). Notwithstanding the foregoing, the Master Servicer shall
not terminate or change or consent to the termination or change of the
franchise for any Mortgage Property operated as a hospitality property having
a value equal to or greater than 2% of the aggregate Stated Principal Balance
of the Mortgage Loans without having first obtained written confirmation from
S&P stating that upon such termination or change none of the then current
rating or ratings of all outstanding Classes of the Certificates would be
qualified (if applicable), downgraded or withdrawn by S&P as a result thereof.
(g) In connection with granting an extension of the maturity date of
any Mortgage Loan in accordance with Section 3.18(a), the Special Servicer, in
the case of a Specially Serviced Mortgage Loan, and the Master Servicer, in
the case of a Mortgage Loan that is not a Specially Serviced Mortgage Loan,
shall each cause the related Mortgagor to agree, if it has not already done so
pursuant to the existing Mortgage Loan Documents, to thereafter deliver to the
Special Servicer, the Trustee and the Directing Certificateholder audited
operating statements on a quarterly basis with respect to the related
Mortgaged Property, provided that the Special Servicer or the Master Servicer,
as the case may be, may, in its sole discretion, waive the requirement that
such statements be audited.
(h) In the event of any inconsistency between the terms and
conditions of this Section 3.18 and those of any other Section of this
Agreement (other than Section 11.2), the terms and conditions of this Section
3.18 shall prevail; provided, however, that nothing contained in this Section
3.18 shall cause the Special Servicer (solely as to Specially Serviced
Mortgage Loans) or the Master Servicer (solely as to Mortgage Loans that are
not Specially Serviced Mortgage Loans) to take any action (i) that would
violate applicable law, (ii) that would violate Accepted Special Servicing
Practices or Accepted Master Servicing Practices, as applicable, (iii) that
would violate the terms of any Mortgage Loan or (iv) other than in the best
interests of the Certificateholders (as a collective whole).
Section 3.19 Directing Certificateholder Contact with Servicers.
No less often than on a monthly basis, each of the Master Servicer
and the Special Servicer shall, without charge, make a knowledgeable Servicing
Officer available to answer questions from the Directing Certificateholder
regarding the performance and servicing of the Mortgage Loans and/or REO
Properties for which the Master Servicer or the Special Servicer, as the case
may be, is responsible.
ARTICLE IV
MASTER SERVICING
Section 4.01 The Master Servicer.
(a) The Master Servicer shall service and administer each
Mortgage Loan (except as such obligations may be assigned to the Special
Servicer pursuant to Article VI hereof) on behalf of the Trust Fund in
accordance with applicable law, the terms of this Agreement, the terms of the
respective Mortgage Loans and, to the extent consistent with the foregoing,
Accepted Master Servicing Practices.
(b) Subject to Accepted Master Servicing Practices, Section 3.18 and
the other terms of this Agreement and of each Mortgage Loan, the Master
Servicer shall have full power and authority to do or cause to be done any and
all things in connection with such servicing and administration that it may
deem, in its best judgment, necessary or desirable, including, without
limitation, to execute and deliver, on behalf of the Trust Fund, any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge and all other comparable instruments, with respect to any Mortgage
Loan which is not a Specially Serviced Mortgage Loan, subject, in certain
instances, to the Special Servicer's approval of certain actions with respect
to Mortgage Loans that are not Specially Serviced Mortgage Loans. Without
limiting the generality of the foregoing, the Master Servicer shall, and is
hereby authorized and empowered with respect to each Mortgage Loan, to
prepare, execute and deliver, on behalf of the Trust Fund and at the Trust
Fund's expense, any and all financing statements, continuation statements and
other documents or instruments necessary to maintain the lien on the related
Mortgaged Property and related collateral. The Master Servicer shall service
and administer each Mortgage Loan in accordance with applicable state and
federal law and shall provide to each related Mortgagor any information
required to be provided to it thereby. Subject to the foregoing, the Master
Servicer shall service and administer each Mortgage Loan in accordance with
the related Mortgage Loan Documents, and shall enforce all provisions
designated in such Mortgage Loan Documents, including but not limited to the
establishment and administration of escrow accounts, reserve accounts, impound
accounts and operation and maintenance plans. The Master Servicer may from
time to time submit to the Trustee for execution any powers of attorney and
other documents necessary or appropriate to enable such Master Servicer to
carry out its servicing and administrative duties hereunder. Notwithstanding
the foregoing, the Master Servicer shall not modify, waive or amend any term
of any Mortgage Loan (or consent to any such modification, waiver or
amendment) if such modification, waiver or amendment would affect the related
Monthly Payment (other than the portion thereof relating to Escrow Payments),
the related Maturity Date, the related Mortgage interest rate or the related
amortization schedule unless the Master Servicer determines that the
contemplated action will not result in an Adverse REMIC Event in accordance
with Accepted Master Servicing Practices in reliance upon an Opinion of
Counsel. The Master Servicer shall prepare for signature by the Trustee any
such powers of attorney or other documents necessary or appropriate to carry
out such duties hereunder. The Trustee shall not be responsible for any action
taken or omitted to be taken by any Servicer pursuant to the application of
such powers of attorney unless such action was taken or omitted to be taken at
the express written direction of, and in the manner specified by, the Trustee.
Notwithstanding anything contained herein to the contrary, neither the Master
Servicer nor the Special Servicer shall without the Trustee's written consent:
(i) except as relating to a Mortgage Loan which the Master Servicer or the
Special Servicer, as applicable, is servicing pursuant to its respective
duties herein (in which case such Servicer shall give notice to the Trustee of
the initiation), initiate any action, suit or proceeding solely under the
Trustee's name without indicating the Master Servicer's or Special Servicer's,
as applicable, representative capacity, or (ii) take any action with the
intent to, and which actually does cause, the Trustee to be registered to do
business in any state.
(c) The Master Servicer assumes, with respect to each Mortgage Loan
(except as otherwise set forth in Article VI and this Section 4.01(c)), full
responsibility for the timely payment of all customary, reasonable and
necessary "out of pocket" costs and expenses (including reasonable attorneys'
fees and disbursements) incurred in connection with:
(i) any enforcement, administrative or judicial
proceedings, or any necessary legal work or advice
specifically related to servicing the Mortgage Loans,
including but not limited to, bankruptcies,
condemnations, drug seizures, foreclosures by
subordinate or superior lienholders, legal costs
associated with preparing powers of attorney pursuant
to Section 4.01(b) above, and other legal actions
incidental to the servicing of the Mortgage Loans
(provided that such expenses are reasonable), but
excluding any enforcement or necessary legal work or
advice specifically related to monitoring or
enforcing the Foreign Currency Exchange Contract
(which costs and expenses, if any, shall constitute a
Servicing Advance);
(ii) all ground rents, taxes, assessments, water rates,
sewer rates and other charges, as applicable, that
are or may become a lien upon a related Mortgaged
Property, and all fire, flood and hazard insurance
coverage (to the extent required in this Agreement,
including renewal payments); and
(iii) compliance with the servicing provisions applicable
to such Master Servicer set forth herein.
With respect to any costs described in clauses (i) and (ii) above and to
the extent the related Mortgage Loan Documents do not provide for Escrow
Payments or the Master Servicer determines that any such payments have not
been made by the related Mortgagor, the Master Servicer shall make a Servicing
Advance to effect timely payment of all such expenses (in the case of those
set forth in clause (ii) above, before they become delinquent) if the Master
Servicer shall have or should have had knowledge based on Accepted Master
Servicing Practices of such nonpayment by the Mortgagor before it becomes
delinquent, and, otherwise, the Master Servicer shall effect immediate payment
of all such expenses which it has knowledge or should have knowledge based on
Accepted Master Servicing Practices have become delinquent, unless, with
respect to the payment of taxes and assessments, the Master Servicer
reasonably anticipates that such xxxx will be paid by the Mortgagor by the
close of business on or before the delinquency date, but in any event the
Master Servicer shall make such advance within 90 days after such date or five
Business Days after the Master Servicer has received confirmation that such
item has not been paid, whichever is earlier, provided that during such 90-day
period the Master Servicer shall use best efforts consistent with Accepted
Master Servicing Practices to confirm whether such xxxx has been paid. The
Master Servicer shall make such Servicing Advances with respect to Mortgage
Loans from its own funds to effect such payments only to the extent not deemed
a Nonrecoverable Advance and shall be reimbursed therefor in accordance with
Section 4.03(a) hereof. With respect to any costs described in clause (iii)
above, the Master Servicer shall be entitled to reimbursement of such costs as
Servicing Advances only to the extent expressly provided in this Agreement. If
the Master Servicer determines with respect to any Mortgage Loan that a
Servicing Advance, if made, would constitute a Nonrecoverable Advance or that
it has made a Nonrecoverable Advance, it shall deliver to the Trustee a
Nonrecoverable Advance Certificate.
(d) Upon the occurrence of a Servicing Transfer Event with
respect to a Mortgage Loan, the Master Servicer shall effect the timely and
efficient transfer of its servicing responsibilities to the Special Servicer.
(e) Unless the Master Servicer and the Special Servicer with respect
to a Mortgage Loan are the same Person, not later than two (2) Business Days
after the Master Servicer becomes aware that a Mortgage Loan ceases to be a
Specially Serviced Mortgage Loan, the Master Servicer shall send a letter by
first class mail substantially in the form of Exhibit L hereto notifying the
related Mortgagor that servicing has been transferred to the Master Servicer.
(f) The Master Servicer shall have no responsibility for the
performance by the Special Servicer of its duties hereunder, provided that the
Master Servicer shall continue certain servicing and reporting functions with
respect to Specially Serviced Mortgage Loans as set forth in this Agreement.
(g) The Master Servicer shall calculate for each Mortgage Loan, to
the extent provided in and consistent with a Mortgage Loan, any related
Prepayment Premium required to be calculated by reference to a U.S. Treasury
Rate (or a specified number of basis points in excess thereof) by determining
the present value as of the date of prepayment of the remaining Monthly
Payments from such date of prepayment through the related stated maturity
(including the Balloon Payment). With respect to any Specially Serviced
Mortgage Loan, the Master Servicer shall request confirmation from the Special
Servicer as to the calculation of the related Prepayment Premium.
(h) With respect to any Mortgage Loan that has a ground lease, the
Master Servicer, on behalf of the Trustee, shall send notice to the related
ground lessor to the effect that the Trustee is the new mortgagee under such
Mortgage Loan.
Section 4.02 Collection Account; Collection of Certain Mortgage
Loan Payments.
(a) Subject to Article VI, from the date hereof until the principal
and interest on the Mortgage Loans are paid in full, the Master Servicer shall
proceed diligently to collect all payments called for under the terms and
provisions of the Mortgage Loans, and shall follow collection procedures in
accordance with Accepted Master Servicing Practices, to the extent such
procedures shall be consistent with this Agreement and, in connection with
collections under any applicable insurance policy, the terms of such insurance
policy required to be maintained with respect thereto.
(b) On or before the Delivery Date, and as necessary thereafter, the
Master Servicer shall establish, and hereby agrees to maintain for the
duration of this Agreement, the Collection Account. The Collection Account
shall be an Eligible Account. The Collection Account shall relate solely to
collections with respect to Mortgage Loans, and funds in the Collection
Account shall be held by the Master Servicer for the benefit of the
Certificateholders and shall not be commingled with any other moneys. The
Master Servicer shall deposit daily all collections with respect to the
Mortgage Loans received by it into the Collection Account and the applicable
subaccount of the Escrow Account pursuant to this Section 4.02(b) and pursuant
to Section 4.06(a), respectively. The Master Servicer shall, within five (5)
Business Days of the establishment thereof, notify the Trustee and the Special
Servicer in writing of the location and account number thereof and shall give
the Trustee and the Special Servicer written notice of any change of such
location or account number on or prior to the date of such change. Funds in
the Collection Account may be invested by, at the risk of, and for the benefit
of, the Master Servicer in Permitted Investments which shall not be sold or
disposed of prior to maturity. All such Permitted Investments shall be
registered in the name of the Master Servicer (in its capacity as such and for
the benefit of the Certificateholders) or its nominee. All income therefrom
may be retained by the Master Servicer as additional servicing compensation.
In addition, the Master Servicer shall deposit into such account out of its
own funds an amount representing any net losses realized on Permitted
Investments with respect to funds in such account no later than the first
Master Remittance Date after the occurrence of such loss.
(c) The Master Servicer shall deposit the following amounts, without
duplication, into the Collection Account:
(i) all payments on account of principal, including
amounts required to be deposited therein pursuant to
Section 2.04 or Section 4.06(c)(iii) hereof, and
Principal Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (including Excess
Interest and default interest, except as provided
below) on the Mortgage Loans (including amounts
required to be deposited therein pursuant to Section
2.04 or Section 4.06(c)(iii) hereof);
(iii) all Liquidation Proceeds, Excess Condemnation
Proceeds and Excess Insurance Proceeds with respect
to the Mortgaged Properties;
(iv) out of such Master Servicer's own funds, an amount
representing net losses realized on Permitted
Investments with respect to funds in such Collection
Account pursuant to Section 4.02(b);
(v) any amounts representing Prepayment Premiums paid by
the Mortgagors;
(vi) any amounts received from the Special Servicer
pursuant to Sections 6.05(c) and 6.07;
(vii) any other amounts received from the Mortgagors with
respect to the Mortgage Loans;
(viii) any amounts received from the Special Servicer
under Section 6.08 hereof; and
(ix) any amounts received from the F/X Counterparty
pursuant to the Foreign Currency Exchange Contract or
exchanged by the Master Servicer pursuant to Section
4.03(a)(x).
but excluding (1) REO Proceeds (except as provided in clauses (vi) and (viii)
above), (2) amounts representing fees, default interest, late charge penalties
(to the extent not used to pay interest at the Advance Rate on Advances for
the related Mortgage Loan accrued during the Collection Period), modification
fees, assumption fees (subject to Section 4.08(d)), processing fees, extension
fees, NSF check charges and similar fees and charges payable by Mortgagors
with respect to the Mortgage Loans, which may be retained by the Master
Servicer (or the Special Servicer if received with respect to a Specially
Serviced Mortgage Loan) as additional servicing compensation hereunder
(provided that all NSF charges shall be payable to the Master Servicer) (3)
any amounts received from a Mortgagor to reimburse such Master Servicer, (or
the Special Servicer with respect to a Specially Serviced Mortgage Loan), for
expenses pursuant to the terms of the Mortgage Loan, including costs incurred
in connection with the preparation of a Property Inspection Report and (4)
Escrow Payments.
(d) All funds deposited by the Master Servicer in the related
Collection Account shall be held for the benefit of the Certificateholders
until disbursed or withdrawn in accordance herewith. Except as expressly
permitted or required hereunder, the Master Servicer shall not sell, transfer
or assign to any Person any interest (including any security interest) in
amounts credited or to be credited to the Collection Account or take any
action towards that end, and shall maintain such amounts free of all liens,
claims and encumbrances of any nature.
(e) The Master Servicer shall, within one Business Day of
receipt or discovery of receipt, remit to the Special Servicer for deposit in
the related REO Account any REO Proceeds deposited into the Collection Account
or any related Escrow Account.
Section 4.03 Permitted Withdrawals from the Collection Account.
(a) The Master Servicer shall make withdrawals from the Collection
Account of amounts on deposit therein attributable to the Mortgage Loans for
(without duplication) the following purposes in the following order of
priority:
(i) to recoup any amount deposited in the Collection
Account and not required to be deposited therein;
(ii) on each Master Remittance Date, from amounts on
deposit in the Collection Account representing
payments by a Mortgagor of interest or Liquidation
Proceeds, Excess Insurance Proceeds and Excess
Condemnation Proceeds and REO Proceeds, with respect
to a Mortgage Loan and proceeds from the repurchase
of a Mortgage Loan pursuant to the terms hereof, to
pay to itself the Master Servicing Fee and from such
amounts and other amounts on deposit in the
Collection Account representing payments by any
Mortgagor of principal, to pay the Special Servicer
the Basic Special Servicing Fee, if applicable;
(iii) to reimburse the Trustee and itself, in that order,
for previously xxxxxxxxxxxx X&X Advances from any
amounts on deposit in such account, together with
accrued and unpaid interest at the Advance Rate
pursuant to Section 4.05(e), the right to withdraw
amounts pursuant to this subclause (iii) being
limited to amounts on deposit in the Collection
Account in respect of late payments, Liquidation
Proceeds, Excess Insurance Proceeds, REO Proceeds,
Excess Condemnation Proceeds with respect to the
Mortgage Loan and proceeds from the repurchase of a
Mortgage Loan pursuant to the terms hereof with
respect to the Mortgage Loan with respect to which
such P&I Advance was made or the related Mortgaged
Property, and any other amounts received on such
Mortgage Loan that represent late recoveries of
payments with respect to which such P&I Advances were
made, including without limitation, default interest
and late payment charges;
(iv) to the extent not reimbursed from amounts on deposit
in the Escrow Account pursuant to Section 4.06(c)(v)
hereof, to reimburse the Trustee and then to itself
and the Special Servicer, pro rata, pursuant to
Sections 4.01(c), 4.05 and 6.10, for previously
unreimbursed Servicing Advances incurred in
connection with a Mortgaged Property (which amounts
shall be accounted for in accordance with the
provisions of Section 4.10 hereof) together with
accrued and unpaid interest at the Advance Rate
pursuant to Sections 4.01(c), 4.05(e) and 6.10, the
right to withdraw amounts pursuant to this subclause
(iv) being limited to amounts on deposit in the
Collection Account in respect of late payments,
Liquidation Proceeds, Excess Insurance Proceeds, REO
Proceeds, Excess Condemnation Proceeds with respect
to such Mortgaged Property or proceeds from the
repurchase of a Mortgage Loan pursuant to the terms
hereof with respect to such Mortgaged Property, and
any other amounts received with respect to the
Mortgage Loan including late recoveries of payments
with respect to which such Servicing Advances were
made;
(v) [RESERVED];
(vi) on each Master Remittance Date, to pay the Trustee
and itself, in that order, for accrued and unpaid
interest at the Advance Rate on any reimbursed P&I
Advances made with respect to any Mortgage Loan from
any amounts on deposit in the Collection Account, to
the extent not otherwise offset by default interest
or late payment charges collected on the related
Mortgage Loan during the same Collection Period;
(vii) on each Master Remittance Date, to reimburse the
Trustee, and then itself and the Special Servicer,
pro rata, from any amounts on deposit in the
Collection Account for (A) any unreimbursed
Nonrecoverable Advance for which a Nonrecoverable
Advance Certificate has been previously delivered;
provided, that other Advances with respect to the
related Mortgage Loan shall not be reimbursable
pursuant to this Section 4.03(a)(vii) until they have
been determined to be Nonrecoverable Advances, or (B)
any unreimbursed Servicing Advance for an expense the
payment or reimbursement of which is not an
obligation of the related Mortgagors under the terms
of the related Mortgage Loan Documents, in each case,
together with interest at the Advance Rate pursuant
to Sections 4.05(e) and 6.10, respectively, made with
respect to the Mortgage Loans;
(viii) on each Master Remittance Date, to pay itself any
reinvestment income on amounts on deposit in the
Collection Account to which it is entitled pursuant
to Section 4.02(b);
(ix) to pay expenses of the Trust Fund specifically
identified as such and authorized in this Agreement
(such reimbursement for expenses incurred in Canadian
dollars shall be made in U.S. dollars at the foreign
currency exchange rate in effect at the time such
expense was incurred, including, without limitation,
to pay all costs, expenses and losses incurred by the
Master Servicer as a result of any currency exchange
in connection with making a reimbursement of a
Servicing Advance);
(x) to remit to the F/X Counterparty any amounts in
Canadian dollars received with respect to the
Canadian Loan pursuant to the Foreign Currency
Exchange Contract, or if the Foreign Currency
Exchange Contract has been terminated or if the F/X
Counterparty is in default under the Foreign Currency
Exchange Contract, the Master Servicer shall exchange
the amount of Canadian dollars otherwise required to
be remitted to the F/X Counterparty into U.S. dollars
at the F/X Market Rate;
(xi) on each Master Remittance Date, to make remittances
to the Trustee pursuant to Section 4.04 hereof; and
(xii) to clear and terminate the Collection Account upon
termination of this Agreement.
(b) The Master Servicer shall keep and maintain separate accounting,
on a Mortgage Loan-by-Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account and determining any shortfall or
overpayment of any amounts due from or on behalf of any Mortgagor or Mortgaged
Property.
Section 4.04 Remittances to the Trustee.
(a) On each Master Remittance Date, the Master Servicer shall (1)
withdraw from the Collection Account and remit to the Trustee for deposit into
the Certificate Account, by wire transfer of immediately available funds, all
amounts on deposit in the Collection Account as of the related Determination
Date (including any amounts in respect of Excess Interest) minus:
(i) any permitted charges against or withdrawals from the
Collection Account pursuant to clauses (i) through
(xi) of Section 4.03(a); and
(ii) any amounts on deposit in the Collection Account
representing a Monthly Payment due on a Due Date
following the Collection Period for such Master
Remittance Date net of any reduction in the aggregate
amount of P&I Advances for such Determination Date
pursuant to Section 4.05(a) (which amounts, other
than those representing Escrow Payments, shall be
remitted pursuant to this Agreement on the Master
Remittance Date immediately following the Collection
Period in which such Monthly Payment was due),
and (2) remit to the Trustee any P&I Advances required to be made on
or prior to such Master Remittance Date pursuant to Section 4.05(a). If the
Trustee fails to receive by 2:00 p.m., New York City time on the Master
Remittance Date any or all of the amounts required by this clause (a), the
Trustee shall immediately notify the Master Servicer of such failure (in
accordance with Section 13.05(b).
(b) With respect to any Master Servicer remittance received by the
Trustee after the Master Remittance Date (including any P&I Advance), the
Master Servicer shall pay to the Trustee interest on such amount until paid at
the Advance Rate. Such interest shall be deposited into the Certificate
Account by the Master Servicer on the date such late payment is made and shall
cover the period commencing with the day following the Master Remittance Date
and ending with the Business Day on which such payment is made, both
inclusive. The payment by the Master Servicer of any such interest shall not
be deemed an extension of time for payment or a waiver of any Event of
Default.
(c) The Master Servicer shall provide to the Trustee for delivery to
any beneficial owner of a Certificate information requested thereby with
respect to the calculation of any Prepayment Premium on a prepaying Mortgage
Loan.
Section 4.05 Master Servicer Advances.
(a) To the extent that as of the Determination Date for any month,
the full amount of the Monthly Payment due in such month with respect to any
Mortgage Loan has not been received by the Master Servicer, the Master
Servicer shall remit to the Trustee on the Master Remittance Date, for deposit
into the Certificate Account, a P&I Advance in an amount equal to the excess
of such Monthly Payment net of any Escrow Payment component and net of an
amount corresponding to the Master Servicing Fee over the amount received;
provided, however, that the Master Servicer shall not be required to make a
Nonrecoverable Advance or make an advance for default interest or Excess
Interest and, provided further, that the Master Servicer shall not be required
to make a P&I Advance with respect to a Balloon Payment and, provided further,
that if a Collateral Value Adjustment exists with respect to any Mortgage
Loan, then, in the event of subsequent delinquencies thereon, the interest
portion of the P&I Advance in respect of such Mortgage Loan for the related
Distribution Date shall be reduced (it being herein acknowledged that there
shall be no reduction in the principal portion of such P&I Advance) to equal
the product of (i) the amount of the interest portion of such P&I Advance for
such Mortgage Loan for such Distribution Date without regard to this proviso,
multiplied by (ii) a fraction, expressed as a percentage, the numerator of
which is equal to the Stated Principal Balance of such Mortgage Loan
immediately prior to such Distribution Date, net of the related Collateral
Value Adjustment, if any, and the denominator of which is equal to the Stated
Principal Balance of such Mortgage Loan immediately prior to such Distribution
Date. For purposes of the immediately preceding sentence, the Monthly Payment
due on the Maturity Date for a Balloon Mortgage Loan will be the amount that
would be due on such day based on the full amortization schedule used to
calculate the Monthly Payments thereon prior to the Maturity Date. If the
Master Servicer determines that a P&I Advance is required, it shall on such
Master Remittance Date remit to the Trustee for deposit in the Certificate
Account out of its own funds an amount equal to the P&I Advance; provided,
however, that the aggregate amount of such P&I Advances for any Determination
Date shall be reduced by any amounts being held for future remittance by the
Master Servicer pursuant to Section 4.04(a)(1)(ii) before deduction for
reductions in P&I Advances pursuant to this Section 4.05. Any funds being held
in the Collection Account for future distribution and so used shall be
replaced by the Master Servicer from its own funds as a P&I Advance (or from
receipts on Mortgage Loans against which such P&I Advance was made) by deposit
in such Collection Account on or before any future Master Remittance Date to
the extent that funds in such Collection Account on such Master Remittance
Date shall be less than payments to the Trustee required to be made on such
date. If the Master Servicer determines with respect to any Mortgage Loan that
a P&I Advance, if made, would constitute a Nonrecoverable Advance or that it
has made a Nonrecoverable Advance, it shall deliver to the Trustee a
Nonrecoverable Advance Certificate.
(b) [RESERVED]
(c) The Master Servicer, as requested by the Special Servicer,
shall make Servicing Advances from its own funds to effect the timely payment
of any Property Protection Expense or Property Improvement Expense upon five
Business Days notice; provided that the Special Servicer shall only request
the Master Servicer to make Servicing Advances with respect to any Mortgage
Loan from its own funds to the extent there are not sufficient funds in the
related REO Account (taking into account any necessary reserve amounts as to
REO Loans) or the related Escrow Account available to cover any such expenses
and as permitted under the Mortgage Loan Documents and the Master Servicer
shall not be required to make a Nonrecoverable Advance. The Master Servicer
shall be entitled to reimbursement for any unreimbursed Servicing Advance made
pursuant to the immediately preceding sentence pursuant to this Agreement.
(d) Any P&I Advances required to be made by the Master Servicer
hereunder with respect to the Canadian Loan shall be made in Canadian dollars
and may be made by the Master Servicer or any subservicer. The amount of any
P&I Advance with respect to the Canadian Loan for any Distribution Date shall
be included in the report to the F/X Counterparty and the Trustee prepared for
such Distribution Date pursuant to Section 4.10(f). Any such P&I Advance for
any Distribution Date shall be included in the amounts paid to the F/X
Counterparty by the Master Servicer on behalf of the Trustee two Business Days
prior to such Distribution Date pursuant to the Foreign Currency Exchange
Contract.
(e) The Trustee, and subject to Section 4.05(c), the Master Servicer,
shall be entitled to interest on any Advance made thereby with respect to a
Mortgage Loan. Such interest shall accrue at the Advance Rate from the date on
which such Advance was made to but not including any Business Day on which the
Person making such Advance is reimbursed for such Advance as provided in this
Agreement; provided, however, that neither the Master Servicer nor any other
party shall be entitled to interest accrued on the amount of any P&I Advance
with respect to any Mortgage Loan if the related Monthly Payment is received
by the Master Servicer prior to (but excluding) the Master Remittance Date
immediately following the Due Date for such Monthly Payment; provided,
further, that neither the Master Servicer nor any other party shall be
entitled to interest accrued on the amount of any P&I Advance with respect to
any of Mortgage Loan Numbers 92, 132 or 155 (as identified on Exhibit G) made
before the end of any such Mortgage Loan's related grace period.
(f) If the Master Servicer determines with respect to any Mortgage
Loan that a P&I Advance, if made, would constitute a Nonrecoverable Advance or
that it has made a Nonrecoverable Advance, the Master Servicer shall deliver
to the Trustee a Nonrecoverable Advance Certificate.
(g) The Master Servicer shall determine on each Business Day whether
amounts are available in the Collection Account or Escrow Account to reimburse
the Trustee or itself for unreimbursed Advances made pursuant to this
Agreement. The Master Servicer shall withdraw all amounts necessary to make
such reimbursement to the extent such withdrawals are permitted under Section
4.03(a) or Section 4.06(c), and shall reimburse the Trustee and itself, in
that order, on each Business Day.
Section 4.06 Escrow Accounts.
(a) On or before the Delivery Date, the Master Servicer shall
establish, and hereby agrees to maintain for the duration of this Agreement,
an Escrow Account. The Escrow Account shall be an Eligible Account to the
extent consistent with the related Mortgage Loan Documents. The Escrow Account
shall consist of one or more subaccounts, each of which shall relate solely to
collections with respect to a Mortgage Loan, and funds in each such subaccount
in the Escrow Account shall be held by such Master Servicer for the benefit of
the Certificateholders and the related Mortgagors and shall not be commingled
with any other moneys. The Master Servicer shall, within five (5) Business
Days of the establishment thereof, notify the Trustee and the Special Servicer
in writing of the location and account number of the Escrow Account and shall
give the Trustee and the Special Servicer written notice of any change of such
location or account number on or prior to the date of such change. The Master
Servicer shall deposit into the appropriate subaccount of the related Escrow
Account any Escrow Payments that it receives, including, without limitation,
(i) any Payment Reserve, Repair and Remediation Reserve, Replacement Reserve
or Tenant Improvement and Leasing Commissions Reserve required to be deposited
therein on the applicable closing date and as of each Due Date for a Mortgage
Loan and (ii) any related Insurance Proceeds or Condemnation Proceeds. In
addition, such Master Servicer shall deposit, on the related Master Remittance
Date, into such subaccount out of its own funds an amount representing net
losses realized on Permitted Investments with respect to funds in such
subaccount except to the extent such investments were made at the direction of
and for the benefit of the Mortgagor under the related Mortgage Loan Documents
pursuant to the second sentence of Section 4.06(b).
(b) Subject to the terms of the Mortgage Loan Documents, and to
applicable Law, any funds in any subaccount of an Escrow Account may be
invested by, at the risk of, and for the benefit of, the Master Servicer in
Permitted Investments and any such Permitted Investment shall not be sold or
disposed of prior to its maturity. If, however, pursuant to the terms of the
related Mortgage Loan Documents, or pursuant to applicable Law, any funds in
an Escrow Account are required to be invested for the benefit of the related
Mortgagor, the Master Servicer shall so invest such funds.
(c) Withdrawals from any subaccount of an Escrow Account may be made
(to the extent amounts have been escrowed for such purpose and to the extent
permitted by the related Mortgage Loan Documents) only for the following
purposes in the following order of priority:
(i) to recoup any amount deposited in such subaccount and
not required to be deposited therein or to refund to
the related Mortgagor any sums determined to be
overages;
(ii) to pay interest earned on such account, if any, to
itself as additional servicing compensation or to the
related Mortgagor as required by subsection (b)
above;
(iii) from amounts on deposit in such subaccount
representing the Payment Reserve for a Mortgage Loan,
to effect (by means of deposit to the Collection
Account pursuant to Section 4.02(c) hereof) the
timely payment of principal or interest on such
Mortgage Loan;
(iv) to effect the timely payment of taxes, assessments,
insurance and other basic carrying costs in
connection with the related Mortgage Loan;
(v) from amounts on deposit in such subaccount
representing Insurance Proceeds for a Mortgage Loan,
to effect the restoration or repair of the related
Mortgaged Property or to release to the related
Mortgagor in accordance with the terms of the related
Mortgage Loan Documents or, to the extent not
expressly provided therein, in accordance with
Accepted Master Servicing Practices or Accepted
Special Servicing Practices, as applicable, and
applicable Law;
(vi) from amounts on deposit in such subaccount
representing Condemnation Proceeds for a Mortgage
Loan, to effect the restoration or repair of the
related Mortgaged Property or to release to the
related Mortgagor in accordance with the terms of the
related Mortgage Loan Documents or, to the extent not
expressly provided therein, in accordance with
Accepted Master Servicing Practices or Accepted
Special Servicing Practices, as applicable, and
applicable Law;
vii) without duplication of any amounts otherwise
reimbursed pursuant to Section 4.03(a) to the Master
Servicer, to reimburse the Master Servicer, in that
order, out of related collections on the related
Mortgage Loan for any Servicing Advances made by such
Servicer pursuant to this Agreement together with
interest at the Advance Rate pursuant to Section
4.05(e);
(viii) upon satisfaction of the conditions relating
thereto in the related Mortgage Loan Documents, to
disburse to the related Mortgagor any amounts in the
Replacement Reserve, the Repair and Remediation
Reserve or the Tenant Improvement and Leasing
Commissions Reserve required to be so disbursed; or
(ix) to clear and terminate such subaccount on payment in
full of the related Mortgage or upon termination of
this Agreement.
(d) To the extent that interest earned on funds in an Escrow Account
is insufficient to pay interest on such funds to the related Mortgagor to the
extent required by applicable Law, the Master Servicer shall, as part of its
servicing duties under this Agreement, pay such interest from its own funds as
a Servicing Advance, and shall be entitled to reimbursement therefor pursuant
to Section 4.03(a) hereof; provided, however, that the Master Servicer shall
not be required to make a Nonrecoverable Advance.
(e) The Master Servicer shall maintain accurate records with respect
to each related Mortgaged Property reflecting the status of taxes,
assessments, insurance premiums and other similar items that are or may become
a lien thereon and the status of insurance premiums and ground rent, if
applicable, payable in respect thereof. The Master Servicer shall obtain, from
time to time, all bills for the payment of such items (including renewal
premiums) and shall effect timely payment thereof in accordance with the
provisions of Sections 4.01(c) and 4.07 hereof, employing for such purpose
amounts in the related Escrow Account as allowed under the terms of the
related Mortgage Loan Documents or, if not paid from amounts on deposit in
such Escrow Account, by making a Servicing Advance pursuant to Section 4.01(c)
hereof. The Master Servicer shall be entitled to reimbursement therefor with
interest thereon at the Advance Rate pursuant to Section 4.03(a) or Section
4.06(c).
Section 4.07 Maintenance of Insurance.
(a) The Master Servicer shall use its best efforts consistent with
Accepted Master Servicing Practices to cause the related Mortgagor to maintain
with a Qualified Insurer (to the extent permitted by the Mortgage Loan
Documents), or if the Mortgagor does not so maintain, the Master Servicer
shall cause to be maintained with a Qualified Insurer for each related
Mortgaged Property all insurance required by the terms of the related Mortgage
Loan Documents; provided, that insurance in the amount required above is
available at a commercially reasonable cost and the Trustee, as mortgagee, has
an insurable interest. Subject to the preceding sentence, hazard insurance
shall be maintained in the amount set forth in the related Mortgage Loan
Documents but in any event in an amount at least equal to the lesser of (a)
the replacement cost of the improvements which are a part of such property
without deduction for depreciation and (b) the unpaid principal balance on
such Mortgage Loan. Such insurance policies shall also provide coverage in
amounts sufficient such that the insurance carrier would not deem the
Mortgagor to be a co-insurer thereunder. All such policies shall provide for
at least thirty days' prior written notice (if available) to the Master
Servicer of any cancellation, reduction in the amount of, or material change
in, the coverage provided thereunder. If at any time the Mortgaged Property is
in a federally designated special flood hazard area, the Master Servicer shall
use its best efforts consistent with Acceptable Servicing Practices to cause
the related Mortgagor to maintain or will itself obtain flood insurance in
respect thereof to the extent available at commercially reasonable rates. Such
flood insurance shall be in an amount equal to the lesser of (x) the unpaid
principal balance of the related Mortgage Loan, (y) the maximum amount of such
insurance required by the terms of the related Mortgage Note or Mortgage and
(z) the maximum amount of such insurance that is available for the related
Mortgaged Property under the national flood insurance program (assuming that
the area in which such Mortgaged Property is located is participating in such
program). Any cost incurred in maintaining any insurance required pursuant to
this subsection (a) shall not, for the purpose of calculating monthly
distributions to the Certificateholders, be added to the unpaid principal
balance of the related Mortgage Loan, notwithstanding that the terms of the
Mortgage Loan so permit but such cost shall be deemed to be a Servicing
Advance and shall be reimbursed as provided in this Agreement.
(b) If the Master Servicer or the Special Servicer, as applicable,
causes any Mortgaged Property or REO Property to be covered by a master force
placed insurance policy, which policy is issued by a Qualified Insurer and
provides no less coverage in scope and amount for such Mortgaged Property or
REO Property than the insurance required to be maintained pursuant to Section
4.07(a), the Master Servicer or Special Servicer shall conclusively be deemed
to have satisfied its obligations to maintain insurance pursuant to Section
4.07(a). Such policy may contain a deductible clause, in which case the Master
Servicer or Special Servicer, as applicable shall, in the event that (i) there
shall not have been maintained on the related Mortgaged Property or REO
Property a policy otherwise complying with the provisions of Section 4.07(a),
and (ii) there shall have been one or more losses which would have been
covered by such a policy had it been maintained, immediately deposit into the
Collection Account from its own funds the amount not otherwise payable under
such policy because of such deductible to the extent that any such deductible
exceeds the deductible limitation that pertained to the related Mortgage Loan,
or, in the absence of any such deductible limitation, the deductible
limitation which is consistent with Accepted Master Servicing Practices or
Accepted Special Servicing Practices, as applicable.
(c) All of the hazard insurance policies required to be maintained
under subsection (a) of this Section shall contain a standard mortgagee clause
naming the Master Servicer (or Special Servicer with respect to REO Mortgage
Loans), as agent for the Trustee and its successors and assigns as the Person
to whom all payments made by the insurance carrier shall be made. The Master
Servicer (or the Special Servicer with respect to REO Mortgage Loans) shall
arrange for the application of all such insurance proceeds (i) to the
restoration or repair of the related Mortgaged Property, (ii) to prepay in
whole or in part the outstanding principal amount of the related Mortgage Note
or (iii) to be released to the related Mortgagor, as the case may be, in all
cases in accordance with the express requirements of the applicable Mortgage
Loan Documents. To the extent the applicable Mortgage Loan Documents require
the delivery of appraisals, engineer's reports, architect's disbursement
certificates or other documents or instruments before any such insurance
proceeds are applied, the Master Servicer shall obtain and verify the same and
any costs so incurred shall be deemed to be a Servicing Advance and shall be
reimbursed as provided in this Agreement.
Section 4.08 Enforcement of "Due-on-Sale" Clauses; Assumption
Agreements.
(a) Subject to Section 4.08(c) below, to the extent any Mortgage Loan
contains an enforceable "due-on-sale" or "due-on-encumbrance" clause, in the
event the Master Servicer has knowledge of any sale or encumbrance in
contravention of such clause, the Master Servicer shall enforce, and shall not
waive, such clause. If the Master Servicer is unable to enforce or the Special
Servicer consents to waive any such "due-on-sale" clause or if no
"due-on-sale" clause is applicable, the Master Servicer shall enter into an
assumption agreement with the Person to whom such property has been conveyed
or is proposed to be conveyed, pursuant to which such Person becomes liable
under the Mortgage Note and, to the extent permitted by applicable state Law
and the related Mortgage, the Mortgagor remains liable thereon. The Master
Servicer is also authorized to enter into a substitution of liability
agreement with such Person, pursuant to which the original Mortgagor is
released from liability and such Person is substituted as the Mortgagor and
becomes liable under the Mortgage Note; provided, however, that such
substitute Mortgagor must satisfy the requirements set forth in the related
Mortgage Loan Documents or the underwriting requirements customarily imposed
by prudent commercial mortgage lenders as a condition to approval of a
borrower on a new mortgage loan substantially similar to such Mortgage Loan.
(b) Subject to Section 4.08(c) below, to the extent any Mortgage Loan
contains a clause granting a right of assumption to a qualified substitute
Mortgagor upon the sale, conveyance or transfer of the related Mortgaged
Property, the Master Servicer shall enter into an assumption agreement with
such qualified substitute Mortgagor, pursuant to which such substitute
Mortgagor becomes liable under the Mortgage Note. If any Person other than the
Mortgagor has, pursuant to the related Mortgage Loan Documents, undertaken to
indemnify the mortgagee and, in connection with an assumption of the type
referred to in the preceding sentence, the related Mortgage Loan Documents
permit a substitution of such third-party indemnitor by a qualified substitute
indemnitor, the Master Servicer shall enter into an assumption of liability
agreement with such qualified substitute indemnitor, pursuant to which such
substitute indemnitor becomes liable under the relevant indemnification
obligations. The Master Servicer is also authorized to enter into a
substitution of liability agreement with such substitute Mortgagor, pursuant
to which the original Mortgagor is released from liability and such substitute
Mortgagor is substituted as the Mortgagor and becomes liable under the
Mortgage Note; provided, however, that such substitute Mortgagor must satisfy
the requirements set forth in the related Mortgage Loan Documents or the
underwriting requirements customarily imposed by prudent commercial mortgage
lenders as a condition to approval of a borrower on a new mortgage loan
substantially similar to such Mortgage Loan.
(c) If the Master Servicer recommends taking any action pursuant to
Section 4.08(a) or (b), it shall promptly provide the Special Servicer with
such recommendation and analysis and shall provide the Special Servicer a copy
of the materials upon which such recommendation is based. The Special Servicer
shall have the right hereunder to grant or withhold consent to any such
agreement in accordance with the terms of the related Mortgage Loan Documents,
Section 3.18 above and Section 11.02 below. The Master Servicer shall not
waive any right it has, or grant any consent it is otherwise entitled to
withhold, under any related "due-on-sale" or "due-on-encumbrance" clause or in
connection with any assumption until it has received the consent of the
Special Servicer; provided, however, that if any such consent has not been
expressly denied within fifteen (15) Business Days of the Special Servicer's
receipt from the Master Servicer of the Master Servicer's written
recommendation and analysis and any additional information reasonably
requested by the Special Servicer or the Directing Certificateholder in
connection therewith, such consent shall be deemed to have been granted.
Subject to the related Mortgage Loan Documents and applicable law, neither the
Master Servicer nor the Special Servicer shall waive any right it has, or
grant any consent it is otherwise entitled to withhold, under any related
"due-on-sale" or "due-on-encumbrance" clause under any Mortgage Loan, or
approve the assumption of any Mortgage Loan, unless in any such case, all
associated costs and expenses are covered without any expenses to the Trust
Fund (it being understood and agreed that, except as expressly provided
herein, neither the Special Servicer nor the Master Servicer shall be
obligated to cover or assume any such costs or expenses). Prior to entering
into any such assumption agreement, if the aggregate Stated Principal Balance
of the Mortgage Loans of the assuming Mortgagor and its Affiliates and any
other Mortgage Loans cross-collateralized therewith is more than (a)
$20,000,000 or (b) 5% of the current outstanding Certificate Balance (as
verified by the Trustee), then the Master Servicer shall obtain written
confirmation from S&P stating that none of the then-current rating or ratings
of all outstanding Classes of the Certificates would be qualified (if
applicable), downgraded or withdrawn by S&P, as a result thereof. Prior to
entering into any such assumption agreement, if the related Mortgage Loan,
together with any other Mortgage Loans cross-collateralized therewith, or
together with all other Mortgage Loans with the same or an affiliated
Mortgagor, is one of the ten largest of the then outstanding Mortgage Loans,
by Stated Principal Balance, then the Master Servicer shall obtain written
confirmation from Fitch stating that none of the then-current rating or
ratings of all outstanding Classes of the Certificates would be downgraded or
withdrawn by Fitch, as a result thereof. The Master Servicer shall promptly
deliver such confirmation to the Trustee. Neither the Master Servicer nor the
Special Servicer shall (to the extent that it is within their control to
prohibit such event) consent to the assumption and transfer of any Mortgaged
Property which secures a Cross Collateralized Loan unless all of the Mortgaged
Properties securing such group of Cross Collateralized Loans are transferred
simultaneously by the respective Mortgagor.
(d) In connection with any transfer or proposed transfer of any
interest in a Mortgagor or Mortgaged Property, if the related Mortgage Loan
Documents require the related Mortgagor to pay all costs and expenses
(including, without limitation, any Rating Agency fees and expenses)
associated with such transfer or proposed transfer, as a condition to granting
its consent thereto, the Master Servicer shall require the Mortgagor to pay
such costs and expenses in accordance with the related Mortgage Loan
Documents. If the related Mortgage Loan Documents limit the amount of such
costs and expenses that the related Mortgagor may be required to pay, the
Master Servicer shall require the related Mortgagor to pay such costs and
expenses, subject to such limitation and any costs and expenses exceeding such
limitation shall be an expense of the Trust Fund. If the related Mortgage Loan
Documents do not provide for the related Mortgagor's payment of all or any
part of such costs and expenses and applicable law permits the Master Servicer
to require the related Mortgagor to pay such costs and expenses, the Master
Servicer will require the related Mortgagor to pay such costs and expenses, to
the extent permitted by law. If the related Mortgage Loan Documents expressly
provide that the related Mortgagor shall not pay such costs and expenses, or
if applicable law prohibits the Master Servicer from requiring the related
Mortgagor to pay such costs and expenses, such costs and expenses shall be an
expense of the Trust Fund. Notwithstanding the foregoing, if the related
Mortgage Loan Documents do not expressly provide that the related Mortgagor
shall not pay such costs and expenses and if applicable law permits the Master
Servicer to require the related Mortgagor to pay such costs and expenses and
the Master Servicer fails to so require the related Mortgagor to pay all such
costs and expenses, the Master Servicer shall apply any portion of the
assumption fee due to the Master Servicer from the related Mortgagor in
connection with such transfer or proposed transfer to cover such costs and
expenses.
Each of the Master Servicer and the Special Servicer shall be
entitled to receive a percentage of any remaining portion of such assumption
fee (such remaining portion, a "Net Assumption Fee") as additional
compensation, pursuant to Sections 4.12 and 6.13. Neither the Master Servicer
nor the Special Servicer shall waive in full or part any assumption fee, to
the extent it would constitute additional compensation payable to the other
Servicer, without first obtaining the consent of such other Servicer. Neither
the Master Servicer nor the Special Servicer shall waive in full or part the
payment of any expense by a Mortgagor, to the extent it would affect the
additional compensation payable to the other Servicer, without first obtaining
the consent of such other Servicer. Notwithstanding the foregoing, or anything
contained in Section 3.18(d) to the contrary, in the event that the Master
Servicer or the Special Servicer agrees to waive in full or part any fee or
expense payable by a Mortgagor and the other Servicer does not consent to such
waiver, such waiver shall not affect the amount of additional compensation
payable to the other Servicer and such other Servicer's additional
compensation will be calculated as if no such waiver had been granted.
(e) In connection with any assumption under this Section 4.08, no
material term of the Mortgage Note (including, but not limited to, the
Mortgage Rate, the amount of the Monthly Payment, any interest rate floor or
cap applicable to the calculation of the Mortgage Rate and any other term
affecting the amount or timing of payment on the Mortgage Loan) may be
changed. The Master Servicer shall forward to the Custodian the original
substitution or assumption agreement and shall forward to the Trustee a copy
of such substitution or assumption agreement.
(f) Notwithstanding the foregoing or any other provision of this
Agreement, the Master Servicer shall not be deemed to be in default, breach or
any other violation of its obligations hereunder by reason of any conveyance
by a Mortgagor of a Mortgaged Property or any assumption of a Mortgage Loan by
operation of Law that the Master Servicer in good faith determines it may be
restricted by Law from preventing. The Master Servicer shall deliver prompt
written notice to the Trustee of any such determination or assumption.
(g) The Master Servicer shall notify each Rating Agency if it shall
have actual knowledge that such assumption results in any Mortgagor, or any
affiliate or principal thereof, representing ownership interest in more than
5% of the Mortgagors by outstanding principal balance of the Mortgage Loans.
Section 4.09 Review of Property Inspections, Operating Statements
and Rent Rolls.
(a) The Master Servicer shall inspect or cause to be inspected each
related Mortgaged Property and shall verify and deliver a copy of a Property
Inspection Report in substantially the form of Exhibit M hereto to the Trustee
at such times and in such manner as are consistent with Accepted Master
Servicing Practices; provided that (i) each Mortgaged Property securing a
Mortgage Loan with an outstanding principal balance in excess of $2,000,000 or
2% of the current aggregate principal balance of all Mortgage Loans shall be
inspected and a Property Inspection Report shall be delivered at least once a
year and (ii) each other Mortgaged Property securing a Mortgage Loan shall be
inspected and a Property Inspection Report shall be delivered at least once
every two years; provided, however, that any Mortgaged Property securing a
Mortgage Loan which becomes a Specially Serviced Mortgage Loan shall be
inspected promptly by the Special Servicer after the Servicing Transfer Event
occurs and, so long as the related Mortgage Loan is a Specially Serviced
Mortgage Loan, annually thereafter. A copy of each Property Inspection Report
prepared by the Special Servicer shall be delivered by hard copy or electronic
means to the Master Servicer and the Directing Certificateholder promptly, but
in any event within 30 days after such inspection.
(b) The Master Servicer shall, within thirty (30) Business Days of
receipt, verify any operating statements and rent rolls prepared by a
Mortgagor of a Mortgaged Property in accordance with the terms of the Mortgage
Loan for compliance with any covenants contained in the related Mortgage Loan
Documents. Within 105 calendar days after the end of each quarter for the
trailing or quarterly information received (or 180 calendar days after the end
of each year for annual information received), commencing in the quarter
ending on December 31, 2000 for current year trailing data and January 1, 2001
for annual, year end data, the Master Servicer shall deliver to the Trustee,
the Directing Certificateholder and each Rating Agency upon request by
electronic means the Operating Statement Analysis Reports and NOI Worksheets
for each Mortgaged Property, provided that the Master Servicer has timely
received (either directly or from a subservicer or the Special Servicer) the
related operating statements and rent rolls from the related Mortgagor. The
Special Servicer shall provide to the Master Servicer the related data fields
for, and hard copies of, operating statements and rent rolls at least 10 days
(or some other time as agreed by the Master Servicer and the Special Servicer)
prior to the applicable time period for the Master Servicer's delivery of the
Operating Statement Analysis Reports and the NOI Worksheets as set forth in
Section 4.09(b).
Section 4.10 Reports of the Master Servicer and the Trustee.
(a) The Master Servicer shall prepare, or cause to be prepared, and
deliver to the Trustee, the Special Servicer and the Directing
Certificateholder, in an electronic format reasonably acceptable to the
Trustee, consistent with Accepted Master Servicing Practices not later than
(i) 5:00 p.m. New York City time on the second Business Day immediately
preceding each Distribution Date, a copy of the CMSA Loan Periodic Update
File, (ii) the second Business Day immediately preceding each Distribution
Date after April, 2001, all remaining CMSA IRP Reports (except those not
prepared by the Master Servicer); provided, however, that, the supplemental
reports (7) and (8) in the definition of CMSA IRP shall be delivered on a
quarterly basis. Each such report shall be in respect of the related
Remittance Period on a Mortgage Loan-by-Mortgage Loan basis to the extent
applicable.
(b) The Master Servicer shall, upon the Trustee's reasonable request,
provide such other customary information relating to the Mortgage Loans as is
necessary for the Certificateholders to prepare their federal, state and local
income tax returns.
(c) The Master Servicer shall prepare and distribute (with copies to
each of the Special Servicer and the Directing Certificateholder) all
information statements relating to payments on the Mortgage Loans in
accordance with all applicable federal and state laws and regulations. Upon
prior written request of the Trustee, the Master Servicer shall prepare such
other reports as may be reasonably requested in writing by the Trustee or the
Rating Agencies (with copies to each of the Special Servicer and the Directing
Certificateholder). The Master Servicer shall be entitled to charge a
reasonable fee reflecting the internal and external costs to such Master
Servicer of preparing any such report and such fee shall be charged to the
Person making such a request to the Trustee (other than the Rating Agencies,
the Special Servicer and the Directing Certificateholder, in which case such
expenses shall be an expense of the Trust Fund and paid as a Servicing
Advance).
(d) The Master Servicer shall notify the Depositor, the Special
Servicer and the Directing Certificateholder of the occurrence of a Required
Appraisal Date or a Collateral Value Adjustment within five (5) Business Days
of its knowledge of the occurrence of any such event. The Special Servicer
shall notify the Depositor, the Master Servicer and the Directing
Certificateholder of the occurrence of a Required Appraisal Date or a
Collateral Value Adjustment within five (5) Business Days of its knowledge of
the occurrence of any such event.
(e) The Master Servicer shall provide the reports and files through
electronic format or on its website (except (i) for the CMSA Bond Level File
and the CMSA Collateral Summary File, and (ii) that the Master Servicer shall
only be required to provide the CMSA Loan Setup File to the extent received)
listed in Exhibit H in the format and frequency set forth in Exhibit H to the
Directing Certificateholder at the times indicated in Section 4.10(a). The
Trustee shall provide the CMSA Bond Level File and the CMSA Collateral Summary
File listed in Exhibit H through electronic format or on its website in the
format and frequency set forth in Exhibit H to the Directing
Certificateholder.
(f) The Master Servicer shall prepare and deliver to the F/X
Counterparty, the Depositor, the Trustee, the Special Servicer and the
Directing Certificateholder, not later than 12:00 noon New York City time one
Business Day prior to each F/X Payment Date, a copy of a report specifying the
total amount to be remitted by the Master Servicer to the F/X Counterparty
with respect to the Canadian Loan pursuant to the Foreign Currency Exchange
Contract.
(g) If, with respect to the Canadian Loan, (i) the Master Servicer
has knowledge that an unscheduled payment or collection may be received, or
(ii) the Master Servicer has knowledge that a Monthly Payment and the related
P&I Advance may not be made, the Master Servicer shall notify the Depositor,
the Trustee, the Special Servicer, the Directing Certificateholder and the F/X
Counterparty by telephone or facsimile transmission within one Business Day of
obtaining any such knowledge. Such notice shall indicate (i) with respect to a
notice of an event described in clause (i) of the preceding sentence, the
amount of such unscheduled payment or collection and the date made or received
or expected to be made or received and (ii) with respect to a notice of an
event described in clause (ii) of the preceding sentence, the amount of the
Monthly Payment and the amount by which it may exceed any related P&I Advance.
The Master Servicer shall indicate to the F/X Counterparty in connection with
giving any such notice that it is not the notice required under the Foreign
Currency Exchange Contract and therefore shall not obligate the Master
Servicer or the Trustee to make any payment on an F/X Payment Date.
(h) The Master Servicer shall notify the Depositor and the F/X
Counterparty within one (1) Business Day, with copy to the Trustee, the
Special Servicer and the Directing Certificateholder, of the occurrence of any
of the following events:
(i) the Canadian Loan is cancelled, satisfied or paid in
full;
(ii) the Trust Fund has obtained title to any Mortgaged
Property securing the Canadian Loan by foreclosure or
otherwise;
(iii) the Trust Fund has sold, transferred or otherwise
disposed of all the REO Property which, prior to
becoming REO Property, secured the Canadian Loan; or
(iv) the Canadian Loan is subject to a modification or
amendment in respect to the related payment term.
In connection with an event discussed in clause (ii) above, the Master
Servicer shall specify an effective date for the Foreign Currency Exchange
Contract as required thereunder, only if the Opinion of Counsel referenced in
Section 6.03(h) has been obtained.
(i) The Master Servicer shall notify the Depositor, the Trustee, the
Special Servicer and the Directing Certificateholder and the F/X Counterparty
pursuant to this Agreement and the Foreign Currency Exchange Contract of the
occurrence of a Required Appraisal Date or a Collateral Value Adjustment
within one Business Day of the occurrence of any such event.
(j) Subject to Section 1.04(b), all reports hereunder with respect to
amounts collected in connection with the Canadian Loan or the related
Mortgaged Properties shall report such amounts in U.S. dollars based on the
exchange rate between Canadian dollars and U.S. dollars specified in the
Foreign Currency Exchange Contract, whether or not then in effect.
(k) The Master Servicer shall notify the Depositor, the Trustee, the
Special Servicer, the Directing Certificateholder and the Rating Agencies
within one (1) Business Day of any termination or modification of the Foreign
Currency Exchange Contract.
Section 4.11 Confirmation of Balloon Payment.
The Master Servicer shall send a letter by first class mail to each
related Mortgagor on a Balloon Mortgage Loan not earlier than twelve (12)
months and at least six (6) months prior to the related Maturity Date
reminding such Mortgagor of such Maturity Date and requesting that not later
than ninety (90) days prior to such Maturity Date such Mortgagor confirm in
writing that the payment due on such Maturity Date will be made on such date
and describe in reasonable detail any arrangements made or to be made with
regard to the payment of such Balloon Payment.
Section 4.12 Master Servicer Compensation.
(a) The Master Servicer shall be entitled to a fee (the "Master
Servicing Fee"), with respect to each Mortgage Loan that shall be equal to the
product of (a) the related Master Servicing Fee Rate and (b) the Stated
Principal Balance of such Mortgage Loan as of the Due Date in the preceding
calendar month calculated for the same period respecting which any related
interest payment on each Mortgage Loan is calculated. The Master Servicing Fee
is payable solely from the interest portion of the Monthly Payment on the
related Mortgage Loan plus Liquidation Proceeds, Excess Insurance Proceeds,
Excess Condemnation Proceeds and REO Proceeds with respect to such Mortgage
Loan, to the extent permitted by Section 4.03(a)(ii) hereof. The Master
Servicer shall also be entitled to receive as part of its servicing
compensation net reinvestment income pursuant to Sections 4.02(b) and 4.06(b),
and certain fees described in clause (2) of Section 4.02(c) with respect to
any Mortgage Loan that is not a Specially Serviced Mortgage Loan (subject to
4.08(d) and except for NSF check charges which may be retained by the Master
Servicer for any Mortgage Loan) and as otherwise permitted under this
Agreement.
(b) The Master Servicer shall be entitled to receive the following
items as additional servicing compensation (the following items, collectively,
"Additional Master Servicing Compensation"):
(i) pursuant to Sections 3.18(d), 4.08(d) and 6.13, 50%
of any and all Net Assumption Fees, modification
fees, extension fees, consent fees, waiver fees and
earnout fees actually paid by a Mortgagor with
respect to any Mortgage Loan (other than with respect
to any Specially Serviced Mortgage Loan) for which
the Master Servicer has not engaged a subservicer;
(ii) pursuant to Sections 3.18(d), 4.08(d) and 6.13, 87.5%
of any and all Net Assumption Fees, modification
fees, extension fees, consent fees, waiver fees and
earnout fees actually paid by a Mortgagor with
respect to any Mortgage Loan (other than with respect
to any Specially Serviced Mortgage Loan) for which
the Master Servicer has engaged a subservicer (it
being expressly understood that (A) 75% of such fees
will be paid to the Master Servicer for further
payment to any such subservicer and (B) the Master
Servicer shall be entitled to retain 12.5% of any
such fees as Additional Master Servicing
Compensation);
(iii) any and all charges for beneficiary statements or
demands, amounts collected for checks returned for
insufficient funds and other loan processing fees
actually paid by a Mortgagor with respect to a
Mortgage Loan and, in the case of checks returned for
insufficient funds, with respect to a Specially
Serviced Mortgage Loan;
(iv) any and all Prepayment Interest Excesses collected on
the Mortgage Loans; and
(v) interest or other income earned on deposits in the
Collection Account, pursuant to Section 4.02(b).
To the extent that any of the amounts described in the preceding paragraph are
collected by the Special Servicer, the Special Servicer shall promptly pay
such amounts to the Master Servicer.
Section 4.13 Adjustment of Master Servicer's Compensation.
Notwithstanding anything set forth in this Agreement, the Master
Servicer's compensation for the period ending on a Distribution Date shall be
reduced (but not below zero) by an amount equal to the lesser of (a) any
excess of any Prepayment Interest Shortfall over the sum of any Prepayment
Interest Excess and any Prepayment Premiums available for such Distribution
Date and (b) the Master Servicing Fee for such Distribution Date calculated
using a Master Servicing Fee Rate of 0.02% per annum (or the actual Master
Servicing Fee Rate for the related Mortgage Loan if such Prepayment Interest
Shortfall is the result of the Master Servicer's failure to enforce a
provision of the Mortgage Loan Documents requiring prepayments to be made on a
Due Date). The Master Servicer shall be entitled to retain on any Distribution
Date the lesser of (a) any amounts by which its Master Servicing Fee shall
have been reduced pursuant to the immediately preceding sentence on prior
Distribution Dates which have not been paid to the Master Servicer pursuant to
this sentence on prior Distribution Dates, and (b) the excess of (i) the sum
of any Prepayment Interest Excess and any Prepayment Premium for such
Distribution Date over (ii) any Prepayment Interest Shortfall for such
Distribution Date.
Section 4.14 Implementation of Operations and Maintenance Plans.
To the extent an operations and maintenance plan is required to be
established and executed pursuant to the terms of the related Mortgage Loan
Documents, the Master Servicer shall use reasonable efforts to enforce any
such plans in accordance with the terms of the Mortgage Loan Documents.
Section 4.15 [RESERVED].
Section 4.16 Foreign Currency Exchange Contract.
(a) The Master Servicer shall administer and enforce the Foreign
Currency Exchange Contract on behalf of the Trustee for the benefit of the
Certificateholders in accordance with the terms thereof.
(b) The Master Servicer shall deliver to the Depositor, Trustee and
the F/X Counterparty the required notice of payment pursuant to Section
4.10(f). The amount reported in such notice will include all collections
expected to be received with respect to the Canadian Loan or, if applicable,
the related REO Property, and any P&I Advances required to be made hereunder
with respect thereto net of any amounts the Master Servicer withdraws from the
Collection Account pursuant to Section 4.03(a)(i), (iii), (iv), (v), (vi) and
(vii) and any amounts the Master Servicer is not required to deposit into the
Collection Account pursuant to Section 4.02(c).
(c) Two Business Days immediately prior to each Distribution Date
(each an "F/X Payment Date") the Master Servicer shall remit to the F/X
Counterparty pursuant to the terms of the Foreign Currency Exchange Contract
in Canadian dollars the net amount described in clause (b) above.
(d) If the Foreign Currency Exchange Contract is terminated pursuant
to its terms or as a result of a default thereunder by the F/X Counterparty,
the Master Servicer shall prior to the Master Remittance Date exchange the
amounts in Canadian dollars otherwise payable to the F/X Counterparty for U.S.
dollars at the then-current foreign currency exchange rate (the "F/X Market
Rate"). U.S. dollars obtained pursuant to such currency exchange shall be
deposited into the Collection Account and shall be remitted to the Trustee on
the Master Remittance Date pursuant to Section 4.04.
ARTICLE V
[RESERVED]
ARTICLE VI
SPECIAL SERVICING
Section 6.01 The Special Servicer.
The Special Servicer, as independent contract servicer, shall,
notwithstanding any other provisions hereof, service and administer the
Specially Serviced Mortgage Loans and REO Property on behalf of and in the
best interests of and for the benefit of the Certificateholders (as determined
by the Special Servicer in its good faith and reasonable judgment) in
accordance with Accepted Special Servicing Practices. In the event that a
Mortgage Loan becomes a Specially Serviced Mortgage Loan, subject to the
provisions contained in this Article VI, the Master Servicer shall continue to
collect all Monthly Payments called for under the terms and provisions of the
Mortgage Loan in accordance with Section 4.02, except as otherwise directed by
the Special Servicer in writing.
Section 6.02 Transfer to Special Servicing.
(a) The Master Servicer shall notify the Trustee, the Depositor, the
Special Servicer and the Directing Certificateholder as promptly as
practicable by telephone and in an electronic format reasonably acceptable to
the Trustee after it becomes aware of (i) any facts or circumstances that
might result in any Mortgage Loan becoming a Specially Serviced Mortgage Loan
or (ii) the occurrence of a Servicing Transfer Event. If applicable, such
notification shall include a discussion of all appropriate courses of action
that might be employed to prevent the Mortgage Loan in question from becoming
a Specially Serviced Mortgage Loan, shall identify any Cross Collateralized
Loan that is cross-collateralized with the Mortgage Loan in question and
shall, to the extent applicable, set forth the information substantially in
the form of Exhibit S hereto. The Master Servicer shall provide to the
Trustee, the Depositor, the Special Servicer and the Directing
Certificateholder as promptly as practicable after request any additional
information reasonably requested thereby with respect to such Mortgage Loan.
(b) Unless the Master Servicer and the Special Servicer with respect
to a Mortgage Loan are the same Person, not later than two (2) Business Days
after the occurrence of a Servicing Transfer Event, the Master Servicer shall
send a letter by first class mail in substantially the form of Exhibit S
hereto (with a copy to the Special Servicer and the Directing
Certificateholder) notifying the related Mortgagor that the related Mortgage
Loan, and, if instructed in writing by the Directing Certificateholder, any
Cross-Collateralized Loan that is cross-collateralized with such Mortgage Loan
has become a Specially Serviced Mortgage Loan and instructing such Mortgagor
to direct all future notices and communications to the Special Servicer but to
continue making Monthly Payments to the Master Servicer unless otherwise
directed by the Special Servicer in writing.
(c) Not later than five (5) Business Days after the occurrence of a
Servicing Transfer Event, the Master Servicer shall provide the Special
Servicer with copies of all information, documents and records (including
records stored electronically on computer tapes, magnetic disks and the like)
in its possession relating to each Mortgage Loan with respect to which notice
is required to be delivered pursuant to clause (a) above. The Master Servicer
and the Special Servicer shall take all other actions necessary or appropriate
to effect a transfer of servicing pursuant to this Section 6.02 or Section
6.12, including but not limited to the preparation, execution and delivery of
any and all necessary or appropriate documents and other instruments, and will
cooperate fully with each other and the Master Servicer in effecting such
transfer as promptly as possible. Servicing of a Mortgage Loan shall be
automatically transferred to the Special Servicer on the Servicing Transfer
Date.
(d) Following the related Servicing Transfer Date and prior to the
restoration of the related Mortgage Loan pursuant to Section 6.12 to standard
servicing, the Master Servicer shall not have any further dealings or
communications with the related Mortgagor except as administrator of the
Collection Account and Escrow Account. The Master Servicer shall maintain
up-to-date information on each Mortgage Loan which becomes a Specially
Serviced Mortgage Loan in order to properly administer the Collection Account
and Escrow Account, to enable it to resume all servicing obligations with
respect to a Mortgage Loan which ceases to be a Specially Serviced Mortgage
Loan as promptly as possible pursuant to Section 6.12 and to provide any
reports required under Article IV hereof. The Special Servicer shall promptly
provide to the Master Servicer all information available to the Special
Servicer and not available to such Master Servicer necessary to maintain such
up-to-date information.
(e) Not later than two (2) Business Days after the Servicing Transfer
Date, the Special Servicer shall send a letter by first class mail
substantially in the form of Exhibit T hereto notifying the related Mortgagor
that servicing has been transferred to the Special Servicer.
Section 6.03 Servicing of Specially Serviced Mortgage Loans.
(a) The Trustee shall notify the Special Servicer of the name and
address of each Directing Certificateholder within 10 days of its learning of
same. The Master Servicer shall notify the Directing Certificateholder of the
occurrence of such Servicing Transfer Event within two Business Days.
(b) Subject to Accepted Special Servicing Practices, Sections 3.18,
6.03(c) and 6.14 and the other terms of this Agreement, in servicing and
administering any Specially Serviced Mortgage Loan or REO Property, the
Special Servicer shall have full power and authority to do any and all things
in connection with such servicing and administration that it may deem in its
best judgment necessary or advisable including, without limitation, to execute
and deliver on behalf of the Trustee and the Certificateholders any and all
instruments of satisfaction or cancellation or of partial release or full
release or discharge and all other comparable instruments with respect to such
Specially Serviced Mortgage Loan or such REO Mortgage Loan or pursuant to
Accepted Special Servicing Practices to agree to any modification, assumption,
extension, waiver or amendment of any term and to defer, reduce or forgive
payment of interest and/or principal of any such Specially Serviced Mortgage
Loan provided, however, with respect to any such modification, assumption,
extension, waiver or amendment, the Special Servicer has determined in its
reasonable judgement that such modification, assumption, extension, waiver or
amendment is expected to increase the recovery value of the related Mortgage
Loan on a net present value basis. Notwithstanding the foregoing, the Special
Servicer shall not release, substitute, or add any Mortgaged Property, except
as otherwise provided in the related Mortgage Loan Documents, unless such
Special Servicer shall have obtained written confirmation from each Rating
Agency stating that upon such release, substitution or addition none of the
then-current rating or ratings of all outstanding Classes of the Certificates
would be qualified (if applicable), downgraded or withdrawn by each Rating
Agency as a result thereof. The Special Servicer may not extend the scheduled
maturity date of any Specially Serviced Mortgage Loan to a date later than
three years prior to the Rated Final Distribution Date provided that if such
Mortgage is secured by a leasehold interest, the related scheduled maturity
date may not be extended to a date later than twenty years prior to the
expiration of the related ground lease; and provided, further, that if such
Mortgage Loan is a Balloon Mortgage Loan, the related scheduled maturity date
may not be extended to a date later than the amortization term thereof absent
the related Balloon Payment. Notwithstanding the foregoing, no such extension
may be effected unless the Special Servicer shall deliver to the Trustee an
Officer's Certificate certifying that in the judgment of such Special Servicer
such extension is expected to increase the recovery value of the related
Mortgage Loan on a net present value basis; provided that such certificate
shall not represent any assurances that any such recovery will actually be
realized. The expenses incurred in connection with the preparation of certain
such instruments shall be reimbursed to the Special Servicer pursuant to
Section 3.15. The Special Servicer may from time to time request any powers of
attorney and other documents necessary or appropriate to enable the Special
Servicer to carry out its servicing and administrative duties hereunder. If it
shall make such request, the Special Servicer shall prepare for signature by
the Trustee, and the Trustee shall sign any such powers of attorney or other
documents necessary or appropriate to carry out such duties hereunder. In
addition to the duties and obligations set forth in this Article VI, as to any
Specially Serviced Mortgage Loan the Special Servicer shall assume the rights
and obligations of the Master Servicer with respect to a Mortgage Loan set
forth in Sections 4.08 and 4.09(b) (but not any liabilities incurred by the
Master Servicer prior to the related Servicing Transfer Date) with respect to
any Specially Serviced Mortgage Loan and any REO Properties, and Section 4.07
with respect to any REO Properties and, to the extent it receives a
certificate from a Master Servicer that any amount is due in connection with
maintaining any Insurance Policy pursuant to Section 4.07 with respect to any
such Specially Serviced Mortgage Loan, with respect to paying or collecting
any such amount. Any insurance required to be maintained by the Special
Servicer with respect to REO Properties pursuant to this Section 6.03 and
Section 4.07. shall be maintained with Qualified Insurers.
Except for a duty or obligation of the Master Servicer not assumed by
the Special Servicer pursuant to Section 6.02(d), the Master Servicer shall
not have any such duty or obligation with respect to a Mortgage Loan unless
and until such Mortgage Loan ceases to be a Specially Serviced Mortgage Loan.
(c) No later than thirty (30) days after a Servicing Transfer Date
for a Mortgage Loan, the Special Servicer shall deliver to the Trustee, the
Depositor, the Master Servicer, each Rating Agency and the Directing
Certificateholder, a report (the "Asset Strategy Report") with respect to such
Mortgage Loan and the related Mortgaged Property. Such Asset Strategy Report
shall set forth the following information to the extent reasonably
determinable:
(i) summary of the status of such Specially Serviced
Mortgage Loan and any negotiations with the related
Mortgagor;
(ii) consideration of alternatives to the exercise of
remedies (such as forbearance relief, modification of
the terms and conditions of such Mortgage Loan,
disposition of the Specially Serviced Mortgage Loan
or the related Mortgaged Property and application of
the proceeds of such disposition to the outstanding
principal balance of such Mortgage Loan and interest
thereon, or abandonment of the related Mortgaged
Property);
(iii) a discussion of the probable time frames and
estimated amount of any related Servicing Advances
applicable to each of the alternatives referred to
above;
(iv) a discussion of the legal and environmental
considerations reasonably known to the Special
Servicer, consistent with the Accepted Special
Servicing Practices, that are applicable to the
exercise of remedies as aforesaid and to the
enforcement of any related guaranties or other
collateral for the related Mortgage Loan and a
recommendation as to whether outside legal counsel
should be retained;
(v) estimated budgets for any operating or capital funds
expected to be required for the related Mortgaged
Property;
(vi) the most current rent roll available for and any
strategy for the leasing or releasing of the related
Mortgaged Property;
(vii) the Special Servicer's analysis and recommendations
(which will include a discussion of alternative
courses of action and a comparison of the probable
benefits and detriments of each alternative course of
action) on how such Specially Serviced Mortgage Loan
might be returned to performing status and returned
to the Master Servicer for regular servicing under
Article IV hereof or otherwise realized upon; and
(viii) such other information as the Special Servicer
deems relevant in light of the Accepted Special
Servicing Practices.
The Asset Strategy Report shall specifically identify any actions
described in Section 11.02(h) that the Special Servicer believes to be courses
of action or alternatives to remedies that may be advisable with respect to
such Mortgage Loan and related Mortgaged Property.
If within ten (10) Business Days of receiving an Asset Strategy
Report, the Directing Certificateholder does not disapprove such Asset
Strategy Report in writing, the Special Servicer shall implement the
recommended action as outlined in such Asset Strategy Report; provided,
however, that any such action is not contrary to applicable Law, the terms of
the applicable Mortgage Loan Documents or Accepted Special Servicing
Practices. If the Directing Certificateholder disapproves such Asset Strategy
Report, the Special Servicer will revise such Asset Strategy Report and
deliver to the Trustee, each Directing Certificateholder, the Master Servicer
and each Rating Agency a new Asset Strategy Report as soon as practicable. The
Special Servicer shall revise such Asset Strategy Report as described above in
this Section 6.03(c) until the Directing Certificateholder shall fail to
disapprove such revised Asset Strategy Report in writing within ten (10)
Business Days of receiving such revised Asset Strategy Report; provided,
however, the Special Servicer shall implement the last submitted Asset
Strategy Report if 30 days have elapsed since the Directing
Certificateholder's receipt of the Initial Asset Strategy Report. The Special
Servicer may, from time to time, subject to Section 11.02(h), modify any Asset
Strategy Report it has previously delivered and implement such report,
provided such report shall have been prepared, reviewed and not rejected
pursuant to the terms of this Section and Section 11.02(g). Notwithstanding
the foregoing, the Special Servicer (i) may, following the occurrence of an
extraordinary event with respect to the related Mortgaged Property, take any
action set forth in such Asset Strategy Report before the expiration of a ten
(10) Business Day period if the Special Servicer has reasonably determined
that failure to take such action would materially and adversely affect the
interest of the Certificateholders and it has made a reasonable effort to
contact the Directing Certificateholder and (ii) in any case, shall determine
whether such disapproval is not in the best interest of all the
Certificateholders pursuant to Accepted Special Servicing Practices. Upon
making the determination set forth in clause (ii) above, the Special Servicer
shall either implement the last submitted Asset Strategy Report or notify the
Trustee of such rejection and deliver to the Trustee a proposed notice to
Certificateholders which shall include the Asset Strategy Report, and the
Trustee shall send such notice to all Certificateholders (or, to the extent
known to the Trustee, Certificate Owners). If the majority of such
Certificateholders (including Certificate Owners), as determined by
Certificate Balance, fail within five (5) days of the Trustee's sending such
notice to reject such Asset Strategy Report, the Special Servicer shall
implement the same. If the Asset Strategy Report is rejected by the
Certificateholders, the Special Servicer shall revise such Asset Strategy
Report as described above in this Section 6.03(c). The Trustee shall be
entitled to reimbursement from the Trust Fund for the reasonable expenses of
providing such notices.
(d) The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with Accepted Special Servicing Practices and the related Asset
Strategy Report. The Special Servicer shall not take any action inconsistent
with the related Asset Strategy Report unless required pursuant to this
Section 6.03 or Accepted Special Servicing Practices.
(e) Upon request of any Certificateholder (or any Certificate Owner,
if applicable, which shall have provided the Trustee with evidence
satisfactory to the Special Servicer and the Trustee of its interest in a
Certificate pursuant to Section 11.04), or Rating Agency, the Trustee shall
mail, at the expense of the requesting party, to the address specified in such
request a copy of the most current Asset Strategy Report for any Specially
Serviced Mortgage Loan or REO Property, unless prohibited by applicable law or
the related Mortgage Loan documents and only upon execution of a
confidentiality agreement by the requesting party; provided, however, that no
Asset Strategy Report shall be delivered to the Mortgagor on the related
Specially Serviced Mortgage Loan, an affiliate thereof or a Person acting on
behalf of the Mortgagor.
(f) The Special Servicer shall not acquire any personal property on
behalf of the Trust Fund pursuant to this Agreement unless either:
(i) such personal property is incident to real property
(within the meaning of Section 856(e)(1) of the Code)
so acquired by the Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion
of Counsel to the effect that the holding of such
personal property by the Trust Fund will not cause
the imposition of a tax on the Trust Fund under the
REMIC Provisions or cause the Trust Fund to fail to
qualify as a REMIC at any time that any Certificate
is outstanding.
(g) Prior to delivering an Asset Strategy Report to any Holder of a
Class A1, Class A2, Class A3, Class B, Class C, Class D or Class E
Certificate, the Trustee shall have obtained an acknowledgment in the form of
Exhibit K from the recipient thereof that U.S. securities law may restrict the
use of the information in the Asset Strategy Report. In addition, prior to
delivery of an Asset Strategy Report to any Certificateholder or Certificate
Owner, the Trustee shall have obtained a certification and agreement from the
recipient in the form of Exhibit K thereof to the effect that it is not the
Mortgagor with respect to the related Mortgage Loan, an affiliate thereof or a
Person acting on behalf of such Mortgagor and that it will protect the
confidentiality of such information.
(h) Before obtaining title for the Trust Fund to a Mortgaged Property
securing the Canadian Loan as a result or in lieu of foreclosure or otherwise,
the Special Servicer shall obtain an Opinion of Counsel, the cost of which
shall be an expense of the Trust Fund, to the effect that the inclusion of the
related Mortgaged Property and Foreign Currency Exchange Contract in REMIC I
would not cause REMIC I to be disqualified as a REMIC; provided that if the
Special Servicer is unable to obtain such Opinion of Counsel, it shall not
proceed to obtain title for the Trust Fund to such Mortgaged Property unless
the most recent Asset Strategy Report indicated that such course of action was
the most favorable course of action even if the Foreign Currency Exchange
Contract would be terminated upon taking title to such Mortgaged Property.
(i) Notwithstanding anything to the contrary in this Agreement, the
Special Servicer (acting on its own or through a subservicer) shall not
service the Canadian Loan on behalf of the Trust Fund (other than collecting
periodic rent rolls, collecting Mortgagor financial statements, making and
forwarding reports, inspecting property and any other similar servicing
activities) from an office located in Canada, unless (A) the Special Servicer
has obtained an Opinion of Counsel at the expense of the Trust Fund to the
effect that such action will not (i) cause the Trust Fund or the Trustee to be
or to be deemed to be resident for the purposes of the Canadian Income Tax Act
and therefore cause the Trust Fund or the Trustee to be subject to tax under
the Canadian Income Tax Act (other than with respect to withholding taxes, if
any, under Part XIII of the Canadian Income Tax Act on payments made pursuant
to the Canadian Loans); (ii) cause the Trust Fund or the Trustee to be subject
to Canadian federal or provincial sales or value added taxes; or (iii) cause
the Trust Fund or the Trustee to be subject to compliance with the Canadian
Bank Act or (B) Canadian law requires certain servicing activities to be
conducted from offices located in Canada.
Notwithstanding anything to the contrary in this Agreement, in
connection with any foreclosure proceedings relating to the Canadian Loan, the
Special Servicer shall not enter into possession of any of the Canadian
properties or in any manner carry on the business of the related Mortgagor on
behalf of the Trust Fund other than by way of a receiver appointed by the
applicable Canadian court; unless, in any such case, the Special Servicer has
obtained an Opinion of Counsel at the expense of the Trust Fund to the effect
that such action will not (i) cause the Trust Fund or the Trustee to be or to
be deemed to be resident for the purposes of the Canadian Income Tax Act and
therefore cause the Issuer or the Trustee to be subject to tax under the
Canadian Income Tax Act (other than with respect to withholding taxes, if any,
under Part XIII of the Canadian Income Tax Act on payments made pursuant to
the Canadian Loan); (ii) cause the Trust Fund or the Trustee to be subject to
Canadian federal or provincial sales or value added taxes; or (iii) cause the
Trust Fund or the Trustee to be subject to compliance with the Canadian Bank
Act.
Section 6.04 Management of REO Property.
(a) The Special Servicer, on behalf of the Trust Fund, shall sell any
REO Property not later then the end of the third calendar year following the
year of acquisition of such REO Property for purposes of Section 860G(a)(8) of
the Code, unless (i) the Internal Revenue Service grants an extension of time
to sell such REO property or (ii) the Special Servicer obtains for the Trustee
(which shall be an expense of the Trust) an Opinion of Counsel, addressed to
the Trustee, and the Master Servicer, to the effect that the holding by the
Trust Fund of such REO Property subsequent to the third anniversary of such
acquisition will not result in the imposition of taxes on "prohibited
transactions" of the Trust Fund as defined in Section 860F of the Code or
cause the Trust Fund to fail to qualify as a REMIC at any time that any
Certificates are outstanding. Subject to Section 6.04(e), the Special Servicer
shall manage, conserve, protect and operate each REO Property for the
Certificateholders solely for the purpose of its prompt disposition and sale
in a manner which does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or
result in the receipt by the Trust Fund of any "income from non-permitted
assets" within the meaning of Section 860F(a)(2)(B) of the Code or any "net
income from foreclosure property" which is subject to taxation under the REMIC
Provisions.
(b) Subject to clause (e) below, the Special Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend
any new lease with respect to any REO Property, if
the new lease by its terms will give rise to any
income that does not constitute Rents from Real
Property;
(ii) permit any amount to be received or accrued under any
new lease other than amounts that will constitute
Rents from Real Property;
(iii) authorize or permit any construction on any REO
Property, other than the completion of a building or
other improvement thereon, and then only if more than
ten percent of the construction of such building or
other improvement was completed before default on the
related Mortgage Loan became imminent, all within the
meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person (other
than an Independent Contractor) to Directly Operate,
any REO Property on any date more than 90 days after
its Acquisition Date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel to the effect that such action will not cause such REO Property to
fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code at any time that it is held by the Trust Fund, in which
case the Special Servicer may take such actions as are specified in such
Opinion of Counsel.
(c) Any REO Property acquired by the Special Servicer hereunder shall
be acquired in the name of the Trustee for the benefit of the
Certificateholders or, provided the Special Servicer has received an Opinion
of Counsel that the following will not affect adversely the status of REMIC I,
REMIC II and REMIC III as REMICs, in the name of a single member limited
liability company, the single member of which shall be the Trust Fund and the
manager of which shall be the Special Servicer.
(d) The Special Servicer shall, prior to the acquisition of title to
any Mortgaged Property, review the operations of such property and determine
the character of the income that the Trust Fund would realize if the Trust
Fund acquired title to such Mortgaged Property. The Special Servicer shall
undertake this analysis with a view to retaining the status of the REO
Property as foreclosure property under the REMIC provisions while maximizing
the net after-tax REO Proceeds received without materially adversely affecting
the Special Servicer's ability to sell such REO Property.
(e) If the Special Servicer determines, in its good faith and
reasonable judgment, that if there are no other commercially feasible means of
operating such Mortgaged Property as REO Property without the Trust Fund
potentially or actually incurring an REO Tax it may Directly Operate the
Mortgaged Property; provided, however, that the Special Servicer shall have
prepared and delivered to the Trustee a written proposed plan regarding the
plan of operations, the estimated income (and character thereof) derived
therefrom, the estimated amount of taxes payable on such income and such other
information as is necessary to make a reasoned judgment as to whether the REO
Property will remain a foreclosure property and whether such plan is likely to
maximize the net after tax REO income to the Trust Fund. Within a reasonable
period of time after receipt of such proposed plan, the Trustee shall agree or
disagree with the related tax position. The Special Servicer shall avoid
subjecting the income from such Mortgaged Property to tax as either "net
income from foreclosure property" or a "prohibited transaction" within the
meaning of the REMIC Provisions (an "REO Tax") to the maximum extent possible.
Neither the Special Servicer nor the Trustee shall be liable to the
Certificateholders, the Trust Fund or the other parties to this Agreement or
each other for errors in judgment made in good faith in the exercise of their
discretion while performing their respective responsibilities under this
Section.
Section 6.05 Sale of REO Property and Specially Serviced Mortgage Loans.
Subject to terms of the related Asset Strategy Report to the extent
the conditions, procedures or requirements set forth therein are more
restrictive or exacting than those set forth below, each Special Servicer
agrees as follows:
(a) The parties hereto may sell or purchase, or permit the sale of
purchase of, a Mortgage Loan or REO Property only on the terms and subject to
the conditions set forth in this Section 6.05 or as otherwise expressly
provided in or contemplated by this Agreement.
(b) If the Special Servicer has determined, in its reasonable, good
faith judgement, that any Defaulted Mortgage Loan has or will become subject
to foreclosure proceedings and that the sale of such Mortgage Loan under the
circumstances provided in this Section 6.05(b) or Section 6.05(c) is in
accordance with Accepted Special Servicing Standards, then the Special
Servicer shall promptly so notify in writing the Trustee and, unless it is the
party giving the notice, the Master Servicer, and the Trustee shall, within
five (5) days after receipt of such notice, so notify all the Monitoring Class
Certificateholders. Any single Monitoring Class Certificateholder or group of
Monitoring Class Certificateholders may, as its or their option, within 15
days after receipt of such notice, purchase any Defaulted Mortgage Loan out of
the Trust Fund at a cash price equal to the applicable Purchase Price;
provided that, if more than one Monitoring Class Certificateholder or group of
Monitoring Class Certificateholders desire to purchase such Defaulted Mortgage
Loan, preference shall be given to the Monitoring Class Certificateholder or
group of Monitoring Class Certificateholders with the largest percentage
interest in the Monitoring Class. The Purchase Price for any Defaulted
Mortgage Loan purchases under this Section 6.05(b) shall be deposited into the
REO Account for remittance to the Trustee, and the Trustee, upon receipt of an
Officer's Certificate from the Master Servicer to the effect that such deposit
has been made, shall release or cause to be released to the
Certificateholder(s) effecting such purchase (or to its or their designee) the
related Mortgage Loan File, and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be provided to
it and are reasonably necessary to vest in such Certificateholder(s) ownership
of such Mortgage Loan. In connection with any such purchase, the Special
Servicer shall deliver the related servicing file to the Certificateholder(s)
effecting such purchase (or to its or their designee).
(c) If none of the Monitoring Class Certificateholders has purchased
any Defaulted Mortgage Loan described in the first sentence of Section 6.05(b)
within 15 days of such Holder's having received notice in respect thereof
pursuant to Section 6.05(b) above, then the Trustee shall within five (5) days
of the end of such 15-day period send notice to the Master Servicer and the
Special Servicer that such Mortgage Loan was not purchased by such
Certificateholder(s), and either the Master Servicer or the Special Servicer
(in that order of priority) may, at its option, within 15 days after receipt
of such notice, purchase (or designate an Affiliate thereof to purchase) such
Mortgage Loan out of the Trust Fund at a cash price equal to the Purchase
Price. The Purchase Price for any such Mortgage Loan purchased under this
Section 6.05(c) shall be deposited into the REO Account for remittance to the
Trustee, and the Trustee, upon receipt of an Officer's Certificate from the
Master Servicer to the effect that such deposit has been made, shall release
or cause to be released to the Master Servicer or the Special Servicer (or the
designated Affiliate thereof), as applicable, the related Mortgage Loan File,
and shall execute and deliver such instruments of transfer or assignment, in
each case without recourse, as shall be proved to it and are reasonably
necessary to vest in the Master Servicer or the Special Servicer (or the
designated Affiliate thereof), as applicable, the ownership of such Mortgage
Loan. In connection with any such purchase by the Master Servicer (or any
designated Affiliate thereof), the Special Servicer shall deliver the related
servicing file to the Master Servicer (or any designated Affiliate thereof).
For purpose of the other sections of this Agreement, any purchase of a
Defaulted Mortgage Loan by a designated Affiliate of the Master Servicer or
Special Servicer pursuant to this Section 6.05(c) shall be deemed a purchase
of such Defaulted Mortgage Loan by the Master Servicer or the Special
Servicer, as applicable.
(d) Subject to Section 3.18, the Special Servicer may offer to sell
any Defaulted Mortgage Loan not otherwise purchased pursuant to Section
6.05(b) or Section 6.05(c) above, if and when the Special Servicer determines,
in its good faith and reasonable judgement, consistent with Accepted Special
Servicing Practices that such a sale would be in the best economic interests
of the Certificateholders (as a collective whole). Such offer shall be made in
a commercially reasonable manner (which, for purposes hereof, includes an
offer to sell without representation or warranty other than customary
warranties of title and condition, if liability for breach thereof is limited
to recourse against the Trust Fund) for a period of not less than ten (10)
days. Subject to Section 6.05(h) and Section 3.18, the Special Servicer shall
accept the highest cash bid received from any Person that constitutes a fair
price (determined pursuant to Section 6.05(e) below) for such Mortgage Loan.
The Special Servicer shall use its best efforts to solicit cash bids
for each REO Property in such manner as will be reasonably likely to realize a
fair price within the time period provided for by Section 6.04(a). Subject to
Section 6.05(h) and Section 3.18, the Special Servicer shall accept the first
(and, if multiple cash bids are received by a specified bid date, the highest)
cash bid received from any Person that constitutes a fair price (determined
pursuant to Section 6.05(e) below) for such REO Property. If the Special
Servicer reasonably believes that it will be unable to realize a fair price
(determined pursuant to Section 6.05(e) below) for any REO Property within the
time constraints imposed by Section 6.04(a), the Special Servicer shall
dispose of such REO Property upon such terms and conditions as the Special
Servicer shall deem necessary and desirable to maximize the recovery thereon
under the circumstances.
The Special Servicer shall give the Trustee, the Master Servicer and
the Directing Certificateholder not less than five (5) Business Days' prior
written notice of its intention to sell any Defaulted Mortgage Loan or REO
Property pursuant to this Section 6.05(d). No Interested Person shall be
obligated to submit a bid to purchase any such Mortgage Loan or REO Property,
and notwithstanding anything to the contrary herein, neither the Trustee, in
its individual capacity, nor any of its Affiliates may bid for or purchase any
Defaulted Mortgage Loan or REO Property pursuant hereto.
(e) Whether any cash bid constitutes a fair price for any Defaulted
Mortgage Loan or REO Property, as the case may be, for purposes of Section
6.05(d), shall be determined be the Special Servicer or, if such cash bid is
from the Special Servicer or an Affiliate thereof, by the Trustee. In
determining whether any bid received from the Special Servicer or an Affiliate
thereof represents a fair price for any such Mortgage Loan or REO Property,
the Trustee shall be supplied with and shall be entitled to rely on the most
recent appraisal in the related Mortgage Loan File conducted in accordance
with this Agreement within the preceding 12-month period (or, in the absence
of any such appraisal or if there has been a material change at the subject
property since any such appraisal, on a new appraisal to be obtained by the
Special Servicer (the cost of which shall be covered by, and be reimbursable
as, as Servicing Advance)). The appraiser conducting any such new appraisal
shall be an Independent MAI appraiser that is (i) selected by the Special
Servicer if neither the Special Servicer not any Affiliate thereof is bidding
with respect to a Defaulted Mortgage Loan or REO Property and (ii) selected by
the Trustee if either the Special Servicer or any Affiliate thereof is so
bidding. Where any Interested Person is among those bidding with respect to a
Defaulted Mortgage Loan or REO Property, the Special Servicer shall require
that all bids be submitted to it (or, if the Special Servicer or an Affiliate
thereof is bidding, shall be submitted by it to the Trustee) in writing and be
accompanied by a refundable deposit of cash in an amount equal to 5% of the
bid amount. In determining whether any cash bid from a Person other than the
Special Servicer or an Affiliate thereof constitutes a fair price for any such
Mortgage Loan or REO Property, the Special Servicer shall take into account
the results of any appraisal or updated appraisal that it or the Master
Servicer may have obtained in accordance with this Agreement within the
preceding 12-month period, and any Independent MAI appraiser shall be
instructed to take into account, as applicable, among other factors, the
period and amount of any delinquency on the affected Mortgage Loan, the
occupancy level and physical condition of the Mortgaged Property or REO
Property, the state of the local economy and the obligation to dispose of any
REO Property within the time period specified in Section 6.04(a). The Purchase
Price for any such Mortgage Loan or REO Property shall in all cases be deemed
a fair price. Notwithstanding the other provisions of this Section 6.05, no
cash bid from the Special Servicer or any Affiliate thereof shall constitute a
fair price for any Defaulted Mortgage Loan or REO Property unless such bid is
the highest cash bid received and at least two independent cash bids (not
including the bid of the Special Servicer or any Affiliate) have been
received. In the event the cash bid of the Special Servicer or any Affiliate
thereof is the only cash bid received or is the higher of only two cash bids
received, then additional cash bids shall be solicited. If an additional cash
bid or cash bids, as the case may be, are received and the original cash bid
of the Special Servicer or any Affiliate thereof is the highest of all cash
bids received or if no additional cash bids are received, then the cash bid of
the Special Servicer or such Affiliate shall be accepted, provided that the
Trustee has otherwise determined, as provided above in this Section 6.05(e),
that such cash bid constitutes a fair price for any Defaulted Mortgage Loan or
REO Property. Any cash bid by the Special Servicer shall be unconditional;
and, if accepted, the Defaulted Mortgage Loan or REO Property shall be
transferred to the Special Servicer without recourse, representation or
warranty other than customary representations as to title given in connection
with the sale of a mortgage loan or real property.
(f) Subject to Sections 6.05(a) through 6.05(e) above, the Special
Servicer shall act on behalf of the Trustee in negotiating with independent
third parties and taking any other action necessary or appropriate in
connection with the sale of any Defaulted Mortgage Loan or REO Property, and
the collection of all amounts payable in connection therewith. In connection
therewith, the Special Servicer may charge prospective bidders, and may
retain, fees that approximate the Special Servicer's actual costs in the
preparation and delivery of information pertaining to such sales or evaluating
cash bids without obligation to deposit such amounts into the Collection
Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be
final and without recourse (except for warranties of title and condition
contemplated by Section 6.05(d)) to the Trustee or the Trust Fund, and if such
sale is consummated in accordance with the terms of this Agreement, neither
the Special Servicer nor the Trustee shall have any liability to any
Certificateholder with respect to the purchase price therefor accepted by the
Special Servicer or the Trustee.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property shall
be for cash only.
(h) Notwithstanding any of the foregoing paragraphs of this Section
6.05, but subject to Section 3.18, the Special Servicer shall not be obligated
to accept the highest cash bid if the Special Servicer determines, in its good
faith and reasonable judgement, consistent with Accepted Special Servicing
Practices, that rejection of such bid would be in the best interests of the
Certificateholders (as a collective whole), and the Special Servicer may
accept a lower cash bid (from any Person other than itself or an Affiliate) if
it determines, in its good faith and reasonable judgement, consistent with
Accepted Special Servicing Practices, that acceptance of such bid would be in
the best interests of the Certificateholders (as a collective whole) (for
example, if the prospective buyer making the lower bid is more likely to
perform its obligations or the terms (other than price) offered by the
prospective buyer making the lower bid are more favorable).
Section 6.06 REO Account; Collection of REO Proceeds.
(a) The Special Servicer shall establish or cause to be established,
and hereby agrees to maintain or cause to be maintained for the duration of
this Agreement for each REO Mortgage Loan, an REO Account into which all
related REO Proceeds shall be deposited as and when received. The Special
Servicer's REO Account shall be an Eligible Account.
REO Proceeds shall be remitted within one Business Day of its receipt
by the Special Servicer to the Master Servicer for deposit into the Collection
Account. Notwithstanding the foregoing, the Special Servicer may retain a
balance in the REO Account as is reasonably required to manage and maintain
the REO Properties.
(b) All funds deposited by the Special Servicer in any REO Account
maintained hereunder shall be held for the benefit of the Certificateholders
until disbursed or withdrawn in accordance herewith. Funds in such REO Account
shall not be commingled with any other moneys. The Special Servicer shall,
within five (5) Business Days of the establishment thereof, notify the Master
Servicer and the Trustee in writing of the location and the account number of
the REO Account established by the Special Servicer for the Mortgage Loans and
shall give the Trustee and the Master Servicer written notice of any change of
such location or account number on or prior to the date of such change.
(c) Funds in an REO Account may be invested by, at the risk of, and
for the benefit of, the Special Servicer in Permitted Investments which shall
not be sold or disposed of prior to maturity. All such Permitted Investments
shall be registered in the name of the Special Servicer (in its capacity as
such and for the benefit of the Certificateholders) or its nominee. All income
therefrom may be retained by the Special Servicer as additional servicing
compensation. In addition, the Special Servicer shall deposit on each
Determination Date into such REO Account out of its own funds an amount
representing any net losses realized on the Permitted Investments with respect
to funds in such REO Account for such Remittance Period.
(d) The Special Servicer shall deposit or cause to be deposited any
REO Proceeds into the applicable REO Account within one Business Day after
receipt.
(e) Except as expressly permitted or required hereunder, the Special
Servicer shall not sell, transfer or assign to any Person any interest
(including any security interest) in amounts credited or to be credited to any
REO Account or take any action towards that end, and shall maintain such
amounts free of all liens, claims and encumbrances of any nature.
Section 6.07 Remittance to Master Servicer of Non-REO Proceeds.
Any collections received by the Special Servicer in respect of any
Mortgage Loan, other than REO Proceeds, shall be remitted to the Master
Servicer within one Business Day of receipt for deposit into the Collection
Account pursuant to Section 4.02.
Section 6.08 Remittances to Master Servicer from the REO Account.
On or prior to 1:00 p.m., New York time, on the second Business Day
immediately preceding each Master Remittance Date, the Special Servicer shall
withdraw from each related REO Account and remit to the Master Servicer, by
wire transfer of immediately available funds to the Collection Account, all
amounts in such REO Account net of any Property Protection Expenses or
Property Improvements Expenses incurred or reasonably expected by the Special
Servicer to be incurred during the succeeding three months.
Section 6.09 Specially Serviced Mortgage Loan Status Reports,
REO Status Reports and Other Reports.
(a) The Special Servicer shall prepare, or cause to be prepared, and
deliver to the Master Servicer, the Directing Certificateholder, the Trustee
and, if requested, each Rating Agency in electronic format reasonably
acceptable to the Master Servicer and the Trustee and consistent with Accepted
Special Servicing Practices not later than 12:00 noon, New York City time, the
third (3rd) Business Day immediately preceding each Distribution Date, a copy
of all data fields and reports needed to produce the CMSA IRP (excluding the
Loan Set-up File, the Watch List, the bond file and collateral summary file)
for the preceding Remittance Period, with respect to each Specially Serviced
Mortgage Loan and REO Mortgage Loan, respectively. In addition, upon the
occurrence of a Collateral Value Adjustment or Realized Loss resulting from a
Collateral Value Adjustment Event or Liquidation Event, the Special Servicer
shall prepare, or cause to be prepared, and deliver to the Master Servicer,
the Trustee, the Directing Certificateholder and each Rating Agency, via
facsimile (with a hard copy sent on the same day by first-class mail or in
electronic format reasonably acceptable to the Master Servicer and consistent
with Accepted Special Servicing Practices) not later than the third (3rd)
Business Day immediately preceding each Distribution Date, an Officers'
Certificate setting forth (i) the event which gave rise to such Collateral
Value Adjustment or Realized Loss and (ii) the amount of such Collateral Value
Adjustment or Realized Loss. The Master Servicer will verify the accuracy of
the mathematical computation of the Collateral Value Adjustment by the Special
Servicer and that the amounts used therein are consistent with the Master
Servicer's records.
(b) Within ten (10) Business Days of receipt, the Special Servicer
shall deliver to the Master Servicer a copy of the bank statement for the
prior calendar month related to each REO Account and an REO Account Report
substantially in the form of Exhibit Z hereto and a report of any other funds
or accounts established and maintained by the Special Servicer under this
Agreement as of the Business Day preceding the date of such report, showing
for the period from the immediately preceding calendar month (or since the
related Servicing Transfer Date, in the case of the first of such reports),
the aggregate of deposits into and withdrawals from such funds or accounts in
accordance with this Agreement.
(c) Within sixty (60) days following the end of each calendar year,
or upon the Trustee's reasonable request, the Special Servicer shall prepare,
or cause to be prepared, and deliver to the Master Servicer such information
with respect to each Specially Serviced Mortgage Loan and each REO Mortgage
Loan as the Special Servicer deems necessary or desirable for each
Certificateholder to prepare its federal, state and local income tax returns.
(d) If the Special Servicer receives notice from the Master Servicer
of any inconsistencies in the reports provided by the Special Servicer
pursuant to Section 6.09, the Special Servicer shall initiate discussions not
later than the following Business Day with the Master Servicer to reconcile
their records.
(e) Upon prior written request of the Master Servicer, the Directing
Certificateholder, the Trustee, a Rating Agency or the Depositor, the Special
Servicer shall prepare such other reasonable reports as may be requested in
writing thereby. The Special Servicer shall be entitled to charge a reasonable
fee reflecting the internal and external costs to the Special Servicer of
preparing such other reports and such fee shall be reimbursable to the Special
Servicer by the Person requesting such report (other than the Rating Agencies,
in which case such expenses shall be an expense of the Trust Fund and paid as
a Servicing Advance.)
Section 6.10 Special Servicer Advances.
(a) The Special Servicer shall notify the Master Servicer in writing
as soon as practicable if a Servicing Advance is required on any Specially
Serviced Mortgage Loan.
(b) The Special Servicer may make any Servicing Advances on a
Specially Serviced Mortgage Loan only as may be required on a urgent or
emergency basis. Immediately upon making such Servicing Advance, the Special
Servicer shall provide the Master Servicer an Officer's Certificate (via
facsimile) setting forth the details of such Servicing Advance (including,
without limitation, the related Mortgage Number, the date and amount of the
Servicing Advance and the purpose of such advance), upon which the Master
Servicer will conclusively rely upon when reimbursing the Special Servicer.
(c) The Special Servicer shall be entitled to reimbursement from the
Master Servicer for such Servicing Advance (including any interest thereon at
the Advance Rate) to the same extent and at the same time as such Advance
would be reimbursed if such Advance had been made by the Master Servicer but
in no event later than the Master Remittance Date following any such Servicing
Advance; subject to the limitations set forth in Sections 4.03(a) and 4.05(c),
provided that, if the Master Servicer determines that such a Servicing Advance
is a Nonrecoverable Advance, the Special Servicer shall not be entitled to any
reimbursement from the Master Servicer; provided, however, that to the extent
not reimbursed by the Master Servicer within five (5) Business Days of making
such Servicing Advance, the Special Servicer shall be entitled to
reimbursement from the Trust Fund, subject to the prior sentence, upon written
notice to the Master Servicer and the Trustee of the failure of the Master
Servicer to reimburse the Special Servicer.
(d) If the Special Servicer determines, in good faith judgment, that
any amount expended by it from its own funds pursuant to clause (b) above is a
Nonrecoverable Advance, such determination shall be evidenced by a
Nonrecoverable Advance Certificate delivered to the Trustee and the Master
Servicer.
(e) Except as otherwise set forth in Section 4.05(c), the Special
Servicer shall be entitled to interest on any Servicing Advance it makes with
respect to a Mortgage Loan. Such interest shall accrue at the Advance Rate
from the date on which such Servicing Advance was made to but not including
the Business Day on which the Special Servicer is reimbursed pursuant to this
Agreement.
Section 6.11 Environmental Considerations.
(a) The Special Servicer shall not obtain title for the Trust Fund to
a Mortgaged Property as a result or in lieu of foreclosure or otherwise, nor
shall otherwise acquire possession of, or take other action with respect to,
any Mortgaged Property, if, as a result of any such action, the Trust Fund,
the Trustee, the Master Servicer or the Special Servicer would be considered
to hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of the Comprehensive
Environmental Responsibility Cleanup and Liability Act of 1980, as amended
from time to time, or any applicable comparable, provincial U.S. or Canadian
federal, state or local law, or a "discharger" or "responsible party"
thereunder, unless the Special Servicer has also previously determined, in
accordance with Accepted Special Servicing Practices, based on a Phase I, and,
if applicable, a "Phase II", environmental site assessment report prepared
within the prior twelve months by a person who regularly conducts
environmental audits for purchasers of commercial property with at least 5
years of experience and a regionally recognized firm, as determined by such
Special Servicer in a manner consistent with Accepted Special Servicing
Practices, that:
(i) such Mortgaged Property is in compliance with
applicable Environmental Laws or, if not, that taking
such actions as are necessary to bring the Mortgaged
Property in compliance therewith is reasonably likely
to produce a greater recovery on a net present value
basis, after taking into account any risks associated
therewith, than not taking such actions; and
(ii) there are no circumstances present on such Mortgaged
Property relating to the use, management, storage or
disposal of any Hazardous Materials for which
investigation, testing, monitoring, containment,
clean-up or remediation could be required under any
Environmental Law, or that, if any such Hazardous
Materials are present for which such action could be
required, taking such actions with respect to the
affected Mortgaged Property is reasonably likely to
produce a greater recovery on a net present value
basis, after taking into account any risks associated
therewith, than not taking such actions; and
if the Special Servicer has so determined based on satisfaction of the
criteria in clauses (i) and (ii) above that it would be in the best economic
interest of the Certificateholders to take any such actions, the Special
Servicer has notified the Trustee and the Master Servicer in writing of such
proposed action, which notice shall be included in the Asset Strategy Report
pursuant to Section 6.03(c). The cost of preparation of any environmental
assessment and the cost of any compliance, containment, clean-up or
remediation shall be deemed to be a Property Protection Expense and (subject
to any determination of non-recoverability) paid by the Master Servicer as a
Servicing Advance.
(b) If the Special Servicer determines, pursuant to subsection (a)
above, that taking such actions as are necessary to bring any such Mortgaged
Property into compliance with applicable Environmental Laws, or taking such
actions with respect to the containment, clean-up, removal or remediation of
Hazardous Materials affecting any such Mortgaged Property, is not reasonably
likely to produce a greater recovery on a net present value basis, after
taking into account any risks associated therewith, than not taking such
actions, the Special Servicer shall notify the Directing Certificateholders,
the Trustee and the Master Servicer of such determination and recommend such
action in the Asset Strategy Report pursuant to Section 6.03(c) as it deems in
good faith to be in the best economic interests of the Certificateholders.
(c) Notwithstanding the foregoing, the Special Servicer shall not
take any action pursuant to this Section 6.11 except in connection with the
implementation of an Asset Strategy Report pursuant to Section 6.03(c).
(d) The Special Servicer shall promptly notify the relevant insurance
company for any Specially Serviced Mortgage Loan that has an environmental
insurance policy if the Special Servicer determines that a claim should be
made on such policy. The Special Servicer shall use its best efforts in
pursuing such claim on behalf of the Trust Fund.
Section 6.12 Restoration of Specially Serviced Mortgage Loans.
(a) Upon determining with respect to a Specially Serviced Mortgage
Loan that (i) three consecutive Monthly Payments on a Specially Serviced
Mortgage Loan have been made in accordance with the terms of the related
Mortgage Note (taking into account any grace periods contained therein), (ii)
such Mortgage Loan is current as to payments of principal and interest and
(iii) no Servicing Transfer Event is continuing, the Special Servicer shall
immediately give written notice thereof to the Master Servicer, the Directing
Certificateholder and the Trustee substantially in the form of Exhibit W
hereto.
(b) Unless the Master Servicer and the Special Servicer with respect
to a Mortgage Loan are the same Person, not later than two (2) Business Days
after notice has been given pursuant to subsection (a) above, the Special
Servicer shall send a letter by first class mail substantially in the form of
Exhibit X hereto, with a copy to the Master Servicer, notifying the related
Mortgagor that such Mortgage Loan (and any related Cross Collateralized Loan,
if applicable) has ceased being a Specially Serviced Mortgage Loan and
instructing such Mortgagor to direct all future notices and communications to
the Master Servicer.
(c) In the event that a Specially Serviced Mortgage Loan (and any
related Cross Collateralized Loan, if applicable) ceases to be such pursuant
to this Section 6.12, not later than five (5) Business Days after notice has
been given in (a) above the Special Servicer shall provide the Master Servicer
with copies of all information, documents and records (including records
stored electronically on computer tapes, magnetic disks and the like) in its
possession relating to such Mortgage Loan (and any related Cross
Collateralized Loan, if applicable) . Upon receipt of such notice and all
information, documents and records by the Master Servicer pursuant to Section
6.02(c) hereof, such Mortgage Loan (and any related Cross Collateralized Loan,
if applicable) shall cease to be a Specially Serviced Mortgage Loan, the
Special Servicer's obligation to service such Mortgage Loan (and any related
Cross Collateralized Loan, if applicable) shall terminate, and all duties and
obligations of the Master Servicer with respect to such Mortgage Loan (and any
related Cross Collateralized Loan, if applicable) to the extent set forth
herein previously assumed by the Special Servicer shall be reassumed by the
Master Servicer.
Section 6.13 Special Servicer Compensation.
(a) Subject to Section 6.16(c), as compensation for its activities
hereunder, the Special Servicer shall be entitled to receive the Basic Special
Servicing Fee with respect to each Specially Serviced Mortgage Loan. As to
each Specially Serviced Mortgage Loan, the Basic Special Servicing Fee shall
be the product of the Basic Special Servicing Fee Rate and the Stated
Principal Balance of such Specially Serviced Mortgage Loan or REO Loan as of
the Due Date in the prior calendar month calculated for the same period
respecting which any related interest payment on each such Specially Serviced
Mortgage Loan is calculated. The Basic Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan shall cease to accrue as of the date a
Liquidation Event occurs in respect thereof. As to each Specially Serviced
Mortgage Loan, earned but unpaid Basic Special Servicing Fee shall be payable
monthly out of general collections on the Mortgage Loans on deposit in the
Collection Account, and to the extent provided in Section 4.03.
(b) As further compensation for its activities hereunder the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan. The Workout Fee shall be payable from, and shall be
calculated by application of the Workout Fee Rate to, each collection of
interest (other than Default Interest and Excess Interest) and principal
received on such Mortgage Loan for so long as it remains a Corrected Mortgage
Loan. The Workout Fee with respect to any Corrected Mortgage Loan will cease
to be payable if a Servicing Transfer Event occurs with respect thereto or if
the related Mortgaged Property becomes an REO Property; provided that a new
Workout Fee will become payable if and when such Mortgage Loan again becomes a
Corrected Mortgage Loan. If the Special Servicer is terminated other than for
cause or resigns in accordance with Section 3.06, it shall retain the right to
receive any and all Workout Fees payable in respect of Mortgage Loans that
became Corrected Mortgage Loans during the period that it acted as Special
Servicer and were still such at the time of such termination or resignation
(and the successor Special Servicer shall not be entitled to any portion of
such Workout Fees), in each case until the Workout Fee for any such loan
ceases to be payable in accordance with the preceding sentence.
(c) As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Mortgage Loan as to which it receives any full,
partial or discounted payoff or any Liquidation Proceeds (other than in
connection with the purchase of any such Specially Serviced Mortgage Loan or
REO Property (i) by the Special Servicer or the Directing Certificateholder or
(ii) pursuant to Section 12.01). As to each such Specially Serviced Mortgage
Loan or REO Property, the Liquidation Fee shall be payable from, and shall be
calculated by application of the Liquidation Fee Rate to, such full, partial
or discounted payoff and/or such Liquidation Proceeds (net of the related
costs and expenses associated with related liquidation). No Liquidation Fee
will be payable with respect to any Specially Serviced Mortgage Loan solely by
virtue of such Mortgage Loan becoming a Corrected Mortgage Loan.
(d) Notwithstanding anything to the contrary herein, a Liquidation
Fee and a Workout Fee relating to the same Mortgage Loan shall not be paid
from the same proceeds on or with respect to such Mortgage Loan.
(e) Subject to the Special Servicer's right to employ Sub-Servicers,
the Special Servicer's right to receive the Basic Special Servicing Fee, the
Workout Fee and/or the Liquidation Fee may not be transferred in whole or in
part except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement.
(f) The Special Servicer shall also be entitled to receive as part of
its servicing compensation net investment income pursuant to Section 6.06(c)
and certain fees described in clause (2) of Section 4.02(c) with respect to
any Specially Serviced Mortgage Loan (subject to 4.08(d) and except for NSF
check charges) and as otherwise permitted under this Agreement.
(g) The Special Servicer shall be entitled to receive the following
items as additional servicing compensation (the following items, collectively,
"Additional Special Servicing Compensation")
(i) any and all Net Assumption Fees, modification fees,
extension fees, consent fees, waiver fees, late fees
and default interest (to the extent not required to
offset accrued and unpaid interest calculated at the
Advance Rate pursuant to Section 4.03(a) below),
earnout fees and charges for beneficiary statements
or demands that are actually received on or with
respect to Specially Serviced Mortgage Loans or REO
Mortgage Loans;
(ii) pursuant to Sections 3.18(d), 4.08(d) and 4.12, 50%
of any and all Net Assumption Fees, modification
fees, extension fees, consent fees, waiver fees and
earnout fees that are actually paid by a Mortgagor
with respect to Mortgage Loans, that are not
Specially Serviced Mortgage Loans and for which the
Master Servicer has not engaged a subservicer;
(iii) pursuant to Sections 3.18(d), 4.08(d) and 4.12,
12.5% of any and all Net Assumption Fees,
modification fees, extension fees, consent fees,
waiver fees and earnout fees that are actually paid
by a Mortgagor with respect to Mortgage Loans, that
are not Specially Serviced Mortgage Loans and for
which the Master Servicer has engaged a subservicer;
and
(iv) interest or other income earned on deposits in the
REO Account, if established, in accordance with
Section 6.06.
To the extent that any of the amounts described in this Section
6.13(g) are collected by the Master Servicer, the Master Servicer shall
promptly pay such amounts to the Special Servicer and shall not be required to
deposit such amounts in the Collection Account pursuant to Section 4.02(c).
Section 6.14 Limitations on the Special Servicer with Respect to ARD
Loans.
With respect to all ARD Loans, neither the Master Servicer (with
respect to ARD Loans that are not Specially Serviced Mortgage Loans) nor the
Special Servicer (with respect to ARD Loans that are Specially Serviced
Mortgage Loans) shall take any enforcement action with respect to the payment
of Excess Interest or principal in excess of the principal component of the
constant Monthly Payment, other than requests for collection, until the
maturity date of the related Mortgage Loan. If any action is taken after the
maturity date of the related Mortgage Loan, any recoveries shall be applied as
set forth herein; provided, however, if the related Mortgagor indicates that
it can make payments of principal and interest but not payments of Excess
Interest, the Special Servicer shall have the right to waive or modify the
required payment of Excess Interest. Subject to the related Mortgage Loan
Documents, if the related Mortgagor elects not to prepay its ARD Loan in full
on or prior to the Anticipated Repayment Date (1) the Mortgage Loan's interest
rate will step up to the interest rate specified in the related Mortgage Loan
Documents; provided, however, that payment of such Excess Interest shall be
deferred until the principal of such ARD Loan has been paid in full; (2) all
or a substantial portion of the Excess Cash Flow collected after the
Anticipated Repayment Date shall be applied towards the prepayment of such ARD
Loan and once the principal balance of an ARD Loan has been reduced to zero
all Excess Cash Flow will be applied to the payment of certain costs
associated with owning, managing and operating the related Mortgaged Property
and accrued Excess Interest; and (3) if the property manager for the related
Mortgaged Property can be removed by or at the direction of the mortgagee on
the basis of a debt service coverage test, the subject debt service coverage
ratio shall be calculated without taking account of any increase in the
related Mortgage Interest Rate on such Mortgage Loan's Anticipated Repayment
Date.
Section 6.15 Collateral Value Adjustments.
(a) By the Required Appraisal Date for any Mortgage Loan (or such
longer period as the Special Servicer is (as certified thereby to the Trustee
in writing) diligently and in good faith proceeding to obtain such appraisal),
the Special Servicer shall use its best efforts consistent with Accepted
Special Servicing Practices to obtain an appraisal for the related Mortgaged
Property from an Independent MAI appraiser, or, if such Mortgage Loan has a
Stated Principal Balance of less than $2,000,000, an Appraisal Estimate
(except if an appraisal, or Appraisal Estimate, as appropriate, has been
conducted within the 12 month period preceding such event). The cost of such
appraisal shall be paid by the Master Servicer as a Servicing Advance.
Notwithstanding the foregoing, the Directing Certificateholder shall have the
right, at any time within six months of the date of its receipt of any
appraisal of any Mortgaged Property required to be obtained pursuant to the
immediately preceding paragraph, to require that the Special Servicer obtain a
new appraisal of such Mortgaged Property in accordance with MAI standards from
a state certified appraiser chosen by the Special Servicer, the cost of which
shall be paid by the Monitoring Certificateholders without right of
reimbursement; provided, however, that the Special Servicer shall not be
required to obtain any such appraisal unless the Special Servicer shall have
received reasonable assurance of payment of the costs of such appraisal and of
any expenses related thereto. Upon receipt of the appraisal obtained pursuant
to the immediately preceding sentence, the Special Servicer shall redetermine
and report in writing to the Master Servicer, the Trustee and the Directing
Certificateholder the amount of the Collateral Value Adjustment with respect
to such Mortgage Loan, and such redetermined Collateral Value Adjustment shall
replace the prior Collateral Value Adjustment with respect to such Mortgage
Loan.
(b) Until such time as the related Collateral Value Adjustment is
reduced to zero, within 30 days of each anniversary of a Required Appraisal
Date for any Mortgage Loan, the Special Servicer shall order an update of the
prior appraisal or make an Appraisal Estimate for the related Mortgaged
Property (the cost of which will be a Servicing Advance of the Master
Servicer).
(c) The Special Servicer shall determine and report to the Master
Servicer any appraisal value obtained pursuant to clause (a) or (b) above and
the Master Servicer will adjust the amount of the Collateral Value Adjustment
in accordance therewith.
Section 6.16 Replacement Special Servicer.
(a) The Directing Certificateholder may at any time and without cause
terminate the Special Servicer and appoint a replacement (a "Replacement
Special Servicer") to perform such duties under substantially the same terms
and conditions as applicable to the Special Servicer. Such holder(s) shall
designate a replacement to so serve by the delivery to the Trustee of a
written notice stating such designation. The Trustee shall, promptly after
receiving any such notice, so notify the Rating Agencies. The designated
replacement shall become the Replacement Special Servicer as of the date the
Trustee shall have received: (i) written confirmation from each Rating Agency
stating that if the designated replacement were to serve as Special Servicer
under this Agreement, none of the then-current rating or ratings of all
outstanding Classes of the Certificates would be qualified (if applicable),
downgraded or withdrawn as a result thereof; (ii) a written acceptance of all
obligations of the Replacement Special Servicer, executed by the designated
replacement; and (iii) an Opinion of Counsel to the effect that the
designation of such replacement to serve as Replacement Special Servicer is in
compliance with this Agreement, that the designated replacement will be bound
by the terms of this Agreement and that this Agreement will be enforceable
against such designated replacement in accordance with its terms. The Special
Servicer shall be deemed to have resigned from its duties simultaneously with
such designated replacement's becoming the Replacement Special Servicer under
this Agreement. Any Replacement Special Servicer may be similarly so replaced
by the Directing Certificateholder.
(b) Notwithstanding the replacement of a Special Servicer pursuant to
clause (a) above, the terminated Special Servicer shall be entitled to receive
the ongoing Workout Fee for any Mortgage Loan which became a Specially
Serviced Mortgage Loan and was subsequently returned to a performing status
prior to such termination; provided that if such Mortgage Loan once again
becomes a Specially Serviced Mortgage Loan, the Replacement Special Servicer
shall thereafter be entitled to any Basic Special Servicing Fee, Workout Fees
or Liquidation Fees with respect thereto. Subject to clause (c) below, the
Replacement Special Servicer shall be entitled to the Basic Special Servicing
Fee for all other Specially Serviced Mortgage Loans.
(c) Notwithstanding the replacement of a Special Servicer pursuant to
clause (a) above, the terminated Special Servicer shall be entitled to receive
amounts owing to it pursuant to Section 3.08 and Section 6.13(b), and all
other amounts accrued and owing to it under this Agreement prior to the
effective date of such resignation.
(d) The Directing Certificateholder shall be responsible for paying
any costs associated with such replacement, including reasonable costs of any
servicing transfer.
ARTICLE VII
PAYMENTS TO CERTIFICATEHOLDERS
Section 7.01 Certificate Account; Remittances to the Trustee.
(a) The Trustee shall establish and maintain one or more accounts
(collectively, the "Certificate Account"), held in trust for the benefit of
the Certificateholders. The Certificate Account shall be an Eligible Account.
The Trustee shall deposit in the Certificate Account, when received or as
otherwise required hereunder, all amounts received from the Master Servicer
with respect to all Mortgage Loans pursuant to this Agreement and the amounts
from the Interest Reserve Account pursuant to Section 3.17. If the Trustee
shall deposit in the Certificate Account any amount not required to be
deposited therein, it may at any time withdraw such amount from the
Certificate Account, any provision herein to the contrary notwithstanding.
Funds in the Certificate Account shall be held uninvested.
(b) On each Master Remittance Date, the Master Servicer shall
withdraw from the Collection Account and wire transfer in immediately
available funds to the Certificate Account, all amounts then on deposit in the
Collection Account required to be remitted to the Trustee pursuant to Section
4.04.
Section 7.02 Distributions.
(a) On each Distribution Date, the Trustee shall apply amounts on
deposit in the Certificate Account, other than any amounts in respect of
Excess Interest, first to payment to the Trustee of the Trustee Fee and all
reimbursable expenses of the Trustee, not previously paid or reimbursed
pursuant to Section 11.08(a) or (b) and second, to the extent of the Available
Distribution Amount, in the following order of priority:
(i) On each Distribution Date, (x) the related Class
Portion of any U.S. Treasury Net Prepayment Premiums
for each Mortgage Loan to each Class of Certificates
and (y) any Non-U.S. Treasury Net Prepayment Premium,
to the Class X1 Certificates;
(ii) to distributions of the Interest Distribution Amounts
for such Distribution Date on the Class A1, Class A2,
Class A3 and Class X Certificates, pro rata, based on
their respective Interest Distribution Amounts;
(iii) to distributions of the Principal Distribution
Amount for such Distribution Date to Class A1
Certificates until the Class Balance thereof is
reduced to zero;
(iv) to distributions of the Principal Distribution Amount
(or the portion thereof remaining after the
distribution thereof to the Class A1 Certificates in
reduction of the Class Balance thereof to zero) for
such Distribution Date on the Class A2 Certificates,
until the Class Balance thereof is reduced to zero;
(v) to distributions of the Principal Distribution Amount
(or the portion thereof remaining after the
distribution thereof to the Class A2 Certificates in
reduction of the Class Balance thereof to zero) for
such Distribution Date on the Class A3 Certificates,
until the Class Balance thereof is reduced to zero;
(vi) to distributions of the Interest Distribution Amount
for such Distribution Date on the Class B
Certificates;
(vii) to distribution of the Principal Distribution Amount
(or the portion thereof remaining after the
distribution thereof to the Class A3 Certificates in
reduction of the Class Balance thereof is reduced to
zero) for such Distribution Date on the Class B
Certificates, until the Class Balance thereof is
reduced to zero;
(viii) to distributions of the Interest Distribution
Amount for such Distribution Date on the Class C
Certificates;
(ix) to distributions of the Principal Distribution Amount
(or the portion thereof remaining after the
distribution thereof to the Class B Certificates in
reduction of the Class Balance thereof to zero) for
such Distribution Date on the Class C Certificates
until the Class Balance thereof is reduced to zero;
(x) to distributions of the Interest Distribution Amount
for such Distribution Date on the Class D
Certificates;
(xi) to distributions of the Principal Distribution Amount
(or the portion thereof remaining after the
distribution thereof to the Class C Certificates in
reduction of the Class Balance thereof is reduced to
zero) for such Distribution Date on the Class D
Certificates, until the Class Balance thereof is
reduced to zero;
(xii) to distributions of the Interest Distribution Amount
for such Distribution Date on the Class E
Certificates;
(xiii) to distributions of the Principal Distribution
Amount (or the portion thereof remaining after the
distribution thereof to the Class D Certificates in
reduction of the Class Balance thereof to zero) for
such Distribution Date on the Class E Certificates,
until the Class Balance thereof is reduced to zero;
(xiv) to distributions of the Interest Distribution Amount
for such Distribution Date on the Class F
Certificates;
(xv) to distributions of the Principal Distribution Amount
(or the portion thereof remaining after the
distribution thereof to the Class E Certificates in
reduction of the Class Balance thereof to zero) for
such Distribution Date on the Class F Certificates,
until the Class balance thereof is reduced to zero;
(xvi) to distributions of the Interest Distribution Amount
for such Distribution Date on the Class G
Certificates;
(xvii) to distributions of the Principal Distribution
Amount (or the portion thereof remaining after the
distribution thereof to the Class F Certificates in
reduction of the Class Balance thereof to zero) for
such Distribution Date on the Class G Certificates,
until the Class Balance thereof is reduced to zero;
(xviii) to distributions of the Interest Distribution
Amount for such Distribution Date on the Class H
Certificates;
(xix) to distributions of the Principal Distribution
Amount (or the portion thereof remaining after the
distribution thereof to the Class G Certificates in
reduction of the Class Balance thereof to zero) for
such Distribution Date on the Class H Certificates,
until the Class Balance thereof is reduced to zero;
(xx) to distributions of the Interest Distribution Amount
for such Distribution Date on the Class J
Certificates;
(xxi) to distributions of the Principal Distribution
Amount (or the portion thereof remaining after the
distribution thereof to the Class H Certificates in
reduction of the Class Balance thereof to zero) for
such Distribution Date on the Class J Certificates,
until the Class Balance thereof is reduced to zero;
(xxii) to distributions of the Interest Distribution
Amount for such Distribution Date to the Class K
Certificates;
(xxiii) to distributions of the Principal Distribution
Amount (or the portion thereof remaining after the
distribution thereof to the Class J Certificates in
reduction of the Class Balance thereof to zero) for
such Distribution Date on the Class K Certificates,
until the Class Balance thereof is reduced to zero;
(xxiv) to distributions of the Interest Distribution
Amount for such Distribution Date on the Class L
Certificates;
(xxv) to distribution of the Principal Distribution Amount
(or the portion thereof remaining after the
distribution thereof to the Class K Certificates in
reduction of the Class Balance thereof is reduced to
zero) for such Distribution Date on the Class L
Certificates, until the Class Balance thereof is
reduced to zero;
(xxvi) to distributions of the Interest Distribution
Amount for such Distribution Date on the Class M
Certificates;
(xxvii) to distributions of the Principal Distribution
Amount (or the portion thereof to the Class L
Certificates in reduction of the Class Balance
thereof to zero) for such Distribution Date on the
Class M Certificates, until the Class Balance thereof
is reduced to zero;
(xxviii) to the distributions of the Interest Distribution
Amount for such Distribution Date to the Class NR
Certificates;
(xxix) to distributions of the Principal Distribution
Amount (or the portion thereof remaining after the
distribution thereof to the Class M Certificates in
reduction of the Class Balance thereof to zero) for
such Distribution Date on the Class NR Certificates,
until the Class Balance thereof is reduced to zero;
(xxx) sequentially to the Classes of Certificates, whether
or not outstanding, in the order set forth for
distribution of principal any amounts recovered
representing Realized Losses previously allocated to
such Class in reduction of its Class Balance; and
(xxxi) to distributions to the Class R-I
Certificateholders, in an amount equal to the
remaining balance in the Certificate Account, if any.
To the extent the Class Balances of the Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M and
Class NR Certificates have been reduced to zero on any Distribution Date, the
Adjusted Available Distribution Amount remaining after application pursuant to
clause (a)(ii) above shall be applied to distribution of the Principal
Distribution Amount for such Distribution Date and each subsequent
Distribution Date to the Class A1, Class A2 and Class A3 Certificates pro rata
based on (and limited to the extent of) their respective Class Balances.
On each Distribution Date, the Trustee shall distribute any amounts
in respect of Excess Interest on deposit in the Certificate Account actually
collected on the ARD Loans and any related REO Loans during the related
Collection Period to the Holders of the Class NR Certificates, without regard
to whether any such Class is entitled to distributions of interest or
principal on such Distribution Date (whether by reason of its Class Principal
Balance having been reduced to zero, by reason of it not yet being entitled to
distributions of principal, or for any other reason).
(b) All distributions made with respect to each Class on each
Distribution Date shall be computed by the Trustee based upon information
furnished to the Trustee by the Master Servicer and allocated pro rata among
the outstanding Certificates in such Class based on their respective
Percentage Interests. All such distributions with respect to each Class (other
than the final distribution with respect thereto) will be made on each
Distribution Date to the Certificateholders of the respective Class of record
at the close of business on the related Record Date and shall be made by wire
transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with
wiring instructions no less than five Business Days prior to the related
Record Date (or, in the case of the first Distribution Date, no later than the
Delivery Date), or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Certificate
Registrar or such other location specified in the notice to Certificateholders
of such final distribution.
(c) Except as otherwise provided in Section 12.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates will be made on the next Distribution Date, the Trustee shall,
promptly mail to each Holder on such date of such Class of Certificates and
each Rating Agency a notice to the effect that:
(i) the Trustee expects that the final distribution with
respect to such Class of Certificates will be made on
such Distribution Date but only upon presentation and
surrender of such Certificates at the office of the
Certificate Registrar therein specified, and
(ii) no interest shall accrue on such Certificates from
and after such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such
Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and
held in trust and credited to the account of the appropriate non-tendering
Holder or Holders. If any Certificates as to which notice has been given
pursuant to this Section 7.02(c) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order
to receive the final distribution with respect thereto. If within one year
after the second notice all such Certificates shall not have been surrendered
for cancellation, the Trustee, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of
such funds. No interest shall accrue or be payable to any Certificateholder on
any amount held in trust hereunder by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 7.02(c). If, within two years after
the second notice, any such Certificates shall not have been surrendered for
cancellation, then Trustee shall pay over or continue to hold any amounts so
held by the Trustee in accordance with applicable escheatment law.
Section 7.03 Statements to Certificateholders.
(a) On each Distribution Date, the Trustee shall make available to
each Holder and to each Certificate Owner which shall have certified to the
Trustee that it is a Certificate Owner (or forward, in the case of each Holder
or Certificate Owner which shall have requested such report from the Trustee),
a statement as to the distributions made on such Distribution Date based
solely upon information included in the reports furnished to the Trustee by
the Master Servicer for such Distribution Date in accordance with the
provisions of this Agreement.
In addition, on each Distribution Date, the Trustee shall make
available to each Rating Agency and each Underwriter in an electronic format
each statement received prior to such Distribution Date prepared by the Master
Servicer pursuant to this Agreement.
On each Distribution Date, the Trustee shall forward or make
available to the Depositor, each Underwriter, each Mortgage Loan Seller, each
Rating Agency, and the Master Servicer a copy of the reports forwarded to the
Certificateholders on such Distribution Date and, if not otherwise set forth
in such reports a statement setting forth the amounts, if any, actually
distributed with respect to the Certificates on such Distribution Date. The
Trustee shall also forward or make available such reports to the Master
Servicer in an electronic format reasonably acceptable to the Master Servicer.
(b) The Trustee on behalf of the Depositor, shall furnish or cause to
be furnished, promptly upon the written request of any Holder of a Class F,
Class X, Class G, Class H, Class J, Class K, Class L, Class M, Class NR, Class
R-I, Class R-II or Class R-III Certificate (or a Certificate Owner which shall
have certified to the Trustee that it is a Certificate Owner of any such
Class) reasonably current Rule 144A Information (as defined below) to such
Certificateholder or to a prospective transferee of such a Certificate (or
interests in such Certificate) designated by such Certificateholder, as the
case may be, in connection with the resale of such Certificate or such
interests by such Certificateholder pursuant to Rule 144A to the extent
received from the Master Servicer or the Special Servicer. "Rule 144A
Information" shall mean the information specified in Rule 144A(d)(4)(i) and
(ii) under the Securities Act of 1933, as amended. The Trustee shall advise
the Master Servicer or Special Servicer of any request by a Certificateholder
and shall consult with the Master Servicer or Special Servicer as to the
information to be supplied. Based upon such consultation and to the extent the
Trustee is not in possession of reasonably current Rule 144A Information on
the date of any such request, the Master Servicer and the Special Servicer
shall, upon request from the Trustee, promptly provide the Trustee with
reasonably current Rule 144A Information to the extent reasonably available.
The Trustee may place its disclaimer on any such Rule 144A Information to the
extent it is not the source of such information. The Trustee shall not have
responsibility for the sufficiency under Rule 144A or any other securities
laws of any available information so furnished to any person including any
prospective purchaser of a Certificate or any interest therein, nor for the
content or accuracy of any information so furnished which was prepared or
delivered to the Trustee by another to the extent the information so furnished
accurately sets forth the information prepared or delivered.
(c) Each of the Trustee, the Master Servicer and the Special Servicer
shall deliver to the Directing Certificateholder copies of all reports,
information statements or notices prepared thereby or received thereby as
requested by and not previously provided to the Directing Certificateholder.
The Master Servicer may maintain an Internet website at "xxx.xxxxxx.xxx",
which may contain, subject to Section 6.03(g), the information and reports
required for the Master Servicer to produce herein. The Master Servicer may
require registration and the execution of an access agreement in connection
with providing access to its website.
(d) Upon ten (10) days prior written notice, the Master Servicer
(with respect to the items in clauses (a), (b), (c), (d), (e), (f) and (h)
below), the Special Servicer (with respect to the items in clauses (d), (e),
(f), (g) and (h) below, to the extent any such item(s) have been provided to
it) and the Trustee (with respect to the items in clause (b) and (i) below and
to the extent any other items are in its possession) shall make available at
their respective offices (or by the Master Servicer, on its website, or both)
primarily responsible for administration of the Mortgage Loans (or in the case
of the Trustee, at its Corporate Trust Office, except with respect to
documents which constitute part of the Mortgage Files, which will be
maintained at its office in Massachusetts), during normal business hours, or
send to the requesting party, such party having been certified to the Trustee
or the Servicer, as applicable in accordance with (a) and (b) in the following
paragraph, as appropriate, at the expense of such requesting party (unless
otherwise provided in this Agreement), for review by any Certificate Owner or
Certificateholder or any person identified by a Certificate Owner or
Certificateholder or its designated agent to the Trustee, the Master Servicer
or the Special Servicer, as the case may be, as a prospective transferee of
any Certificate or interest therein, the Trustee, the Rating Agencies, the
Underwriters and anyone specified thereby and the Depositor originals or
copies of the following items: (a) this Agreement and any amendments thereto,
(b) all statements and reports delivered or made available by such party to
holders of the relevant Class of Certificates pursuant to Section 7.03 since
the Delivery Date and all reports, statements and analyses delivered by the
Master Servicer since the Delivery Date pursuant to Section 3.12, (c) all
Officers' Certificates delivered by the Master Servicer or the Special
Servicer since the Delivery Date pursuant to Section 3.15, (d) all
accountants' reports delivered to the Master Servicer in respect of itself or
the Special Servicer since the Delivery Date as described in Section 3.03, (e)
the most recent property inspection report prepared by or on behalf of the
Master Servicer in respect of each Mortgaged Property and any environmental
site assessment report prepared pursuant to Section 6.11, (f) the most recent
Mortgaged Property annual operating statements and rent roll, if any,
collected by or on behalf of the Master Servicer, (g) any and all
modifications, waivers and amendments of the terms of a Mortgage Loan entered
into by the Special Servicer and the Asset Strategy Report prepared pursuant
to Section 6.03(c) and (h) any and all Officers' Certificates and other
evidence delivered by the Master Servicer or the Special Servicer, as the case
may be, to support its determination that any Advance was, or if made, would
be, a Nonrecoverable Advance pursuant to Section 4.05 including appraisals
affixed thereto. Copies of any and all of the foregoing items will be
available from the Master Servicer, the Special Servicer or the Trustee, as
the case may be, upon request and shall be provided to any of the Rating
Agencies at no cost pursuant to their reasonable requests.
In connection with providing access to or copies of the items
described in the preceding paragraph pursuant to this Section 7.03, the
Trustee or the Master Servicer, as applicable, shall require: (a) in the case
of Certificate Owners, a confirmation executed by the requesting Person
substantially in the form of Exhibit N-1 hereto (or such other form as may be
reasonably acceptable to the Trustee or the Master Servicer, as applicable)
generally to the effect that such Person is a beneficial owner of Book-Entry
Certificates and, subject to the last sentence of this paragraph, will keep
such information confidential (except that such Certificate Owner may provide
such information to any other Person that holds or is contemplating the
purchase of any Certificate or interest therein, provided that such other
Person confirms in writing such ownership interest or prospective ownership
interest and agrees to keep such information confidential); and (b) in the
case of a prospective purchaser of a Certificate or any interest therein,
confirmation executed by the requesting Person substantially in the form of
Exhibit N-2 hereto (or such other form as may be reasonably acceptable to the
Trustee or the Master Servicer, as applicable) generally to the effect that
such Person is a prospective purchaser of a Certificate or an interest
therein, is requesting the information for use in evaluating a possible
investment in Certificates and, subject to the last sentence of this
paragraph, will otherwise keep such information confidential. The Holders of
the Certificates, by their acceptance thereof, will be deemed to have agreed,
subject to the last sentence of this paragraph, to keep such information
confidential (except that any Holder may provide such information obtained by
it to any other Person that holds or is contemplating the purchase of any
Certificate or interest therein, provided that such other Person confirms in
writing to the Trustee and the Master Servicer, prior to receipt or review of
such information, such ownership interest or prospective ownership interest
and agrees to keep such information confidential). Notwithstanding the
foregoing, no Certificateholder, Certificate Owner or prospective
Certificateholder or Certificate Owner shall be obligated to keep confidential
any information received from the Trustee or the Master Servicer, as
applicable, pursuant to this Section 7.03 that has previously been made
available without a password via the Trustee's or the Master Servicer's, as
applicable, Internet Website or has previously been filed with the Securities
and Exchange Commission, and the Trustee or the Master Servicer, as
applicable, shall not require either of the certifications contemplated by the
second preceding sentence in connection with providing any information
pursuant to this Section 7.03 that has previously been made available without
a password via the Trustee's Internet Website or has previously been filed
with the Securities and Exchange Commission.
Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC,
the Federal Reserve Board and any other banking or insurance regulatory
authority that may exercise authority over any Certificateholder, access to
any records regarding the Mortgage Loans and the servicing thereof within its
control, except to the extent it is prohibited from doing so by applicable law
or contract or to the extent such information is subject to a privilege under
applicable law to be asserted on behalf of the Certificateholders. Such access
shall be afforded only upon reasonable prior written request and during normal
business hours at the offices of the Master Servicer or the Special Servicer,
as the case may be, designated by it.
The Trustee, the Master Servicer, the Special Servicer and the
Underwriters may require payment from the Certificateholder or Certificate
Owner of a sum sufficient to cover the reasonable costs and expenses of
providing any such information or access pursuant to this Section 7.03 to, or
at the request of, the Certificateholders or Certificate Owners or prospective
transferees, including, without limitation, copy charges and, in the case of
Certificateholders or Certificate Owners requiring on site review in excess of
three Business Days, reasonable fees for employee time and for space.
In no event shall any party be required to furnish information
hereunder if to do so would violate provisions of the Mortgage Loan Documents.
(e) The Trustee is hereby authorized to furnish, to
Certificateholders and/or to the public any other information (such other
information, collectively, "Additional Information") with respect to the
Mortgage Loans, any Mortgaged Property or the Trust Fund as may be provided to
it by the Depositor, the Master Servicer or Special Servicer or gathered by it
in any investigation or other manner from time to time, provided that (A) any
such Additional Information shall only be furnished with the consent or at the
request of the Depositor, (B) the Trustee shall be entitled to indicate the
source of all information furnished by it and the Trustee may affix thereto
any disclaimer it deems appropriate in its sole discretion (including any
warnings as to the confidential nature and/or the uses of such information as
it may, in its sole discretion, determine appropriate), (C) the Trustee shall
be entitled (but not obligated) to require payment from each recipient of a
reasonable fee for, and its out-of-pocket expenses incurred in connection
with, the collection assembly, reproduction or delivery of any such Additional
Information and (D) the Trustee shall be entitled to distribute or make
available such information in accordance with such reasonable rules and
procedures as it may deem necessary or appropriate (which may include the
requirement that an agreement that provides such information shall be used
solely for purposes of evaluating the investment characteristics or valuation
of the Certificates be executed by the recipient, if and to the extent the
Trustee deems the same to be necessary or appropriate). With the written
approval of the Depositor, the Trustee may make certain information regarding
the Mortgage Loans available to Certificateholders in electronic format
through its Corporate Trust home page on the worldwide web located at
"xxxx://xxxxxxxxxxxxxx.xxxxxxxxxxx.xxx" or by such other means as the Trustee
may have in place from time to time. In furtherance of the foregoing, within
twenty days following the Delivery Date, the Depositor shall furnish to the
Master Servicer, the Special Servicer and the Trustee in electronic format
copies of this Pooling Agreement, which, with the written approval of the
Depositor, the Trustee may also make available through its Internet website.
Nothing herein shall be construed to impose upon the Trustee any obligation or
duty to furnish or distribute any Additional Information to any Person in any
instance, and the Trustee shall neither have any liability for furnishing nor
for refraining from furnishing Additional Information in any instance. The
Trustee shall be entitled (but not required) to require that any consent,
direction or request given to it pursuant to this clause (e) be made in
writing.
(f) The Trustee shall make available to all Certificateholders, Pool
Factor information for the immediately succeeding Distribution Date (but no
earlier than two (2) Business Days preceding such Distribution Date) through
the Trustee's Factor Lookup On the Web ("FLOW") system. Pool Factor
information will be available on FLOW for up to and including the four
previous Distribution Dates.
The Trustee shall provide access to the information available on the
monthly statement to Certificateholders prepared pursuant to the first
paragraph of Section 7.03(a) and all associated reporting information via its
Corporate Trust home page on the world wide web.
Section 7.04 Distribution of Reports to the Trustee and the Depositor;
Advances by the Master Servicer.
On or prior to the second Business Day prior to each Distribution
Date, the Master Servicer shall furnish a statement, in written or electronic
format (the Loan Periodic Update File of the CMSA IRP) to the Trustee pursuant
to Section 4.10 setting forth (i) the amounts available for deposit into the
Certificate Account and (ii) the maximum amount required to be advanced by the
Master Servicer in connection with the related Distribution Date. The
determination by the Master Servicer of such amounts shall, in the absence of
obvious error, be presumptively deemed to be correct for all purposes
hereunder and the Trustee shall be protected in relying upon the same without
any independent check or verification. To the extent such statement indicates
one or more delinquencies in connection with which a related Advance was not
made by the Master Servicer, the Trustee shall commence an evaluation of
whether, in its good faith business judgment, an Advance by the Trustee may be
required and whether it would be a Nonrecoverable Advance; provided, however,
that notwithstanding such examination, the Trustee shall have no
responsibility for reviewing or confirming any decision made with respect to
an Advance by the Master Servicer and may conclusively rely upon the
determination of the Master Servicer that an Advance if made would constitute
a Nonrecoverable Advance. The Master Servicer shall promptly provide to the
Trustee, upon request, such information as the Master Servicer may have to
enable the Trustee to make such determination.
In the event that the Master Servicer determines as of the Business
Day preceding the Master Remittance Date that it will be unable to deposit in
the Certificate Account an amount equal to the P&I Advance required to be made
for the immediately succeeding Distribution Date, it shall give notice to the
Trustee of its inability to advance (such notice may be given by telecopy),
not later than 3:00 P.M., New York City time, on such Business Day, specifying
the portion of such amount that it will be unable to deposit. Unless the
Master Servicer shall have directly or indirectly deposited in the Certificate
Account by 11:00 A.M. New York City time on the related Distribution Date,
such portion of the amount of such Advance as to which the Master Servicer
shall have given notice pursuant to the preceding sentence, the provisions of
Section 10.01 shall apply and the Trustee (a) may terminate all of the rights
and obligations of the Master Servicer under this Agreement in accordance with
Section 10.01, (b) may assume the rights and obligations of the Master
Servicer hereunder in accordance with Section 10.02, and (c) shall make such
required Advance (subject to its own determination of nonrecoverability) not
later than noon, New York City time, on such Distribution Date.
The Trustee shall deposit all funds it receives pursuant to this
Section 7.04 into the Certificate Account.
Section 7.05 Allocations of Realized Losses.
All Realized Losses reported for any Distribution Date shall be
allocated by the Trustee as follows in reduction of the related Class Balance:
first, to the Class NR Certificates until the Class Balance thereof has been
reduced to zero; second, to the Class M Certificates until the Class Balance
thereof has been reduced to zero; third, to the Class L Certificates until the
Class Balance thereof has been reduced to zero; fourth, to the Class K
Certificates until the Class Balance thereof has been reduced to zero; fifth,
to the Class J Certificates until the Class Balance thereof has been reduced
to zero; sixth, to the Class H Certificates until the Class Balance thereof
has been reduced to zero; seventh, to the Class G Certificates until the Class
Balance thereof has been reduced to zero; eighth, to the Class F Certificates
until the Class Balance thereof has been reduced to zero; ninth, to the Class
E Certificates until the Class Balance thereof has been reduced to zero;
tenth, to the Class D Certificates until the Class Balance thereof has been
reduced to zero; eleventh, to the Class C Certificates until the Class Balance
thereof has been reduced to zero; twelfth, to the Class B Certificates until
the Class Balance thereof has been reduced to zero, and the remainder of such
Realized Losses to the Class A1, Class A2 and Class A3 Certificates, pro rata,
until their respective Class Balances have been reduced to zero.
Notwithstanding the foregoing, Realized Losses with respect to interest
amounts will not be allocated to any Class of Certificates in reduction of the
related Class Balance in an amount which exceeds the excess of the aggregate
Stated Principal Balance of the Mortgage Loans as of the related Determination
Date over the aggregate Class Balance of the Certificates after any other
reductions or payments thereon for such Distribution Date.
ARTICLE VIII
THE CERTIFICATES
Section 8.01 The Certificates.
(a) The Certificates will be substantially in the form annexed hereto
as Exhibit A. The Class A1, Class A2, Class A3, Class B, Class C, Class D,
Class E, Class F, Class X1, Class X2, Class G, Class H, Class J, Class K,
Class L, Class M and Class NR Certificates will be issuable only in minimum
denominations (based on their respective Original Class Balances or Class
Notional Amount) corresponding to initial Certificate Balances as of the
Delivery Date of not less than $25,000, or notional amounts as of the Delivery
Date of not less than $100,000, and integral multiples of $1 in excess
thereof. Only one Class R-I, one Class R-II and one Class R-III Certificate
may be issued.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Certificate Registrar by an authorized officer
under its seal imprinted thereon. Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Certificate Registrar shall bind the Certificate Registrar, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Certificates or did not hold such
offices at the date of such Certificates. No Certificate shall be entitled to
any benefit under this Agreement, or be valid for any purpose, unless there
appears on such Certificate a certificate of authentication substantially in
the form provided for herein executed by the Certificate Registrar by manual
signature, and such certificate upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication.
(c) The Class A1, Class A2, Class A3, Class B, Class C, Class D,
Class E, Class F, Class X1, Class X2, Class G, Class H, Class J , Class K,
Class L, Class M and Class NR Certificates shall initially be issued as one or
more Certificates registered in the name of the Depository or its nominee and,
except as provided below, registration of such Certificates may not be
transferred by the Certificate Registrar except to another Depository that
agrees to hold such Certificates for the respective Certificate Owners with
Ownership Interests therein. The Class R-I, Class R-II and Class R-III
Certificates will be issued as Definitive Certificates. The Certificate Owners
shall hold their respective Ownership Interests in and to each of the
referenced herein Certificates (except for such remainders) through the
book-entry facilities of the Depository and, except as provided below, shall
not be entitled to Definitive Certificates in respect of such Ownership
Interests. All transfers by Certificate Owners of their respective Ownership
Interests in the Book-Entry Certificates shall be made in accordance with the
procedures established by the Depository Participant or brokerage firm
representing such Certificate Owner. Each Depository Participant shall
transfer the Ownership Interests only in the Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures. Neither the
Trustee nor the Certificate Registrar shall have a duty to monitor the
transfer of Ownership Interests in any Book-Entry Certificate.
The Book-Entry Certificates evidencing the Class X1, Class X2, Class
G, Class H, Class J, Class K, Class L, Class M and Class NR Certificates
offered and sold other than as described in the preceding paragraph (each, a
"Restricted Global Certificate") shall be registered in the name of the
Depository for credit to the respective accounts of Certificate Owners which
have certified they are "qualified institutional buyers" under Rule 144A. The
aggregate principal amount of any Restricted Global Certificate may from time
to time be increased or decreased by adjustments made on the records of the
Certificate Registrar and the Depository, which adjustments shall be
conclusive as to the aggregate principal amount of any Restricted Global
Certificate.
The Book-Entry Certificates evidencing the Class X1, Class X2, Class
G, Class H, Class J, Class K, Class L, Class M and Class NR Certificates
offered and sold outside the United States in reliance on Regulation S (each,
a "Regulation S Global Certificate") shall be registered in the name of the
Depository for credit, initially and during the Restricted Period, to the
respective accounts of Certificate Owners of the Regulation S Global
Certificates (or to other accounts that they direct) at Clearstream,
Luxembourg or Euroclear. The aggregate principal amount of any Regulation S
Global Certificate may be increased or decreased by adjustments made on the
records of the Certificate Registrar and the Depository for the Regulation S
Global Certificate, which adjustments shall be conclusive as to the aggregate
principal amount of any Regulation S Global Certificate.
Transfers of any Global Certificate shall be limited to transfers of
a Restricted Global Certificate or Regulation S Global Certificate in whole,
but not in part, to the Depository and its successors. Beneficial interests in
the Restricted Global Certificate and any Regulation S Global Certificate may
be transferred in accordance with the Depository's customary procedures and
the provisions of Section 8.02.
The Trustee, the Certificate Registrar, the Master Servicer and the
Depositor may for all purposes (including the making of payments due on the
respective Classes of Book-Entry Certificates (and, if necessary, the
selection of the Directing Certificateholder)) deal with the Depository as the
authorized representative of the Certificate Owners with respect to the
respective Classes of Book-Entry Certificates for the purposes of exercising
the rights of Certificateholders hereunder. The rights of Certificate Owners
with respect to the respective Classes of Book-Entry Certificates shall be
limited to those established by law and agreements between such Certificate
Owners and the Depository Participants and brokerage firms representing such
Certificate Owners. Multiple requests and directions from, and votes of, the
Depository as Holder of any Class of Book-Entry Certificates with respect to
any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a
reasonable record date in connection with solicitations of consents from or
voting by Certificateholders and shall give notice to the Depository of such
record date.
If (i) (A) the Depositor advises the Certificate Registrar in writing
that the Depository is no longer willing or able to properly discharge its
responsibilities as Depository and (B) the Depositor is unable to locate a
qualified successor or (ii) the Depositor at its option advises the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository, the Certificate Registrar shall notify all
Certificate Owners, through the Depository, of the occurrence of any such
event and of the availability of Definitive Certificates to Certificate Owners
representing the same. In addition, upon request, the Certificate Registrar
will issue Definitive Certificates in exchange for Ownership Interests in like
Certificate Balances of the Book-Entry Certificates for the Class X1, Class
X2, Class G, Class H, Class J, Class K, Class L, Class M or Class NR
Certificates in connection with a transfer permitted pursuant to Section
8.02(b)(iii). Upon surrender to the Certificate Registrar of the Book-Entry
Certificates by the Depository, accompanied by registration instructions from
the Depository for registration of transfer, the Certificate Registrar shall
issue the Definitive Certificates. Neither the Depositor, the Master Servicer
nor the Certificate Registrar shall be liable for any actions taken by the
Depository or its nominee, including, without limitation, any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates all references herein to obligations imposed upon or to be
performed by the Depositor in connection with the issuance of the Definitive
Certificates pursuant to this Section 8.01 shall be deemed to be imposed upon
and performed by the Certificate Registrar, and the Certificate Registrar and
the Master Servicer shall recognize the Holders of the Definitive Certificates
as Certificateholders hereunder.
Within ten Business Days after the Delivery Date, the Depositor shall
supply the Certificate Registrar with an inventory of certificate forms
comprised of ten blank forms for each class of certificate together with the
forms of each class of certificate on diskette in read-only format.
If the Certificate Registrar and the Trustee are not the same, the
Certificate Registrar shall notify the Trustee upon the occurrence of the
foregoing.
Section 8.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register
in which, subject to such reasonable regulations as the Certificate Registrar
may prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein
provided. The Trustee is hereby initially appointed (and hereby agrees to act)
as Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided. The Certificate
Registrar may appoint, by a written instrument delivered to the Trustee, any
other bank or trust company to act as Certificate Registrar under such
conditions as the predecessor Certificate Registrar may prescribe, provided
that the predecessor Certificate Registrar shall not be relieved of any of its
duties or responsibilities hereunder by reason of such appointment. The Master
Servicer shall have the right to inspect the Certificate Register or to obtain
a copy thereof at all reasonable times, and to rely conclusively upon a
certificate of the Certificate Registrar as to the information set forth in
the Certificate Register.
(b) No transfer of any Class X1, Class X2, Class G, Class H, Class J,
Class K, Class L, Class M, Class NR, Class R-I, Class R-II and Class R-III
Certificate shall be made unless that transfer is made pursuant to an
effective registration statement under the Securities Act of 1933, as amended
(the "1933 Act"), and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration or qualification and is to be made in connection with the
issuance or transfer of a Definitive Certificate, then the Certificate
Registrar shall require, in order to assure compliance with such laws, receipt
of: (i) if such transfer is purportedly being made in reliance upon Rule 144A
under the 1933 Act, a certificate from the prospective transferee
substantially in the form attached as Exhibit D-1 hereto, (ii) if such
transfer is purportedly being made in reliance upon Regulation S under the
1933 Act, a certificate from the prospective transferee substantially in the
form attached as Exhibit D-2 hereto and (iii) in all other cases, (A) (I)
except where the Depositor or an Affiliate thereof is the transferor or
transferee, an Opinion of Counsel, (II) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit C hereto and (III) a certificate from such
Certificateholder's prospective transferee substantially in the form attached
as Exhibit E hereto or (B) if the Depositor or an Affiliate thereof is the
transferor or transferee, an Opinion of Counsel satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
such registration or qualification (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the
Trustee or the Certificate Registrar in their respective capacities as such).
None of the Depositor, the Trustee, or the Certificate Registrar is obligated
to register or qualify the Class X1, Class X2, Class G, Class H, Class J,
Class K, Class L, Class M, Class NR, Class R-I, Class R-II and Class R-III
Certificates under the 1933 Act or any other securities law or to take any
action not otherwise required under this Agreement to permit the transfer of
any Class X1, Class X2, Class G, Class H, Class J, Class K, Class NR, Class
R-I, Class R-II and Class R-III Certificate without registration or
qualification. Any Class X1, Class X2, Class G, Class H, Class J, Class K,
Class L, Class M, Class NR, Class R-I, Class R-II or Class R-III
Certificateholder desiring to effect such a transfer shall, and does hereby
agree to, indemnify the Trustee, the Certificate Registrar and the Depositor
against any liability that may result if the transfer is not so exempt or is
not made in accordance with such federal and state laws.
(c) Except as provided in Section 8.02(d), none of the Certificates,
except for the Class A1, Class A2, Class A3, Class X1, Class X2, Class B,
Class C, Class D, Class E and Class F Certificates, shall be transferred to
(A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts or other entities in which such plans,
accounts or arrangements are invested, that is subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975
of the Code (each, a "Plan") or (B) any Person who is directly or indirectly
purchasing any such Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, unless the prospective
transferee provides the Certificate Registrar with a certification of facts
and an Opinion of Counsel which establish to the satisfaction of the
Certificate Registrar that such transfer will not result in a violation of
Section 406 of ERISA or Section 4975 of the Code or cause the Master Servicer,
the Certificate Registrar or the Trustee to be deemed a fiduciary of such Plan
or result in the imposition of an excise tax under Section 4975 of the Code,
or such other Opinions of Counsel, officers' certificates, representations or
agreements as may be required by and in form and substance satisfactory to the
Depositor and the Trustee. Except as provided in Section 8.02(d), in the
absence of its having received the certification and Opinion of Counsel or
other documents contemplated by the preceding sentence, the Certificate
Registrar shall require the prospective transferee of any Class G, Class H,
Class J, Class K, Class L, Class M, Class NR, Class R-I, Class R-II or Class
R-III Certificate to certify (or in the case of a Book-Entry Certificate, the
holder shall be deemed to certify), that it is neither (A) a Plan nor (B) a
Person who is directly or indirectly purchasing any such Certificates on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan.
(d) Notwithstanding Section 8.02(c), transfers of the Class G, Class
H, Class J, Class K, Class L, Class M, and Class NR Certificates shall be
registered by the Certificate Registrar if the Certificate Registrar receives:
(i) a representation from the transferee of such Certificate, acceptable to
and in form and substance satisfactory to the Certificate Registrar, to the
effect that such transferee is not (A) a Plan or (B) a Person who is directly
or indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan, (ii) if the
purchaser is an insurance company, a representation that the purchaser is an
"insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 (60 Fed. Reg. 35925, July 12,
1995) ("PTCE 95-60")) and that the purchase and holding of such Certificates
is eligible for, and satisfies all of the requirements for relief under,
Sections I and III of PTCE 95-60; or (iii) an Opinion of Counsel satisfactory
to the Certificate Registrar that the purchase and holding of such Certificate
by a Plan, any person acting on behalf of a Plan or using a Plan's assets will
not result in the assets of the Trust Fund being deemed to be "plan assets"
and subject to the prohibited transaction requirements of ERISA and the Code
and will not subject the Trustee or the Certificate Registrar to any
obligation in addition to those undertaken in this Agreement. Unless an
opinion of counsel described in (iii) is delivered, the representations in (i)
or (ii) shall be deemed to have been made to the Certificate Registrar by the
transferee's acceptance of a Class G, Class H, Class J, Class K, Class L,
Class M, or Class NR Certificate.
(e) No transfer of a Class A1, Class A2, Class A3, Class X1, Class
X2, Class B, Class C, Class D, Class E or Class F Certificate or any interest
therein shall be made to (A) any Plan or (B) any Person who is directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan unless such
transferee qualifies as an accredited investor as defined in Rule 501(a)(1) of
Regulation D under the Securities Act and either (1) at the time of such
transfer, the Certificates are rated in one of the top four rating categories
by at least one Rating Agency, or (2) the purchaser is an insurance company
general account that is eligible for, and satisfies all of the requirements
of, Sections I and III of Prohibited Transaction Class Exemption 95-60. Each
Person who acquires a Class A1, Class A2, Class A3, Class X1, Class X2, Class
B, Class C, Class D, Class E or Class F Certificate shall be deemed to have
certified that the foregoing conditions are satisfied.
(f) No transfer of any Residual Certificate shall be made to a
Non-United States Person. Notwithstanding anything to the contrary contained
herein, prior to registration of any transfer, sale or other disposition of a
Residual Certificate, the Certificate Registrar shall have received (i) an
affidavit from the proposed transferee substantially in the form attached as
Exhibit F-1 hereto, to the effect that, among other things, (A) such
transferee is not a Disqualified Organization or an agent (including a broker,
nominee or middleman) of a Disqualified Organization, (B) such transferee is
not a Non-United States Person, (C) such transferee has no present knowledge
or expectation that it will become insolvent or subject to a bankruptcy
proceeding for so long as the Residual Certificate remains outstanding, and
(D) no purpose of such proposed transfer, sale or other disposition of the
Residual Certificate is or will be to impede the assessment or collection of
any tax, and (ii) a certificate from the transferor substantially in the form
attached as Exhibit F-2 hereto, to the effect that, among other things, no
purpose of such proposed transfer, sale or other disposition of the Residual
Certificate is or will be to impede the assessment or collection of any tax.
Notwithstanding the registration in the Certificate Register of any transfer,
sale or other disposition of a Residual Certificate to a Disqualified
Organization or an agent (including a broker, nominee or middleman) of a
Disqualified Organization or to a Non-United States Person, such registration
shall be deemed to be of no legal force or effect whatsoever and such Person
shall not be deemed to be a Certificateholder for any purpose hereunder,
including, but not limited to, the receipt of distributions in respect of such
Residual Certificate. If any purported transfer of a Residual Certificate
shall be in violation of the provisions of this Section 8.02(d), then the
prior Holder of the Residual Certificate purportedly transferred shall, upon
discovery that the transfer of such Residual Certificate was not in fact
permitted by this Section 8.02(d), be restored to all rights as Holder thereof
retroactive to the date of the purported transfer. The Certificate Registrar
shall be under no liability to any Person for any registration of transfer of
a Residual Certificate that is not permitted by this Section 8.02(d) or for
making payments due on such Residual Certificate to the purported Holder
thereof or taking any other action with respect to such purported Holder under
the provisions of this Agreement. The prior Holder shall be entitled to
recover from any purported Holder of a Residual Certificate that was in fact
not a permitted transferee under this Section 8.02(d) at the time it became a
Holder all payments made on such Residual Certificate. The Holder of Residual
Certificates, by its acceptance thereof, shall be deemed for all purposes to
have consented to the provisions of this Section 8.02 and to any amendment of
this Agreement deemed necessary by counsel of the Depositor to ensure that the
transfer of a Residual Certificate to a Disqualified Organization or any other
Person will not cause the Trust Fund to cease to qualify as a REMIC or cause
the imposition of a tax upon the Trust Fund.
(g) Each Holder of a Certificate, by its acceptance thereof, shall be
deemed to represent that neither MGT nor any of its affiliates has
discretionary authority or control with respect to the investment of the
Plan's assets invested in the related Certificate, or gives investment advice
with respect to the investment of such assets.
(h) Subject to the preceding subsections, upon surrender for
registration of transfer of any Certificate at the office of the Certificate
Registrar, the Certificate Registrar shall execute, authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Certificates of the same Class of a like aggregate Percentage Interest.
(i) At the option of any Holder, its Certificates may be exchanged
for other Certificates of authorized denominations of the same Class of a like
aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the office of the Certificate Registrar. Whenever any
Certificates are so surrendered for exchange, the Certificate Registrar shall
execute, authenticate and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(j) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(k) No service charge shall be imposed for any transfer or exchange
of Certificates, but the Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
(l) All Certificates surrendered for transfer and exchange shall be
physically cancelled by the Certificate Registrar and a certificate of such
cancellation shall be delivered to the Trustee by the Certificate Registrar.
The Certificate Registrar shall hold such cancelled Certificates in accordance
with its standard procedures.
Section 8.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (ii)
there is delivered to the Trustee and the Certificate Registrar such security
or indemnity as may be required by them to save each of them harmless, then,
in the absence of notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and like Percentage Interest.
Upon the issuance of any new Certificate under this Section, the Trustee and
the Certificate Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee and the
Certificate Registrar) connected therewith. Any replacement Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence
of ownership in the Trust Fund, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
Section 8.04 Persons Deemed Owners.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar and any agent of any of them may treat the
person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section
7.02 and for all other purposes whatsoever, and neither the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Certificate Registrar
nor any agent of any of them shall be affected by notice to the contrary.
ARTICLE IX
THE DEPOSITOR
Section 9.01 Liability of the Depositor.
The Depositor shall be liable in accordance herewith only to the
extent of the obligations specifically imposed upon and undertaken by the
Depositor herein.
Section 9.02 Merger, Consolidation or Conversion of the Depositor.
Subject to the following paragraph, the Depositor will keep in full
effect its existence, rights and franchises as a corporation under the laws of
the jurisdiction of its incorporation, and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage
Loans and to perform its respective duties under this Agreement.
The Depositor may be merged or consolidated with or into any Person,
or transfer all or substantially all of its assets to any Person, in which
case any Person resulting from any merger or consolidation to which the
Depositor, shall be a party, or any Person succeeding to the business of the
Depositor, shall be the successor of the Depositor hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 9.03 Limitation on Liability of the Depositor and Others.
Neither the Depositor nor any of its directors, officers, employees
or agents shall be under any liability to the Trust Fund or the
Certificateholders for any action taken or for refraining from the taking of
any action in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the
Depositor or any such Person against any breach of warranties or
representations made herein, or against any liability which would otherwise be
imposed by reason of misfeasance, bad faith or negligence in the performance
of duties. The Depositor and any director, officer, employee or agent thereof
may rely in good faith on any document of any kind which, prima facie, is
properly executed and submitted by any Person respecting any matters arising
hereunder. Except for any action described in the proviso of the first
sentence above, the Depositor shall not be under any obligation to appear in,
prosecute or defend any legal action unless such action is related to its
duties under this Agreement.
ARTICLE X
DEFAULT
Section 10.01 Events of Default.
"Event of Default", wherever used herein, means with respect to any
Servicer any one of the following events:
(i) with respect to the Master Servicer, failure to
advance or remit when due to the Trustee for deposit
into the Certificate Account any amount required to
be advanced or remitted under the terms of this
Agreement within one (1) Business Day of the date
required pursuant to the terms of this Agreement;
with respect to the Special Servicer, failure to
remit to the Master Servicer, as required hereunder,
any amount required to be remitted under the terms of
the Agreement within one (1) Business Day of the date
required pursuant to the terms of this Agreement; or
(ii) except as set forth in clause (i) above, (x) such
Servicer shall fail to remit to the Master Servicer
or deposit in the Collection Account, Escrow Account
or REO Account, as applicable any amount required to
be so remitted or deposited under the terms of this
Agreement within one (1) Business Day of the date
required pursuant to the terms of this Agreement or
(y) the Master Servicer shall fail to make any
Advance required to be made by the Master Servicer
under this Agreement within one (1) Business Day of
the date required pursuant to the terms of this
Agreement; or
(iii) [RESERVED];
(iv) any failure on the part of such Servicer duly to
observe or perform in any material respect any other
of the covenants or agreements on the part of such
Servicer contained in this Agreement which continues
unremedied for a period of 30 days after the date on
which written notice of such failure, requiring the
same to be remedied, shall have been given to such
Servicer by the Depositor, the Trustee, or, in the
case of the Special Servicer, the Master Servicer or
to such Servicer (with a copy to the Depositor, the
Trustee, the Directing Certificateholder, and, in the
case of the Special Servicer, the Master Servicer) by
the Holders of Certificates entitled to at least 25%
of the Voting Rights of any Class affected thereby;
or
(v) any breach of the representations and warranties
contained in Section 2.03(b) which materially and
adversely affects the interests of any Class of
Certificateholders and which continues unremedied for
a period of 30 days after the date on which notice of
such breach, requiring the same to be remedied, shall
have been given to such Servicer by the Depositor,
the Trustee or, in the case of the Special Servicer,
the Master Servicer, or to such Servicer (with a copy
to the Depositor, the Trustee, the Directing
Certificateholder, and, in the case of the Special
Servicer, the Master Servicer) by the Holders of
Certificates entitled to at least 25% of the Voting
Rights of any Class affected thereby; or
(vi) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of
a conservator or receiver or liquidator in any
insolvency, bankruptcy, readjustment of debt,
marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of
its affairs, shall have been entered against such
Servicer and such decree or order shall have remained
in force undischarged, undismissed or unstayed for a
period of sixty (60) days; or
(vii) such Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any
insolvency, bankruptcy, readjustment of debt,
marshaling of assets and liabilities or similar
proceedings of or relating to such Servicer or of or
relating to all or substantially all of its property;
or
(viii) such Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a
petition to take advantage of any applicable
insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or
voluntarily suspend payment of its obligations; or
(ix) such Servicer shall fail to maintain a required
license to do business or service multifamily and
commercial mortgage loans in accordance with Accepted
Master Servicing Practices or Accepted Special
Servicing Practices, as applicable, and as provided
in this Agreement, in any jurisdiction where the
Mortgaged Properties or REO Properties are located,
which failure materially and adversely affects the
interests of any Class of Certificateholders and such
failure shall continue unremedied for a period of
thirty (30) Business Days after the date upon which
such Servicer has been notified or otherwise becomes
aware of such failure (or such extended period
reasonably approved by the Trustee to the extent such
Servicer is diligently proceeding to cure such
failure and such extended period shall not have any
further material and adverse effect on such
Certificateholders' interests) and none of the
then-current rating or ratings of all outstanding
Classes of the Certificates would be qualified (if
applicable), downgraded or withdrawn by any Rating
Agency as a result thereof; or
(x) except as otherwise permitted pursuant to the express
terms of this Agreement, such Servicer attempts to
assign its right to servicing compensation hereunder
or a Servicer attempts, without the prior written
consent of Trustee, to assign this Agreement or the
servicing responsibilities hereunder or any portion
thereof; or
(xi) Fitch has given written confirmation to the Trustee
that with respect to any Servicer that maintaining
the Servicer in such capacity hereunder will cause a
downgrade, qualification or withdrawal of the ratings
then assigned to the Certificates; or
(xii) the Master Servicer or the Special Servicer is
removed from S&P's approved master servicer list, or
special servicer list, as the case may be, and the
rating of any Class of Certificates by S&P is
qualified (if applicable), downgraded or withdrawn
(including, without limitation, being placed on a
negative credit "watch" status in contemplation of a
ratings downgrade or withdrawal), in connection with
such removal.
then, and in each and every such case, so long as an Event of Default shall
not have been remedied, the Trustee may, and at the written direction of the
Holders of Certificates entitled to, (a) in the case of an Event of Default
described in clauses (i)-(v) hereof, at least 25% of the Voting Rights of any
affected Class of Certificates, or (b) in the case of any Event of Default
described in clauses (ix) through (x) hereof, at least 25% of all of the
Voting Rights, subject to Section 3.10, terminate all of the rights and
obligations of such Servicer as such Servicer under this Agreement and in and
to the Mortgage Loans and the proceeds thereof; and with respect to clause
(xi) above the Trustee may terminate all the rights and obligations of such
Servicer without a vote by the Holders, subject to Section 3.10(b). From and
after the receipt by such Servicer of such written notice, or upon the
occurrence of an Event of Default described in clauses (vi)-(viii) hereof, all
authority and power of such Servicer under this Agreement shall pass to and be
vested in the Master Servicer (or, if such Servicer is the Master Servicer or
the Special Servicer and the Master Servicer are the same Person, the Trustee)
pursuant to and under this Section, and, without limitation, the Master
Servicer or the Trustee, as applicable, is hereby authorized and empowered to
execute and deliver, on behalf of and at the expense of such Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments,
and to do or accomplish all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, whether to complete the
transfer and endorsement or assignment of the Mortgage Loans and related
documents, or otherwise. Each Servicer agrees promptly (and in any event no
later than ten Business Days subsequent to such notice) to provide the Master
Servicer or Trustee, as applicable, with all documents and records requested
by it to enable it to assume such Servicer's functions hereunder, and to
cooperate with the Master Servicer or the Trustee, as applicable, in effecting
the termination of such Servicer's responsibilities and rights hereunder. Any
expenses incurred by the Trustee in connection with the transfer of servicing
functions shall be paid by the terminated Servicer and shall not be an expense
of the Trustee.
Section 10.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer
receives a notice of termination pursuant to Section 10.01, the Trustee shall
be the successor in all respects to such Servicer under this Agreement and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto and arising
thereafter placed on such Servicer by the terms and provisions hereof;
provided, however, that any failure to perform such duties or responsibilities
caused by such Servicer's failure to provide information or monies required by
Section 10.01 shall not be considered a default by the Trustee hereunder. The
Trustee shall not be liable for any of the representations and warranties of
the Master Servicer or the Special Servicer or for any losses incurred by such
Servicer hereunder. As compensation therefor, the Trustee shall be entitled to
the servicing fees and all funds relating to the Mortgage Loans which such
Servicer would have been entitled to charge to the Trust Fund if such Servicer
had continued to act hereunder. Notwithstanding the above, the Trustee may, if
it shall be unwilling to so act, or shall, if it is unable to so act or such
Trustee does not meet the requirements set forth in Section 3.10(d), or if the
Holders of Certificates entitled to at least more than 66 2/3% of the Voting
Rights so request in writing to the Trustee, promptly appoint a successor
pursuant to Section 3.10. Pending appointment of a successor to the Master
Servicer or the Special Servicer hereunder, the Trustee shall act in such
capacity as hereinabove provided.
Section 10.03 Notification to Certificateholders.
(a) Upon any such termination pursuant to Section 10.01 above, any
appointment of a successor to the Master Servicer pursuant to Section 10.02,
or any appointment of a Replacement Special Servicer pursuant to Section 6.16,
the Trustee shall give prompt written notice thereof to Certificateholders and
each Rating Agency at their respective addresses appearing in the Certificate
Register.
(b) Not later than the later of 60 days after the occurrence of an
Event of Default, the Trustee shall transmit by mail to the Depositor, the
Rating Agencies and all Certificateholders notice of such occurrence, unless
such default shall have been cured or waived.
Section 10.04 Waiver of Events of Default.
The Holders representing at least 66 2/3% of the Voting Rights
evidenced by all Classes of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided, however, that an Event of
Default under clause (i), (ii) or (xi) of Section 10.01 may be waived only by
all of the Certificateholders. Upon any such waiver of an Event of Default,
such Event of Default shall cease to exist and shall be deemed to have been
remedied for every purpose hereunder, except that no Event of Default under
Section 10.01(i) shall be deemed so waived or cured unless and until the
Trustee has been reimbursed in full for all Advances which it may have made
hereunder. No such waiver shall extend to any subsequent or other Event of
Default or impair any right consequent thereon except to the extent expressly
so waived. Notwithstanding any other provisions of this Agreement, for
purposes of waiving any Event of Default pursuant to this Section 10.04,
Certificates registered in the name of the Depositor or any Affiliate of the
Depositor shall be entitled to Voting Rights with respect to the matters
described above.
Section 10.05 Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event
of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 10.01, shall have the right, in its own name and
as trustee of an express trust, to take all actions now or hereafter existing
at law, in equity or by statute to enforce its rights and remedies and to
protect the interests, and enforce the rights and remedies, of the
Certificateholders (including the institution and prosecution of all judicial,
administrative and other proceedings and the filings of proofs of claim and
debt in connection therewith). Except as otherwise expressly provided in this
Agreement, no remedy provided for by this Agreement shall be exclusive of any
other remedy, and each and every remedy shall be cumulative and in addition to
any other remedy, and no delay or omission to exercise any right or remedy
shall impair any such right or remedy or shall be deemed to be a waiver of any
Event of Default.
ARTICLE XI
CONCERNING THE TRUSTEE
Section 11.01 Duties of the Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs. Any permissive right of the Trustee contained in this
Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform to the requirements of this Agreement, if applicable. If
any such instrument is found not to conform to the requirements of this
Agreement if applicable in a material manner, the Trustee shall take such
action as it deems appropriate to have the instrument corrected. The Trustee
shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, the Master Servicer or the Special Servicer, and
accepted by the Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and
after the curing of all such Events of Default which
may have occurred, the duties and obligations of the
Trustee shall be determined solely by the express
provisions of this Agreement. The Trustee shall not
be liable except for the performance of such duties
and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall
be read into this Agreement against the Trustee and,
in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to
the requirements of this Agreement;
(ii) The Trustee shall not be liable for an error of
judgment made in good faith by a Responsible Officer
or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it
in good faith in accordance with the direction of
Holders of Certificates entitled to at least 25% of
the Voting Rights relating to the time, method and
place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this
Agreement.
(d) [RESERVED].
Section 11.02 Monitoring Certificateholders and Directing
Certificateholder; Certain Rights and Powers of Directing Certificateholder.
(a) Each Monitoring Certificateholder is hereby deemed to have agreed
by virtue of its purchase of a Certificate to provide its name and address to
the Trustee and to notify the Trustee of the transfer of any Certificate of a
Monitoring Class, the selection of a Directing Certificateholder or the
resignation or removal thereof. The Directing Certificateholder is hereby
deemed to have agreed by virtue of its purchase of a Certificate to notify the
Trustee when such Certificateholder is appointed Directing Certificateholder
and when it is removed or resigns. To the extent there is only one Monitoring
Certificateholder and it is also the Special Servicer, it shall be the
Directing Certificateholder.
(b) [RESERVED].
(c) A "Monitoring Class" as of any time of determination shall be the
Class outstanding with the most subordinate interest in the Trust Fund having
at least 25% of its initial Class Balance.
(d) Once a Directing Certificateholder has been selected, each of the
Master Servicer, the Special Servicer, the Depositor, the Trustee and each
other Certificateholder (or Certificate Owner, if applicable) shall be
entitled to rely on such selection unless a majority of the Monitoring
Certificateholders, by Certificate Balance, or such Directing
Certificateholder shall have notified the Trustee and each other Monitoring
Certificateholder, in writing, of the resignation of such Directing
Certificateholder or the selection of a new Directing Certificateholder. Upon
the resignation of a Directing Certificateholder, the Trustee shall request
the Monitoring Certificateholders to select a new Directing Certificateholder.
(e) Within 30 days of the Delivery Date, the Trustee shall deliver to
the Special Servicer and the Master Servicer a list of each Monitoring
Certificateholder and the Directing Certificateholder, including names and
addresses. In addition to the foregoing, within two (2) Business Days of
receiving notice of the selection of a new Directing Certificateholder or the
existence of a new Monitoring Certificateholder, the Trustee shall notify the
Master Servicer and the Special Servicer.
(f) If at any time a Book-Entry Certificate belongs to a Monitoring
Class, the Trustee shall notify the related Certificateholders (through the
Depository, unless the Trustee shall have been previously provided with the
name and address of such Certificateholder) of such event and shall request
that it be informed of any change in the identity of the related Certificate
Owner from time to time.
(g) Until it receives notice to the contrary each of the Servicers
and the Trustee shall be entitled to rely on the most recent notification with
respect to the identity of the Monitoring Certificateholder, and the Directing
Certificateholder.
(h) The Directing Certificateholder will be entitled to advise the
Special Servicer with respect to the Special Servicer's taking, or consenting
to the Master Servicer's taking, any of the actions identified in clauses (i)
through (x) of the following sentence. In addition, notwithstanding anything
in any other Section of this Agreement to the contrary, but in all cases
subject to Section 3.18(g) and Section 11.02(i), the Special Servicer will not
be permitted to take, or consent to the Master Servicer's taking, any of the
actions identified in clauses (i) through (x) of this sentence, unless and
until the Special Servicer has notified the Directing Certificateholder in
writing of the Special Servicer's intent to take the particular action and the
Directing Certificateholder has consented (or has failed to object) thereto in
writing within (A) five (5) Business Days in the case of a Mortgage Loan that
is not a Specially Serviced Mortgage Loan and (B) ten (10) Business Days in
the case of a Specially Serviced Mortgage Loan, of having been notified
thereof in writing and having been provided with all reasonably requested
information with respect thereto:
(i) any foreclosure upon or comparable conversion (which
may include acquisitions of an REO property) of the
ownership of properties securing such of the
Specially Serviced Mortgage Loans as come into and
continue in default;
(ii) any modification, amendment or waiver of a monetary
term (including the timing of payments) or any
material non-monetary term of a Mortgage Loan;
(iii) any proposed sale of a Defaulted Mortgage Loan or
REO Property (other than in connection with the
termination of the Trust Fund) for less than the
Purchase Price;
(iv) any acceptance of a discounted payoff with respect to
a Specially Serviced Mortgage Loan;
(v) any determination to bring an REO Property into
compliance with applicable environmental laws or to
otherwise address Hazardous Materials located at an
REO Property;
(vi) any release of collateral for a Mortgage Loan (other
than in accordance with the terms of, or upon
satisfaction of, such Mortgage Loan);
(vii) any acceptance of substitute or additional
collateral for a Mortgage Loan (other than in
accordance with the terms of such Mortgage Loan);
(viii) any management company or franchise change with
respect to any Mortgaged Property;
(ix) any releases of earn-out reserves or related letters
of credit with respect to a Mortgage Property; and
(x) any waiver of a due-on-sale or due-on-encumbrance
clause in any Mortgage Loan;
provided that, in the event that the Special Servicer determines that
immediate action is necessary to protect the interests of the Certicateholders
(as a collective whole), the Special Servicer may take any such action without
waiting for the Directing Certificateholder's response. To the extent such
action has not been set forth in the last submitted Asset Strategy Report,
such notification by the Special Servicer shall be deemed to have modified the
Asset Strategy Report, subject to Section 6.03(b).
In addition, subject to Section 11.02(i), the Directing
Certificateholder may direct the Special Servicer to take, or to refrain from
taking, such actions as the Directing Certificateholder may deem advisable or
as to which provision is otherwise made herein. Upon reasonable request, the
Special Servicer shall provide the Directing Certificateholder with any
information in the Special Servicer's possession with respect to such matters,
including, without limitation, its reasons for determining to take a proposed
action; provided that such information shall also be provided, in a written
format, to the Trustee.
The Master Servicer of the Special Servicer, as applicable, shall
notify the Directing Certificateholder of any release or substitution of
collateral for a Mortgage Loan even if such release or substitution is in
accordance with such Mortgage Loan.
(i) 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 Directing Certificateholder prior
to acting, and the provisions of this Agreement requiring such shall be of no
effect, if any Directing Certificateholder resigns or is removed, during the
period following such resignation or removal until a replacement is selected,
and (ii) no advice, direction or objection from or by the Directing
Certificateholder as contemplated by Section 11.02(h), 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 or any other Section of this
Agreement, including the Special Servicer's obligation to act in accordance
with Accepted Special Servicing Practices, (B) adversely affect the status of
REMIC I, REMIC II and REMIC III as REMICs, (C) expose the Trust, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, or any of
their respective Affiliates, members, managers, officers, directors, employees
or agents, to any material claim, suit or liability, or (D) expand the scope
of the Master Servicer's or the Special Servicer's responsibilities under this
Agreement.
Furthermore, the Special Servicer shall not be obligated to obtain
the approval of the Directing Certificateholder for any actions to be taken by
the Special Servicer with respect to any particular Mortgage Loan if (i) the
Special Servicer has, in accordance with Section 11.02(h), notified the
Directing Certificateholder in writing of the various actions that the Special
Servicer proposes to take with respect to the work-out or liquidation of such
Mortgage Loan and has provided the Directing Certificateholder with all
information reasonably requested by the Directing Certificateholder with
respect to such actions, and (ii) for 30 days following its receipt of the
initial proposal and any supporting information, the Directing
Certificateholder has objected to all of those proposed actions and has failed
to suggest any alternative actions that the Special Servicer considers to be
consistent with Accepted Special Servicing Practices.
(j) Each Certificateholder acknowledges and agrees, by its acceptance
of its Certificates, that: (i) the Directing Certificateholder may have
special relationships and interests that conflict with those of Holders of one
or more Classes of Certificates; (ii) the Directing Certificateholder may act
solely in the interests of the Holders of the Monitoring Class; (iii) the
Directing Certificateholder does not have any duties to the Holders of any
Class of Certificates other than the Monitoring Class; (iv) the Directing
Certificateholder may take actions that favor interests of the Holders of the
Monitoring Class over the interests of the Holders of one or more other
Classes of Certificates; and (v) the Directing Certificateholder shall have no
liability whatsoever for having so acted, and no Certificateholder may take
any action whatsoever against the Directing Certificateholder or any director,
officer, employee, agent or principal thereof for having so acted.
Section 11.03 Powers of Attorney.
The Trustee shall execute and deliver any powers of attorney prepared
and delivered to it by the Master Servicer pursuant to Section 4.01(b) or the
Special Servicer pursuant to Section 6.03(b).
Section 11.04 Certification by Certificate Owners.
To the extent that under the terms of this Agreement, it is necessary
to determine whether any Person is a Certificate Owner, the Trustee shall make
such determination based on a certification of such Person, in form acceptable
to the Trustee, which shall specify, in reasonable detail satisfactory to the
Trustee, the Class and Certificate Balance of the Certificate owned, the value
of such Person's interest in such Certificate and any intermediaries through
which such Certificate is held. The Trustee shall make such determination at
the request of such Person or any Servicer. The Trustee shall be entitled to
rely conclusively on information it receives from the Depository, Depository
Participants, and indirect participating brokerage firms for which a
Depository Participant acts as agent, with respect to the identity of a
Certificate Owner.
Section 11.05 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 11.01:
(a) The Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(c) The Trustee shall not be under any obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or defend
any litigation hereunder or in relation hereto at the request, order or
direction of any of the Certificateholders, pursuant to the provisions of this
Agreement, unless such Certificateholders shall have offered to the Trustee,
as applicable, reasonable security or indemnity against the costs, expenses
and liabilities which may be incurred therein or thereby; the Trustee shall
not be required to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it; nothing
contained herein shall, however, relieve the Trustee of the obligation, upon
the occurrence of an Event of Default (which has not been cured or waived), to
exercise such of the rights and powers vested in it by this Agreement, and to
use the same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs;
(d) The Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(e) Prior to the occurrence of an Event of Default hereunder and
after the curing or waiver of all Events of Default which may have occurred,
the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or other paper or
document, unless requested in writing to do so by Holders of Certificates
entitled to at least 25% of the Voting Rights; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Agreement, the Trustee may
require reasonable indemnity against such expense or liability as a condition
to taking any such action. The reasonable expense of every such reasonable
examination shall be paid by the Master Servicer or, if paid by the Trustee,
shall be repaid by the Master Servicer upon demand;
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys, provided, however, that the Trustee shall remain liable for the
performance of all of its duties hereunder;
(g) The Trustee shall not be required to obtain a deficiency judgment
against any Mortgagor;
(h) For all purposes under this Agreement, the Trustee shall not be
deemed to have notice of any Event of Default hereunder unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written notice
of any event which is in fact such a default is received by the Trustee at the
Corporate Trust Office, and such notice references the Holders of the
Certificates and this Agreement;
(i) The Trustee shall not be responsible for any act or omission of
the Certificate Registrar (unless the Trustee, an Affiliate of the Trustee, as
applicable, is acting as Certificate Registrar), the Master Servicer, the
Special Servicer or the Depositor;
(j) Other than as expressly provided herein, the Trustee shall not be
required to monitor the activities of any Servicer and shall not be
responsible for the actions or omissions of any such Servicer.
Section 11.06 The Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than the
Certificate of Authentication, shall be taken as the statements of the
Depositor, the Master Servicer or the Special Servicer, as the case may be,
and the Trustee does not assume any responsibility for their correctness. The
Trustee does not make any representations as to the validity or sufficiency of
this Agreement (other than as to the due authorization, execution and delivery
thereof by it) or of the Certificates (other than as to the due authorization
and execution thereof by it) or of any Mortgage Loans or related document. The
Trustee shall not be accountable for the use or application by the Depositor
of any of the Certificates issued to it or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor
in respect of the assignment of the Mortgage Loans to the Trust Fund, or any
funds deposited in or withdrawn from the Certificate Account or any other
account by or on behalf of the Depositor, the Master Servicer or the Special
Servicer. The Trustee shall not be responsible for the accuracy or content of
any resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by the Depositor, the Master Servicer or the
Special Servicer, and accepted by the Trustee in good faith, pursuant to this
Agreement.
Section 11.07 Trustee May Own Certificates.
The Trustee, in its individual or any other capacity, may become the
owner or pledgee of Certificates with the same rights it would have if it were
not Trustee, respectively.
Section 11.08 Fees and Expenses of Trustee; Indemnification of Trustee.
(a) The Trustee shall be entitled to pay itself as reasonable
compensation from amounts remitted to the Certificate Account (which shall not
be limited by any provision of law in regard to the compensation of a trustee
of an express trust) for all services rendered by it in the execution of the
trusts hereby created and in the exercise and performance of any of the powers
and duties of the Trustee hereunder on each Distribution Date in an aggregate
amount equal to 0.0010% per annum (the "Trustee Fee Rate") of the Stated
Principal Balance of each Mortgage Loan, calculated on the same basis as
interest on the related Mortgage Loan, minus the amount payable pursuant to
Section 7.02(d)(i), from which an amount equal to the Trustee Fee, payable at
the Trustee Fee Rate shall be paid to the Trustee.
(b) The Trustee and any director, officer, employee or agent of the
Trustee shall be entitled to indemnification out of the Certificate Account
from time to time for any loss, liability or expense (including without
limitation costs and expenses of litigation, and of investigation, counsel
fees, damages, judgments and amounts paid in settlement) incurred in
connection with any act or omission on the part of the Trustee with respect to
this Agreement or the Certificates (other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence of the
Trustee in the performance of duties hereunder, or as may arise from a breach
of any representation or warranty of the Trustee set forth herein or from any
failure of the Trustee to perform its obligations set forth in Section 11.15
provided, however, if the Trustee becomes Master Servicer, the Trustee acting
as Master Servicer shall not be entitled to indemnification under any
circumstance under which the Master Servicer is not entitled to
indemnification pursuant to Section 3.08(b)); provided, however, that with
respect to any third party claim:
(i) the Trustee, shall have given the Master Servicer,
the Depositor, the Holders and, if in respect to a
Specially Serviced Mortgage Loan, the Special
Servicer, written notice thereof promptly after the
Trustee shall have knowledge thereof;
(ii) while maintaining control over its own defense, the
Trustee shall cooperate and consult fully with, as
applicable, the Master Servicer, the Depositor and,
if in the respect to a Specially Serviced Mortgage
Loan, the Special Servicer in preparing such defense;
and
(iii) notwithstanding anything to the contrary in this
Section 11.08, the Trust Fund shall not be liable for
settlement of any such claim by the Trustee entered
into without the prior consent of the Trustee, as
applicable, the Master Servicer, the Depositor and,
if in the respect to a Specially Serviced Mortgage
Loan, the Special Servicer, which consent shall not
be unreasonably withheld.
Without in any way limiting the generality of the foregoing
indemnity, such indemnity shall specifically cover any loss, liability,
expense and costs of litigation and investigation, counsel fees, damages,
judgments and amounts paid in settlement incurred by the Trustee pursuant to
any U.S. or Canadian federal, state, provincial or local environmental
statute.
(c) The provisions of this Section 11.08 shall survive the
termination of this Agreement and the termination or resignation of the
Trustee.
Section 11.09 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be an association or a
corporation organized and doing business under the laws of any state or the
United States of America or the District of Columbia, authorized under such
laws to exercise trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by federal or
state authority. If such association or corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such association or corporation
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. The long-term debt obligations
of the Trustee (or its corporate parent) shall at all times be rated in a
rating category by S&P and Fitch at least equal to the rating one category
below the highest rating assigned by such Rating Agency to the then
outstanding Certificates, but in no event lower than an "investment grade"
rating by such Rating Agency. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect specified in
Section 11.10. The corporation or association serving as Trustee may have
normal banking and trust relationships with the Depositor and its Affiliates,
the Master Servicer and its Affiliates or the Special Servicer and its
Affiliates.
Section 11.10 Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer and to all Certificateholders. Upon
receiving such notice of resignation from the Trustee, the Master Servicer
shall promptly appoint a successor trustee. The appointment of such successor
must be acceptable to the Depositor and by written instrument, in duplicate,
which instrument shall be delivered to the resigning Trustee and to the
successor trustee. A copy of such instrument shall be delivered to the Trustee
and the Certificateholders, the Depositor and the Special Servicer by the
Master Servicer. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 11.09 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or a receiver of the Trustee or of its property shall
be appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, or if at any time the Trustee fails duly to
observe or perform in any material respect any other of the covenants or
agreements on the part of the Trustee contained in this Agreement which
failure shall continue unremedied for a period of 30 days after the date on
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Trustee by the Depositor, the Master Servicer or by the
Holders of Certificates entitled to at least 25% of the Voting Rights of any
Class affected thereby, any of the Depositor, the Master Servicer or the
Holders of Certificates entitled to at least 25% of the Voting Rights of any
Class affected thereby may remove the Trustee and appoint a successor trustee
acceptable to the Depositor by written instrument, in duplicate, which
instrument shall be delivered to the Trustee so removed and to the successor
trustee. A copy of such instrument shall be delivered to the Trustee and the
Certificateholders, the Depositor and the Special Servicer by the Master
Servicer.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee and appoint a successor
trustee by written instrument or instruments, in triplicate, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Master Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed. A copy
of such instrument shall be delivered to the remaining Certificateholders and
the Special Servicer by the Master Servicer. If the termination pursuant to
this Section 11.10(c) is without cause, the Certificateholders who voted to
terminate the Trustee shall pay the expenses associated with such termination.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall not
become effective until (i) the Master Servicer shall have obtained written
confirmation from each Rating Agency stating that upon such acceptance of
appointment none of the then-current rating or ratings of all outstanding
classes of the Certificates would be qualified (if applicable), downgraded or
withdrawn by each Rating Agency as a result thereof, and (ii) acceptance of
appointment by the successor trustee as provided in Section 11.11.
Section 11.11 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 11.10
shall execute, acknowledge and deliver to the Master Servicer and to its
predecessor trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if
originally named as trustee herein; provided, however, that (i) the long-term
debt obligations of such successor trustee (or its corporate parent) shall be
rated in a rating category by S&P and Fitch at least equal to the rating one
category below the highest rating assigned by such Rating Agency to the then
outstanding Certificates, but in no event lower than an "investment grade"
rating by such Rating Agency, or each rating agency shall have confirmed in
writing that the appointment of such successor trustee will not result in a
downgrade, qualification (if applicable) or withdrawal of its then-current
rating on the Certificates. The predecessor trustee shall deliver to the
successor trustee all Mortgage Loan Files and related documents and statements
held by it hereunder (other than any Mortgage Loan Files at the time held by a
Custodian, which shall become the agent of any successor trustee hereunder),
and the Master Servicer and the predecessor trustee shall execute and deliver
such instruments and do such other things as may reasonably be required to
more fully and certainly vest and confirm in the successor trustee all such
rights, powers, duties and obligations, and to enable the successor trustee to
perform its obligations hereunder.
(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 11.09.
(c) Upon acceptance of appointment by a successor trustee as provided
in this Section, the successor trustee shall mail notice of the succession of
such trustee hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register.
Section 11.12 Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
entity succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such entity shall be eligible
under the provisions of Section 11.09 or 11.11, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
Section 11.13 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be
located, the Master Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees, jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust Fund, and to vest in such Person or Persons, in such capacity,
such title to the Trust Fund, or any part thereof, and, subject to the other
provisions of this Section 11.13, such powers, duties, obligations, rights and
trusts as the Master Servicer and the Trustee may consider necessary or
desirable. If the Master Servicer shall not have joined in such appointment
within 15 days after the receipt by it of a request to do so, or in case an
Event of Default shall have occurred and be continuing, the Trustee alone
shall have the power to make such appointment. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 11.09 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall
be required under Section 11.11 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 11.13 all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or
imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether
as Trustee hereunder or as successor to the Master Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at the
direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article XI. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 11.13 shall not relieve the Trustee of its duties and responsibilities
hereunder.
Section 11.14 Appointment of Custodians.
(a) The Trustee may, with the consent of the Master Servicer, appoint
one or more Custodians to hold all or a portion of the Mortgage Loan Files as
agent for the Trustee. Subject to the other provisions of this Article XI, the
Trustee agrees to enforce the terms and provisions of Sections 2.01 and 2.02
hereof against the Custodian for the benefit of the Certificateholders. Each
Custodian shall be a depository institution subject to supervision by federal
or state authority, shall have combined capital and surplus of at least
$10,000,000, shall be qualified to do business in the jurisdiction in which it
holds any Mortgage Loan File and shall not be the Depositor, the Person who
originated or sold to the Depositor the related Mortgage Loan or any Affiliate
thereof. Each Custodian shall be subject to the same obligations and standard
of care as are imposed on the initial Custodian hereunder in connection with
the retention of Mortgage Loan Files. The initial Custodian and any custodian
succeeding the initial Custodian shall be required to have a blanket fidelity
bond and an errors and omissions insurance policy in amounts customary for
custodians. The appointment of one or more Custodians shall not relieve the
Trustee from any of its obligations hereunder, and the Trustee shall remain
responsible for all acts and omissions of any Custodian; provided, however,
that the Trustee shall not be responsible for any delays or failures in the
performance of the Custodian due to acts beyond the Custodian's control. Such
acts shall include but not be limited to acts of God, strikes, lockouts,
riots, acts of war or terrorism, epidemics, nationalization, expropriation,
currency restrictions, governmental regulation superimposed after the fact,
fire, communication line failures, computer viruses, earthquakes or other
disasters.
(b) The Custodian may, from time to time and as appropriate for the
servicing, foreclosure or payoff of any Mortgage Loan, but subject to the
restrictions therein provided, upon receipt by the Custodian of a Request for
Release and Receipt of Documents provided by any Servicer substantially in the
form set forth on Exhibit Y, release to such Servicer the related Mortgage
Loan File or the documents from a Mortgage Loan File set forth in such
request. Each Servicer acknowledges that during all times that any Mortgage
Loan File or any contents thereof are in the physical possession of such
Servicer, or are in transit to such Servicer from the Custodian, or are in
transit from such Servicer to the Custodian, such Mortgage Loan File and the
documents contained therein shall be held by the Servicer for and on behalf of
the Trustee and shall be and remain the sole and exclusive property of the
Trust Fund. For so long as any Mortgage Loan File or any document taken
therefrom is in any Servicer's physical possession, the same shall be stored
overnight in a one and one-half-hour rated fire-resistant filing cabinet or
the equivalent.
(c) Subject to any state law requirement or court order, each
Servicer hereby agrees to return to the Custodian each and every document
previously requested from the Mortgage Loan File when such Servicer's need
therefor in connection with such foreclosure or servicing no longer exists or
upon request of the Trustee, unless the related Mortgage Loan shall be
liquidated or paid in full, in which case, upon receipt of the Request for
Release and Receipt of Documents from any Servicer, the Custodian shall be
authorized to release the related Servicer's prior request form, together with
all other documents still retained by the Custodian with respect to such
Mortgage Loan, to such Servicer.
(d) Upon receipt of the payment in full of any Mortgage Loan, or upon
the receipt by the Master Servicer or Special Servicer of a notification that
payment in full will be escrowed in a manner customary for such purposes, such
Servicer shall promptly deliver to the Trustee and the Custodian a Request for
Release and Receipt of Documents substantially in the form set forth on
Exhibit Y requesting delivery to such Servicer of the Mortgage Loan File for
such Mortgage Loan and indicating that all amounts received in connection with
such payment that are required to be deposited in the related subaccount of
the Collection Account or Escrow Account or the related REO Account pursuant
to Section 4.02, Section 4.06 or Section 6.06 hereof have been or will be so
deposited.
(e) The Special Servicer shall forward to the Custodian original
documents evidencing an assumption, modification, consolidation or extension
of any Mortgage Loan entered into by such Servicer in accordance with this
Agreement within ten (10) Business Days of the execution thereof and the
delivery of such instrument to such Servicer; provided, however, that such
Servicer may, in lieu thereof, provide the Custodian with a certified true
copy of any such document submitted for recordation within five (5) Business
Days of its execution, in which event such Servicer shall provide the
Custodian with the original of any document submitted for recordation or a
copy of such document certified by the appropriate public recording office to
be a true and complete copy of the recorded original within five (5) Business
Days of receipt thereof by such Servicer.
(f) Upon any payment in full of a Mortgage Loan, the Special Servicer
may execute an instrument of satisfaction regarding the related Mortgage and
any other related Mortgage Loan Documents, which instruments of satisfaction
shall be recorded by the Special Servicer if required by applicable law and
shall be delivered to the Person entitled thereto, it being understood and
agreed that all reasonable expenses incurred by the Special Servicer in
connection with such instruments of satisfaction shall be reimbursed to the
Special Servicer by the Master Servicer, as a Servicing Advance, pursuant to
the terms of this Agreement. The Special Servicer shall notify the Custodian
and the Master Servicer of the execution of an instrument of satisfaction
described above as soon as practicable.
Section 11.15 Representations and Warranties of the Trustee.
The Trustee hereby represents and warrants to the Master Servicer and
the Depositor, as of the Delivery Date, that:
(i) The Trustee is a Massachusetts trust company duly
organized, validly existing and in good standing
under the laws of the Commonwealth of Massachusetts.
(ii) The execution and delivery of this Agreement by the
Trustee, and the performance and compliance with the
terms of this Agreement by the Trustee, will not
violate the Trustee's charter or bylaws or constitute
a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or
result in the breach of, any material agreement or
other instrument to which it is a party or which is
applicable to it or any of its assets; no license,
consent, approval, authorization or order of any
court or governmental agency is required for the
execution, delivery and performance by the Trustee of
this Agreement, except as have been previously
obtained.
(iii) The Trustee has the full power and authority to
enter into and consummate all transactions
contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this
Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution
and delivery by the Master Servicer, the Special
Servicer and the Depositor, constitutes a valid,
legal and binding obligation of the Trustee,
enforceable against the Trustee in accordance with
the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium
and other laws affecting the enforcement of
creditors' rights generally, and (B) general
principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity
or at law.
(v) The Trustee is not in violation of, and its execution
and delivery of this Agreement and its performance
and compliance with the terms of this Agreement will
not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local
governmental or regulatory authority, which
violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and
adversely either the ability of the Trustee to
perform its obligations under this Agreement or the
financial condition of the Trustee.
(vi) No litigation is pending or, to the best of the
Trustee's knowledge, threatened against the Trustee
which would prohibit the Trustee from entering into
this Agreement or, in the Trustee's good faith
reasonable judgment, is likely to materially and
adversely affect either the ability of the Trustee to
perform its obligations under this Agreement or the
financial condition of the Trustee.
Section 11.16 SEC Filings.
Based upon information furnished to it by the Master Servicer and the
Depositor, the Trustee will prepare and file with the Securities and Exchange
Commission on Forms 8-K and 10-K on behalf of the Trust Fund the reports
distributed to the Certificateholders pursuant to the first paragraph of
Section 7.03(a). No later than January 30, 2002, the Trustee shall file a Form
15 Notice of Suspension of Duty to File Reports pursuant to Sections 13 and
15(d) of the Securities Exchange Act of 1934, with respect to the
Certificates. The Trustee shall have no responsibility to file any items other
than those specified in this Section 11.16.
Section 11.17 Massachusetts Filings.
The Trustee shall make any filings required under Massachusetts
General Laws, Chapter 182, Sections 2 and 12, the costs of which, if any,
shall be reimbursed to it pursuant to Section 11.08.
ARTICLE XII
TERMINATION
Section 12.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
(a) The respective obligations and responsibilities under this
Agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee (other than the obligations of the Trustee to provide for and make
payments to Certificateholders as hereafter set forth and any indemnification
provision) shall terminate upon payment to the Certificateholders and the
deposit of all amounts held by or on behalf of the Master Servicer and the
Trustee and required hereunder to be so paid or deposited on the Distribution
Date following the earlier to occur of (i) the purchase of all the Mortgage
Loans by any holder of a Class R-I Certificate, the holders of an aggregate
Percentage interest in excess of 50% of the Most Subordinate Class of
Certificates, the Master Servicer and (to the extent all of the remaining
Mortgage Loans are being serviced by the Special Servicer) the Special
Servicer (in that order) at a price equal to the greater of (a) the aggregate
fair market value of all the Mortgage Loans (other than REO Property) included
in the Trust Fund, plus the appraised value of each REO Property, if any,
included in the Trust Fund, as determined by the Depositor and (b) the
aggregate Class Balance of all the Certificates plus accrued and unpaid
interest thereon together with any unreimbursed Advances (including any
interest thereon at the Advance Rate) and (ii) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund; provided, however, that in no event shall the
trust created hereby continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof.
Any Person which shall make an election to purchase all of the
Mortgage Loans remaining in the Trust Fund pursuant to clause (i) of the
preceding paragraph shall do so by giving written notice to the Trustee and
the Depositor no later than 60 days prior to the anticipated date of purchase;
provided, however, that no such election to purchase all of the Mortgage Loans
remaining in the Trust Fund pursuant to clause (i) above shall be made unless
the aggregate Stated Principal Balance of the Mortgage Loans remaining in the
Trust Fund at the time of such election is less than 1% of the aggregate
Cut-off Date Balance of the Mortgage Loans. Any Person which shall make the
election described in the previous sentence shall also provide to the Trustee
an opinion of independent counsel, addressed to the Trustee, to the effect
that the resulting termination will be a "qualified liquidation" under Section
860F(a)(4) of the Code with respect to REMIC I, REMIC II, and REMIC III.
Notice of any termination shall be given promptly by any such Person
electing to terminate by letter to Certificateholders mailed (a) in the event
such notice is given in connection with the purchase of the Mortgage Loans and
each REO Property, not earlier than the 60th day and not later than the 30th
day of the month next preceding the month of the proposed final distribution
on the Certificates or (b) otherwise during the month of such final
distribution on or before the Determination Date in such month, in each case
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment of the Certificates will be made upon presentation and
surrender of Certificates at the office of the Certificate Registrar therein
designated, (ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
payments being made only upon presentation and surrender of the Certificates
at the office of the Certificate Registrar. Unless it is acting as Certificate
Registrar, such Person shall give such notice to the Certificate Registrar at
the time such notice is given to Certificateholders. In the event such notice
is given in connection with the Master Servicer's purchase of all of the
Mortgage Loans remaining in the Trust Fund, the Master Servicer shall deposit
in the Certificate Account not later than the last Business Day of the
Collection Period relating to the Distribution Date on which the final
distribution on the Certificates is to occur an amount in immediately
available funds equal to the above-described purchase price. Upon receipt of
an Officers' Certificate to the effect that such final deposit has been made,
the Trustee shall release or cause the Custodian to release to the Master
Servicer the Mortgage Loan Files for the remaining Mortgage Loans and shall
execute all assignments, endorsements and other instruments necessary to
effectuate transfer of the Mortgage Loans (including, with respect to the
Canadian Loan, the Foreign Currency Exchange Contract).
Upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Trustee shall
distribute to each Certificateholder so presenting and surrendering its
Certificates (i) the amount otherwise distributable on such Distribution Date
in accordance with Section 7.02 in respect of the Certificates so presented
and surrendered, if not in connection with the Master Servicer's purchase of
all of the Mortgage Loans, or (ii) such Certificateholder's Percentage
Interest of that portion of the Available Distribution Amount for such
Distribution Date allocable to payments on the Class of Certificates so
presented and surrendered as described below, if in connection with the Master
Servicer's purchase of all of the Mortgage Loans. If the Trust Fund is to
terminate in connection with the Master Servicer's purchase of all of the
Mortgage Loans, the Available Distribution Amount for the final Distribution
Date shall be allocated in the order set forth in Section 7.02.
(b) Notwithstanding anything contained in Section 12.01(a) to the
contrary, following the date on which the aggregate Certificate Balance of the
Certificates (other than the Private Certificates) is reduced to zero and any
Realized Losses previously allocated to the Certificates (other than the
Private Certificates) have been reimbursed, the Sole Certificateholder(s)
shall have the right to exchange all of the Private Certificates for all of
the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (i) of Section 12.01(a) by giving written notice to all
the parties hereto no later than 60 days prior to the anticipated date of
exchange. In the event that the Sole Certificateholder(s) elect(s) to exchange
all of the Certificates for all of the Mortgage Loans and each REO Property
remaining in REMIC I in accordance with the preceding sentence, such Sole
Certificateholder(s), not later than the Distribution Date on which the final
distribution on the Private Certificates is to occur, shall deposit in the
Collection Account an amount in immediately available funds equal to all
amounts then due and owing to the Depositor, the Master Servicer, the Special
Servicer and the Trustee hereunder that may be withdrawn from the Collection
Account or that may be withdrawn from the Distribution Account but only to the
extent that such amounts are not already on deposit in the Collection Account.
In addition, the Master Servicer shall transfer all amounts required to be
transferred to the Distribution Account on such Master Remittance Date from
the Collection Account. Upon confirmation that such final deposits have been
made and following the surrender of all the Private Certificates on the
Distribution Date on which the final distribution on the Private Certificates
is to occur and upon receipt of an Officer's Certificate to the effect that
such final transfer has been made, the Trustee shall release or cause the
Custodian to release to the Sole Certificateholder(s) or any designee thereof,
the Mortgage Loan Files for the remaining Mortgage Loans and shall execute all
assignments, endorsements and other instruments necessary to effectuate
transfer of the Mortgage Loans (including, with respect to the Canadian Loan,
the Foreign Currency Exchange Contract) and REO Properties remaining in the
Trust Fund.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 Amendment.
(a) This Agreement may be amended from time to time by the Depositor,
the Master Servicer, the Special Servicer and the Trustee, without the consent
of any of the Certificateholders, (i) to cure any ambiguity, (ii) to correct
or supplement any provisions herein which may be inconsistent with any other
provisions herein, (iii) to make any other provisions with respect to matters
or questions arising hereunder which shall not be inconsistent with the
provisions hereof, (iv) to relax or eliminate any requirement hereunder
imposed by the REMIC Provisions if the REMIC Provisions are amended or
clarified such that any such requirement may be relaxed or eliminated; or (v)
if such amendment, as evidenced by an Opinion of Counsel delivered to the
Trustee, is reasonably necessary to comply with any requirements imposed by
the Code or any successor or amendatory statute or any temporary or final
regulation, revenue ruling, revenue procedure or other written official
announcement or interpretation relating to federal income tax laws or any
proposed such action which, if made effective, would apply retroactively to
the Trust Fund at least from the effective date of such amendment, or would be
necessary to avoid the occurrence of a prohibited transaction or to reduce the
incidence of any tax that would arise from any actions taken with respect to
the operation of the Trust Fund; provided that such action (except any
amendment described in clause (v) above) shall not, as evidenced by an Opinion
of Counsel delivered to the Trustee, adversely affect in any material respect
the interests of any Certificateholder; provided further, however, that an
Opinion of Counsel (other than as to REMIC tax matters) shall not be required
if each Rating Agency then rating the Certificates shall have confirmed in
writing that immediately following such amendment such Rating Agency will not
downgrade, qualify (if applicable) or withdraw its then-current rating on the
Certificates as a result of such amendment.
(b) This Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates affected thereby entitled to at least
51% of the Voting Rights for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Holders of Certificates;
provided, however, that no such amendment shall (i) reduce in any manner the
amount of, or delay the timing of, payments required to be distributed on any
Certificate without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of any
Class of Certificates in a manner other than as described in (i) without the
consent of the Holders of all Certificates of such Class, (iii) lower in any
manner the standard of the Accepted Master Servicing Practices or the Accepted
Special Servicing Practices, without the consent of all the Holders of all
Certificates then outstanding, or (iv) reduce the aforesaid percentages of
Certificates the Holders of which are required to consent to any such
amendment without the consent of the Holders of all Certificates then
outstanding. Notwithstanding any other provision of this Agreement, for
purposes of the giving or withholding of consents pursuant to this Section
13.01, Certificates registered in the name of the Depositor, the Master
Servicer, the Special Servicer or any Affiliate of the Depositor, the Master
Servicer or the Special Servicer shall be entitled to Voting Rights with
respect to matters described in clauses (i) and (ii) of this paragraph
affecting such Certificates.
(c) Notwithstanding any contrary provision of this Agreement, neither
the Trustee nor the Master Servicer shall consent to any amendment to this
Agreement unless the Trustee and the Master Servicer shall each have obtained
or been furnished with an Opinion of Counsel to the effect that such amendment
or the exercise of any power granted to the Master Servicer or the Trustee in
accordance with such amendment will not result in the imposition of a tax on
the Trust Fund pursuant to the REMIC Provisions or cause REMIC I, REMIC II or
REMIC III to fail to qualify as a REMIC at any time that any Certificates are
outstanding.
(d) Promptly after the execution of any such amendment, the Trustee
shall furnish a statement prepared by the Person requesting such amendment
describing the amendment to each Certificateholder and the Underwriters and a
copy of such amendment to each Rating Agency.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 13.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to such reasonable regulations as the Trustee may prescribe.
(f) The Trustee may but shall not be obligated to enter into any
amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 13.01(a) or (c) shall be borne by the Person seeking the related
amendment.
(h) The Trustee shall not enter into or consent to any amendment of
this Agreement unless the conditions set forth in clause (a) or (b) above are
satisfied with respect to such amendment.
Section 13.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer or the Special Servicer at the expense of the
Trust Fund on direction by the Trustee, but only upon direction accompanied by
an Opinion of Counsel (which opinion shall be an expense of the Trust Fund) to
the effect that such recordation materially and beneficially affects the
interests of the Certificateholders; provided, however, that the Trustee shall
have no obligation or responsibility to determine whether any such recordation
of this Agreement is required.
(b) For the purpose of facilitating the recordation of this Agreement
as herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one
and the same instrument.
Section 13.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
to take any action or proceeding in any court for a partition or winding up of
the Trust Fund, nor otherwise affect the rights, obligations and liabilities
of the parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the
operation and management of the Trust Fund, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from
time to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision
hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any
Mortgage Loan, unless, with respect to any suit, action or proceeding upon or
under or with respect to this Agreement, such Holder previously shall have
given to the Trustee a written notice of an Event of Default, or of a default
by the Depositor in the performance of any of its obligations hereunder, and
of the continuance thereof, as hereinbefore provided, and unless also the
Holders of Certificates entitled to at least 25% of the Voting Rights shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee,
for 60 days after its receipt of such notice, request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or
proceeding. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
which priority or preference is not otherwise provided for herein, or to
enforce any right under this Agreement, except in the manner herein provided
and for the equal, ratable and common benefit of all Certificateholders. For
the protection and enforcement of the provisions of this Section, each and
every Certificateholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
Section 13.04 Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
Section 13.05 Notices.
(a) Any communications provided for or permitted hereunder shall be
in writing and, unless otherwise expressly provided herein, shall be deemed to
have been duly given if (a) personally delivered, (b) mailed by registered
mail, postage prepaid, return receipt requested, and received by the
addressee, (c) sent by express courier delivery service and received by the
addressee, or (d) transmitted by telex, telecopy or telegraph and confirmed by
a writing delivered by means of (a), (b) or (c), to: (i) in the case of the
Depositor, X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Real Estate Structured
Finance, telecopy number: (000) 000-0000; (ii) in the case of the Master
Servicer, GMAC Commercial Mortgage Corporation, 000 Xxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxxx 00000, Attention: Managing Director Commercial Servicing
Operations, telecopy number: (000) 000-0000, with a copy to: General Counsel,
telecopy number: (000) 000-0000; (iii) in the case of the Special Servicer,
ORIX Real Estate Capital Markets, LLC, 0000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxx,
Xxxxx 00000, Attention: Xxxxx X. Xxxxx, XX, telephone number 000-000-0000;
telecopy number 000-000-0000, with a copy to ORIX Real Estate Mortgage Capital
Markets, LLC, 0000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000, Attention:
Xxxx Xxxxx, telephone 000-000-0000; telecopy number 000-000-0000; (iv) in the
case of the Trustee, State Street Bank and Trust Company, 0 Xxxxxx xx
Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Corporate Trust Service
(CMBS)--X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Series
2001-CIBC1, telephone number: (000) 000-0000, telecopy number: (000) 000-0000;
(v) in the case of the Rating Agencies, (A) Fitch, Inc., Xxx Xxxxx Xxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Commercial Mortgage-Backed
Securities Group, telephone number: (000) 000-0000, telecopy number: (212)
635-0295; and (B) Standard & Poor's Rating Services, 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Commercial Mortgage - Backed Securities
Group, telephone number: (000) 000-0000, telecopy number: (212) o; or as to
each such Person such other address as may hereafter be furnished by such
Person to the parties hereto in writing. Any communication required or
permitted to be delivered to a Certificateholder shall be sent to the address
of such Holder as shown in the Certificate Register.
(b) Notices to the Master Servicer pursuant to Section 4.04(a) shall
be delivered to: Vice President - Servicing, telephone number: (000) 000-0000;
telecopy number: (000) 000-0000, or to such other Person at such other
telephone and telecopy numbers as may hereafter be furnished by the Master
Servicer.
Section 13.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
Section 13.07 Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's right,
title and interest in and to the Mortgage Loans pursuant to this Agreement
shall constitute a sale and not a pledge of security for a loan. If such
conveyance is deemed to be a pledge of security for a loan, however, the
Depositor intends that the rights and obligations of the parties to such loan
shall be established pursuant to the terms of this Agreement. The Depositor
also intends and agrees that, in such event, (i) the Depositor shall be deemed
to have granted to the Trustee (in such capacity) a first priority security
interest in the Depositor's entire right, title and interest in and to the
assets comprising the Trust Fund, including without limitation, the Mortgage
Loans, all principal and interest received or receivable with respect to the
Mortgage Loans (other than loan principal and interest payments due and
payable prior to the Cut-off Date and Principal Prepayments received prior to
the Cut-off Date), all amounts held from time to time in the Certificate
Account, the Collection Account, and REO Account and all reinvestment earnings
on such amounts, together with all of the Depositor's right, title and
interest in and to the proceeds of any title, hazard or other Insurance
Policies related to such Mortgage Loans and (ii) this Agreement shall
constitute a security agreement under applicable law. The Depositor shall
cause to be filed, as a precautionary filing, a Form UCC-1 in all appropriate
locations in the State of New York and the State of Delaware promptly
following the initial issuance of the Certificates, and the Trustee shall file
continuation statements thereto at such office, in each case within six months
prior to the fifth anniversary of the immediately preceding filing. The
Depositor shall cooperate in a reasonable manner with the Trustee in preparing
and filing such continuation statements. This Section 13.07 shall constitute
notice to the Trustee pursuant to any of the requirements of the New York
Uniform Commercial Code.
Section 13.08 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of and be enforceable by each Servicer, the Trustee and the
respective successors and assigns thereof and shall inure to the benefit of
the Certificateholders.
(b) Except as provided in Section 3.04, this Agreement shall not be
assigned, pledged or hypothecated by any Servicer to a third party without the
prior written consent of the Trustee and subject to Section 3.06.
Section 13.09 Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 13.10 Notices and Information to Rating Agencies and Directing
Certificateholder.
(a) The Trustee shall use its best efforts promptly to provide notice
to the Rating Agencies and the Directing Certificateholder with respect to
each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default;
(iii) the resignation or termination of the Master
Servicer, the Special Servicer or the Trustee;
(iv) the repurchase of Mortgage Loans pursuant to Section
2.04(a);
(v) any other information the Rating Agencies may
reasonably request consistent with the Trustee's
duties hereunder;
(vi) the final payment to any Class of Certificateholders;
(vii) any change in the location of the Certificate
Account; and
(viii) CMSA IRP.
(b) The Master Servicer shall use its best efforts promptly to
provide notice to the Rating Agencies and the Directing Certificateholder with
respect to any determination by the Master Servicer that an Advance with
respect to a Mortgage Loan constitutes (or would, if made, constitute) a
Nonrecoverable Advance under this Agreement.
(c) Each of the Master Servicer and the Special Servicer shall
promptly furnish to the Rating Agencies and the Directing Certificateholder
copies of the following:
(i) each of its annual statements as to compliance
described in Section 3.02,
(ii) each of its annual independent public accountants'
servicing reports described in Section 3.03, (iii) if
requested, the most current rent rolls and financial
statements in its possession available from time to
time with respect to any Mortgaged Property or any
Mortgagor,
(iv) Upon request, Comparative Financial Status Report,
Delinquent Loan Status Report, REO Status Report,
Historical Loan Modification Report, Historical
Liquidation, and CMSA Servicer Watch List in the form
published by the Commercial Mortgage Securities
Association or any successor organization, reported
pursuant to Sections 4.09, 4.10 and 6.09, and
(v) any other information the Rating Agencies may
reasonably request consistent with the Servicer's
servicing duties hereunder.
Section 13.11 Certificateholders' List.
Upon written request of the Directing Certificateholder, the Trustee
shall provide a list of each Certificateholder and, to the extent known to the
Trustee and solely based on the certification of Certificate Owners, each
Certificate Owner.
Section 13.12 Protection of Assets.
(a) Except for transactions and activities entered into in connection
with the transaction that is the subject of this Agreement, the Trust Fund is
not authorized and has no power to:
(1) borrow money or issue debt;
(2) merge with another entity, reorganize, liquidate or sell
assets; or
(3) engage in any business or activities.
(b) Each party to this Agreement agrees that it will not file an
involuntary bankruptcy petition against the Trust Fund or initiate any other
form of insolvency proceeding until after all distributions on the
Certificates have been made.
IN WITNESS WHEREOF, the parties hereto have caused their
names to be signed hereto by their respective officers thereunto duly
authorized, in each case as of the day and year first above written.
X.X. XXXXXX XXXXX COMMERCIAL
MORTGAGE SECURITIES CORP.,
Depositor
By: /s/ Xxxxxx Xxxxx
-------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE
CORPORATION, Master Servicer
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Senior Vice President
ORIX REAL ESTATE CAPITAL MARKETS,
LLC, Special Servicer
By: /s/ Xxxxx X. Xxxxx, XX
----------------------
Name: Xxxxx X. Xxxxx, XX
Title: Chief Operating Officer
STATE STREET BANK AND TRUST
COMPANY, Trustee
By: /s/ Xxxxxxx X. Xxxx
----------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 29th day of March, 2001 before me, a notary public in and for
said State, personally appeared Xxxxxx Xxxxx known to me to be a Vice
President of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., the
corporation that executed the within instrument, and also known to me to be
the person who executed it on behalf of said corporation, and acknowledged to
me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx Xxxxxxxxx
-------------------------
Notary Public, State of New York
No. 01SC6041753
Qualified in New York County
Commission Expires May 15, 0000
XXXXX XX XXXXX )
) ss.:
COUNTY OF DALLAS )
On the 29th day of March, 2001 before me, a notary public in and for
said State, personally appeared Xxxxx X. Xxxxx, XX known to me to be Chief
Operating Officer of ORIX Real Estate Capital Markets, LLC, the limited
liability company that executed the within instrument, and also known to me to
be the person who executed it on behalf of said limited liability company, and
acknowledged to me that such limited liability company executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxx
-------------------------
Notary Public in and for the
State of Texas
My commission expires: 10/02/03
Xxxxx Xxxxxx
Notary Public, State of Texas
My commission expires 00-00-00
XXXXX XX XXXXXXXXXXXXX)
) ss.:
COUNTY OF SUFFOLK )
On the 29th day of March 2001, before me, a notary public in and for
said State, personally appeared Xxxxxxx X. Xxxx known to me to be a Vice
President of State Street Bank and Trust Company, the Massachusetts trust
company that executed the within instrument, and also known to me to be the
person who executed it on behalf of said Massachusetts trust company, and
acknowledged to me that such Massachusetts trust company executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx Xxxxxx
-------------------------
Notary Public
My Commission Expires August 20, 2004
[Notarial Seal]
STATE OF PENNSYLVANIA )
) ss.:
COUNTY OF XXXXXXXXXX )
On the 29th day of March, 2001 before me, a notary public in and for
said State, personally appeared Xxxxxxx Xxxxxxxxx known to me to be Senior
Vice President of GMAC Commercial Mortgage Corporation, the corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxxxx Xxx Brand
-------------------------
Notary Public
Horsham Twp., Xxxxxxxxxx County
My Commission Expires Jan. 12, 2004
[Notarial Seal]
EXHIBIT A
FORM OF CERTIFICATE
FORM OF PUBLIC CERTIFICATE
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York Corporation ("DTC"), to the Trustee or
its agent for registration of transfer, exchange, or payment, and any
certificate is registered in the name of Cede & Co. or in such other name as
is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
CLASS [A1, A2, A3, B, C, D, E, F] MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund
consisting primarily of a pool of fixed rate mortgage loans formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., SERIES 2001-CIBC1
Original Class
Balance: $[________]
Date of Pooling and Servicing Initial Certificate
Agreement: Xxxxx 0, 0000 Xxxxxxx of this
Class [A1, A2, A3, B, C, D, E, F]
Certificate as of the
Delivery Date: $[__________]
Cut-off Date: Xxxxx 0, 0000
Xxxxxxxx Date: March 29, 2001
First Distribution Date: April 15, 2001 Pass-Through Rate: [________]%
Master Servicer: GMAC Commercial Mortgage Trustee: State Street Bank and Trust
Corporation Company
No. [__]
Cusip No.: [______________]
ISIN No.: [______________]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP. OR ANY OF ITS AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY
BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
EACH HOLDER OF THIS CERTIFICATE THAT IS A "PLAN" AS HEREINAFTER DEFINED IS
DEEMED TO REPRESENT THAT NEITHER MGT NOR ANY OF ITS AFFILIATES HAS
DISCRETIONARY AUTHORITY OR CONTROL WITH RESPECT TO THE INVESTMENT OF THE
PLAN'S ASSETS INVESTED IN THIS CERTIFICATE, OR GIVES INVESTMENT ADVICE WITH
RESPECT TO THE INVESTMENT OF SUCH ASSETS.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO (A)
ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND COLLECTIVE
INVESTMENT FUNDS AND SEPARATE ACCOUNTS OR OTHER ENTITIES IN WHICH SUCH PLANS,
ACCOUNTS OR ARRANGEMENTS ARE INVESTED, THAT IS SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975
OF THE CODE (EACH, A "PLAN") OR (B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING ANY SUCH CERTIFICATE OR INTEREST THEREIN ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF A PLAN, UNLESS SUCH TRANSFEREE
QUALIFIES AS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1) OF REGULATION
D UNDER THE SECURITIES ACT AND EITHER (1) AT THE TIME OF SUCH TRANSFER, THE
CERTIFICATES ARE RATED IN ONE OF THE TOP FOUR RATING CATEGORIES BY AT LEAST
ONE RATING AGENCY, OR (2) THE PURCHASER IS AN INSURANCE COMPANY GENERAL
ACCOUNT THAT IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS OF,
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH
PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class [A1, A2, A3, B, C, D, E, F]
Certificate (obtained by dividing the initial Certificate Balance of this
Class [A1, A2, A3, B, C, D, E, F] Certificate as of the Delivery Date (as such
Certificate Balance may be adjusted from time to time for transfers) by the
original Class Balance of the Class [A1, A2, A3, B, C, D, E, F] Certificates)
in that certain beneficial ownership interest evidenced by all the Class [A1,
A2, A3, B, C, D, E, F] Certificates in the Trust Fund created pursuant to a
Pooling and Servicing Agreement, dated as of March 1, 2001 (the "Agreement"),
among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as depositor
(hereinafter called the "Depositor", which term includes any successor entity
under the Agreement), GMAC Commercial Mortgage Corporation, as master servicer
(the "Master Servicer", which term includes any successor entity under the
Agreement), ORIX Real Estate Capital Markets, LLC, as special servicer (the
"Special Servicer", which term includes any successor entity under the
Agreement) and State Street Bank and Trust Company, as trustee (the "Trustee",
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date") except for the First Distribution Date in which case the Delivery Date
will be the Record Date, in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class [A1, A2, A3, B, C, D, E, F]
Certificates on the applicable Distribution Date pursuant to the Agreement.
All distributions made under the Agreement on a Class [A1, A2, A3, B, C, D, E,
F] Certificate will be made by the Trustee pursuant to the Agreement.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such distribution is made upon this Certificate.
The Class [A1, A2, A3, B, C, D, E, F] Certificates are issuable in
fully registered form only without coupons in minimum denominations specified
in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class [A1, A2, A3, B, C, D, E, F] Certificates
are exchangeable for new Class [A1, A2, A3, B, C, D, E, F] Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the office of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Certificates of the
same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Registrar nor any
such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon distribution (or provision for distribution) to
the Certificateholders of all amounts held by or on behalf of the Master
Servicer or the Trustee and required to be distributed to them pursuant to the
Agreement following the earlier of (i) the purchase by any holder of a Class
[R-I, R-II, R-III] Certificate, the holders of an aggregate Percentage
Interest in excess of 50% of the Most Subordinate Class of Certificates, the
Master Servicer and (to the extent all of the remaining Mortgage Loans are
being serviced by the Special Servicer) the Special Servicer (in that order)
at a price equal to the greater of (a) the aggregate fair market value of all
the Mortgage Loans (other than REO Property) included in the Trust Fund, plus
the appraised value of each REO Property, if any, included in the Trust Fund,
as determined by the Depositor and (b) the aggregate Class Balance of all the
Certificates plus accrued and unpaid interest thereon together with any
unreimbursed Advances (including any interest thereon), and (ii) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund; provided, however, that in no event
shall the trust created thereby continue beyond the expiration of 21 years
from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx,
the late ambassador of the United States to the Court of St. Xxxxx, living on
the date hereof. The exercise of such right will effect early retirement of
the Certificates; however, such right to purchase is subject to the aggregate
Stated Principal Balance of the Mortgage Loans at the time of purchase being
less than 1% of the aggregate Cut-off Date Balance of the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the
status of the Trust Fund as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under its official seal.
Dated: March __, 0000
XXXXX XXXXXX BANK AND TRUST COMPANY, not individually, but solely in its
capacity as Trustee
By:_______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A1, A2, A3, B, C, D, E, F] Certificates
referred to in the within-mentioned Agreement.
STATE STREET BANK AND TRUST COMPANY, as Certificate Registrar
By:_______________________________
Authorized Signatory
FORM OF PRIVATE CERTIFICATE
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York Corporation ("DTC"), to the Trustee or
its agent for registration of transfer, exchange, or payment, and any
certificate is registered in the name of Cede & Co. or in such other name as
is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
CLASS [X1, X2, G, H, J, K, L, M, NR] PRIVATE GLOBAL CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund
consisting primarily of a pool of fixed rate mortgage loans formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., SERIES 2001-CIBC1
Original Class Balance: $[___________]
Date of Pooling and Servicing Initial Certificate
Agreement: Xxxxx 0, 0000 Xxxxxxx of this
Class [X1, X2, G, H, J, K, L, M,
NR]
Certificate as of the
Delivery Date: $[_____________]
Cut-off Date: Xxxxx 0, 0000
Xxxxxxxx Date: March 29, 2001
First Distribution Date: April 15, 2001 Pass-Through Rate: [________]%
Master Servicer: GMAC Commercial Mortgage Trustee: State Street Bank and Trust
Corporation Company
No. 1
Cusip No.: [_____________]
ISIN No.: [_____________]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP. OR ANY OF ITS AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY
BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class [X1, X2, G, H, J, K, L, M, NR]
Certificate (obtained by dividing the initial Certificate Balance of this
Class [X1, X2, G, H, J, K, L, M, NR] Certificate as of the Delivery Date (as
such Certificate Balance may be adjusted from time to time for transfers) by
the original Class Balance of the Class [X1, X2, G, H, J, K, L, M, NR]
Certificates) in that certain beneficial ownership interest evidenced by all
the Class [X1, X2, G, H, J, K, L, M, NR] Certificates in the Trust Fund
created pursuant to a Pooling and Servicing Agreement, dated as of March 1,
2001 (the "Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., as depositor (hereinafter called the "Depositor", which term includes
any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation, as master servicer (the "Master Servicer", which term includes
any successor entity under the Agreement), ORIX Real Estate Capital Markets,
LLC, as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement) and State Street Bank and Trust Company,
as trustee (the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date") except for the First Distribution Date in which case the Delivery Date
will be the Record Date, in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class [X1, X2, G, H, J, K, L, M, NR]
Certificates on the applicable Distribution Date pursuant to the Agreement.
All distributions made under the Agreement on a Class [X1, X2, G, H, J, K, L,
M, NR] Certificate will be made by the Trustee pursuant to the Agreement.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such distribution is made upon this Certificate.
The Class [X1, X2, G, H, J, K, L, M, NR] Certificates are issuable
in fully registered form only without coupons in minimum denominations
specified in the Agreement. As provided in the Agreement and subject to
certain limitations therein set forth, Class [X1, X2, G, H, J, K, L, M, NR]
Certificates are exchangeable for new Class [X1, X2, G, H, J, K, L, M, NR]
Certificates in authorized denominations evidencing the same aggregate
Percentage Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the office of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Certificates of the
same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or
transferees.
No transfer of any Class [X1, X2, G, H, J, K, L, M, NR] Certificate
shall be made unless that transfer is made pursuant to an effective
registration statement under the 1933 Act, and effective registration or
qualification under applicable state securities laws, or is made in a
transaction which does not require such registration or qualification. If such
a transfer is to be made without registration or qualification and in
connection with the transfer or issuance of a Definitive Certificate, then the
Certificate Registrar shall require, in order to assure compliance with such
laws, receipt of: (i) if such transfer is purportedly being made in reliance
upon Rule 144A under the 1933 Act, a certificate from the prospective
transferee substantially in the form attached as Exhibit D-1 to the Agreement,
(ii) if such transfer is purportedly being made in reliance upon Regulation S
under the 1933 Act, a certificate from the prospective transferee
substantially in the form attached as Exhibit D-2 to the Agreement and (iii)
in all other cases, (A) (I) except where the Depositor or an Affiliate thereof
is the transferor or transferee, an Opinion of Counsel, (II) a certificate
from the Certificateholder desiring to effect such transfer substantially in
the form attached as Exhibit C to the Agreement and (III) a certificate from
such Certificateholder's prospective transferee substantially in the form
attached as Exhibit E to the Agreement or (B) if the Depositor or an Affiliate
thereof is the transferor or transferee, an Opinion of Counsel satisfactory to
the Certificate Registrar to the effect that such transfer may be made without
such registration or qualification (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the
Trustee or the Certificate Registrar in their respective capacities as such).
None of the Depositor, the Trustee or the Certificate Registrar is obligated
to register or qualify the Class [X1, X2, G, H, J, K, L, M, NR] Certificates
under the 1933 Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of any Class
[X1, X2, G, H, J, K, L, M, NR] Certificate without registration or
qualification. Any Class [X1, X2, G, H, J, K, L, M, NR] Certificateholder
desiring to effect such a transfer shall, and does hereby agree to, indemnify
the Trustee, the Certificate Registrar and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
No transfer of a Class [X1, X2, G, H, J, K, L, M, NR] Certificate or
any interest therein shall be made to (A) any employee benefit plan or other
retirement plan or arrangement (including individual retirement accounts and
annuities and Xxxxx plans) that is subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code, or
any collective investment fund or separate account or other entity in which
such plans, accounts or arrangements are invested (each, a "Plan") or (B) any
Person who is directly or indirectly purchasing the Class [X1, X2, G, H, J, K,
L, M, NR] Certificate or interest therein on behalf of, as named fiduciary of,
as trustee of, or with plan assets of a Plan, unless the prospective
transferee provides the Certificate Registrar with either (i) a representation
that the purchaser is an insurance company that is purchasing the Class [X1,
X2, G, H, J, K, L, M, NR] Certificate with funds contained in an "insurance
company general account" (as such term is defined in Section V(e) of
Prohibited Transaction Class Exemption ("PTCE") 95-60), and that the purchase
and holding of such Class [X1, X2, G, H, J, K, L, M, NR] Certificate are
eligible for and meet all the requirements for relief under Sections I and III
of PTCE 95-60, or (ii) a certification of facts and an Opinion of Counsel
which establishes to the satisfaction of the Certificate Registrar that such
transfer will not result in a violation of Section 406 of ERISA or Section
4975 of the Code or cause the Master Servicer, the Certificate Registrar or
Trustee to be deemed a fiduciary of such Plan or result in the imposition of
an excise tax under Section 4975 of the Code, except as set forth in the
Agreement. In the absence of its having received the representation or the
certification and Opinion of Counsel contemplated by the preceding sentence,
the Certificate Registrar shall require the prospective transferee of any
Class [X1, X2, G, H, J, K, L, M, NR] Certificate to certify that it is neither
(A) a Plan nor (B) a Person who is directly or indirectly purchasing such
Class [X1, X2, G, H, J, K, L, M, NR] Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Registrar nor any
such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon distribution (or provision for distribution) to
the Certificateholders of all amounts held by or on behalf of the Master
Servicer or the Trustee and required to be distributed to them pursuant to the
Agreement following the earlier of (i) the purchase by any holder of a Class
[R-I, R-II, R-III] Certificate, the holders of an aggregate Percentage
Interest in excess of 50% of the Most Subordinate Class of Certificates, the
Master Servicer and (to the extent all of the remaining Mortgage Loans are
being serviced by the Special Servicer) the Special Servicer (in that order)
at a price equal to the greater of (a) the aggregate fair market value of all
the Mortgage Loans (other than REO Property) included in the Trust Fund, plus
the appraised value of each REO Property, if any, included in the Trust Fund,
as determined by the Depositor and (b) the aggregate Class Balance of all the
Certificates plus accrued and unpaid interest thereon together with any
unreimbursed Advances (including any interest thereon), and (ii) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund; provided, however, that in no event
shall the trust created thereby continue beyond the expiration of 21 years
from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx,
the late ambassador of the United States to the Court of St. Xxxxx, living on
the date hereof. The exercise of such right will effect early retirement of
the Certificates; however, such right to purchase is subject to the aggregate
Stated Principal Balance of the Mortgage Loans at the time of purchase being
less than 1% of the aggregate Cut-off Date Balance of the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the
status of the Trust Fund as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under its official seal.
Dated: March __, 0000
XXXXX XXXXXX BANK AND TRUST COMPANY, not individually, but solely in its
capacity as Trustee
By:_______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [X1, X2, G, H, J, K, L, M, NR] Certificates
referred to in the within-mentioned Agreement.
STATE STREET BANK AND TRUST COMPANY, as Certificate Registrar
By:_______________________________
Authorized Signatory
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York Corporation ("DTC"), to the Trustee or
its agent for registration of transfer, exchange, or payment, and any
certificate is registered in the name of Cede & Co. or in such other name as
is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THIS CLASS [X1, X2, G, H, J, K, L, M, NR] CERTIFICATE IS SUBORDINATE TO THE
CLASS A1, A2, A3, B, C, X, X, X[, X0, X0, X, X, X, X, X, M] CERTIFICATES OF
THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 8.02(b)(ii) OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED, OR SECTION 4975 OF THE CODE (EACH, A "PLAN") OR TO ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
EACH HOLDER OF THIS CERTIFICATE THAT IS A "PLAN" AS DEFINED HEREIN IS DEEMED
TO REPRESENT THAT NEITHER MGT NOR ANY OF ITS AFFILIATES HAS DISCRETIONARY
AUTHORITY OR CONTROL WITH RESPECT TO THE INVESTMENT OF THE PLAN'S ASSETS
INVESTED IN THIS CERTIFICATE, OR GIVES INVESTMENT ADVICE WITH RESPECT TO THE
INVESTMENT OF SUCH ASSETS.
CLASS [X1, X2, G, H, J, K, L, M, NR] REGULATION S GLOBAL CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund
consisting primarily of a pool of fixed rate mortgage loans formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., SERIES 2001-CIBC1
Original Class Balance: $[________]
Date of Pooling and Servicing Initial Certificate
Agreement: Xxxxx 0, 0000 Xxxxxxx of this
Class [X1, X2, G, H, J, K, L, M,
NR]
Certificate as of the
Delivery Date: $[_]
Cut-off Date: March 1, 2001
Delivery Date: March 29, 2001
First Distribution Date: April 15, 2001 Pass-Through Rate: [______]%
Master Servicer: GMAC Commercial Mortgage Trustee: State Street Bank and Trust
Corporation Company
No. S-1
Reg. S Cusip No.: [______________]
Reg. S ISIN No.: [_____________]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP. OR ANY OF ITS AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY
BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class [X1, X2, G, H, J, K, L, M, NR]
Certificate (obtained by dividing the initial Certificate Balance of this
Class [X1, X2, G, H, J, K, L, M, NR] Certificate as of the Delivery Date (as
such Certificate Balance may be adjusted from time to time for transfers) by
the original Class Balance of the Class [X1, X2, G, H, J, K, L, M, NR]
Certificates) in that certain beneficial ownership interest evidenced by all
the Class [X1, X2, G, H, J, K, L, M, NR] Certificates in the Trust Fund
created pursuant to a Pooling and Servicing Agreement, dated as of March 1,
2001 (the "Agreement"), among X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., as depositor (hereinafter called the "Depositor", which term includes
any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation, as master servicer (the "Master Servicer", which term includes
any successor entity under the Agreement), ORIX Real Estate Capital Markets,
LLC, as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement) and State Street Bank and Trust Company,
as trustee (the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), except for the First Distribution Date in which case the Delivery Date
will be the Record Date, in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class [X1, X2, G, H, J, K, L, M, NR]
Certificates on the applicable Distribution Date pursuant to the Agreement.
All distributions made under the Agreement on a Class [X1, X2, G, H, J, K, L,
M, NR] Certificate will be made by the Trustee pursuant to the Agreement.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such distribution is made upon this Certificate.
The Class [X1, X2, G, H, J, K, L, M, NR] Certificates are issuable
in fully registered form only without coupons in minimum denominations
specified in the Agreement. As provided in the Agreement and subject to
certain limitations therein set forth, Class [X1, X2, G, H, J, K, L, M, NR]
Certificates are exchangeable for new Class [X1, X2, G, H, J, K, L, M, NR]
Certificates in authorized denominations evidencing the same aggregate
Percentage Interest, as requested by the Holder surrendering the same.
Transfers of any Global Certificate shall be limited to transfers of
a Restricted Global Certificate or Regulation S Global Certificate in whole,
but not in part, to the Depository and its successors. Beneficial interests in
the Restricted Global Certificate and any Regulation S Global Certificate may
be transferred in accordance with the Depository's customary procedures and
the provisions of Section 8.02 of the Agreement.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the office of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Certificates of the
same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or
transferees.
No transfer of any Class [X1, X2, G, H, J, K, L, M, NR] Certificate
shall be made unless that transfer is made pursuant to an effective
registration statement under the 1933 Act, and effective registration or
qualification under applicable state securities laws, or is made in a
transaction which does not require such registration or qualification. If such
a transfer is to be made without registration or qualification and in
connection with the transfer or issuance of a Definitive Certificate, then the
Certificate Registrar shall require, in order to assure compliance with such
laws, receipt of: (i) if such transfer is purportedly being made in reliance
upon Rule 144A under the 1933 Act, a certificate from the prospective
transferee substantially in the form attached as Exhibit D-1 to the Agreement,
(ii) if such transfer is purportedly being made in reliance upon Regulation S
under the 1933 Act, a certificate from the prospective transferee
substantially in the form attached as Exhibit D-2 to the Agreement and (iii)
in all other cases, (A) (I) except where the Depositor or an Affiliate thereof
is the transferor or transferee, an Opinion of Counsel, (II) a certificate
from the Certificateholder desiring to effect such transfer substantially in
the form attached as Exhibit C to the Agreement and (III) a certificate from
such Certificateholder's prospective transferee substantially in the form
attached as Exhibit E to the Agreement or (B) if the Depositor or an Affiliate
thereof is the transferor or transferee, an Opinion of Counsel satisfactory to
the Certificate Registrar to the effect that such transfer may be made without
such registration or qualification (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the
Trustee or the Certificate Registrar in their respective capacities as such).
None of the Depositor, the Trustee or the Certificate Registrar is obligated
to register or qualify the Class G Certificates under the 1933 Act or any
other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of any Class [X1, X2, G, H, J, K, L, M, NR]
Certificate without registration or qualification. Any Class [X1, X2, G, H, J,
K, L, M, NR] Certificateholder desiring to effect such a transfer shall, and
does hereby agree to, indemnify the Trustee, the Certificate Registrar and the
Depositor against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
No transfer of a Class [X1, X2, G, H, J, K, L, M, NR] Certificate or
any interest therein shall be made to (A) any employee benefit plan or other
retirement plan or arrangement (including individual retirement accounts and
annuities and Xxxxx plans) that is subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code, or
any collective investment fund or separate account or other entity in which
such plans, accounts or arrangements are invested (each, a "Plan") or (B) any
Person who is directly or indirectly purchasing the Class [X1, X2, G, H, J, K,
L, M, NR] Certificate or interest therein on behalf of, as named fiduciary of,
as trustee of, or with plan assets of a Plan, unless the prospective
transferee provides the Certificate Registrar with either (i) a representation
that the purchaser is an insurance company that is purchasing the Class [X1,
X2, G, H, J, K, L, M, NR] Certificate with funds contained in an "insurance
company general account" (as such term is defined in Section V(e) of
Prohibited Transaction Class Exemption ("PTCE") 95-60), and that the purchase
and holding of such Class [X1, X2, G, H, J, K, L, M, NR] Certificate are
eligible for and meet all the requirements for relief under Sections I and III
of PTCE 95-60, or (ii) a certification of facts and an Opinion of Counsel
which establishes to the satisfaction of the Certificate Registrar that such
transfer will not result in a violation of Section 406 of ERISA or Section
4975 of the Code or cause the Master Servicer, the Certificate Registrar or
Trustee to be deemed a fiduciary of such Plan or result in the imposition of
an excise tax under Section 4975 of the Code, except as set forth in the
Agreement. In the absence of its having received the representation or the
certification and Opinion of Counsel contemplated by the preceding sentence,
the Certificate Registrar shall require the prospective transferee of any
Class [X1, X2, G, H, J, K, L, M, NR] Certificate to certify that it is neither
(A) a Plan nor (B) a Person who is directly or indirectly purchasing such
Class [X1, X2, G, H, J, K, L, M, NR] Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Registrar nor any
such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon distribution (or provision for distribution) to
the Certificateholders of all amounts held by or on behalf of the Master
Servicer or the Trustee and required to be distributed to them pursuant to the
Agreement following the earlier of (i) the purchase by any holder of a Class
[R-I, R-II, R-III] Certificate, the holders of an aggregate Percentage
Interest in excess of 50% of the Most Subordinate Class of Certificates, the
Master Servicer and (to the extent all of the remaining Mortgage Loans are
being serviced by the Special Servicer) the Special Servicer (in that order)
at a price equal to the greater of (a) the aggregate fair market value of all
the Mortgage Loans (other than REO Property) included in the Trust Fund, plus
the appraised value of each REO Property, if any, included in the Trust Fund,
as determined by the Depositor and (b) the aggregate Class Balance of all the
Certificates plus accrued and unpaid interest thereon together with any
unreimbursed Advances (including any interest thereon), and (ii) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund; provided, however, that in no event
shall the trust created thereby continue beyond the expiration of 21 years
from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx,
the late ambassador of the United States to the Court of St. Xxxxx, living on
the date hereof. The exercise of such right will effect early retirement of
the Certificates; however, such right to purchase is subject to the aggregate
Stated Principal Balance of the Mortgage Loans at the time of purchase being
less than 1% of the aggregate Cut-off Date Balance of the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the
status of the Trust Fund as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under its official seal.
Dated: March __, 0000
XXXXX XXXXXX BANK AND TRUST COMPANY, not individually, but solely in its
capacity as Trustee
By:_______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [X1, X2, G, H, J, K, L, M, NR] Certificates
referred to in the within-mentioned Agreement.
STATE STREET BANK AND TRUST COMPANY, as Certificate Registrar
By:_______________________________
Authorized Signatory
FORM OF R CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
TRANSFER OF THIS CLASS [R-I, R-II, R-III] CERTIFICATE IS ALSO SUBJECT TO THE
ADDITIONAL TAX RELATED TRANSFER RESTRICTIONS SET FORTH HEREIN. NOTWITHSTANDING
THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER OF THIS CLASS
[R-I, R-II, R-III] CERTIFICATE TO A DISQUALIFIED ORGANIZATION (AS DEFINED
HEREIN) OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR TO A NON-UNITED STATES
PERSON (AS DEFINED HEREIN), SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO
LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS CERTIFICATE.
THIS CLASS [R-I, R-II, R-III] CERTIFICATE IS SUBORDINATE TO THE CLASS A1, A2,
A3, B, X, X, X, X, X0, X0, X, X, X, X, X, M AND NR CERTIFICATES OF THIS SERIES
TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 8.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED, OR SECTION 4975 OF THE CODE (EACH, A "PLAN") OR TO ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
EACH HOLDER OF THIS CERTIFICATE THAT IS A "PLAN" AS DEFINED HEREIN IS DEEMED
TO REPRESENT THAT NEITHER MGT NOR ANY OF ITS AFFILIATES HAS DISCRETIONARY
AUTHORITY OR CONTROL WITH RESPECT TO THE INVESTMENT OF THE PLAN'S ASSETS
INVESTED IN THIS CERTIFICATE, OR GIVES INVESTMENT ADVICE WITH RESPECT TO THE
INVESTMENT OF SUCH ASSETS.
CLASS [R-I, R-II, R-III] MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund
consisting primarily of a pool of fixed rate mortgage loans formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., SERIES 2001-CIBC1
Date of Pooling and Servicing
Agreement: March 1, 2001
Cut-off Date: Xxxxx 0, 0000
Xxxxxxxx Date: March 29, 2001 Percentage Interest: [___]%
First Distribution Date: April 15, 2001 Pass-Through Rate: N/A
Master Servicer: GMAC Commercial Mortgage Trustee: State Street Bank and Trust
Corporation Company
No. 1
Cusip No.: [_____________]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP. OR ANY OF ITS AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
This certifies that Chase Securities Inc. is the registered owner of
the Percentage Interest evidenced by this Class [R-I, R-II, R-III] Certificate
and indicated on the face hereof in that certain beneficial ownership interest
evidenced by all the Class [R-I, R-II, R-III] Certificates in the Trust Fund
created pursuant to a Pooling and Servicing Agreement, dated as of March 1,
2001 (the "Agreement"), among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., as depositor (hereinafter called the "Depositor", which term includes
any successor entity under the Agreement), GMAC Commercial Mortgage
Corporation, as master servicer (the "Master Servicer", which term includes
any successor entity under the Agreement), ORIX Real Estate Capital Markets,
LLC, as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement) and State Street Bank and Trust Company,
as trustee (the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date") except for the First Distribution Date in which case the Delivery Date
will be the Record Date, in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class [R-I, R-II, R-III] Certificates on the
applicable Distribution Date pursuant to the Agreement. All distributions made
under the Agreement on a Class [R-I, R-II, R-III] Certificate will be made by
the Trustee pursuant to the Agreement.
No distributions will be made on the Class [R-I, R-II, R-III]
Certificate, except that any distribution on the proceeds of the remaining
assets of the Trust Fund will be made only upon presentation and surrender of
this Certificate at the office of the Certificate Registrar or such other
location as may be specified in such notice.
The Class [R-I, R-II, R-III] Certificates are issuable in fully
registered form only without coupons in minimum denominations specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, Class [R-I, R-II, R-III] Certificates are exchangeable for
new Class [R-I, R-II, R-III] Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the office of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Certificates of the
same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or
transferees.
No transfer of any Class [R-I, R-II, R-III] Certificate shall be
made unless that transfer is made pursuant to an effective registration
statement under the 1933 Act, and effective registration or qualification
under applicable state securities laws, or is made in a transaction which does
not require such registration or qualification. If such a transfer is to be
made without registration or qualification and in connection with the transfer
or issuance of a Definitive Certificate, then the Certificate Registrar shall
require, in order to assure compliance with such laws, receipt of: (a) if such
transfer is of a Class [R-I, R-II, R-III] Certificate and is purportedly made
in reliance on Rule 144A under the 1933 Act, a certificate from the transferee
desiring to effect such transfer substantially in the form of Exhibit D-1 to
the Agreement; (b) if such transfer is of a Class [R-I, R-II, R-III]
Certificate and is purportedly made in reliance on Regulation S under the 1933
Act, a certificate from the transferee desiring to effect such transfer
substantially in the form of Exhibit D-2 to the Agreement; and (c) in all
other cases, (i) except as otherwise set forth in the Agreement, an Opinion of
Counsel satisfactory to the Certificate Registrar to the effect that such
transfer may be made without such registration or qualification (which Opinion
of Counsel shall not be an expense of the Trust Fund or of the Depositor, the
Master Servicer, the Special Servicer, the Trustee or the Certificate
Registrar in their respective capacities as such), (ii) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
of Exhibit C to the Agreement and (iii) a certificate from such
Certificateholder's prospective transferee substantially in the form of
Exhibit E to the Agreement. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class [R-I,
R-II, R-III] Certificates under the 1933 Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
transfer of any Class [R-I, R-II, R-III] Certificate without registration or
qualification. Any Class [R-I, R-II, R-III] Certificateholder desiring to
effect such a transfer shall, and does hereby agree to, indemnify the Trustee,
the Certificate Registrar and the Depositor against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
No transfer of any Class [R-I, R-II, R-III] Certificate shall be
made to a Non-United States Person. Notwithstanding anything to the contrary
contained herein, prior to registration of any transfer, sale or other
disposition of a Class [R-I, R-II, R-III] Certificate, the Certificate
Registrar shall have received (i) an affidavit from the proposed transferee
substantially in the form of Exhibit F-1 to the Agreement, to the effect that,
among other things, (A) such transferee is not a Disqualified Organization or
an agent (including a broker, nominee or middleman) of a Disqualified
Organization, (B) such transferee is not a Non-United States Person, (C) such
transferee has no present knowledge or expectation that it will become
insolvent or subject to a bankruptcy proceeding for so long as the Class [R-I,
R-II, R-III] Certificate remains outstanding, and (D) no purpose of such
proposed transfer, sale or other disposition of the Class [R-I, R-II, R-III]
Certificate is or will be to impede the assessment or collection of any tax,
and (ii) a certificate from the transferor substantially in the form of
Exhibit F-2 to the Agreement, to the effect that, among other things, no
purpose of such proposed transfer, sale or other disposition of the Class
[R-I, R-II, R-III] Certificate is or will be to impede the assessment or
collection of any tax. Notwithstanding the registration in the Certificate
Register of any transfer, sale or other disposition of a Class [R-I, R-II,
R-III] Certificate to a Disqualified Organization or an agent (including a
broker, nominee or middleman) of a Disqualified Organization or to a
Non-United States Person, such registration shall be deemed to be of no legal
force or effect whatsoever and such Person shall not be deemed to be a
Certificateholder for any purpose hereunder, including, but not limited to,
the receipt of distributions in respect of such Class [R-I, R-II, R-III]
Certificate. If any purported transfer of a Class [R-I, R-II, R-III]
Certificate shall be in violation of the provisions of Section 8.02(d) of the
Agreement, as described in this paragraph, then the prior Holder of the Class
[R-I, R-II, R-III] Certificate purportedly transferred shall, upon discovery
that the transfer of such Class [R-I, R-II, R-III] Certificate was not in fact
permitted by Section 8.02(d) of the Agreement, be restored to all rights as
Holder thereof retroactive to the date of the purported transfer. The
Certificate Registrar shall be under no liability to any Person for any
registration of transfer of a Class [R-I, R-II, R-III] Certificate that is not
permitted by Section 8.02(d) of the Agreement or for making payments due on
such Class [R-I, R-II, R-III] Certificate to the purported Holder thereof or
taking any other action with respect to such purported Holder under the
provisions of the Agreement. The prior Holder shall be entitled to recover
from any purported Holder of a Class [R-I, R-II, R-III] Certificate that was
in fact not a permitted transferee under Section 8.02(d) of the Agreement at
the time it became a Holder all payments made on such Class [R-I, R-II, R-III]
Certificate. The Holder of a Class [R-I, R-II, R-III] Certificate, by its
acceptance thereof, shall be deemed for all purposes to have consented to the
provisions of Section 8.02 of the Agreement and to any amendment of the
Agreement deemed necessary by counsel of the Depositor to ensure that the
transfer of a Class [R-I, R-II, R-III] Certificate to a Disqualified
Organization or any other Person will not cause the Trust Fund to cease to
qualify as a REMIC or cause the imposition of a tax upon the Trust Fund.
A Disqualified Organization is any of (i) the United States, any
State or political subdivision thereof, any foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (ii) any organization (other than a cooperative described in
Section 521 of the Code) which is exempt from the tax imposed by Chapter 1 of
the Code unless such organization is subject to the tax imposed by Section 511
of the Code, or (iii) any organization described in Section 1381(a)(2)(C) of
the Code. A corporation will not be treated as an instrumentality of the
United States or of any State or any political subdivision thereof if all of
its activities are subject to tax and, with the exception of FHLMC, a majority
of its board of directors is not selected by a governmental unit. A Non-United
States Person is a Person other than a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or
an estate or trust whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within
the United States.
No transfer of a Class [R-I, R-II, R-III] Certificate or any
interest therein shall be made to (A) any employee benefit plan or other
retirement plan or arrangement (including individual retirement accounts and
annuities and Xxxxx plans) that is subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code, or
any collective investment fund or separate account or other entity in which
such plans, accounts or arrangements are invested (each, a "Plan") or (B) any
Person who is directly or indirectly purchasing the Class [R-I, R-II, R-III]
Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with plan assets of a Plan, unless the prospective transferee
provides the Certificate Registrar with a certification of facts and an
Opinion of Counsel which establishes to the satisfaction of the Certificate
Registrar that such transfer will not result in a violation of Section 406 of
ERISA or Section 4975 of the Code or cause the Master Servicer, the
Certificate Registrar or Trustee to be deemed a fiduciary of such Plan or
result in the imposition of an excise tax under Section 4975 of the Code,
except as set forth in the Agreement. In the absence of its having received
the certification and Opinion of Counsel contemplated by the preceding
sentence, the Certificate Registrar shall require the prospective transferee
of any Class [R-I, R-II, R-III] Certificate to certify that it is neither (A)
a Plan nor (B) a Person who is directly or indirectly purchasing such Class
[R-I, R-II, R-III] Certificate on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Registrar nor any
such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon distribution (or provision for distribution) to
the Certificateholders of all amounts held by or on behalf of the Master
Servicer or the Trustee and required to be distributed to them pursuant to the
Agreement following the earlier of (i) the purchase by any holder of a Class
[R-I, R-II, R-III] Certificate, the holders of an aggregate Percentage
Interest in excess of 50% of the Most Subordinate Class of Certificates, the
Master Servicer and (to the extent all of the remaining Mortgage Loans are
being serviced by the Special Servicer) the Special Servicer (in that order)
at a price equal to the greater of (a) the aggregate fair market value of all
the Mortgage Loans (other than REO Property) included in the Trust Fund, plus
the appraised value of each REO Property, if any, included in the Trust Fund,
as determined by the Depositor and (b) the aggregate Class Balance of all the
Certificates plus accrued and unpaid interest thereon together with any
unreimbursed Advances (including any interest thereon), and (ii) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund; provided, however, that in no event
shall the trust created thereby continue beyond the expiration of 21 years
from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx,
the late ambassador of the United States to the Court of St. Xxxxx, living on
the date hereof. The exercise of such right will effect early retirement of
the Certificates; however, such right to purchase is subject to the aggregate
Stated Principal Balance of the Mortgage Loans at the time of purchase being
less than 1% of the aggregate Cut-off Date Balance of the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the
status of the Trust Fund as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under its official seal.
Dated: March __, 0000
XXXXX XXXXXX BANK AND TRUST COMPANY, not individually, but solely in its
capacity as Trustee
By:_______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R-I, R-II, R-III] Certificates referred to in
the within-mentioned Agreement.
STATE STREET BANK AND TRUST COMPANY, as Certificate Registrar
By:_______________________________
Authorized Officer
EXHIBIT B
FORM OF ASSET STRATEGY REPORT
EXHIBIT C
FORM OF TRANSFEROR CERTIFICATE
[Date]
[Certificate Registrar Name and Address]
Re: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Mortgage Pass-Through Certificates,
Series 2001-CIBC1, Class [ ]
Dear Sirs:
This letter is delivered to you in connection with the transfer by
________(the "Transferor") to _____________(the "Transferee") of a Certificate
evidencing a __% Percentage interest in the captioned Class of Certificates
(the "Certificate"), pursuant to Section 8.02 of the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of March 1, 2001,
among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as depositor,
GMAC Commercial Mortgage Corporation, as master servicer, ORIX Real Estate
Capital Markets, LLC, as special servicer and State Street Bank and Trust
Company, as trustee. All capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferor is the lawful owner of the Certificate with the
full right to transfer the Certificate free from any and all claims and
encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the
Certificate, any interest in the Certificate or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of the Certificate, any interest in the Certificate
or any other similar security from, or otherwise approached or negotiated
with respect to the Certificate, any interest in the Certificate or any
other similar security with, any person by means of any form of general
solicitation or general advertising, including but not limited to any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar news medium or broadcast over television
or radio, or any seminar or meeting whose attendees have been invited by
any general solicitation or advertising, or in any manner which would
constitute a distribution under the Securities Act of 1933,
as amended (the "1933 Act") or which would render the disposition of the
Certificate a violation of Section 5 of the 1933 Act or require
registration pursuant thereto.
--------------------------
(Transferor)
By: ________________________
Name: ______________________
Title: _______________________
EXHIBIT D-1
FORM OF INVESTMENT LETTER--
QUALIFIED INSTITUTIONAL BUYER
[Date]
[Purchaser]
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Trustee Name and Address]
Dear Sirs:
In connection with our proposed purchase of the Mortgage Pass-Through
Certificates, Series 2001-CIBC1, Class X1, Class X2, Class G, Class H, Class
J, Class K, Class L, Class M, Class NR, Class R-I, Class R-II and Class R-III
(the "Certificates") of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
(the "Depositor"), we confirm that:
[1. We have received a copy of the Private Placement Memorandum
(the "Private Placement Memorandum") dated March 29, 2001, relating
to the Certificates and such other information as we deem necessary
in order to make our investment decision. We understand that the
Private Placement Memorandum speaks only as of its date and that the
information contained therein may not be correct or complete as of
any time subsequent to such date.]
2. We understand that the Certificates have not been, and will
not be registered under the Securities Act of 1933, as amended (the
"Act") and may not be sold except as permitted by the restrictions
and conditions set forth in the Pooling and Servicing Agreement
dated as of March 1, 2001 relating to the Certificates and the
undersigned agrees to be bound by, and not to resell, pledge or
otherwise transfer the Certificates except in compliance with, such
restrictions and conditions and the Act. We understand that on any
proposed resale of any Certificates, we will be required to furnish
to the Trustee such certifications, legal opinions and other
information as it may require to confirm that the proposed sale is
being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Act. We further
understand that the Certificates will bear a legend to the foregoing
effect.
3. We are a "qualified institutional buyer" (within the meaning
of Rule 144A under the Act) (a "QIB") and we are acquiring the
Certificates for our own account or for the account of a QIB for
investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Act, and have
such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of our investment
in the Certificates, and we and any accounts for which we are acting
are each able to bear the economic risk of our or their investment.
We acknowledge that the sale of the Certificates to us is being made
in reliance on Rule 144A.
4. We are acquiring each of the Certificates purchased by us
for our own account or for a single account (which is a QIB and from
which no resale, pledge or other transfer may be made except to
another QIB) as to each of which we exercise sole investment
discretion.
5. Either (a) we are not an employee benefit plan or other
retirement arrangement, (including an individual retirement account
or annuity or a Xxxxx plan) or collective investment fund or
separate accounts or other entity in which such plan, account or
arrangement is invested, that is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975
of the Internal Revenue Code of 1986, as amended (the "Code") (each,
a "Plan") or any person who is directly or indirectly purchasing or
any interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan; or (b) [for Class G, Class H, Class J,
Class K, Class L, Class M or Class NR, we are an insurance company
that is purchasing certificates with assets of an insurance company
general account "as that term is defined in Section V(e) of
Prohibited Transaction Class Exemption ("PTCE") 95-60 and the
purchasing and holding of the Certificates are eligible for and
satisfy the requirements for relief under Sections I and III of PTCE
95-60; or (c)], we have provided the Certificate Registrar with a
certification of facts and an Opinion of Counsel which have
established to the satisfaction of the Certificate Registrar that
such transfer will not result in a violation of Section 406 of ERISA
or Section 4975 of the Code or cause the Master Servicer, the
Certificate Registrar or the Trustee to be deemed a fiduciary of
such Plan or result in the imposition of an excise tax under Section
4975 of the Code.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to
the matters covered hereby.
Very truly yours,
By: ________________________
Name:
Title:
Securities To Be Purchased:
$ principal amount of Certificates
EXHIBIT D-2
FORM OF INVESTMENT LETTER--
REGULATION S
[Date]
[Purchaser]
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Trustee Name and Address]
Dear Sirs:
In connection with our proposed purchase of the Mortgage Pass-Through
Certificates, Series 2001-CIBC1, Class G, Class H, Class J, Class K, Class L,
Class M, Class NR] (the "Certificates") of X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp. (the "Depositor"), we confirm that:
1. We understand that the Certificates have not been, and will
not be registered under the Securities Act of 1933, as amended (the
"Act") and may not be sold except as permitted by the restrictions
and conditions set forth in the Pooling and Servicing Agreement
dated as of March 1, 2001 relating to the Certificates and the
undersigned agrees to be bound by, and not to resell, pledge or
otherwise transfer the Certificates except in compliance with, such
restrictions and conditions and the Act. We understand that on any
proposed resale of any Certificates, we will be required to furnish
to the Trustee such certifications, legal opinions and other
information as it may require to confirm that the proposed sale is
being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Act. We further
understand that the Certificates will bear a legend to the foregoing
effect.
2. We are aware that the purchase of such Certificates is being
made in reliance on the exemption from registration provided by
Regulation S and understand that the Certificates offered in
reliance on Regulation S will bear the appropriate legend set forth
in the Pooling and Servicing Agreement, and be represented by one or
more Regulation S Global Certificates. The Certificates so
represented may not at any time be held by or on behalf of "U.S.
Persons" as defined in Regulation S under the Securities Act.
Neither we nor any beneficial owner of the Certificates that we may
hold on its behalf and will not be, a U.S. Person as defined in
Regulation S under the Securities Act. Before any interest in a
Regulation S Global Certificate may be offered, resold, pledged or
otherwise transferred to a person who takes delivery in the form of
an interest in a Physical Certificate, the transferee will be
required to provide the Trustee with a written certification as to
compliance with the transfer restrictions.
3. Either (a) we are not an employee benefit plan or other
retirement arrangement, (including an individual retirement account
or annuity or a Xxxxx plan) or collective investment fund or
separate accounts or other entity in which such plan, account or
arrangement is invested, that is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975
of the Internal Revenue Code of 1986, as amended (the "Code") (each,
a "Plan") or any person who is directly or indirectly purchasing any
such Class or interest therein on behalf of, as named fiduciary of,
as trustee of, or with assets of a Plan; or (b) [for Class G, Class
H, Class J, Class K, Class L, Class M or Class NR, we are an
insurance company that is purchasing certificates with assets of an
insurance company general account "as that term is defined in
Section V(e) of Prohibited Transaction Class Exemption ("PTCE")
95-60 and the purchasing and holding of the Certificates are
eligible for and satisfy the requirements for relief under Sections
I and III of PTCE 95-60; or (c)], we have provided the Certificate
Registrar with a certification of facts and an Opinion of Counsel
which have established to the satisfaction of the Certificate
Registrar that such transfer will not result in a violation of
Section 406 of ERISA or Section 4975 of the Code or cause the Master
Servicer, the Certificate Registrar or the Trustee to be deemed a
fiduciary of such Plan or result in the imposition of an excise tax
under Section 4975 of the Code.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to
the matters covered hereby.
Very truly yours,
By: ________________________
Name:
Title:
Securities To Be Purchased:
$ principal amount of Certificates
EXHIBIT E
FORM OF INVESTMENT LETTER--
ACCREDITED INVESTOR
[Date]
[Purchaser]
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Trustee Name and Address]
Dear Sirs:
In connection with our proposed purchase of the Mortgage Pass-Through
Certificates, Series 2001-CIBC1, Class A1, Class A2, Class G, Class H, Class
L, Class M, Class J, Class NR, Class R-I, Class R-II and Class R-III] (the
"Certificates") of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp. (the
"Depositor"), we confirm that:
[1. We have received a copy of the Private Placement Memorandum
(the "Private Placement Memorandum") dated March 29, 2001, relating
to the Certificates and such other information as we deem necessary
in order to make our investment decision. We understand that the
Private Placement Memorandum speaks only as of its date and that the
information contained therein may not be correct or complete as of
any time subsequent to such date.]
2. We understand that the Certificates have not been, and will
not be registered under the Securities Act of 1933, as amended (the
"Act") and may not be sold except as permitted by the restrictions
and conditions set forth in the Pooling and Servicing Agreement
dated as of March 1, 2001 relating to the Certificates and the
undersigned agrees to be bound by, and not to resell, pledge or
otherwise transfer the Certificates except in compliance with, such
restrictions and conditions and the Act. We understand that on any
proposed resale of any Certificates, we will be required to furnish
to the Trustee such certifications, legal opinions and other
information as it may require to confirm that the proposed sale is
being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Act. We further
understand that the Certificates will bear a legend to the foregoing
effect.
3. We are an "accredited investor" (as defined in Rule
501(a)(1), (2), (3), or (7) under the Act) and we are acquiring the
Certificates for investment purposes and not with a view to, or for
offer or sale in connection with, any distribution in violation of
the Act, and have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks
of our investment in the Certificates, and we and any accounts for
which we are acting are each able to bear the economic risk of our
or their investment.
4. We are acquiring each of the Certificates purchased by us
for our own account or for a single account (each of which is an
"accredited investor" and from which no resale, pledge or other
transfer may be made except to another "accredited investor") as to
which we exercise sole investment discretion.
5. Either (a) we are not an employee benefit plan or other
retirement arrangement, (including an individual retirement account
or annuity or a Xxxxx plan) or collective investment fund or
separate accounts or other entity in which such plan, account or
arrangement is invested, that is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975
of the Internal Revenue Code of 1986, as amended (the "Code") (each,
a "Plan") or any person who is directly or indirectly purchasing any
such Class or interest therein on behalf of, as named fiduciary of,
as trustee of, or with assets of a Plan; or (b) [for Class G, Class
H, Class J, Class K, Class L, Class M or Class NR, we are an
insurance company that is purchasing certificates with assets of an
insurance company general account "as that term is defined in
Section V(e) of Prohibited Transaction Class Exemption ("PTCE")
95-60 and the purchasing and holding of the Certificates are
eligible for and satisfy the requirements for relief under Sections
I and III of PTCE 95-60; or (c)], we have provided the Certificate
Registrar with a certification of facts and an Opinion of Counsel
which have established to the satisfaction of the Certificate
Registrar that such transfer will not result in a violation of
Section 406 of ERISA or Section 4975 of the Code or cause the Master
Servicer, the Certificate Registrar or the Trustee to be deemed a
fiduciary of such Plan or result in the imposition of an excise tax
under Section 4975 of the Code.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to
the matters covered hereby.
Very truly yours,
By: ________________________
Name:
Title:
Securities To Be Purchased:
$ principal amount of Certificates
EXHIBIT F-1
FORM OF TRANSFER AFFIDAVIT
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says that:
1. He is the [Title of Officer] of [Name of Owner] (the record or
beneficial owner (the "Owner") of X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., Mortgage Pass-Through Certificate, Series 2001-CIBC1, Class
[ ], No. ___ (the "Class [ ] Certificate")), a _____________ duly organized
and existing under the laws of [the State of ______________] [the United
States], on behalf of which he makes this affidavit. Capitalized terms used
but not defined herein have the respective meanings assigned thereto in the
Pooling and Servicing Agreement pursuant to which the Class [ ] Certificate
was issued.
2. The Owner (i) is and will be a "Permitted Transferee" as
of [date of transfer] and (ii) is acquiring the Class [ ] Certificate for its
own account. A "Permitted Transferee" is any person other than a "disqualified
organization" or a possession of the United States. (For this purpose, a
"disqualified organization" means the United States, any state or political
subdivision thereof, any agency or instrumentality of any of the foregoing
(other than an instrumentality all of the activities of which are subject to
tax and, except for the Federal Home Loan Mortgage Corporation, a majority of
whose board of directors is not selected by any such governmental entity) or
any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income.
3. The Owner is aware (i) of the tax that would be imposed on
transfers of the Class [ ] Certificate to disqualified organizations under the
Internal Revenue Code of 1986, as amended, that applies to all transfers of
the Class [ ] Certificate after March 31, 1988; (ii) that such tax would be on
the transferor, or, if such transfer is through an agent (which person
includes a broker, nominee or middleman) for a non-Permitted Transferee, on
the agent; (iii) that the person otherwise liable for the tax shall be
relieved of liability for the tax if the transferee furnishes to such person
an affidavit that the transferee is a Permitted Transferee and, at the time of
transfer, such person does not have actual knowledge that the affidavit is
false.
4. The Owner is aware of the tax imposed on a "pass-through
entity" holding the Class [ ] Certificate if at any time during the taxable
year of the pass-through entity a non-Permitted Transferee is the record
holder of an interest in such entity. (For this purpose, a "pass-through
entity" includes a regulated investment company, a real estate investment
trust or common trust fund, a partnership, trust or estate, and certain
cooperatives.)
5. The Owner is aware that it cannot transfer the Class [ ]
Certificate unless the transferee, or the transferee's agent, delivers to the
Certificate Registrar, among other things, an affidavit in substantially the
same form as this affidavit.
6. The Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to
constitute a reasonable arrangement to ensure that the Class [ ] Certificate
will only be owned, directly or indirectly, by an Owner that is a Permitted
Transferee.
7. The Owner's taxpayer identification number is ________________.
8. No purpose of the Owner relating to its purchase of a Class [ ]
Certificate is or will be to impede the assessment or collection of any tax.
9. The Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as the Class
[ ] Certificate remains outstanding.
10. The Owner has no present knowledge or expectation that it
will become insolvent or subject to a bankruptcy proceeding for so long as the
Class [ ] Certificate remains outstanding.
11. No purpose of the Owner relating to any sale of any Class [ ]
Certificate will be to impede the assessment or collection of any tax.
12. The Owner is not a Non-United States Person.
13. The Owner has provided financial statements or other financial
information requested by the transferor in connection with the transfer of the
Class [ ] Certificate to permit the transferor to assess the financial
capability of the Owner to pay any such taxes.
14. Either (a) the Owner is not an employee benefit plan or other
retirement arrangement, (including an individual retirement account or annuity
or a Xxxxx plan) or collective investment fund or separate accounts or other
entity in which such plan, account or arrangement is invested, that is subject
to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
or Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code")
(each, a "Plan") or any person who is directly or indirectly purchasing
Certificates or any interest therein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or (b) the Owner has provided the
Certificate Registrar with a certification of facts and an Opinion of Counsel
which have established to the satisfaction of the Certificate Registrar that
such transfer will not result in a violation of Section 406 of ERISA or
Section 4975 of the Code or cause the Master Servicer, the Certificate
Registrar or the Trustee to be deemed a fiduciary of such Plan or result in
the imposition of an excise tax under Section 4975 of the Code.
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors,
by its [Title of Officer] and its Corporate Seal to be hereunto attached,
attested by its [Assistant] Secretary, this ___ day of __________, 200_.
[NAME OF OWNER]
By: ________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
------------------------
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same Person who executed the foregoing
instrument and to be the [Title of Officer] of the Owner, and acknowledged to
me that he executed the same as his free act and deed and the free act and
deed of the Owner.
Subscribed and Sworn before me this ____ day of 200_.
NOTARY PUBLIC
COUNTY OF ___
STATE OF ____
My Commission expires the
___ day of ___________, 20__.
EXHIBIT F-2
FORM OF TRANSFEROR CERTIFICATE
[Date]
[Certificate Registrar Name and Address]
Re: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Mortgage Pass-Through Certificates, Series
2001-CIBC1, Class [ ]
-------------------------------------------------------
Dear Sirs:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being
disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act and (c) to the extent we are disposing of a
Class [ ] Certificate, we have no knowledge the Transferee is not a Permitted
Transferee.
Very truly yours,
_____________________________
(Transferor)
By: ________________________
Name:___________________
Title:__________________
EXHIBIT G
MORTGAGE LOAN SCHEDULE
JPMC 2001-CIBC1 Mortgage Loan Schedule
Original Current
Principal Principal Crossed Loan Related Loan
Loan No. Seller Property Name Balance ($) Balance ($) Group Group
-------------------------------------------------------------------------------------------------------------------
1 CIBC 65 Broadway 50,000,000 49,903,942
2 MGT 0000-0000 XXX Xxxxxxxxx 37,000,000 36,900,076
3 MGT Provence Apartments 29,500,000 29,437,519
4 GACC The Ford Building 28,000,000 27,943,394
5 CIBC Chino Spectrum 25,450,000 25,407,524
Marketplace
6 CIBC Xxxxxxx Farm Shopping 23,700,000 23,659,939
Center
7 MGT Trace Fork Shopping 22,646,666 22,587,864
Center
8 CIBC Doubletree Hotel - 22,600,000 22,566,577
Irvine Spectrum
0 XXXX Xxxxxxx Xxx - Xxxx Xxxxxx 22,500,000 22,466,949
10 CIBC Northpark Center 17,350,000 17,287,486
00 XXXX Xxxxxxx at Sterling Place 17,000,000 17,000,000
12 CIBC Richmond Mall 16,000,000 15,972,695
13 CIBC ANC Rental Plaza 15,000,000 14,983,503
14 MGT ICI Xxxxxxx 15,000,000 14,939,278
15 MGT First USA - 550 Building 13,530,000 13,485,979
16 MGT Rustic Hills Shopping 13,050,000 13,023,022
Center
17 CIBC Wildwood North Shopping 13,000,000 12,978,946
Center
18 MGT Creekside Manufactured 12,900,000 12,878,090 A
Housing Community
19 MGT Royal Host REIT Hotel 12,899,023 12,791,305
Portfolio
19.1 MGT Holiday Inn - Oakville 5,159,609
19.2 MGT Travelodge Hotel - 4,521,173
Burlington
19.3 MGT Holiday Inn - Edmonton 3,218,241
20 MGT MORF 3 & 6 12,525,000 12,491,243 B
21 MGT Great Hills Plaza Office 12,000,000 11,973,113
Building
22 CIBC Wild West II 11,800,000 11,800,000
(Healthsouth Medical
Plaza)
23 CIBC Alpha Tower 11,600,000 11,569,612
24 CIBC Liberty Plaza 11,400,000 11,361,095
25 CIBC Boynton West 11,360,000 11,319,526
26 CIBC The Department of 11,000,000 10,981,017
Commerce Building
27 GACC Cedar Commons Apartments 10,250,000 10,234,064
28 MGT Century Center Shopping 10,250,000 10,218,265
Plaza
29 MGT Hidden Creek Apartments 10,220,000 10,198,179
30 MGT TRC I, II & III 9,500,000 9,465,847
31 MGT El Xxxxxxx Shopping 9,200,000 9,171,061
Center
32 MGT Fiesta Apartments 9,050,000 9,050,000
33 GACC 00 Xxx Xxxxxx 9,000,000 8,985,897
34 MGT BrooksEdge Apartments 8,825,000 8,799,984
35 MGT Lamplighter Village 8,800,000 8,785,054 A
36 MGT Cinnamon Tree Apartments 8,500,000 8,481,888
37 MGT Shadowood 8,400,000 8,385,733 A
38 CIBC Xxxxx Portfolio 8,120,000 8,110,943
38.1 CIBC 0000-0000 00xx Xxxxxx 1,100,000
South
38.2 CIBC 0000 00xx Xxxxxx 950,000
Southwest
38.3 CIBC 1200-1246 Belsly 900,000
Boulevard
38.4 CIBC 0000-0000 00xx Xxxxxx 700,000
South
38.5 CIBC 0000 00xx Xxxxxx 650,000
Southwest
38.6 CIBC 0000 00xx Xxxxxx Xxxxx 550,000
38.7 CIBC 0000 00xx Xxxxxx Xxxxx 520,000
38.8 CIBC 0000-0000 00xx Xxxxxx 500,000
South
38.9 CIBC 0000 00xx Xxxxxx Xxxxx 450,000
38.10 CIBC 0000 00xx Xxxxxx Xxxxx 425,000
38.11 CIBC 0000 00xx Xxxxxx Xxxxx 400,000
38.12 CIBC 0000 00xx Xxxxxx Xxxxx 400,000
38.13 CIBC 000-000 00xx Xxxxxx Xxxxx 000,000
38.14 CIBC 0000 Xxxxx 00xx Xxxxxx 175,000
39 MGT Aspen Ridge Apartments 8,000,000 7,970,191
40 MGT Fairfield Gables 7,500,000 7,478,352
41 MGT North Hills Shopping 7,200,000 7,178,850 X
Xxxxxx
00 XXXX Xxx Xxxxxxxxx Xxxxxx XX 7,050,000 7,009,902
00 XXXX Xxxxxxxx Commerce Center 7,000,000 6,986,497
44 MGT Xxxxxxx Building 4 7,000,000 6,977,075 B
45 CIBC Westminster Plaza 6,950,000 6,935,921
46 CIBC Shaw View Plaza 6,500,000 6,500,000
47 CIBC Xxxxxxxx Xxxxx Apartments 6,500,000 6,489,254
00 XXX Xxxxxxx Xxxxx Xxxxxx 6,500,000 6,482,267
00 XXXX Xxxxxx Xxxxxxx Plaza 6,400,000 6,372,213
Hotel & Suites
50 MGT Soho West Apartments 6,390,000 6,360,244
51 CIBC Dicks Clothing & 6,310,000 6,300,159
Sporting Goods - Deptford
52 CIBC Laurel Plaza 6,325,000 6,280,760
00 XXXX Xx Xxxxxxx Xxxxx 6,200,000 6,184,086
54 GACC Garden View Office 6,060,000 6,050,154
Building
55 MGT Priestbridge Shopping 6,050,000 6,021,651
Center
56 MGT Olde Towne Shopping 5,525,000 5,510,229
Center
57 MGT Palm Xxxxxxx Plaza 5,520,000 5,496,611
58 MGT 00-00 Xxxxx Xxxxxx 5,500,000 5,484,782
00 XXXX Xxxxxx Center at Xxxxxx 5,400,000 5,390,916
60 GACC 000 Xxxx 00xx Xxxxxx 5,400,000 5,385,969
00 XXXX Xxxxx Xxxxx Shopping 5,325,000 5,316,524
Center
62 MGT Port Crossing Shopping 5,300,000 5,278,904
Center
63 CIBC 3493/3495 Xxxxxxxx 5,148,750 5,120,429
Highway
64 GACC Food Lion Food Portfolio 5,100,000 5,087,146 D
64.1 GACC Franklin Plaza Shopping 2,130,000
Center
00.0 XXXX Xxxxxxxx Xxxxx Shopping 1,540,000
Center
00.0 XXXX Xxxx Xxxx Xxxxxx Center 1,430,000
65 MGT Maple Xxxx Apartments 5,000,000 4,969,616
66 MGT Country Club Village 4,900,000 4,887,320 C
67 MGT The Rapids Apartments - 4,876,000 4,778,912
Phase 2
68 CIBC Pinetree Lakes Apartments 4,650,000 4,635,207
69 MGT The Crossings Shopping 4,500,000 4,488,236
Center of Orlando
70 MGT Xxxxxxxxxx Brothers 4,462,500 4,448,557 E
Portfolio
70.1 MGT Gaslight Shopping Center 3,225,000
70.2 MGT Carthage Shopping Center 1,237,500
71 MGT The Lakes Mall 4,450,000 4,438,413
72 MGT 00 Xxxxxx Xxxxxx 4,450,000 4,428,557
73 CIBC New Horizons Apartment 4,400,000 4,386,274
Portfolio
73.1 CIBC 0000 Xxxxxxxxx Xxxxxx 1,350,000
73.2 CIBC 0000 Xxxx Xxxxxx 1,350,000
73.3 CIBC 0000-0000 Xxxxxx Xxxxxx 1,250,000
73.4 CIBC 0000 Xxxxxxxxx Xxxxxx 450,000
74 MGT Fine Particle Inc. 4,375,000 4,359,130
Portfolio
74.1 MGT Fine Particle Inc. - 3,775,000
Auburn
74.2 MGT Fine Particle Inc. - San 600,000
Diego
75 MGT Chapel Brook Apartments 4,340,000 4,327,991 F
76 MGT Xxxxxx Shopping Center 4,325,000 4,308,178
77 CIBC Pinetree Xxxxxxx II 4,320,000 4,306,257
Apartments
78 XXXX 00 Xxxxxxxx Xxx 4,300,000 4,288,713
79 CIBC Willow Green Mobile Home 4,200,000 4,195,168
Park
80 MGT Mission Research Office 4,200,000 4,189,372
Building
81 CIBC Linens 'N Things 4,125,000 4,118,567
82 MGT 0000 Xxx Xxxx Xxxx 4,100,000 4,089,604
83 CIBC Dicks Sporting Goods - 4,000,000 3,993,761
Akron
84 MGT Autumn Ridge Apartments 3,980,000 3,971,739
00 XXXX Xxxxxxxxxx Xxxxxx 3,950,000 3,945,459
Building (Westminster
Building)
86 MGT The Fields Phase IV 3,935,000 3,919,741
87 CIBC Insite Albany I 3,850,000 3,845,699
88 MGT Xxxxxxxxxxx Apartments 3,800,000 3,783,808
89 CIBC Kew Gardens Apartments 3,750,000 3,731,642
90 CIBC Sears HomeLife Store 3,625,000 3,619,346
91 CIBC Hampton Inn - Chattanooga 3,600,000 3,594,885
92 MGT Xxxxxx Commons Apartments 3,523,765 3,523,765
93 MGT Arima Computer Building 3,500,000 3,476,811
94 CIBC Meridian Ridge Apartments 3,475,000 3,461,268
95 MGT Villa Martinique 3,460,000 3,450,426 F
Apartments
96 MGT London Square Apartments 3,400,000 3,387,472
97 CIBC Ramada Inn - XxXxxxx 3,360,000 3,347,552
98 CIBC Xxxxxxx Furniture Direct 3,200,000 3,194,275
Showroom
99 MGT Efficiency Lodge - 3,130,000 3,058,038
Forest Park
100 MGT Gordonhurst Apartments 3,000,000 2,992,921 G
101 MGT Manor Park Apartments 3,000,000 2,991,077 G
102 MGT King Xxxxxx Apartments - 2,991,000 2,982,623
Phase I
103 MGT Victoria Multifamily 2,940,000 2,932,469 1
Portfolio
103.1 MGT Villa Chateau 1,496,000
103.2 MGT Meridian on Airline 1,140,000
103.3 MGT Colonial Greens II 304,000
104 CIBC Lakeview USDA Building 2,950,000 2,815,069
105 MGT Shady Creek Apartments 2,800,000 2,786,164
000 XXXX 000 Xxxxxxxxx 2,720,000 2,715,567
107 CIBC Stratford Arms Apartments 2,700,000 2,696,806
108 MGT Woodbrook Village 2,700,000 2,691,725 G
Apartments
109 MGT Eckerd - Brandon 2,668,000 2,654,382 H
000 XXXX Xxxx Xxxxx Village 2,650,000 2,645,854
Shopping Ctr
111 MGT The Office Place 2,625,000 2,617,766
112 MGT Eckerd - Tampa 2,593,000 2,570,892 H
113 MGT Berkshire Gardens 2,500,000 2,494,274 G
Apartments
114 CIBC Cardinal Village 2,450,000 2,447,102
Apartments
115 CIBC Mt. Xxxxxx Apartments 2,350,000 2,344,186
and Washington Arms Apts
Portfolio
115.1 CIBC Mt. Xxxxxx Apartments 1,410,000
115.2 CIBC Washington Arms 940,000
Apartments
116 MGT Woodbridge Apartments 2,350,000 2,343,080 G
117 CIBC Hunter's Ridge Apartments 2,325,000 2,319,538
118 CIBC Hidden Oaks Apartments 2,300,000 2,296,198
000 XXX Xxxxxxxxx Xxxxxxx 2,300,000 2,289,073
Apartments
120 MGT Eckerd - Long Beach 2,264,000 2,244,697 H
121 MGT San Marcos Apartments 2,200,000 2,193,713
122 MGT The Xxxxx Shopping Center 2,130,000 2,126,161
123 CIBC Xxxx Markets 2,050,000 2,046,803
124 MGT Friendly Village 2,025,000 2,000,531
125 MGT Eastwood Oaks Apartments 2,000,000 1,994,399
000 XXXX Xxxxxxxxx Xxxxxx Xxxx 2,000,000 1,993,912
127 MGT New Caney Shopping Center 1,950,000 1,943,907 E
128 MGT Quality Inn - Pecos 1,900,000 1,876,392
000 XXX Xxxxxxx Xxxx Apartments 1,864,000 1,858,663
000 XXXX Xxxxxxx Xxxxxxxx Xxxxxx 1,850,000 1,846,358 D
131 MGT Arlington South 1,840,000 1,833,474
Apartments
132 MGT Hampton Inn - Columbus 1,850,000 1,827,873
133 MGT Boise Rite Aid 1,840,000 1,819,723
134 MGT Wilmington House 1,800,000 1,792,521
Apartments
135 CIBC Barristers Hall 1,650,000 1,645,210
136 MGT All Ways Self Storage 1,650,000 1,641,143
137 MGT Victory Villa 1,550,000 1,537,527
138 MGT Midway Shopping Center 1,500,000 1,493,344
139 MGT Veranda Apartments 1,500,000 1,491,271
140 MGT Oakland Airport Business 1,455,000 1,452,301
Park
141 MGT Belle Aire Apartments 1,350,000 1,343,412
142 MGT Bel Air Apartments and 1,325,000 1,321,363
Xxxxxxx Xxxx Xxxxxxxxxx
000 XXX XxXxxxxx Xxxxx Apartments 1,330,000 1,320,868
144 MGT Belleville Apartments 1,250,000 1,247,249
145 CIBC Snapfinger Plaza 1,225,000 1,219,358
146 MGT 000-000 Xxxxxx Xxxxxx 1,215,000 1,205,241 I
147 MGT Bon Air & Four Seasons 1,200,000 1,194,929
Apartments
148 MGT Evergreen North Shopping 1,125,000 1,121,108
Center
149 MGT Medical Arts Building 1,050,000 1,046,866
000 XXX Xxxxxxxxx Xxxxxxxx Xxxxxx 1,050,000 1,046,804
151 MGT Chestnut Apartments 1,000,000 996,552
152 MGT Capitol & Xxxxx Parkway 995,000 992,951
Apartment Portfolio
152.1 MGT Capitol Apartments 705,000
152.2 MGT Xxxxx Parkway Apartments 290,000
153 MGT Copper Springs Business 990,000 985,479
Park
154 MGT 130 West Grand River 950,000 945,560
155 MGT Premiere Plaza 930,000 927,675
156 MGT Grand Central Storage 880,000 875,967
157 MGT 10322 Dransfeldt Building 815,000 813,475
158 MGT Live Oaks Business Center 780,000 777,587
159 MGT Xxxxx - 50 East Squantum 715,000 709,257 I
160 MGT Arbor Grove Apartments 680,000 675,803
161 MGT 000 Xxxxxxx Xxxx 670,000 664,619 I
162 MGT Castlewood Apartments 640,000 636,812
163 MGT 000-000 Xxxxx Xxxxxx 500,000 496,459
164 MGT Ellendale Place 455,000 453,415
Apartments
165 MGT Colonial Green I 316,000 315,389 1
Current Mortgage Master Servicing Addl Servicing Trustee Fee Rate
Loan No. Seller Property Name Interest Rate (%) Fee Rate (%) Fee Rate (%) (%)
--------------------------------------------------------------------------------------------------------------------------
1 CIBC 65 Broadway 8.250 0.100 0.001
2 MGT 0000-0000 XXX Xxxxxxxxx 8.010 0.100 0.050 0.001
3 MGT Provence Apartments 7.770 0.100 0.001
4 GACC The Ford Building 8.000 0.100 0.001
5 CIBC Chino Spectrum 7.600 0.100 0.001
Marketplace
6 CIBC Xxxxxxx Farm Shopping 7.520 0.100 0.001
Center
7 MGT Trace Fork Shopping 8.390 0.100 0.001
Center
8 CIBC Doubletree Hotel - 8.150 0.100 0.001
Irvine Spectrum
0 XXXX Xxxxxxx Xxx - Xxxx Xxxxxx 8.240 0.100 0.001
10 CIBC Northpark Center 8.310 0.100 0.001
00 XXXX Xxxxxxx at Sterling Place 7.700 0.100 0.001
12 CIBC Richmond Mall 7.460 0.100 0.001
13 CIBC ANC Rental Plaza 8.200 0.100 0.001
14 MGT ICI Xxxxxxx 8.290 0.100 0.050 0.001
15 MGT First USA - 550 Building 7.880 0.100 0.050 0.001
16 MGT Rustic Hills Shopping 7.890 0.100 0.001
Center
17 CIBC Wildwood North Shopping 7.790 0.100 0.001
Center
18 MGT Creekside Manufactured 7.490 0.100 0.001
Housing Community
19 MGT Royal Host REIT Hotel 9.530 0.100 0.001
Portfolio
19.1 MGT Holiday Inn - Oakville
19.2 MGT Travelodge Hotel -
Burlington
19.3 MGT Holiday Inn - Edmonton
20 MGT MORF 3 & 6 8.020 0.100 0.050 0.001
00 XXX Xxxxx Xxxxx Xxxxx Office 7.490 0.100 0.001
Building
22 CIBC Wild West II 7.750 0.100 0.001
(Healthsouth Medical
Plaza)
23 CIBC Alpha Tower 8.160 0.100 0.001
24 CIBC Liberty Plaza 8.550 0.100 0.001
25 CIBC Boynton West 8.360 0.100 0.001
26 CIBC The Department of 7.390 0.100 0.001
Commerce Building
27 GACC Cedar Commons Apartments 8.050 0.100 0.001
28 MGT Century Center Shopping 8.100 0.100 0.001
Plaza
29 MGT Hidden Creek Apartments 7.730 0.100 0.050 0.001
30 MGT TRC I, II & III 8.320 0.100 0.001
31 MGT El Xxxxxxx Shopping 8.030 0.100 0.001
Center
32 MGT Fiesta Apartments 8.030 0.100 0.001
33 XXXX 00 Xxx Xxxxxx 8.000 0.100 0.001
34 MGT BrooksEdge Apartments 7.770 0.100 0.050 0.001
35 MGT Lamplighter Village 7.490 0.100 0.001
36 MGT Cinnamon Tree Apartments 7.740 0.100 0.001
37 MGT Shadowood 7.490 0.100 0.001
38 CIBC Xxxxx Portfolio 8.000 0.100 0.001
38.1 CIBC 0000-0000 00xx Xxxxxx
South
38.2 CIBC 0000 00xx Xxxxxx
Xxxxxxxxx
38.3 CIBC 1200-1246 Belsly
Boulevard
38.4 CIBC 0000-0000 00xx Xxxxxx
South
38.5 CIBC 0000 00xx Xxxxxx
Xxxxxxxxx
38.6 CIBC 0000 00xx Xxxxxx Xxxxx
38.7 CIBC 0000 00xx Xxxxxx Xxxxx
38.8 CIBC 0000-0000 00xx Xxxxxx
South
38.9 CIBC 0000 00xx Xxxxxx Xxxxx
38.10 CIBC 0000 00xx Xxxxxx Xxxxx
38.11 CIBC 0000 00xx Xxxxxx Xxxxx
38.12 CIBC 0000 00xx Xxxxxx Xxxxx
38.13 CIBC 000-000 00xx Xxxxxx Xxxxx
38.14 CIBC 0000 Xxxxx 00xx Xxxxxx
39 MGT Aspen Ridge Apartments 8.160 0.100 0.001
40 MGT Fairfield Gables 7.680 0.100 0.001
41 MGT North Hills Shopping 8.330 0.100 0.001
Xxxxxx
00 XXXX Xxx Xxxxxxxxx Xxxxxx XX 8.200 0.100 0.001
43 GACC Atlantic Commerce Center 8.230 0.100 0.001
44 MGT Xxxxxxx Building 4 8.730 0.100 0.050 0.001
45 CIBC Westminster Plaza 7.990 0.100 0.001
00 XXXX Xxxx Xxxx Xxxxx 8.000 0.100 0.001
47 CIBC Xxxxxxxx Xxxxx Apartments 7.660 0.100 0.001
48 MGT Newport Trade Centre 7.960 0.100 0.001
00 XXXX Xxxxxx Xxxxxxx Xxxxx 8.900 0.100 0.001
Hotel & Suites
50 MGT Soho West Apartments 8.120 0.100 0.070 0.001
51 CIBC Dicks Clothing & 8.030 0.100 0.001
Sporting Goods - Xxxxxxxx
00 XXXX Xxxxxx Xxxxx 8.250 0.100 0.001
00 XXXX Xx Xxxxxxx Xxxxx 8.260 0.100 0.001
54 GACC Garden View Office 7.770 0.100 0.001
Building
55 MGT Priestbridge Shopping 8.650 0.100 0.070 0.001
Center
56 MGT Olde Towne Shopping 8.060 0.100 0.001
Center
00 XXX Xxxx Xxxxxxx Xxxxx 8.490 0.100 0.001
58 MGT 00-00 Xxxxx Xxxxxx 7.890 0.100 0.001
00 XXXX Xxxxxx Xxxxxx at Xxxxxx 7.550 0.100 0.001
60 GACC 000 Xxxx 00xx Xxxxxx 8.200 0.100 0.001
00 XXXX Xxxxx Xxxxx Shopping 7.900 0.100 0.001
Center
62 MGT Port Crossing Shopping 8.350 0.100 0.001
Center
63 CIBC 3493/3495 Xxxxxxxx 8.330 0.100 0.001
Highway
64 GACC Food Lion Food Portfolio 8.350 0.100 0.001
00.0 XXXX Xxxxxxxx Xxxxx Xxxxxxxx
Xxxxxx
00.0 XXXX Xxxxxxxx Xxxxx Shopping
Center
64.3 GACC West Main Square Center
65 MGT Maple Xxxx Apartments 8.100 0.100 0.001
66 MGT Country Club Village 8.220 0.100 0.001
67 MGT The Rapids Apartments - 7.750 0.100 0.001
Phase 2
68 CIBC Pinetree Lakes Apartments 7.980 0.100 0.001
69 MGT The Crossings Shopping 8.170 0.100 0.001
Center of Orlando
70 MGT Xxxxxxxxxx Brothers 8.090 0.100 0.070 0.001
Portfolio
70.1 MGT Gaslight Shopping Center
70.2 MGT Carthage Shopping Center
71 MGT The Lakes Mall 8.190 0.100 0.001
72 MGT 00 Xxxxxx Xxxxxx 8.540 0.100 0.080 0.001
73 CIBC New Horizons Apartment 8.100 0.100 0.001
Portfolio
73.1 CIBC 0000 Xxxxxxxxx Xxxxxx
73.2 CIBC 0000 Xxxx Xxxxxx
73.3 CIBC 0000-0000 Xxxxxx Xxxxxx
73.4 CIBC 0000 Xxxxxxxxx Xxxxxx
74 MGT Fine Particle Inc. 8.280 0.100 0.100 0.001
Portfolio
74.1 MGT Fine Particle Inc. -
Auburn
74.2 MGT Fine Particle Inc. - San
Diego
75 MGT Chapel Brook Apartments 7.890 0.100 0.001
76 MGT Xxxxxx Shopping Center 8.400 0.100 0.050 0.001
77 CIBC Pinetree Xxxxxxx II 7.980 0.100 0.001
Apartments
78 XXXX 00 Xxxxxxxx Xxx 8.150 0.100 0.001
79 CIBC Willow Green Mobile Home 7.590 0.100 0.001
Park
80 MGT Mission Research Office 8.330 0.100 0.001
Building
81 CIBC Linens 'N Things 8.030 0.100 0.001
82 MGT 0000 Xxx Xxxx Xxxx 8.320 0.100 0.070 0.001
83 CIBC Dicks Sporting Goods - 8.030 0.100 0.001
Akron
84 MGT Autumn Ridge Apartments 7.870 0.100 0.001
00 XXXX Xxxxxxxxxx Xxxxxx 7.600 0.100 0.001
Building (Westminster
Building)
86 MGT The Fields Phase IV 7.980 0.100 0.100 0.001
87 CIBC Insite Albany I 7.980 0.100 0.001
88 MGT Xxxxxxxxxxx Apartments 7.910 0.100 0.100 0.001
89 CIBC Kew Gardens Apartments 8.770 0.100 0.001
90 CIBC Sears HomeLife Store 8.030 0.100 0.001
91 CIBC Hampton Inn - Chattanooga 8.700 0.100 0.001
92 MGT Xxxxxx Commons Apartments 7.720 0.100 0.001
93 MGT Arima Computer Building 8.340 0.100 0.070 0.001
94 CIBC Meridian Ridge Apartments 8.380 0.100 0.001
95 MGT Villa Martinique 7.890 0.100 0.001
Apartments
96 MGT London Square Apartments 8.210 0.100 0.001
97 CIBC Ramada Inn - XxXxxxx 8.830 0.100 0.001
98 CIBC Xxxxxxx Furniture Direct 7.890 0.100 0.001
Showroom
99 MGT Efficiency Lodge - 8.950 0.100 0.001
Forest Park
100 MGT Gordonhurst Apartments 7.230 0.100 0.001
000 XXX Xxxxx Xxxx Apartments 7.530 0.100 0.001
102 MGT King Xxxxxx Apartments - 7.830 0.100 0.001
Phase I
103 MGT Victoria Multifamily 8.270 0.100 0.050 0.001
Portfolio
103.1 MGT Villa Chateau
103.2 MGT Meridian on Airline
103.3 MGT Colonial Greens II
104 CIBC Lakeview USDA Building 7.280 0.100 0.001
105 MGT Shady Creek Apartments 8.440 0.100 0.001
106 GACC 520 Xxxxxxxxx 7.750 0.100 0.001
107 CIBC Stratford Arms Apartments 7.250 0.100 0.001
108 MGT Woodbrook Village 7.380 0.100 0.001
Apartments
109 MGT Eckerd - Brandon 8.310 0.100 0.070 0.001
000 XXXX Xxxx Xxxxx Xxxxxxx 8.010 0.100 0.001
Shopping Ctr
111 MGT The Office Place 7.910 0.100 0.050 0.001
112 MGT Eckerd - Tampa 8.310 0.100 0.070 0.001
113 MGT Berkshire Gardens 7.380 0.100 0.001
Apartments
114 CIBC Cardinal Village 7.250 0.100 0.001
Apartments
115 CIBC Mt. Xxxxxx Apartments 8.440 0.100 0.001
and Washington Arms Apts
Portfolio
115.1 CIBC Mt. Xxxxxx Apartments
115.2 CIBC Washington Arms
Apartments
116 MGT Woodbridge Apartments 7.580 0.100 0.001
117 CIBC Hunter's Ridge Apartments 7.940 0.100 0.001
118 CIBC Hidden Oaks Apartments 7.660 0.100 0.001
000 XXX Xxxxxxxxx Xxxxxxx 8.040 0.100 0.001
Apartments
120 MGT Eckerd - Long Beach 8.310 0.100 0.070 0.001
121 MGT San Marcos Apartments 7.730 0.100 0.080 0.001
122 MGT The Xxxxx Shopping Center 8.560 0.100 0.001
123 CIBC Xxxx Markets 8.030 0.100 0.001
124 MGT Friendly Village 7.600 0.100 0.001
125 MGT Eastwood Oaks Apartments 7.830 0.100 0.070 0.001
000 XXXX Xxxxxxxxx Xxxxxx Xxxx 8.250 0.100 0.001
127 MGT New Caney Shopping Center 8.090 0.100 0.070 0.001
128 MGT Quality Inn - Pecos 9.380 0.100 0.050 0.001
000 XXX Xxxxxxx Xxxx Apartments 7.720 0.100 0.050 0.001
000 XXXX Xxxxxxx Xxxxxxxx Xxxxxx 8.130 0.100 0.001
131 MGT Arlington South 8.380 0.100 0.001
Apartments
132 MGT Hampton Inn - Columbus 9.650 0.100 0.050 0.001
133 MGT Boise Rite Aid 8.650 0.100 0.001
134 MGT Wilmington House 8.130 0.100 0.001
Apartments
135 CIBC Barristers Hall 8.540 0.100 0.001
136 MGT All Ways Self Storage 8.810 0.100 0.001
137 MGT Victory Villa 8.620 0.100 0.050 0.001
138 MGT Midway Shopping Center 8.780 0.100 0.001
139 MGT Veranda Apartments 8.350 0.100 0.001
140 MGT Oakland Airport Business 8.420 0.100 0.001
Park
141 MGT Belle Aire Apartments 8.490 0.100 0.070 0.001
142 MGT Bel Air Apartments and 7.930 0.100 0.070 0.001
Village West Apartments
143 MGT XxXxxxxx Court Apartments 8.750 0.100 0.001
144 MGT Belleville Apartments 7.580 0.100 0.001
145 CIBC Snapfinger Plaza 8.850 0.100 0.001
146 MGT 000-000 Xxxxxx Xxxxxx 8.630 0.100 0.001
147 MGT Bon Air & Four Seasons 8.500 0.100 0.001
Apartments
148 MGT Evergreen North Shopping 8.490 0.100 0.001
Center
149 MGT Medical Arts Building 8.370 0.100 0.001
000 XXX Xxxxxxxxx Xxxxxxxx Xxxxxx 8.250 0.100 0.001
151 MGT Chestnut Apartments 7.480 0.100 0.001
000 XXX Xxxxxxx & Xxxxx Xxxxxxx 7.910 0.100 0.001
Apartment Portfolio
152.1 MGT Capitol Apartments
152.2 MGT Xxxxx Parkway Apartments
153 MGT Copper Springs Business 8.620 0.100 0.001
Park
154 MGT 000 Xxxx Xxxxx Xxxxx 8.490 0.100 0.001
155 MGT Premiere Plaza 8.390 0.100 0.050 0.001
156 MGT Grand Central Storage 8.600 0.100 0.001
157 MGT 10322 Dransfeldt Building 8.380 0.100 0.001
158 MGT Live Oaks Business Center 8.150 0.100 0.001
159 MGT Xxxxx - 50 East Squantum 8.630 0.100 0.001
160 MGT Arbor Grove Apartments 8.010 0.100 0.001
161 MGT 000 Xxxxxxx Xxxx 8.630 0.100 0.001
162 MGT Castlewood Apartments 8.130 0.100 0.001
163 MGT 000-000 Xxxxx Xxxxxx 8.590 0.100 0.001
164 MGT Ellendale Place 8.460 0.100 0.001
Apartments
165 MGT Colonial Green I 8.220 0.100 0.050 0.001
Net Mortgage Mortgage Maturity
Interest Rate Interest Rate Date/Anticipated
Loan No. Seller Property Name (%) Accrual Basis Origination Date Repayment Date
-----------------------------------------------------------------------------------------------------------------------------
1 CIBC 65 Broadway 8.149 Actual/360 11/06/2000 12/01/2010
2 MGT 0000-0000 XXX Xxxxxxxxx 7.859 Actual/360 10/18/2000 11/01/2010
3 MGT Provence Apartments 7.669 Actual/360 10/27/2000 12/01/2010
4 GACC The Ford Building 7.899 Actual/360 12/01/2000 12/01/2010
5 CIBC Chino Spectrum 7.499 Actual/360 12/28/2000 01/01/2011
Marketplace
6 CIBC Xxxxxxx Farm Shopping 7.419 Actual/360 12/28/2000 01/01/2011
Center
7 MGT Trace Fork Shopping 8.289 Actual/360 10/13/2000 06/01/2010
Center
8 CIBC Doubletree Hotel - 8.049 Actual/360 01/22/2001 02/01/2011
Irvine Spectrum
9 CIBC Holiday Inn - Wall Street 8.139 Actual/360 01/12/2001 02/01/2011
10 CIBC Northpark Center 8.209 Actual/360 08/07/2000 09/01/2010
00 XXXX Xxxxxxx at Sterling Place 7.599 Actual/360 02/14/2001 03/01/2008
12 CIBC Richmond Mall 7.359 Actual/360 12/27/2000 01/01/2011
13 CIBC ANC Rental Plaza 8.099 Actual/360 01/03/2001 02/01/2011
14 MGT ICI Xxxxxxx 8.139 Actual/360 10/11/2000 11/01/2010
15 MGT First USA - 550 Building 7.729 Actual/360 09/28/2000 10/01/2010
16 MGT Rustic Hills Shopping 7.789 Actual/360 11/21/2000 12/01/2010
Center
17 CIBC Wildwood North Shopping 7.689 Actual/360 12/04/2000 01/01/2011
Center
18 MGT Creekside Manufactured 7.389 Actual/360 12/19/2000 01/01/2011
Housing Community
19 MGT Royal Host REIT Hotel 9.429 Actual/360 08/31/2000 09/01/2007
Portfolio
19.1 MGT Holiday Inn - Oakville
19.2 MGT Travelodge Hotel -
Burlington
19.3 MGT Holiday Inn - Edmonton
20 MGT MORF 3 & 6 7.869 Actual/360 10/31/2000 11/01/2010
21 MGT Great Hills Plaza Office 7.389 Actual/360 11/16/2000 12/01/2010
Building
22 CIBC Wild West II 7.649 Actual/360 02/13/2001 03/01/2011
(Healthsouth Medical
Plaza)
23 CIBC Alpha Tower 8.059 Actual/360 10/31/2000 11/01/2010
24 CIBC Liberty Plaza 8.449 Actual/360 08/22/2000 09/01/2010
25 CIBC Boynton West 8.259 Actual/360 08/09/2000 09/01/2010
26 CIBC The Department of 7.289 Actual/360 12/27/2000 01/01/2011
Commerce Building
27 GACC Cedar Commons Apartments 7.949 Actual/360 12/28/2000 01/01/2011
28 MGT Century Center Shopping 7.999 Actual/360 09/26/2000 10/01/2010
Plaza
29 MGT Hidden Creek Apartments 7.579 Actual/360 11/02/2000 12/01/2010
30 MGT TRC I, II & III 8.219 Actual/360 08/16/2000 09/01/2010
31 MGT El Xxxxxxx Shopping 7.929 Actual/360 09/28/2000 04/01/2008
Center
32 MGT Fiesta Apartments 7.929 Actual/360 08/31/2000 09/01/2010
33 GACC 00 Xxx Xxxxxx 7.899 Actual/360 12/27/2000 01/01/2011
34 MGT BrooksEdge Apartments 7.619 Actual/360 10/27/2000 11/01/2010
35 MGT Lamplighter Village 7.389 Actual/360 12/19/2000 01/01/2011
36 MGT Cinnamon Tree Apartments 7.639 Actual/360 11/09/2000 12/01/2010
37 MGT Shadowood 7.389 Actual/360 12/19/2000 01/01/2011
38 CIBC Xxxxx Portfolio 7.899 Actual/360 01/30/2001 02/01/2011
38.1 CIBC 0000-0000 00xx Xxxxxx
South
38.2 CIBC 0000 00xx Xxxxxx
Xxxxxxxxx
38.3 CIBC 1200-1246 Belsly
Boulevard
38.4 CIBC 0000-0000 00xx Xxxxxx
South
38.5 CIBC 0000 00xx Xxxxxx
Xxxxxxxxx
38.6 CIBC 0000 00xx Xxxxxx Xxxxx
38.7 CIBC 0000 00xx Xxxxxx Xxxxx
38.8 CIBC 0000-0000 00xx Xxxxxx
South
38.9 CIBC 0000 00xx Xxxxxx Xxxxx
38.10 CIBC 0000 00xx Xxxxxx Xxxxx
38.11 CIBC 0000 00xx Xxxxxx Xxxxx
38.12 CIBC 0000 00xx Xxxxxx Xxxxx
38.13 CIBC 000-000 00xx Xxxxxx Xxxxx
38.14 CIBC 0000 Xxxxx 00xx Xxxxxx
39 MGT Aspen Ridge Apartments 8.059 Actual/360 08/16/2000 09/01/2010
40 MGT Fairfield Gables 7.579 Actual/360 10/31/2000 11/01/2015
41 MGT North Hills Shopping 8.229 Actual/360 09/13/2000 10/01/2010
Center
42 GACC The Deerfield Luxury TH 8.099 Actual/360 04/04/2000 05/01/2010
00 XXXX Xxxxxxxx Commerce Center 8.129 Actual/360 11/10/2000 12/01/2010
44 MGT Xxxxxxx Building 4 8.579 Actual/360 08/04/2000 09/01/2010
45 CIBC Westminster Plaza 7.889 Actual/360 11/22/2000 12/01/2010
46 CIBC Shaw View Plaza 7.899 Actual/360 01/24/2001 03/01/2011
47 CIBC Xxxxxxxx Xxxxx Apartments 7.559 Actual/360 12/27/2000 01/01/2011
48 MGT Newport Trade Centre 7.859 Actual/360 10/27/2000 11/01/2010
00 XXXX Xxxxxx Xxxxxxx Xxxxx 8.799 Actual/360 09/07/2000 10/01/2010
Hotel & Suites
50 MGT Soho West Apartments 7.949 Actual/360 06/02/2000 07/01/2010
51 CIBC Dicks Clothing & 7.929 Actual/360 12/13/2000 01/01/2011
Sporting Goods - Deptford
52 CIBC Laurel Plaza 8.149 Actual/360 10/31/2000 05/01/2020
00 XXXX Xx Xxxxxxx Xxxxx 8.159 Actual/360 10/31/2000 11/01/2010
54 GACC Garden View Office 7.669 Actual/360 12/11/2000 01/01/2011
Building
55 MGT Priestbridge Shopping 8.479 Actual/360 05/23/2000 06/01/2010
Center
56 MGT Olde Towne Shopping 7.959 Actual/360 10/20/2000 11/01/2010
Center
57 MGT Palm Xxxxxxx Plaza 8.389 Actual/360 06/16/2000 07/01/2010
58 MGT 00-00 Xxxxx Xxxxxx 7.789 Actual/360 10/20/2000 11/01/2010
00 XXXX Xxxxxx Center at Xxxxxx 7.449 Actual/360 12/20/2000 01/01/2011
60 GACC 000 Xxxx 00xx Xxxxxx 8.099 Actual/360 11/01/2000 11/01/2010
61 GACC Coral Hills Shopping 7.799 Actual/360 12/18/2000 01/01/2011
Center
62 MGT Port Crossing Shopping 8.249 Actual/360 07/25/2000 08/01/2010
Center
63 CIBC 3493/3495 Xxxxxxxx 8.229 Actual/360 04/19/2000 05/01/2010
Highway
64 GACC Food Lion Food Portfolio 8.249 Actual/360 10/05/2000 11/01/2010
00.0 XXXX Xxxxxxxx Xxxxx Xxxxxxxx
Xxxxxx
00.0 XXXX Xxxxxxxx Xxxxx Shopping
Center
64.3 GACC West Main Square Center
65 MGT Maple Xxxx Apartments 7.999 Actual/360 08/31/2000 09/01/2010
66 MGT Country Club Village 8.119 Actual/360 10/06/2000 11/01/2010
67 MGT The Rapids Apartments - 7.649 30/360 12/31/1998 01/01/2009
Phase 2
68 CIBC Pinetree Lakes Apartments 7.879 Actual/360 09/13/2000 10/01/2010
69 MGT The Crossings Shopping 8.069 Actual/360 10/17/2000 11/01/2010
Center of Orlando
70 MGT Xxxxxxxxxx Brothers 7.919 Actual/360 11/17/2000 12/01/2010
Portfolio
70.1 MGT Gaslight Shopping Center
70.2 MGT Carthage Shopping Center
71 MGT The Lakes Mall 8.089 Actual/360 10/23/2000 11/01/2010
72 MGT 00 Xxxxxx Xxxxxx 8.359 Actual/360 05/31/2000 06/01/2010
73 CIBC New Horizons Apartment 7.999 Actual/360 11/21/2000 12/01/2010
Portfolio
73.1 CIBC 0000 Xxxxxxxxx Xxxxxx
73.2 CIBC 0000 Xxxx Xxxxxx
73.3 CIBC 0000-0000 Xxxxxx Xxxxxx
73.4 CIBC 0000 Xxxxxxxxx Xxxxxx
74 MGT Fine Particle Inc. 8.079 Actual/360 08/03/2000 09/01/2010
Portfolio
74.1 MGT Fine Particle Inc. -
Auburn
74.2 MGT Fine Particle Inc. - San
Diego
75 MGT Chapel Brook Apartments 7.789 Actual/360 10/05/2000 11/01/2010
76 MGT Xxxxxx Shopping Center 8.249 Actual/360 09/20/2000 10/01/2010
77 CIBC Pinetree Xxxxxxx II 7.879 Actual/360 09/13/2000 10/01/2010
Apartments
78 XXXX 00 Xxxxxxxx Xxx 8.049 Actual/360 10/20/2000 11/01/2010
79 CIBC Willow Green Mobile Home 7.489 Actual/360 01/11/2001 02/01/2011
Park
80 MGT Mission Research Office 8.229 Actual/360 10/12/2000 11/01/2010
Building
81 CIBC Linens 'N Things 7.929 Actual/360 12/13/2000 01/01/2011
82 MGT 0000 Xxx Xxxx Xxxx 8.149 Actual/360 10/06/2000 11/01/2010
83 CIBC Dicks Sporting Goods - 7.929 Actual/360 12/13/2000 01/01/2011
Akron
84 MGT Autumn Ridge Apartments 7.769 Actual/360 11/13/2000 12/01/2010
00 XXXX Xxxxxxxxxx Xxxxxx 7.499 Actual/360 01/04/2001 02/01/2011
Building (Westminster
Building)
86 MGT The Fields Phase IV 7.779 Actual/360 08/11/2000 09/01/2010
87 CIBC Insite Albany I 7.879 Actual/360 01/23/2001 02/01/2011
88 MGT Xxxxxxxxxxx Apartments 7.709 Actual/360 11/06/2000 12/01/2010
89 CIBC Kew Gardens Apartments 8.669 Actual/360 04/14/2000 05/01/2010
90 CIBC Sears HomeLife Store 7.929 Actual/360 12/13/2000 01/01/2011
91 CIBC Hampton Inn - Chattanooga 8.599 Actual/360 01/18/2001 02/01/2011
92 MGT Xxxxxx Commons Apartments 7.619 Actual/360 02/09/2001 10/01/2009
93 MGT Arima Computer Building 8.169 Actual/360 07/07/2000 08/01/2010
94 CIBC Meridian Ridge Apartments 8.279 Actual/360 07/10/2000 08/01/2010
95 MGT Villa Martinique 7.789 Actual/360 10/05/2000 11/01/2010
Apartments
96 MGT London Square Apartments 8.109 Actual/360 08/29/2000 09/01/2010
97 CIBC Ramada Inn - XxXxxxx 8.729 Actual/360 10/20/2000 11/01/2010
98 CIBC Xxxxxxx Furniture Direct 7.789 Actual/360 01/11/2001 02/01/2011
Showroom
99 MGT Efficiency Lodge - 8.849 Actual/360 12/22/1998 01/01/2009
Forest Park
100 MGT Gordonhurst Apartments 7.129 Actual/360 11/09/2000 12/01/2010
101 MGT Manor Park Apartments 7.429 Actual/360 11/01/2000 11/01/2010
102 MGT King Xxxxxx Apartments - 7.729 Actual/360 10/11/2000 11/01/2010
Phase I
103 MGT Victoria Multifamily 8.119 Actual/360 10/04/2000 11/01/2010
Portfolio
103.1 MGT Villa Chateau
103.2 MGT Meridian on Airline
103.3 MGT Colonial Greens II
104 CIBC Lakeview USDA Building 7.179 Actual/360 01/26/1998 02/01/2008
105 MGT Shady Creek Apartments 8.339 Actual/360 05/12/2000 06/01/2010
000 XXXX 000 Xxxxxxxxx 7.649 Actual/360 12/18/2000 01/01/2011
107 CIBC Stratford Arms Apartments 7.149 Actual/360 02/01/2001 02/01/2011
000 XXX Xxxxxxxxx Xxxxxxx 7.279 Actual/360 11/01/2000 11/01/2010
Apartments
109 MGT Eckerd - Brandon 8.139 Actual/360 05/11/2000 06/01/2010
000 XXXX Xxxx Xxxxx Xxxxxxx 7.909 Actual/360 12/07/2000 01/01/2011
Shopping Ctr
111 MGT The Office Place 7.759 Actual/360 10/30/2000 11/01/2010
112 MGT Eckerd - Tampa 8.139 Actual/360 05/11/2000 06/01/2010
113 MGT Berkshire Gardens 7.279 Actual/360 11/09/2000 12/01/2010
Apartments
114 CIBC Cardinal Village 7.149 Actual/360 02/01/2001 02/01/2011
Apartments
115 CIBC Mt. Xxxxxx Apartments 8.339 Actual/360 10/13/2000 11/01/2010
and Washington Arms Apts
Portfolio
115.1 CIBC Mt. Xxxxxx Apartments
115.2 CIBC Washington Arms
Apartments
116 MGT Woodbridge Apartments 7.479 Actual/360 11/01/2000 11/01/2010
117 CIBC Hunter's Ridge Apartments 7.839 Actual/360 12/14/2000 01/01/2011
118 CIBC Hidden Oaks Apartments 7.559 Actual/360 12/26/2000 01/01/2011
000 XXX Xxxxxxxxx Xxxxxxx 7.939 Actual/360 06/07/2000 07/01/2010
Apartments
120 MGT Eckerd - Long Beach 8.139 Actual/360 05/11/2000 06/01/2010
121 MGT San Marcos Apartments 7.549 Actual/360 10/13/2000 11/01/2010
122 MGT The Xxxxx Shopping Center 8.459 Actual/360 11/13/2000 12/01/2005
123 CIBC Xxxx Markets 7.929 Actual/360 12/13/2000 01/01/2011
124 MGT Friendly Village 7.499 Actual/360 10/31/2000 11/01/2015
125 MGT Eastwood Oaks Apartments 7.659 Actual/360 10/23/2000 11/01/2010
000 XXXX Xxxxxxxxx Xxxxxx Xxxx 8.149 Actual/360 11/29/2000 12/01/2010
127 MGT New Caney Shopping Center 7.919 Actual/360 11/17/2000 12/01/2010
128 MGT Quality Inn - Pecos 9.229 Actual/360 06/01/2000 06/01/2010
129 MGT Windsor Park Apartments 7.569 Actual/360 10/31/2000 11/01/2010
000 XXXX Xxxxxxx Xxxxxxxx Xxxxxx 8.029 Actual/360 11/30/2000 12/01/2010
131 MGT Arlington South 8.279 Actual/360 08/25/2000 09/01/2010
Apartments
132 MGT Hampton Inn - Columbus 9.499 Actual/360 05/19/2000 06/01/2010
133 MGT Boise Rite Aid 8.549 Actual/360 10/27/2000 11/01/2015
134 MGT Wilmington House 8.029 Actual/360 10/04/2000 11/01/2010
Apartments
135 CIBC Barristers Hall 8.439 Actual/360 11/14/2000 12/01/2010
136 MGT All Ways Self Storage 8.709 Actual/360 08/31/2000 09/01/2010
137 MGT Victory Villa 8.469 Actual/360 05/23/2000 06/01/2010
138 MGT Midway Shopping Center 8.679 Actual/360 09/01/2000 10/01/2010
139 MGT Veranda Apartments 8.249 Actual/360 08/31/2000 09/01/2010
140 MGT Oakland Airport Business 8.319 Actual/360 11/14/2000 12/01/2010
Park
141 MGT Belle Aire Apartments 8.319 Actual/360 05/05/2000 06/01/2010
142 MGT Bel Air Apartments and 7.759 Actual/360 10/11/2000 11/01/2010
Village West Apartments
143 MGT XxXxxxxx Court Apartments 8.649 Actual/360 06/06/2000 07/01/2010
144 MGT Belleville Apartments 7.479 Actual/360 11/14/2000 12/01/2010
145 CIBC Snapfinger Plaza 8.749 Actual/360 11/30/2000 12/01/2010
146 MGT 000-000 Xxxxxx Xxxxxx 8.529 Actual/360 05/31/2000 06/01/2005
147 MGT Bon Air & Four Seasons 8.399 Actual/360 06/15/2000 07/01/2010
Apartments
148 MGT Evergreen North Shopping 8.389 Actual/360 08/31/2000 09/01/2010
Center
149 MGT Medical Arts Building 8.269 Actual/360 11/22/2000 12/01/2010
000 XXX Xxxxxxxxx Xxxxxxxx Xxxxxx 8.149 Actual/360 11/20/2000 12/01/2010
151 MGT Chestnut Apartments 7.379 Actual/360 11/27/2000 12/01/2010
000 XXX Xxxxxxx & Xxxxx Xxxxxxx 7.809 Actual/360 11/16/2000 12/01/2010
Apartment Portfolio
152.1 MGT Capitol Apartments
152.2 MGT Xxxxx Parkway Apartments
153 MGT Copper Springs Business 8.519 Actual/360 09/29/2000 10/01/2010
Park
154 MGT 130 West Grand River 8.389 Actual/360 09/29/2000 10/01/2010
155 MGT Premiere Plaza 8.239 Actual/360 10/24/2000 11/01/2010
156 MGT Grand Central Storage 8.499 Actual/360 09/07/2000 10/01/2010
157 MGT 10322 Dransfeldt Building 8.279 Actual/360 11/20/2000 12/01/2010
158 MGT Live Oaks Business Center 8.049 Actual/360 11/20/2000 12/01/2010
159 MGT Xxxxx - 50 East Squantum 8.529 Actual/360 05/31/2000 06/01/2005
160 MGT Arbor Grove Apartments 7.909 Actual/360 08/29/2000 09/01/2010
161 MGT 000 Xxxxxxx Xxxx 8.529 Actual/360 05/31/2000 06/01/2005
162 MGT Castlewood Apartments 8.029 Actual/360 09/29/2000 10/01/2010
163 MGT 000-000 Xxxxx Xxxxxx 8.489 Actual/360 06/08/2000 07/01/2010
164 MGT Ellendale Place 8.359 Actual/360 08/03/2000 09/01/2010
Apartments
165 MGT Colonial Green I 8.069 Actual/360 11/10/2000 12/01/2010
ARD Final
Loan No. Seller Property Name Maturity Dat
--------------------------------------------------------------------
1 CIBC 65 Broadway 12/01/2030
2 MGT 0000-0000 XXX Xxxxxxxxx 11/01/2030
3 MGT Provence Apartments 12/01/2030
4 GACC The Ford Building 12/01/2020
5 CIBC Chino Spectrum 01/01/2031
Marketplace
6 CIBC Xxxxxxx Farm Shopping 01/01/2031
Center
7 MGT Trace Fork Shopping 06/01/2030
Center
8 CIBC Doubletree Hotel - 02/01/2026
Irvine Spectrum
9 CIBC Holiday Inn - Wall Street 02/01/2026
10 CIBC Northpark Center 09/01/2030
00 XXXX Xxxxxxx at Sterling Place 03/01/2031
12 CIBC Richmond Mall 01/01/2031
13 CIBC ANC Rental Plaza 02/01/2031
14 MGT ICI Xxxxxxx 11/01/2025
15 MGT First USA - 550 Building 10/01/2030
16 MGT Rustic Hills Shopping
Center
17 CIBC Wildwood North Shopping 01/01/2031
Center
18 MGT Creekside Manufactured 01/01/2031
Housing Community
19 MGT Royal Host REIT Hotel
Portfolio
19.1 MGT Holiday Inn - Oakville
19.2 MGT Travelodge Hotel -
Burlington
19.3 MGT Holiday Inn - Edmonton
20 MGT MORF 3 & 6
21 MGT Great Hills Plaza Office 12/01/2030
Building
22 CIBC Wild West II 03/01/2031
(Healthsouth Medical
Plaza)
23 CIBC Alpha Tower 11/01/2030
24 CIBC Liberty Plaza 09/01/2030
25 CIBC Boynton West 09/01/2030
26 CIBC The Department of 01/01/2031
Commerce Building
27 GACC Cedar Commons Apartments 01/01/2031
28 MGT Century Center Shopping 10/01/2030
Plaza
29 MGT Hidden Creek Apartments 12/01/2030
30 MGT TRC I, II & III 09/01/2030
31 MGT El Xxxxxxx Shopping 10/01/2030
Center
32 MGT Fiesta Apartments
33 GACC 00 Xxx Xxxxxx
34 MGT BrooksEdge Apartments 11/01/2030
35 MGT Lamplighter Village 01/01/2031
36 MGT Cinnamon Tree Apartments
37 MGT Shadowood 01/01/2031
38 CIBC Xxxxx Portfolio 02/01/2031
38.1 CIBC 0000-0000 00xx Xxxxxx
South
38.2 CIBC 0000 00xx Xxxxxx
Xxxxxxxxx
38.3 CIBC 1200-1246 Belsly
Boulevard
38.4 CIBC 0000-0000 00xx Xxxxxx
South
38.5 CIBC 0000 00xx Xxxxxx
Xxxxxxxxx
38.6 CIBC 0000 00xx Xxxxxx Xxxxx
38.7 CIBC 0000 00xx Xxxxxx Xxxxx
38.8 CIBC 0000-0000 00xx Xxxxxx
South
38.9 CIBC 0000 00xx Xxxxxx Xxxxx
38.10 CIBC 0000 00xx Xxxxxx Xxxxx
38.11 CIBC 0000 00xx Xxxxxx Xxxxx
38.12 CIBC 0000 00xx Xxxxxx Xxxxx
38.13 CIBC 000-000 00xx Xxxxxx Xxxxx
38.14 CIBC 0000 Xxxxx 00xx Xxxxxx
39 MGT Aspen Ridge Apartments 09/01/2030
40 MGT Fairfield Gables 11/01/2030
41 MGT North Hills Shopping
Center
42 GACC The Deerfield Luxury TH
43 GACC Atlantic Commerce Center
44 MGT Xxxxxxx Building 4 09/01/2030
45 CIBC Westminster Plaza 12/01/2030
46 CIBC Shaw View Plaza 03/01/2026
47 CIBC Xxxxxxxx Xxxxx Apartments 01/01/2031
48 MGT Newport Trade Centre
49 GACC Xxxxxx Xxxxxxx Plaza 10/01/2025
Hotel & Suites
50 MGT Soho West Apartments 07/01/2030
51 CIBC Dicks Clothing & 01/01/2031
Sporting Goods - Deptford
52 CIBC Laurel Plaza
53 GACC El Segundo Plaza
54 GACC Garden View Office
Building
55 MGT Priestbridge Shopping
Center
56 MGT Olde Towne Shopping 11/01/2030
Center
57 MGT Palm Xxxxxxx Plaza 07/01/2030
58 MGT 00-00 Xxxxx Xxxxxx 11/01/2030
59 GACC Market Center at Xxxxxx 01/01/2031
60 GACC 000 Xxxx 00xx Xxxxxx 11/01/2030
61 GACC Coral Hills Shopping
Center
62 MGT Port Crossing Shopping 08/01/2030
Center
63 CIBC 3493/3495 Xxxxxxxx
Highway
64 GACC Food Lion Food Portfolio 11/01/2030
00.0 XXXX Xxxxxxxx Xxxxx Shopping
Center
00.0 XXXX Xxxxxxxx Xxxxx Shopping
Center
64.3 GACC West Main Square Center
65 MGT Maple Xxxx Apartments 08/01/2025
66 MGT Country Club Village
67 MGT The Rapids Apartments -
Phase 2
68 CIBC Pinetree Lakes Apartments
69 MGT The Crossings Shopping 11/01/2030
Center of Orlando
70 MGT Xxxxxxxxxx Brothers 12/01/2025
Portfolio
70.1 MGT Gaslight Shopping Center
70.2 MGT Carthage Shopping Center
71 MGT The Lakes Mall 11/01/2030
72 MGT 00 Xxxxxx Xxxxxx 06/01/2030
73 CIBC New Horizons Apartment
Portfolio
73.1 CIBC 0000 Xxxxxxxxx Xxxxxx
73.2 CIBC 0000 Xxxx Xxxxxx
73.3 CIBC 0000-0000 Xxxxxx Xxxxxx
73.4 CIBC 0000 Xxxxxxxxx Xxxxxx
74 MGT Fine Particle Inc. 09/01/2030
Portfolio
74.1 MGT Fine Particle Inc. -
Auburn
74.2 MGT Fine Particle Inc. - San
Diego
75 MGT Chapel Brook Apartments
76 MGT Xxxxxx Shopping Center 10/01/2027
77 CIBC Pinetree Xxxxxxx II
Apartments
78 GACC 14 Research Way 11/01/2030
79 CIBC Willow Green Mobile Home
Park
80 MGT Mission Research Office 11/01/2030
Building
81 CIBC Linens 'N Things 01/01/2031
82 MGT 0000 Xxx Xxxx Xxxx 11/01/2030
83 CIBC Dicks Sporting Goods - 01/01/2031
Akron
84 MGT Autumn Ridge Apartments
85 CIBC Providence Square
Building (Westminster
Building)
86 MGT The Fields Phase IV
87 CIBC Insite Albany I
88 MGT Xxxxxxxxxxx Apartments 12/01/2022
89 CIBC Kew Gardens Apartments
90 CIBC Sears HomeLife Store 01/01/2031
91 CIBC Hampton Inn - Chattanooga
92 MGT Xxxxxx Commons Apartments 04/01/2027
93 MGT Arima Computer Building 08/01/2025
94 CIBC Meridian Ridge Apartments
95 MGT Villa Martinique
Apartments
96 MGT London Square Apartments 09/01/2030
97 CIBC Ramada Inn - XxXxxxx 11/01/2025
98 CIBC Xxxxxxx Furniture Direct
Showroom
00 XXX Xxxxxxxxxx Xxxxx -
Xxxxxx Xxxx
100 MGT Gordonhurst Apartments 12/01/2030
101 MGT Manor Park Apartments 11/01/2030
102 MGT King Xxxxxx Apartments -
Phase I
103 MGT Victoria Multifamily 11/01/2030
Portfolio
103.1 MGT Villa Chateau
103.2 MGT Meridian on Airline
103.3 MGT Colonial Greens II
104 CIBC Lakeview USDA Building 02/01/2023
105 MGT Xxxxx Xxxxx Xxxxxxxxxx
000 XXXX 000 Xxxxxxxxx 01/01/2031
107 CIBC Stratford Arms Apartments 02/01/2031
108 MGT Woodbrook Village 11/01/2030
Apartments
109 MGT Eckerd - Brandon 06/01/2030
000 XXXX Xxxx Xxxxx Xxxxxxx
Xxxxxxxx Xxx
111 MGT The Office Place 11/01/2030
112 MGT Eckerd - Tampa 06/01/2025
113 MGT Berkshire Gardens 12/01/2030
Apartments
114 CIBC Cardinal Village 02/01/2031
Apartments
115 CIBC Mt. Xxxxxx Apartments
and Washington Arms Apts
Portfolio
115.1 CIBC Mt. Xxxxxx Apartments
115.2 CIBC Washington Arms
Apartments
116 MGT Woodbridge Apartments 11/01/2030
117 CIBC Hunter's Ridge Apartments
118 CIBC Hidden Oaks Apartments 01/01/2031
000 XXX Xxxxxxxxx Xxxxxxx 07/01/2030
Apartments
120 MGT Eckerd - Long Beach 06/01/2030
121 MGT San Marcos Apartments 11/01/2030
122 MGT The Xxxxx Shopping Center
123 CIBC Xxxx Markets 01/01/2031
124 MGT Friendly Village
125 MGT Eastwood Oaks Apartments
126 GACC Innerstep Office Park
127 MGT New Caney Shopping Center 12/01/2025
128 MGT Quality Inn - Pecos 06/01/2020
000 XXX Xxxxxxx Xxxx Apartments 11/01/2030
130 GACC Xxxxxxx Shopping Center 12/01/2030
131 MGT Arlington South
Apartments
132 MGT Hampton Inn - Columbus 06/01/2020
133 MGT Boise Rite Aid
134 MGT Wilmington House
Apartments
135 CIBC Barristers Hall
136 MGT All Ways Self Storage
137 MGT Victory Villa
138 MGT Midway Shopping Center
139 MGT Veranda Apartments
140 MGT Oakland Airport Business
Park
141 MGT Belle Aire Apartments
142 MGT Bel Air Apartments and
Village West Apartments
143 MGT XxXxxxxx Court Apartments
144 MGT Belleville Apartments 12/01/2030
145 CIBC Snapfinger Plaza
146 MGT 000-000 Xxxxxx Xxxxxx
147 MGT Bon Air & Four Seasons
Apartments
148 MGT Evergreen North Shopping
Center
149 MGT Medical Arts Building
150 MGT Greenwood Business Center
151 MGT Chestnut Apartments 12/01/2025
152 MGT Capitol & Xxxxx Parkway
Apartment Portfolio
152.1 MGT Capitol Apartments
152.2 MGT Xxxxx Parkway Apartments
153 MGT Copper Springs Business
Park
154 MGT 130 West Grand River
155 MGT Premiere Plaza
156 MGT Grand Central Storage
157 MGT 10322 Dransfeldt Building
158 MGT Live Oaks Business Center
159 MGT Xxxxx - 00 Xxxx Xxxxxxxx
000 XXX Xxxxx Xxxxx Apartments
161 MGT 000 Xxxxxxx Xxxx
162 MGT Castlewood Apartments
163 MGT 000-000 Xxxxx Xxxxxx
164 MGT Ellendale Place
Apartments
165 MGT Colonial Green I 12/01/2030
EXHIBIT H
PROPERTY INFORMATION REPORTS
Information Type Format Frequency
Property Operating Statement Actual PDF/TIF Quarterly
Property Rent Roll Actual PDF/TIF Quarterly
Property Inspection Actual PDF/TIF Quarterly
Property File (CMSA IRP) Access/Excel Monthly
Loan Periodic Update File (CMSA IRP) Access/Excel Monthly
Bond File (CMSA IRP) Access/Excel Monthly
Servicer Supplemental File (CMSA IRP) Access/Excel Quarterly
Collateral Summary File (CMSA IRP) Access/Excel Monthly
Operating Statement Analysis Report (CMSA IRP) Access/Excel Quarterly
NOI Adjustment Worksheet (CMSA IRP) Access/Excel Quarterly
EXHIBIT I
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
(EACH OF THE CIBC MORTGAGE LOAN PURCHASE
AGREEMENT AND THE GACC MORTGAGE LOAN
PURCHASE AGREEMENT CONFORMS TO THE
FOLLOWING IN ALL MATERIAL RESPECTS.)
================================================================================
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.,
Purchaser,
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
Seller
--------------------------------------
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of March 1, 2001
-------------------------------------
$1,014,816,337
Fixed Rate Mortgage Loans
Series 2001-CIBC1
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of March 1, 2001, is between X.X. Xxxxxx Commercial Mortgage Securities Corp.,
as purchaser (the "Purchaser"), and Xxxxxx Guaranty Trust Company of New York,
as seller ("MGT" or the "Seller").
Capitalized terms used in this Agreement not defined herein shall
have the meanings ascribed to them in the Pooling and Servicing Agreement
dated as of March 1, 2001 (the "Pooling and Servicing Agreement") among the
Purchaser, as depositor, GMAC Commercial Mortgage Corporation, as master
servicer, ORIX Real Estate Capital Market, LLC, as special servicer and State
Street Bank and Trust Company, as trustee ("Trustee") pursuant to which the
Purchaser will sell the Mortgage Loans (as defined herein) to a trust fund and
certificates representing ownership interests in the Mortgage Loans will be
issued by the trust fund. For purposes of this Agreement, the "Mortgage Loans"
refers to the mortgage loans listed on Exhibit A hereto and "Mortgaged
Properties" refers to the properties securing such Mortgage Loans.
The Purchaser and the Seller wish to prescribe the manner of sale of
the Mortgage Loans from the Seller to the Purchaser and in consideration of
the premises and the mutual agreements hereinafter set forth, agree as
follows:
SECTION 1. Sale and Conveyance of Mortgages; Possession of Mortgage Loan
File. The Seller does hereby sell, transfer, assign, set over and convey to
the Purchaser all of its right, title, and interest in and to the Mortgage
Loans described in Exhibit A hereto, including all interest and principal
received on or with respect to the Mortgage Loans after the Cut-off Date
(other than payments of principal and interest first due on the Mortgage Loans
on or before the Cut-off Date). Upon sale of the Mortgage Loans, the ownership
of each related Mortgage Note, the Mortgage and the contents of the related
Mortgage Loan File will be vested in the Purchaser and immediately thereafter
the Trustee and the ownership of records and documents with respect to the
related Mortgage Loan prepared by or which come into the possession of the
Seller shall immediately vest in the Purchaser and immediately thereafter the
Trustee. The Seller's records will accurately reflect the sale of each
Mortgage Loan to the Purchaser.
As the purchase price for the Mortgage Loans, the Purchaser shall
pay to the Seller or at the Seller's direction $542,479,746 (including accrued
interest), minus the costs set forth in Section 10 hereof.
The sale and conveyance of the Mortgage Loans is being conducted on
an arms-length basis and upon commercially reasonable terms.
SECTION 2. Books and Records. From and after the sale of the Mortgage
Loans to the Purchaser, record title to each Mortgage and the related Mortgage
Note shall be transferred to the Trustee in accordance with this Agreement.
Any funds due after the Cut-off Date in connection with a Mortgage Loan
received by the Seller shall be held in trust for the benefit of the Trustee
as the owner of the Mortgage Loans and shall be promptly transferred to the
Trustee.
The transfer of each Mortgage Loan shall be reflected on the
Seller's balance sheets and other financial statements as a sale of the
Mortgage Loans by the Seller to the Purchaser. The Seller shall be responsible
for maintaining, and shall maintain, a set of records for each Mortgage Loan
which shall be clearly marked to reflect the ownership of each Mortgage Loan
by the Trustee pursuant to the Pooling and Servicing Agreement.
SECTION 3. Delivery of Mortgage Loan Documents. On the Delivery Date, the
Seller shall deliver or cause to be delivered to the Trustee or its custodian
each of the following documents for each Mortgage Loan:
(a) the original or, if accompanied by a "lost note"
affidavit and indemnity, a copy of the Mortgage Note, executed
by the Mortgagor and endorsed by MGT in blank or to the order
of the Trustee in the following form: "State Street Bank and
Trust Company, as trustee for X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp. Mortgage Pass-Through Certificates
Series 2001-CIBC1", in recordable form and showing a complete
chain of endorsements from the Originator;
(b) the original Mortgage, and any intervening assignments (or
certified copies of such assignments) thereof, in each case
with evidence of recording indicated thereon, or a certified
copy thereof if not returned from the applicable recording
office;
(c) originals or certified copies of any related Assignment of
Leases and Rents and any related Security Agreement (if, in
either case, such item is a document separate from the
Mortgage), any intervening assignments of each such document or
instrument, and any related UCC Financing Statements;
(d) an original assignment of the Mortgage, executed by MGT in
blank or to the order of the Trustee, with the assignment to
the Trustee in the following form: "State Street Bank and Trust
Company, as trustee for X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp. Mortgage Pass-Through Certificates Series
2001-CIBC1", in complete and recordable form, including
recording information; provided, however, that if the
underlying Mortgage has not been returned by the applicable
recording jurisdiction, recording information related thereto
may be provided by the Seller immediately upon receipt
subsequent to the Delivery Date; provided, further, that if the
Seller is obligated to forward the original assignment of
Mortgage to the applicable recording jurisdiction for
recording, the Seller may deliver to the Trustee a certified
copy of such assignment of Mortgage, to the extent the
underlying Mortgage has been returned from the applicable
recording jurisdiction) and recordable form, or certified
copies thereof if the related Mortgage Loan Seller is obligated
to forward the original assignment of Mortgage to the
applicable recording jurisdiction for recording purposes;
(e) assignments of any related Assignment of Leases and Rents and
any related Security Agreement (if, in either case, such item
is a document separate from the Mortgage), executed by MGT or
the prior holder which transferred such Mortgage Loan in blank
or to the order of the Trustee, with the assignment to the
Trustee in the following form: "State Street Bank and Trust
Company, as trustee for X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp. Mortgage Pass-Through Certificates Series
2001-CIBC1", in complete and recordable form, including
recording information; provided, however, that if the
underlying Assignment of Leases and Rents and/or any related
Security Agreement has not been returned by the applicable
recording jurisdiction, recording information related thereto
may be provided by the Seller immediately upon receipt
subsequent to the Delivery Date; provided, further, that if the
Seller is obligated to forward the original assignment of
Assignment of Leases and Rents and/or any related Security
Agreement to the applicable recording jurisdiction for
recording, the Seller may deliver to the Trustee a certified
copy of such assignment of Assignment of Leases and Rents
and/or any related Security Agreement;
(f) originals or certified copies of all assumption, modification
and substitution agreements in those instances where the terms
or provisions of the Mortgage or Mortgage Note have been
modified or the Mortgage or Mortgage Note has been assumed with
evidence of recording;
(g) the originals or certificates of a lender's title insurance
policy issued on the date of the origination of such Mortgage
Loan; provided, however, if such originals or certificates
cannot be delivered solely because such policy has not yet been
issued, the delivery requirements of this clause (g) shall be
deemed to be satisfied if the Seller delivers or causes to be
delivered to the Trustee or its custodian a commitment for
title insurance "marked up" at the closing of such Mortgage
Loan marked as binding and executed by the title insurer or its
agent (or a "marked-up" report of title together with the
corresponding escrow or similar agreement, accepted and
executed by the title insurer or its agent at the closing of
such Mortgage Loan); provided, further, that the Seller hereby
covenants and agrees to deliver or cause to be delivered the
original related lender's title insurance policy to the Trustee
or its custodian promptly following the receipt thereof;
(h) with respect to any Mortgage Loan secured by a leasehold
interest, a certified copy of the related ground lease and any
amendments and modifications thereto and ground lease estoppel;
(i) either (i) the originals of all intervening assignments,
including warehousing assignments, with evidence of recording
thereon, (ii) copies of such assignments certified by a title
company or escrow company to be true and complete copies
thereof where the originals have been transmitted for recording
until such time as the originals are returned by the public
recording office or (iii) copies of such assignments certified
by the public recording offices where such assignments were
recorded to be true and complete copies thereof in those
instances where the public recording offices retain the
original or where the original recorded assignments are lost;
(j) either (i) originals or copies of the UCC-1 financing
statements and any related continuation statements, each
showing the mortgagors as debtor and the originator as secured
party and each with evidence of filing thereon, together with a
copy of each intervening UCC-2 or UCC-3 financing statement
showing a complete chain of assignment from the secured party
named in such UCC-1 financing statement to the Trustee with
evidence of filing thereon disclosing the assignment to the
Trustee of the security interest in the personal property
securing the Mortgage Loan or (ii) copies of such financing
statements certified to be true and complete copies thereof in
instances where the original financing statements have been
sent to the appropriate public filing office for filing;
(k) any original appraisal;
(l) any escrow, guarantee, insurance policy, environmental
liability agreement, environmental insurance policy,
intercreditor agreement, management agreement, or lockbox
arrangement, in each case if any such document exists;
(m) the original standby letter of credit, if any, together with
any original assignment thereof;
(n) any Phase I or other environmental assessment;
(o) the original franchise agreement (or, if the original has been
retained by the related Mortgagor, a copy certified by such
Mortgagor to be true and correct) and franchise or comfort
letter(s), if any;
(p) any collateral assignment of property management agreements and
other servicing agreements; and
(q) with respect to the Canadian Loan, the Foreign Currency
Exchange Contract; together with an Assignment and Assumption
Agreement with respect thereto, for the Trustee's execution and
delivery.
SECTION 4. Treatment as a Security Agreement. The Seller, concurrently
with the execution and delivery hereof, has conveyed to the Purchaser, all of
its right, title and interest in and to the Mortgage Loans. The parties intend
that such conveyance of the Seller's right, title and interest in and to the
Mortgage Loans pursuant to this Agreement shall constitute a purchase and sale
and not a loan. If such conveyance is deemed to be a pledge and not a sale,
then the parties also intend and agree that the Seller shall be deemed to have
granted, and in such event does hereby grant, to the Purchaser, a first
priority security interest in all of its right, title and interest in, to and
under the Mortgage Loans, all payments of principal or interest on such
Mortgage Loans due after the Cut-off Date, all other payments made in respect
of such Mortgage Loans and all proceeds thereof and that this Agreement shall
constitute a security agreement under applicable law. If such conveyance is
deemed to be a pledge and not a sale, the Seller consents to the Purchaser
hypothecating and transferring such security interest in favor of the Trustee
and transferring the obligation secured thereby to the Trustee.
SECTION 5. Recordation of Assignments of Mortgage. The Seller shall
record in the appropriate public recording office for real property the
intermediate assignments of the Mortgage Loans and the Assignments of Mortgage
from the Seller to the Trustee in connection with the Pooling and Servicing
Agreement. All recording fees relating to the initial recordation of such
intermediate assignments and Assignments of Mortgage shall be paid by the
Seller.
SECTION 6. Representations and Warranties.
(a) Seller represents and warrants to Purchaser as of the Delivery
Date that:
(i) it is a New York banking corporation duly organized,
validly existing, and in good standing under applicable law;
(ii) it has the power and authority to own its property and to
carry on its business as now conducted;
(iii) it has the power to execute, deliver and perform this
Agreement;
(iv) the execution, delivery and performance of this Agreement
have been duly authorized by all requisite action by the Seller's board of
directors and will not violate or breach any provision of its organizational
documents;
(v) this Agreement constitutes a legal, valid and binding
obligation of the Seller, enforceable against it in accordance with its terms
(except as enforcement thereof may be limited by receivership,
conservatorship, reorganization, insolvency, moratorium or other laws
affecting the enforcement of creditors' rights generally and by general
equitable principles);
(vi) there are no legal or governmental proceedings pending to
which the Seller is a party or of which any property of the Seller is the
subject which, if determined adversely to the Seller, might interfere with or
adversely affect the consummation of the transactions contemplated herein and
in the Pooling and Servicing Agreement; to the best of the Seller's knowledge,
no such proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(vii) the Seller is not, nor with the giving of notice or lapse
of time or both would be, in violation of or in default under any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Seller is a party or by which it or any of its properties is bound,
except for violations and defaults which individually and in the aggregate
would not have a material adverse effect on the transactions contemplated
herein; the sale of the Mortgage Loans and the performance by the Seller of
all of the provisions of its obligations under this Agreement and the
consummation of the transactions herein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Seller is a party or by which the Seller
is bound or to which any of the property or assets of the Seller is subject,
nor will any such action result in any violation of the provisions of any
applicable law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Seller, or any of its
properties; and no consent, approval, authorization, order, license,
registration or qualification of or with any such court or governmental agency
or body is required for the consummation by the Seller of the transactions
contemplated by this Agreement, other than any consent, approval,
authorization, order, license, registration or qualification that has been
obtained or made; and
(viii) immediately prior to the sale and assignment
contemplated herein, the Seller was the sole owner of the Mortgage Loans free
and clear of any and all liens, pledges, charges or security interests of any
nature and has full right and authority to sell and assign the same.
(b) Purchaser represents and warrants to the Seller as of the
Delivery Date that:
(i) it is a corporation duly organized, validly existing, and
in good standing in the State of Delaware;
(ii) it has the power and authority to own its property and to
carry on its business as now conducted;
(iii) it has the power to execute, deliver and perform this
Agreement;
(iv) the execution, delivery and performance of this Agreement
have been duly authorized by all requisite action by the Purchaser's board of
directors and will not violate or breach any provision of its organizational
documents or other agreement or instrument to which the Purchaser is a party
or by which it is bound, or constitute a default or result in an acceleration
under any of the foregoing, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Purchaser or its property
is subject;
(v) this Agreement constitutes a legal, valid and binding
obligation of the Purchaser enforceable in accordance with its terms (except
as enforcement thereof may be limited by (a) bankruptcy, reorganization,
insolvency, moratorium or other laws affecting the enforcement of creditors'
rights generally and (b) by general equitable principles);
(vi) there are no legal or governmental proceedings pending to
which the Purchaser is a party or of which any property of the Purchaser is
the subject which, if determined adversely to the Purchaser, might interfere
with or adversely affect the consummation of the transactions contemplated
herein and in the Pooling and Servicing Agreement; to the best of the
Purchaser's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(vii) the Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters and
their respective affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans or the
consummation of any of the transactions contemplated hereby; and
(viii) all consents, approvals, authorizations, orders or
filings of or with any court or governmental agency or body, if any, required
for the execution, delivery and performance of this Agreement by the Purchaser
have been obtained or made.
(c) Seller further makes the representations and warranties as to
the Mortgage Loans set forth in Exhibit B hereto as of the Delivery Date,
subject to any exceptions thereto set forth in Exhibit C hereto. Seller hereby
covenants and agrees that it shall cure any breach of such representations and
warranties or repurchase any Mortgage Loan as to which there has been any such
breach at the Purchase Price, to the extent that such breach materially and
adversely affects the value of any Mortgage Loan, the related Mortgaged
Property or the interest of the Trustee or any Certificateholder therein. Such
cure or repurchase shall occur at the time and under the circumstances
specified in Sections 2.02 and 2.04 of the Pooling and Servicing Agreement,
the terms and conditions of which are hereby incorporated by reference with
the same force and effect as if such terms and conditions were set forth
herein. Except as provided otherwise in Section 2.04(d) of the Pooling and
Servicing Agreement, MGT shall repurchase any Cross-Collateralized Loan that
is cross-collateralized with any Mortgage Loan repurchased pursuant to this
Section 6(c). MGT's obligation to cure any breach or repurchase any affected
Mortgage Loan pursuant to this Section 6 shall constitute the sole remedy
available to any party.
(d) Seller further represents and warrants that the Mortgagor under
Mortgage Loan Number 99 (identified as "Efficiency Lodge - Forest Park" on
Exhibit A hereto) will not exercise its right to effect a defeasance of the
related Mortgage Property prior to March 29, 2003. Seller hereby covenants and
agrees that it shall repurchase Mortgage Loan number 99 if the related
Mortgagor exercises its right to effect a defeasance of the related Mortgage
Property prior to March 29, 2003.
(e) Seller further represents and warrants that as of the Delivery
Date it is not a Holder of Certificates.
(f) The representations and warranties of the parties hereto shall
survive the execution and delivery and any termination of this Agreement. Each
party shall promptly notify the other party of any breach of a representation
or warranty in this Section 6.
SECTION 7. Review of Mortgage Loan File.
(a) The Trustee or the Custodian shall review the Mortgage Loan
Files pursuant to Section 2.02 of the Pooling and Servicing Agreement and if
it finds any document or documents not to have been properly executed, or to
be missing or to be defective on its face in any material respect, the Trustee
or the Custodian shall notify the Purchaser, which shall promptly notify the
Seller. If the Seller does not within the time period specified in Section
2.02(c) of the Pooling and Servicing Agreement (i) correct or cure such
omission or document deficiency or (ii) cause to be delivered to the Purchaser
an Opinion of Counsel to the effect that such document deficiency is not
material, the Seller shall repurchase such relevant Mortgage Loan from the
Purchaser (or if directed by the Purchaser, directly from the Trust Fund) at
the Purchase Price within 90 days from the applicable date specified in
Section 2.02(c) of the Pooling and Servicing Agreement. Except as otherwise
provided in Section 2.02(e) of the Pooling and Servicing Agreement, MGT shall
repurchase any Cross-Collateralized Loan that is cross-collateralized with any
Mortgage Loan repurchased pursuant to this Section 7.
Notwithstanding anything contained in this Section 7 to the
contrary, in the case of a deficiency in any of the documents specified in
clauses (b) through (f), (i), and (j) of Section 3, resulting solely from a
delay in the return of the related documents from the applicable recording
office, which deficiency (i) is continuing for (a) in the case of any Mortgage
Loan that is not a Specially Serviced Mortgage Loan, for more than eighteen
(18) months following the Delivery Date or (b) in the case of any Specially
Serviced Mortgage Loan, until ninety (90) days following a Servicing Transfer
Event, and (ii) impairs or prohibits in any material way any Servicer's
ability to act upon, or enforce, any of the Trust Fund's rights and remedies
under the related Mortgage Loan, or Specially Serviced Mortgage Loan, as
applicable, at the time such Servicer attempts to act upon, or enforce, any
such right or remedy, the Seller may, in the Directing Certificateholder's
sole judgment, in lieu of repurchasing the related Mortgage Loan, be permitted
to deposit with the Trustee an amount, to be held in trust in a segregated
Eligible Account, equal to 25% of the principal balance of the related
Mortgage Loan (in the alternative, the Seller may deliver to the Trustee a
letter of credit for the benefit of the Trustee in such amount). Such funds
(or letter of credit) shall be held by the Trustee until the date on which the
Master Servicer certifies to the Trustee that such document deficiency has
been cured, at which time the Trustee shall return such funds (or letter of
credit) to the Seller; provided, however, if such document deficiency has not
been cured by the date which is twenty-four (24) months following the Delivery
Date and the Seller is required to repurchase the related Mortgage Loan in
accordance with the terms and conditions of this Agreement or Section 2.02 of
the Pooling and Servicing Agreement, such funds will be deposited into the
Collection Account to be applied to the Purchase Price in accordance with the
terms and conditions of the Pooling and Servicing Agreement. All such funds
deposited with the Trustee may be invested in Permitted Investments, at the
direction of the Seller. Such cure or repurchase of an affected Mortgage Loan
pursuant to this Section shall be the sole remedy of the Purchaser for any
defect to a related Mortgage Loan File hereunder.
(b) Immediately upon receipt from the Trustee, the Purchaser shall
deliver, or cause to be delivered, to the Seller, the Trustee's exception
report with respect to the documents specified in clauses (a), (b), (d), (g),
(h) and (m) of Section 3. Within three (3) Business Days of the Purchaser's
receipt of such report, if so directed by the Purchaser, the Seller shall cure
any exception listed therein (for the avoidance of doubt, any deficiencies
with respect to the documents specified in clauses (b) and (d) of Section 3
resulting solely in a delay in the return of the related documents from the
applicable recording office shall be cured in the time and manner described in
the second paragraph of clause (a) above). If such exception is not so cured,
the Seller shall either (1) repurchase the related Mortgage Loan, (2) with
respect to exceptions relating to clause (m), deposit with the Trustee an
amount, to be held in trust in a segregated Eligible Account, equal to the
amount of the undelivered letter of credit (in the alternative, the Seller may
deliver to the Trustee a letter of credit for the benefit of the Trustee and
upon the same terms and conditions as the undelivered letter of credit) which
the Trustee may use (or draw upon, as the case may be) under the same
circumstances and conditions as the Trustee would have been entitled to draw
on the undelivered letter of credit, or (3) with respect to any of the other
documents, deposit with the Trustee an amount, to be held in trust in a
segregated Eligible Account, equal to 25% of the Stated Principal Balance of
the related Mortgage Loan. Any funds deposited pursuant to clause (3) shall be
held by the Trustee until the earlier of (x) the date on which the Master
Servicer certifies to the Trustee and the Directing Certificateholder that
such exception has been cured, at which time such funds shall be returned to
the Seller and (y) thirty (30) Business Days after the Delivery Date;
provided, however, that if such exception is not cured within such thirty (30)
Business Days, if directed by the Purchaser, the Seller shall repurchase the
related Mortgage Loan in accordance with the terms and conditions of Section 2
of the Pooling and Servicing Agreement and the terms and conditions of this
Agreement, at which time such funds shall be applied to the Purchase Price of
the related Mortgage Loan.
SECTION 8. Conditions to Closing. The obligations of the Purchaser to
purchase the Mortgage Loans shall be subject to the satisfaction, on or prior
to the Closing Date, of the following conditions:
(a) Each of the obligations of the Seller required to be performed
by it at or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with and all of the
representations and warranties of the Seller under this Agreement shall be
true and correct in all material respects as of the Closing Date, and no event
shall have occurred as of the Closing Date which, with notice or passage of
time, would constitute a default under this Agreement, and the Purchaser shall
have received a certificate to the foregoing effect signed by an authorized
officer of the Seller substantially in the form of Exhibit D.
(b) The Purchaser shall have received the following additional
closing documents:
(i) copies of the Seller's charter, by-laws and all
amendments, revisions, restatements and supplements thereof,
certified as of a recent date by the Secretary of the Seller;
(ii) a certificate as of a recent date of the State of New
York Banking Department to the effect that the Seller is duly
organized, existing and in good standing in the Sate of New
York;
(iii) an opinion of counsel of the Seller, in form and
substance satisfactory to the Purchaser and its counsel,
substantially to the effect that:
(A) The Seller is a New York banking
corporation duly organized and validly existing in
good standing under the laws of the State of New
York and is duly qualified to transact business,
including, without limitation, the business of
buying or selling mortgage loans, in, and is in good
standing under, the laws of the State of New York.
(B) The Seller has the corporate power to
conduct its business as now conducted and to incur
and perform its obligations under this Agreement and
the Indemnification Agreement.
(C) All necessary corporate action has been
taken to authorize the execution, delivery and
performance of this Agreement and the
Indemnification Agreement by the Seller and this
Agreement is a legal, valid and binding agreement of
the Seller enforceable against the Seller, whether
such enforcement is sought in a procedure at law or
in equity, except to the extent such enforcement may
be limited by bankruptcy or other similar creditors'
laws or principles of equity and public policy
considerations underlying the securities laws, to
the extent that such public policy considerations
limit the enforceability of the provisions of the
Agreement which purport to provide indemnification
with respect to securities law violations.
(D) The execution and delivery of, and the
performance of the obligations under, each of this
Agreement and the Indemnification Agreement do not
and will not conflict with the Seller's charter or
by-laws or conflict with or result in the breach of
any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or
instrument to which the Seller is a party or by
which the Seller is bound, or to which any of the
property or assets of the Seller is subject or
violate any provisions of law or conflict with or
result in the breach of any order of any court or
any governmental body binding on the Seller.
(E) There is no litigation, arbitration or
mediation pending before any court, arbitrator,
mediator or administrative body, or to such
counsel's knowledge, threatened, against the Seller
which (a) questions, directly or indirectly, the
validity or enforceability of this Agreement or the
Indemnification Agreement or (ii) would, if decided
adversely to the Seller, either individually or in
the aggregate, have a material adverse effect on the
ability of the Seller to perform its obligations
under this Agreement or the Indemnification
Agreement; and
(F) No consent, approval, authorization, order,
license, registration or qualification of or with
any State of New York or federal court or
governmental agency or body is required for the
consummation of the transactions contemplated by
this Agreement and the Indemnification Agreement,
except such consents, approvals, authorizations,
orders, licenses, registrations or qualifications as
have been obtained.
(iv) a letter from counsel of the Seller to the effect
that nothing has come to such counsel's attention that would
lead such counsel to believe that the Prospectus Supplement as
of the date thereof or as of the Closing Date contains, with
respect to the Seller or the Mortgage Loans, any untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein relating to
the Seller or the Mortgage Loans, in the light of the
circumstances under which they were made, not misleading.
(c) The Public Certificates shall have been concurrently issued and
sold pursuant to the terms of the Underwriting Agreement.
(d) The Seller shall have executed and delivered concurrently
herewith the Indemnification Agreement.
(e) The Seller shall furnish the Purchaser with such other
certificates of its officers or others and such other documents and opinions
to evidence fulfillment of the conditions set forth in this Agreement as the
Purchaser and its counsel may reasonably request.
SECTION 9. Closing. The closing for the purchase and sale of the Mortgage
Loans shall take place at the office of Xxxxx & Xxxx LLP, One World Trade
Center, New York, New York, at 10:00 a.m., on the Closing Date or such other
place and time as the parties shall agree. The parties hereto agree that time
is of the essence with respect to this Agreement.
SECTION 10. Expenses. The Seller will pay its pro rata share of all costs
and expenses of the Purchaser in connection with the transactions contemplated
herein, including, but not limited to: (i) the costs and expenses of the
Purchaser in connection with the purchase of the Mortgage Loans; (ii) the
costs and expenses of reproducing and delivering the Pooling and Servicing
Agreement and this Agreement and printing (or otherwise reproducing,) and
delivering the Certificates; (iii) the reasonable and documented fees, costs
and expenses of the Trustee and its counsel; (iv) all accounting fees and
disbursements; (v) the costs and expenses in connection with the qualification
or exemption of the Certificates under state securities or blue sky laws,
including filing fees and reasonable fees and disbursements of counsel in
connection therewith; (vi) the costs and expenses in connection with any
determination of the eligibility of the Certificates for investment by
institutional investors in any jurisdiction and the preparation of any legal
investment survey, including reasonable fees and disbursements of counsel in
connection therewith; (vii) the costs and expenses in connection with printing
(or otherwise reproducing) and delivering the Registration Statement and
Prospectus and the reproducing and delivery of this Agreement and the
furnishing to the Underwriter of such copies of the Registration Statement,
Prospectus and this Agreement as the Underwriter may reasonably request;
(viii) the fees of the rating agency or agencies requested to rate the
Certificates; and (ix) the reasonable fees and expenses of Cadwalader,
Xxxxxxxxxx & Xxxx, counsel to the Underwriters.
SECTION 11. 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.
SECTION 12. Governing Law. This Agreement shall be 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.
SECTION 13. No Third-Party Beneficiaries. The parties do not intend the
benefits of this Agreement to inure to any third party except as expressly set
forth in Section 14.
SECTION 14. Assignment. The Seller hereby acknowledges that the Purchaser
has, concurrently with the execution hereof, executed and delivered the
Pooling and Servicing Agreement and that, in connection therewith, it has
assigned its rights hereunder to the Trustee for the benefit of the
Certificateholders. The Seller hereby acknowledges its obligations, including
that of expense reimbursement, pursuant to Sections 2.02 and 2.04 of the
Pooling and Servicing Agreement. The warranties and representations and the
acknowledgement made by the Seller herein shall survive delivery of the
Mortgage Loans to the Trustee until the termination of the Pooling and
Servicing Agreement.
SECTION 15. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by first class or registered mail, postage prepaid, to
(i) in the case of the Purchaser, X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, (Facsimile No.:
(000) 000-0000), Attention: Real Estate Structured Finance, (ii) in the case
of the Seller, Xxxxxx Guaranty Trust Company of New York, 00 Xxxx Xxxxxx, Xxx
Xxxx, XX 00000, (Facsimile No.: (000) 000-0000),Attention: Real Estate
Structured Finance and (iii) in the case of any of the preceding parties, such
other address as may hereafter be furnished to the other party in writing by
such Parties.
SECTION 16. Amendment. This Agreement may be amended only by a written
instrument which specifically refers to this Agreement and is executed by
Purchaser and Seller. This Agreement shall not be deemed to be amended orally
or by virtue of any continuing custom or practice.
SECTION 17. Counterparts. This Agreement may be executed in any number of
counterparts, and by the parties hereto in separate counterparts, each of
which when executed and delivered shall be deemed to be an original and all of
which taken together shall constitute one and the same instrument.
* * * * * *
IN WITNESS WHEREOF, the Purchaser and the Seller have caused their
names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE
SECURITIES CORP.
By:__________________________________
Name:
Title:
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By:__________________________________
Name:
Title:
EXHIBIT A - EXHIBIT TO FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
MORTGAGE LOAN SCHEDULE
[See Exhibit G to the Pooling and Servicing Agreement]
EXHIBIT TO FORM OF MORTGAGE LOAN PURCHASE AGREEMENT - EXHIBIT "B"
REPRESENTATIONS AND WARRANTIES OF SELLER
(i) No Mortgage Loan is delinquent in payment of principal and
interest beyond any applicable grace period, and no Mortgage Loan has been
more than 30 days (commencing as of the due date set forth in the related
Mortgage Note) past due, in the 12-month period prior to the Delivery Date.
Such non-delinquent status with respect to principal and/or interest is not
due to any advance made by the Seller, or any previous holder of the Mortgage
Loan.
(ii) The Mortgage Loans are fixed rate mortgage loans with terms to
maturity at origination or most recent modification as set forth in the
Mortgage Loan Schedule.
(iii) The Mortgage Loan Schedule, and the information set forth
therein with respect to each Mortgage Loan, is true and correct in all
material respects as of the Cut-off Date.
(iv) At the time of the assignment of the Mortgage Loans to the
Purchaser, the Seller had good and marketable title to and was the sole owner
of, each Mortgage Loan, free and clear of any pledge, lien, charge,
encumbrance, security interest or any other interest (other than the rights to
servicing and related compensation as set forth on Schedule B(iv)) with full
right and authority to sell, assign and transfer the Mortgage Loans to the
Trust, and such assignment transfers all legal and beneficial ownership of the
Mortgage Loans to the Purchaser free and clear of any pledge, lien, charge,
encumbrance, security or any other interest. The related Mortgage Loan
Documents do not contain provisions limiting the ability of the Seller to
assign, transfer and convey such documents.
(v) In respect of each Mortgage Loan, (A) in reliance on public
documents or certified copies of the incorporation or partnership or other
entity documents, as applicable, delivered in connection with the origination
of such Mortgage Loan, the related Mortgagor is an entity organized and
qualified to do business under the laws of a state of the United States of
America, the District of Columbia or the Commonwealth of Puerto Rico and (B)
the Seller has no actual knowledge that the related Mortgagor is a party to,
or the Mortgaged Property is a subject of, any bankruptcy, reorganization,
insolvency or similar proceeding.
(vi) Each Mortgage Loan is secured by the related Mortgage which
establishes and creates in favor of the holder of the Mortgage Loan a valid
and subsisting first priority lien on the related Mortgaged Property, or
leasehold interest therein, comprising real estate, free and clear of any
liens, claims, encumbrances, participation interests, pledges, charges or
security interests subject only to Permitted Encumbrances. Such Mortgage,
together with any separate security agreement or similar agreement, if any,
establishes and creates a first priority security interest in favor of the
Seller in all personal property, including but not limited to elevators, owned
by the Mortgagor that is used in, and is reasonably necessary for, the
operation of the related Mortgaged Property and, to the extent a security
interest may be created therein by filing under the Uniform Commercial Code as
in effect in the relevant jurisdiction, the proceeds arising from the
Mortgaged Property and other collateral securing such Mortgage Loan, subject
only to Permitted Encumbrances. Each Mortgage was properly recorded or, if not
yet recorded, has been submitted for recordation in the applicable
jurisdiction and all applicable mortgage taxes and recording fees have been
paid. There exists with respect to such Mortgaged Property an assignment of
leases and rents ("Assignment of Leases and Rents"), either as part of the
related Mortgage or as a separate document or instrument, which establishes
and creates in favor of the holder of the Mortgage Loan a valid first priority
security interest in and to leases and rents arising in respect of the related
Mortgaged Property, subject only to Permitted Encumbrances. The Seller has the
full right and authority to assign to the Purchaser such Assignment of Leases
and Rents and the lien created thereby. As of the origination of the Mortgage
Loan and, to the Seller's actual knowledge, as of the Closing Date, there are
no mechanics' or other similar liens or claims which have been filed for work,
labor or materials affecting the related Mortgaged Property which are or may
be prior or equal to the lien of the Mortgage, except those which are insured
against pursuant to the applicable Title Insurance Policy (as defined below).
No Mortgaged Property secures any other mortgage loan not represented by the
related Mortgage Note; no Mortgage Loan is cross-defaulted with any other
mortgage loan other than a Mortgage Loan nor is any Mortgage Loan secured by
property which secures another mortgage loan other than a Mortgage Loan.
(vii) The related Mortgagor under each Mortgage Loan has good and
indefeasible fee simple or leasehold title to the related Mortgaged Property,
or leasehold interest therein, comprising real estate except for any portion
thereof subject to a ground lease meeting the requirements of clause (xx) and
except for any Permitted Encumbrances. The buildings and improvements on the
Mortgaged Property are used and occupied for commercial purposes in, to the
Seller's actual knowledge, accordance with applicable law.
(viii) The Seller has received an American Land Title Association
(ALTA) lender's title insurance policy or a comparable form of lender's title
insurance policy (or a title policy commitment or pro forma "marked up" at the
closing of the related Mortgage Loan marked as binding and countersigned by
the title insurer or its authorized agent) as adopted in the applicable
jurisdiction (the "Title Insurance Policy"), which was issued by a title
insurance company qualified to do business in the jurisdiction where the
applicable Mortgaged Property is located, covering the portion of each
Mortgaged Property comprised of real estate and insuring that the related
Mortgage is a valid first lien in the original principal amount of the related
Mortgage Loan on the Mortgagor's fee simple interest (or, if applicable,
leasehold interest) in such Mortgaged Property comprised of real estate after
all advances of principal, subject only to Permitted Encumbrances. Such Title
Insurance Policy was issued in connection with the origination of the related
Mortgage Loan. The Seller, or the Mortgage Loan originator and its successors
and assigns, is the sole named insured of such policy. No claims have been
made under such Title Insurance Policy and neither the Seller nor any prior
holder of the related Mortgage has done anything, by act or omission, and the
Seller has no knowledge of any matter, which would impair or diminish the
coverage of such policy. All premiums on such Title Insurance Policy have been
paid, and such policy is in full force and effect and is assignable to the
Purchaser without the consent of or any notification to the insurer. The
insurer issuing such Title Insurance Policy is qualified to do business in the
jurisdiction in which the Mortgaged Property is located.
(ix) The related Assignment of Mortgage and the related assignment
of the Assignment of Leases and Rents executed in connection with each
Mortgage, if any, constitute the legal, valid and binding assignment of such
Mortgage and the related Assignment of Leases and Rents from the Seller to the
Purchaser. The endorsement of the related Mortgage Note by the Seller is
properly endorsed to the Purchaser and constitutes the legal, valid, binding
and enforceable (except as such enforcement may be limited by anti-deficiency
laws or bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally, and by general principles of
equity (regardless of whether such enforcement is considered in a proceeding
in equity or at law)) assignment of such Mortgage Note, and together with such
Assignment of Mortgage and the related assignment of Assignment of Leases and
Rents, legally and validly conveys all right, title and interest in such
Mortgage Loan and Mortgage Loan Documents to the Purchaser.
(x) (1) Each Mortgage Loan is non-recourse, except that the
Mortgagor and a principal or guarantor which is an individual or entity with
assets other than its interests in the Mortgagor is liable in the event of (a)
fraud or material misrepresentation, (b) misapplication or misappropriation of
rents, insurance proceeds or condemnation awards, (c) acts of actual waste,
(d) violation of applicable environmental laws or breaches of environmental
covenants or (e) any act resulting in the Mortgaged Property becoming an asset
in a voluntary bankruptcy or voluntary insolvency proceeding. No waiver of
liability for such non-recourse exceptions has been granted to the Mortgagor
or any such guarantor or principal.
(2) The Mortgage Loan Documents for each Mortgage Loan contain
provisions such as to render the rights and remedies of the holder
thereof adequate for the practical realization against the Mortgaged
Property of the benefits of the security, including realization by
judicial or, if customary, non-judicial foreclosure, and there is no
exemption available to the related Mortgagor which would interfere with
such right of foreclosure except any statutory right of redemption or as
may be limited by anti-deficiency laws or by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law).
(3) Each of the related Mortgage Loan Documents is the legal,
valid and binding obligation of the parties thereto (subject to any
non-recourse provisions therein), enforceable in accordance with its
terms, except as such enforcement may be limited by anti-deficiency laws
or bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally, and by general principles
of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and except that certain provisions of
such Mortgage Loan Documents are or may be unenforceable in whole or in
part under applicable state or federal laws, but the inclusion of such
provisions does not render any of the Mortgage Loan Documents invalid as
a whole, and such Mortgage Loan Documents taken as a whole are
enforceable to the extent necessary and customary for the practical
realization of the rights and benefits afforded thereby. The Seller has
no actual knowledge that any of the representations and warranties made
by the Mortgagor under such Mortgage Loan are not true and correct in any
material respect. The Seller has not knowingly taken any affirmative
action that would cause the representations and warranties of the related
Mortgagor under the Mortgage Loan not to be true and correct.
(4) The terms of the Mortgage Loans or the related Mortgage
Loan Documents, have not been altered, impaired, modified or waived in
any material respect, except by written instrument contained in the
related Mortgage Loan File and any such alterations, modifications or
waivers have been filed and/or recorded or are being submitted for
recordation to the extent necessary to perfect, maintain and continue the
validity and priority of the lien of the related Mortgage. No
alterations, modifications, assumptions or waivers of any kind have been
given, made or consented to since the earlier to occur of the Cut-off
Date and January 31, 2001 except as set forth in the Mortgage Loan File
and delivered to non-investment grade investors for due diligence.
(5) With respect to each Mortgage which is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in the deed of
trust or has been substituted in accordance with applicable law, and no
fees or expenses are, or will become, payable to the trustee under the
deed of trust, except in connection with a trustee's sale after default
by the Mortgagor or in connection with the release of the related
Mortgaged Property or related security for such Mortgage Loan following
payment of such Mortgage Loan in full and such fees, to the extent
payable to such trustee, are obligations of the Mortgagor.
(xi) No Mortgage Loan has been satisfied, canceled, subordinated,
released or rescinded, in whole or in part, and the related Mortgagor or
guarantor has not been released, in whole or in part, from its obligations
under any related Mortgage Loan Document.
(xii) Neither the Mortgage Loan nor any of the related Mortgage Loan
Documents is subject to any right of rescission, set-off, abatement,
diminution, valid counterclaim or defense, including the defense of usury, nor
will the operation of any of the terms of any such Mortgage Loan Documents, or
the exercise (in compliance with procedures permitted under applicable law) of
any right thereunder, render any Mortgage Loan Documents subject to any right
of rescission, set-off, abatement, diminution, valid counterclaim or defense,
including the defense of usury (subject to anti-deficiency or one form of
action laws and to bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditor's rights generally and by general
principles of equity (regardless of whether such enforcement is considered in
a proceeding in equity or at law)), and no such right of rescission, set-off,
abatement, diminution, valid counterclaim or defense has been asserted with
respect thereto. None of the Mortgage Loan Documents provides for a release of
a portion of the Mortgaged Property from the lien of the Mortgage except upon
payment or defeasance in full of all obligations under the Mortgage, provided
that, notwithstanding the foregoing, certain of the Mortgage Loans may allow
partial release (1) upon payment or defeasance of an allocated loan amount
which may be formula based, or (2) in the event the portion of the Mortgaged
Property being released shall be unimproved and shall not have been given any
value in connection with the underwriting or appraisal of the related Mortgage
Loan.
(xiii) To the extent not otherwise represented herein, there is no
payment default and to the Seller's knowledge, there is no other default,
breach, violation or event of acceleration under any of the related Mortgage
Loan Documents which has a material adverse effect on the Mortgage Loan; no
such default or breach has been waived by the Seller or on its behalf or, to
the Seller's knowledge, by the Seller's predecessors in interest with respect
to the Mortgage Loans; and, to the Seller's knowledge, no event has occurred
which, with the passing of time or giving of notice would constitute a
material default, event of acceleration or breach nor has the Seller waived
any such default. No Mortgage Loan has been accelerated and no foreclosure or
power of sale proceeding has been initiated, or threatened in writing, in
respect of the related Mortgage.
(xiv) (1) The principal amount of the Mortgage Loan stated on the
Mortgage Loan Schedule has been fully disbursed as of the origination date
specified therein and there are no future advances required to be made by the
mortgagee under any of the related Mortgage Loan Documents. Any requirements
under the related Mortgage Loan Documents regarding the completion of any
on-site or off-site improvements and to disbursements of any escrow funds
therefor have been or are being complied with or such escrow funds are still
being held. The value of the Mortgaged Property relative to the value
reflected in the most recent appraisal thereof is not impaired by any
improvements which have not been completed. The Seller has not, nor to the
Seller's knowledge, have any of its agents or predecessors in interest with
respect to the Mortgage Loans, in respect of such Mortgage Loan, directly or
indirectly, advanced funds or knowingly received any advance of funds from a
party other than the Mortgagor for the payment of any amount required by the
Mortgage Loan other than interest accruing on such Mortgage Loan (with respect
to which the Seller, the originator of the Mortgage Loan or an affiliate of
the Mortgagor may have advanced funds with respect to interest accruing from
the date of funding of the related Mortgage Loan to the first regularly
scheduled payment date upon which principal and interest was due thereon),
application and commitment fees, escrow funds, points and reimbursements for
fees and expenses, from the date of origination of such Mortgage Loan or the
date of disbursement of such Mortgage Loan proceeds, whichever is later, to
the Delivery Date.
(2) No Mortgage Loan has capitalized interest included in its
principal balance, or provides for any shared appreciation rights, any
other contingent interest or additional interest contingent on cash flow,
negative amortization, interest only payment or equity participation by
the originator or lender.
(3) Each Mortgage Loan identified in the Mortgage Loan Schedule
as an ARD Loan starts to amortize no later than the first day of the
calendar month immediately after the calendar month in which such ARD
Loan closed and substantially fully amortizes over its stated term, which
term is at least 60 months after the related Anticipated Repayment Date.
Each ARD Loan has an Anticipated Repayment Date not less than seven years
following the origination of such Mortgage Loan. If the related Mortgagor
elects not to prepay its ARD Loan in full on or prior to the Anticipated
Repayment Date pursuant to the existing terms of the Mortgage Loan or a
unilateral option (as defined in Treasury Regulations under Section 1001
of the Code) in the Mortgage Loan exercisable during the term of the
Mortgage Loan, (a) the Mortgage Loan's interest rate will step up to an
interest rate per annum equal to the related Mortgage Interest Rate plus
a percentage specified in the related Mortgage Loan Documents; provided,
however, that payment of such Excess Interest may be deferred until the
principal of such ARD Loan has been paid in full; (b) all or a
substantial portion of the Excess Cash Flow collected after the
Anticipated Repayment Date shall be applied towards the prepayment of
such ARD Loan and once the principal balance of an ARD Loan has been
reduced to zero all Excess Cash Flow will be applied to the payment of
accrued Excess Interest; and (c) if the property manager for the related
Mortgaged Property can be removed by or at the direction of the mortgagee
on the basis of a debt service coverage test, the subject debt service
coverage ratio shall be calculated without taking account any increase in
the related Mortgage Interest Rate on such Mortgage Loan's Anticipated
Repayment Date. No ARD Loan provides that the property manager for the
related Mortgaged Property can be removed by or at the direction of the
mortgagee solely because of the passage of the related Anticipated
Repayment Date.
(4) Each Mortgage Loan identified in the Mortgage Loan Schedule
as an ARD Loan with a hard lockbox requires that tenants at the related
Mortgaged Property shall, and each Mortgage Loan identified in the
Mortgage Loan Schedule as an ARD Loan with a springing lockbox requires
that tenants at the related Mortgaged Property shall, upon the occurrence
of a specified trigger event, including, but not limited to, the
occurrence of the related Anticipated Repayment Date, make rent payments
into a lockbox controlled by the holder of the Mortgage Loan and to which
the holder of the Mortgage Loan has a first perfected security interest;
provided however, with respect to each ARD Loan which is secured by a
multi-family property with a hard lockbox, or with respect to each ARD
Loan which is secured by a multi-family property with a springing
lockbox, upon the occurrence of a specified trigger event, including, but
not limited to, the occurrence of the related Anticipated Repayment Date,
tenants either pay rents to a lockbox controlled by the holder of the
Mortgage Loan or deposit rents with the property manager who will then
deposit the rents into a lockbox controlled by the holder of the Mortgage
Loan. To the extent a hard lockbox is not already in place as of the
Anticipated Repayment Date, each Mortgage Loan designated on the Mortgage
Loan Schedule as an ARD Loan provides that after the Anticipated
Repayment Date, tenants at the related Mortgaged Property shall either
make rent payments into a lockbox controlled by the holder of the
Mortgage Loan and to which the holder of the Mortgage Loan has a first
perfected security interest or deliver rent payments to the property
manager which, within three business days of receipt thereof, shall
deliver the payments into a lockbox controlled by the holder of the
Mortgage Loan and to which the holder of the Mortgage Loan has a first
perfected security interest.
(xv) The terms of the Mortgage Loan Documents evidencing such
Mortgage Loan comply in all material respects with all applicable state or
federal laws, regulations and other material requirements pertaining to usury
and any and all other material requirements of any federal, state or local law
to the extent non-compliance would have a material adverse effect on the
Mortgage Loan.
(xvi) To the Seller's knowledge, as of the date of origination of
the Mortgage Loan, based on inquiry customary in the industry, and to the
Seller's actual knowledge, as of the Delivery Date, the related Mortgaged
Property is, in all material respects, in compliance with, and is used and
occupied in accordance with, all laws, ordinances, rules, regulations,
licenses, permits, restrictive covenants of record applicable to such
Mortgaged Property including applicable zoning and building laws, ordinances,
rules, covenants and restrictions affecting the construction, occupancy, use
and operation of such Mortgaged Property and all inspections, authorizations,
licenses and certificates, including certificates of occupancy required by
law, ordinance or regulation to be made or issued with regard to the Mortgaged
Property have been obtained and are in full force and effect, except to the
extent the failure to obtain or maintain such inspections, licenses or
certificates of occupancy do not materially impair the current use of the
Mortgaged Property or the rights of a holder of the related Mortgage Loan. Any
material non-conformity with zoning laws constitutes a legal non-conforming
use or structure which, in the event of casualty or destruction, may be
restored or repaired to the full extent of the use or structure at the time of
such casualty, or for which law and ordinance insurance coverage has been
obtained in amounts customarily required by prudent commercial mortgage
lenders. Each Mortgage Loan requires the related Mortgagor to be in material
compliance with all regulations, licenses, permits, authorizations,
restrictive covenants and zoning and building laws, in each case to the extent
required by law or to the extent that the failure to be in compliance would
have a material and adverse effect upon the related Mortgagor or Mortgaged
Property or the enforceability of the Mortgage Loan.
(xvii) All taxes, governmental assessments, ground rents,
assessments or other similar outstanding charges affecting the Mortgaged
Property which became due and owing prior to the Closing Date in respect of
the related Mortgaged Property (excluding any related personal property) and
which, if left unpaid, would be, or might become, a lien on such Mortgaged
Property having priority over the related Mortgage, have been paid, or an
escrow of funds in an amount sufficient to cover such taxes and assessments
has been established. The Seller has no actual knowledge of any taxes,
assessments or other similar outstanding charges affecting the Mortgaged
Property which are past due and upon which interest and penalties have
commenced to accrue. As of the date of origination, the related Mortgaged
Property was one or more separate and complete tax parcels.
(xviii) None of the improvements that were included for the purpose
of determining the appraised value of such Mortgaged Property at the time of
the origination of such Mortgage Loan lies outside the boundaries and building
restriction lines of such Mortgaged Property, and no improvements on adjoining
properties encroach upon such Mortgaged Property, except in each case for
immaterial encroachments which do not materially adversely affect the security
intended to be provided by the related Mortgage or the use, enjoyment, value
or marketability of such Mortgaged Property and those encroachments onto
adjoining parcels which are insured against forced removal by the applicable
Title Insurance Policy. With respect to each Mortgage Loan, the property
legally described in the survey, if any, obtained for the related Mortgaged
Property for purposes of the origination thereof is the same as the property
legally described in the Mortgage. With respect to each Mortgage Loan, all
improvements included in any appraisals are within the boundaries of the
related Mortgaged Property except in each case for immaterial encroachments
which do not materially adversely affect the security intended to be provided
by the related Mortgage or the use, enjoyment, value or marketability of such
Mortgaged Property or for which title insurance has been obtained.
(xix) (1) As of the date of the applicable engineering report
related to the Mortgaged Property and, to the Seller's knowledge, in reliance
on an engineering report prepared not more than 12 months prior to the
origination date of the related Mortgage Loan, to the extent available, as of
the Closing Date, the related Mortgaged Property is in good repair and free
and clear of any damage that would materially adversely affect the value of
such Mortgaged Property as security for such Mortgage Loan (except for which
sums have been escrowed) and such Mortgaged Property has not been damaged by
fire, wind or other casualty or physical condition (including, without
limitation, any soil erosion or subsidence or geological condition), which
damage has not been fully repaired or for which escrows have not been
established.
(2) As of the Cut-off Date and to the Seller's actual
knowledge, as of the Closing Date, there are no proceedings pending or,
to the Seller's knowledge, threatened, for the partial or total
condemnation of the relevant Mortgaged Property.
(xx) The one (1) Mortgaged Property secured in whole or in part by a
leasehold estate (a "Ground Lease"), satisfies the following conditions:
(1) such Ground Lease or a memorandum thereof has been or will
be duly recorded; such Ground Lease, or other agreement received by the
originator of the Mortgage Loan from the ground lessor, provides that the
interest of the lessee thereunder may be encumbered by the related
Mortgage and does not restrict the use of the related Mortgaged Property
by such lessee, its successors or assigns, in a manner that would
materially and adversely affect the security provided by the Mortgage;
Seller has no knowledge of any material change of record in the terms of
such Ground Lease since its recordation, with the exception of written
instruments which are part of the related Mortgage Loan File;
(2) such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the related
Mortgage, other than the related fee interest and Permitted Encumbrances
and such Ground Lease is, and shall remain, prior to any mortgage or
other lien upon the related fee interest unless a nondisturbance
agreement reasonably acceptable to the holder of the Mortgage Loan is
obtained from the holder of any mortgage on the fee interest which is
assignable to or for the benefit of the related lessee and the related
mortgagee;
(3) such Ground Lease provides that upon foreclosure of the
related Mortgage or assignment of the Mortgagor's interest in such Ground
Lease in lieu thereof, the mortgagee under such Mortgage is entitled to
become the owner of such interest upon notice to, but without the consent
of, the lessor thereunder and, in the event that such mortgagee becomes
the owner of such interest, such interest is further assignable by such
mortgagee and its successors and assigns upon notice to such lessor, but
without a need to obtain the consent of such lessor;
(4) such Ground Lease is in full force and effect and no
default of tenant or ground lessor was in existence at origination, or to
the Seller's knowledge, is currently in existence, under such Ground
Lease, nor, at origination was, or to the Seller's knowledge is, there
any condition which, but for the passage of time or the giving of notice,
would result in a default under the terms of such Ground Lease and the
Seller has provided the ground lessor with notice of its lien, if
required, in accordance with the terms of such Ground Lease; as of the
Closing Date, the Seller has not received written notice of any default
under such Ground Lease; either such Ground Lease or a separate agreement
contains the ground lessor's covenant that it shall not amend, modify,
cancel or terminate such Ground Lease without the prior written consent
of the mortgagee under such Mortgage and any amendment, modification,
cancellation or termination of the Ground Lease without the prior written
consent of the related mortgagee, or its successors or assigns is not
binding on such mortgagee, or its successor or assigns;
(5) such Ground Lease or other agreement requires the lessor
thereunder to give notice of any material default by the lessee to the
mortgagee under the related Mortgage, provided that such mortgagee has
provided the lessor with notice of its lien in accordance with the
provisions of such Ground Lease; and such Ground Lease or other agreement
provides that no such notice of default and no termination of the Ground
Lease in connection with such notice of default shall be effective
against such mortgagee unless such notice of default has been given to
such mortgagee and any related Ground Lease contains the ground lessor's
covenant that it will give to the related mortgagee, or its successors or
assigns, any notices it sends to the Mortgagor;
(6) Either (A) the related ground lessor has subordinated its
interest in the related Mortgaged Property to the interest of the holder
of the Mortgage Loan or (B) such Ground Lease or other agreement provides
that (i) the mortgagee under the related Mortgage is permitted a
reasonable opportunity (including, where necessary, sufficient time to
gain possession of the interest of the lessee under such Ground Lease
through legal proceedings or to take such other action so long as the
mortgage is proceeding diligently) to cure any default under such Ground
Lease which is curable after the receipt of notice of any such default
before the lessor thereunder may terminate such Ground Lease; (ii) in the
case of any such default which is not curable by such mortgagee, or in
the event of the bankruptcy or insolvency of the lessee under such Ground
Lease, such mortgagee has the right, following termination of the
existing Ground Lease or rejection thereof by a bankruptcy trustee or
similar party, to enter into a new ground lease with the lessor on
substantially the same terms as the existing Ground Lease; and (iii) all
rights of the Mortgagor under such Ground Lease (insofar as it relates to
the Ground Lease) may be exercised by or on behalf of such mortgagee
under the related Mortgage upon foreclosure or assignment in lieu of
foreclosure;
(7) such Ground Lease has an original term (or an original term
plus one or more optional renewal terms that under all circumstances may
be exercised, and will be enforceable, by the mortgagee or its assignee)
which extends not less than 10 years beyond the stated amortization
period of the related Mortgage Loan;
(8) under the terms of such Ground Lease and the related
Mortgage, taken together, any related condemnation or insurance proceeds
or awards other than in respect of a total or substantially total loss or
taking will be applied either to the repair or restoration of all or part
of the related Mortgaged Property, with the mortgagee under such Mortgage
or a financially responsible institution acting as trustee appointed by
it or by the lessor having the right to hold and disburse such proceeds
as the repair or restoration progresses (except in such cases where a
provision entitling another party to hold and disburse such proceeds
would not be viewed as commercially unreasonable by a prudent
institutional lender), or to the payment in whole or in part of the
outstanding principal balance of such Mortgage Loan together with any
accrued and unpaid interest thereon under the terms of the related
Mortgage, any condemnation or insurance proceeds or awards in respect of
a total or substantially total loss or taking may be applied first to the
payment of the outstanding principal and interest on the Mortgage Loan
(except as otherwise provided by applicable law); and
(9) such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by the
Seller in compliance with the Seller's underwriting standards and
guidelines; such Ground Lease contains a covenant (or applicable laws
provide) that the lessor thereunder is not permitted, in the absence of
an uncured default, to disturb the possession, interest or quiet
enjoyment of any lessee in the relevant portion of such Mortgaged
Property subject to such Ground Lease for any reason, or in any manner,
which would materially adversely affect the security provided by the
related Mortgage.
(xxi) (1) An Environmental Site Assessment covering all
environmental hazards typically assessed for similar properties was prepared
in connection with the origination of the related Mortgage Loan and updated
thereafter such that such Environmental Site Assessment is dated not more than
12 months prior to the origination date of the related Mortgage Loan), and
either (x) no such Environmental Site Assessment reveals any known
circumstances or conditions with respect to the related Mortgaged Property
that rendered such Mortgaged Property, at the date of such Environmental Site
Assessment, in violation of any applicable environmental laws or (y) if any
such Environmental Site Assessment does reveal any violation of applicable
environmental laws with respect to the related Mortgaged Property, then either
(i) the same have been remediated in all material respects, or (ii) sufficient
funds, based upon an engineer's recommendation, have been escrowed for
purposes of effecting such remediation and the related Mortgagor or other
responsible party is required to take such actions, if any, with respect to
such circumstances or conditions as have been recommended by the Environmental
Site Assessment or required by the applicable governmental regulatory
authority (including implementation of an operations and maintenance
agreement). To the Seller's knowledge, there are no circumstances or
conditions with respect to such Mortgaged Property not revealed in such
Environmental Site Assessment that requires remediation or would otherwise
render such Mortgaged Property in violation of any applicable environmental
laws and no notice of violation of such laws has been issued by any
governmental agency or authority except as indicated in the Environmental Site
Assessments delivered to the Purchaser .
(2) To the Seller's actual knowledge and in reliance upon the
Environmental Site Assessment, except for any Hazardous Materials being
handled in accordance with applicable Environmental Laws and except for
any Hazardous Materials present at such Mortgaged Property for which, to
the extent that an Environmental Site Assessment recommends remediation
or other action, there exists an amount in an escrow account pledged as
security for such Mortgage Loan under the relevant Mortgage Loan
Documents estimated in such Environmental Site Assessment as sufficient
to pay the cost of such remediation or other action in accordance with
such Environmental Site Assessment, (i) such Mortgaged Property is not
being nor has it been used for the treatment or disposal of Hazardous
Materials; (ii) no Hazardous Materials are being used or stored or
generated for off-site disposal or otherwise present at such Mortgaged
Property other than Hazardous Materials of such types and in such
quantities as are customarily used or stored or generated for off-site
disposal or otherwise present in or at properties of the relevant
property type; (iii) such Mortgaged Property is not listed by any
governmental agency as containing any Hazardous Materials in violation of
applicable laws; and (iv) such Mortgaged Property is not subject to any
environmental hazard (including, without limitation, any situation
involving Hazardous Materials) which under the Environmental Laws would
have to be eliminated before the sale of, or which could otherwise
reasonably be expected to adversely affect in more than a de minimis
manner the value or marketability of, such Mortgaged Property.
(3) All such Environmental Site Assessments or any other
environmental assessments that were in the possession of the Seller and
that relate to any Mortgaged Property have been delivered to the
Purchaser. All such Environmental Site Assessments or any other
environmental assessments that were in the possession of the Seller and
that relate to a Mortgaged Property which is insured by an environmental
insurance policy or a secured creditor environmental impairment policy
have been delivered to or disclosed to the environmental insurance
carrier issuing such policy prior to the issuance of such policy if
required by the environmental insurance carrier issuing such policy or if
failure to do so would impair the coverage provided by such policy. Each
Mortgage requires the related Mortgagor to comply, and to cause the
related Mortgaged Property to be in compliance, with all applicable
federal, state and local environmental laws and regulations. The Seller
has not taken any action which would cause the Mortgaged Property not to
be in compliance with all federal, state and local laws pertaining to
environmental hazards. Each Mortgagor represents and warrants in the
related Mortgage Loan Documents that, except as set forth in certain
specified environmental reports and to the best of its knowledge, it has
not used, caused or permitted to exist and will not use, cause or permit
to exist on the related Mortgaged Property any hazardous materials in any
manner which violates federal, state or local laws, ordinances,
regulations, orders, directives, or policies governing the use, storage,
treatment, transportation, manufacture, refinement, handling, production
or disposal of hazardous materials. The related Mortgagor (or an
affiliate thereof) has agreed to indemnify, defend and hold the Seller
and its successors and assigns harmless from and against any and all
losses, liabilities, damages, injuries, penalties, fines, expenses and
claims of any kind or nature whatsoever (including, without limitation,
attorneys' fees and expenses) paid, incurred or suffered by or asserted
against, any such party resulting from a breach of environmental
representations, warranties or covenants given by the Mortgagor in
connection with such Mortgage Loan.
(xxii) As of the date of origination of the related Mortgage Loan,
and to the Seller's knowledge, as of the Delivery Date, after consultation
with the related servicer, the Mortgaged Property is covered by insurance
policies ("Insurance Policies") providing the coverage described below or
permits the Mortgagee to require the coverage described below. All premiums
with respect to the Insurance Policies insuring each Mortgaged Property have
been paid in a timely manner or escrowed to the extent required by the
Mortgage Loan Documents, the Seller has not received any notice of
cancellation or termination and, to the Seller's knowledge, all such insurance
is in full force and effect. The relevant Mortgage Loan File contains the
Insurance Policy required for such Mortgage Loan or a certificate of insurance
for such Insurance Policy. Each Mortgage requires that the related Mortgaged
Property and all improvements thereon are covered by Insurance Policies
reasonably prescribed by the related mortgagee or providing coverage in the
amount of the lesser of full replacement cost of such Mortgaged Property and
the outstanding principal balance of the related Mortgage Loan (subject to
customary deductibles) sustained by (A) fire and extended perils included
within the classification "All Risk of Physical Loss" in an amount sufficient
to prevent the Mortgagor from being deemed a co-insurer and to provide
coverage on a full replacement cost basis of such Mortgaged Property with no
deduction for depreciation if the insurance proceeds are utilized for the
restoration of the Mortgaged Property (in some cases exclusive of foundations
and footings) or some other predetermined value basis; such policies contain a
standard mortgage clause naming mortgagee and its successor in interest as
additional insureds; (B) business interruption or rental loss insurance in an
amount at least equal to 12 months of operations; (C) flood insurance (if any
portion of the improvements on the Mortgaged Property is located in an area
identified by the Federal Emergency Management Agency, with respect to certain
Mortgage Loans and the Secretary of Housing and Urban Development with respect
to other Mortgage Loans, as having special flood hazards); (D) workers'
compensation, if required by law; (E) comprehensive general liability
insurance in amounts as are generally required by commercial mortgage lenders,
but not less than $1 million; an architectural or engineering consultant has
performed an analysis of each of the Mortgaged Properties located in seismic
zones 3 or 4 in order to evaluate the structural and seismic condition of such
property, for the sole purpose of assessing the probable maximum loss ("PML")
for the Mortgaged Property in the event of an earthquake. In such instance,
the PML was based on a return period of not less than 100 years, an exposure
period of 50 years and a 10% probability of excedence. If the resulting report
concluded that the PML would exceed 20% of the amount of the replacement costs
of the improvements, earthquake insurance on such Mortgaged Property was
obtained by an insurer rated at least A:X by A.M. Best Company or "BBB-" (or
the equivalent) from Xxxxx'x Investor Services, Inc., Standard & Poor's Rating
Services or its equivalent. All such Insurance Policies contain clauses
providing they are not terminable and may not be reduced, terminated or
expire, without thirty (30) days prior written notice to the mortgagee (except
where applicable law requires a shorter period or except for nonpayment of
premiums, in which case not less than ten (10) days prior written notice to
the mortgagee is required). In addition, each Mortgage shall permit the
related mortgagee to make premium payments to prevent the cancellation thereof
and shall entitle such mortgagee to reimbursement therefor. Any insurance
proceeds in respect of a casualty loss or taking will be applied either to the
repair or restoration of all or part of the related Mortgaged Property or the
payment of the outstanding principal balance of the related Mortgage Loan
together with any accrued interest thereon, except for excess proceeds
required to be released to the related Mortgagor except as may otherwise be
provided in the applicable Ground Lease. Additionally, for any Mortgage Loan
having an unpaid principal balance equal to or greater than 5% of the total
unpaid principal balance of all of the Mortgage Loans, the Insurer has a
claims paying ability rating from the Rating Agency or A.M. Best of not less
than `A' (or the equivalent).
(xxiii) All amounts required to be deposited by each Mortgagor at
origination under the related Mortgage Loan Documents have been deposited or
have been withheld from the related Mortgage Loan proceeds at origination and
there are no deficiencies with regard thereto.
(xxiv) To the Seller's knowledge, as of the date of origination of
the related Mortgage Loan, and, to the Seller's actual knowledge, as of the
Delivery Date, there are no actions, suits, arbitrations, investigation or
other proceedings by or before any court or other governmental authority or
agency or private arbitrator or mediator, now pending against or affecting the
Mortgagor under any Mortgage Loan, any guarantor or any of the Mortgaged
Properties which, if determined against such Mortgagor or such Mortgaged
Property, would materially and adversely affect the value of such Mortgaged
Property, the ability of such Mortgagor and/or such Mortgaged Property to
generate net cash flow to pay principal, interest and other amounts due under
the related Mortgage Loan, the enforceability of the Mortgage Loan or
Mortgage, the practical realization against the Mortgaged Property or the
ability of any guarantor to satisfy any liability or obligation; and to the
Seller's actual knowledge there are no such actions, suits or proceedings
threatened against such Mortgagor, Mortgaged Property or guarantor.
(xxv) Each Mortgage Loan complied at origination, in all material
respects, with all of the terms, conditions and requirements of the Seller's,
or if the Seller is not the originator, then the originator's, underwriting
standards applicable to such Mortgage Loan. All requirements of relevant
federal, state and local law, rules and regulations relating to the
origination, funding, servicing and the terms of the Mortgage Loans,
including, without limitation, usury have been satisfied or complied with in
all material respects to the extent necessary to permit enforcement of the
Mortgage Loan. The servicing and collection practices used with respect to
each Mortgage Loan meet customary standards utilized by prudent commercial
mortgage loan servicers.
(xxvi) The originator of the Mortgage Loan or the Seller has
inspected or caused to be inspected each related Mortgaged Property within the
last 12 months.
(xxvii) Each Mortgage requires the Mortgagor to provide the holder
of the Mortgage Loan with quarterly and annual operating statements, rent
rolls and related information and annual financial statements.
(xxviii) All escrow deposits and payments required by the terms of
each Mortgage Loan are in the possession, or under the control of the Seller,
and all amounts required to be deposited by the applicable Mortgagor under the
related Mortgage Loan Documents have been deposited, and there are no
deficiencies with regard thereto. All of the Seller's interest in such escrows
and deposits will be conveyed by the Seller to the Purchaser hereunder and
identified as such with appropriate detail.
(xxix) No two or more Mortgage Loans representing more than 5% of
the aggregate outstanding principal amount of all the mortgage loans included
in the Trust Fund has the same Mortgagor or, to the Seller's knowledge, are to
Mortgagors which are entities controlled by one another or under common
control.
(xxx) (1) Each Mortgage Loan with an original principal balance over
$5,000,000 requires the Mortgagor to own no assets other than the related
Mortgaged Property and all property used in connection with the Mortgaged
Property.
(2) Each Mortgage Loan with an original principal balance over
$10,000,000 requires the Mortgagor to be, and to Seller's knowledge, such
Mortgagors are, entities whose organizational documents provide that it
is, and at least so long as the Mortgage Loan is outstanding will
continue to be, a Single-Purpose Entity. For this purpose,
"Single-Purpose Entity" means a person, other than an individual, which
was formed or is organized solely for the purpose of owning and operating
the related Mortgaged Property or Properties; does not engage in any
business unrelated to such Mortgaged Property or Properties and the
financing thereof; and whose organizational documents provide,
substantially to the effect that (a) such Mortgagor does not and will not
have any material assets other than those related to its interest in such
Mortgaged Property or Properties or the financing thereof, (b) does not
and will not have any indebtedness other than as permitted by the related
Mortgage or other related Mortgage Loan Documents, (c) that any
dissolution and winding up or insolvency filing for such entity requires
the unanimous consent of all partners or members, as applicable, and (d)
that such organizational documents may not be amended with respect to the
Single-Purpose Entity requirements during the term of the Mortgage Loan
without Mortgagee's consent. To Seller's actual knowledge, each Mortgagor
has complied with the requirements of the related Mortgage Loan and the
Mortgagor's organizational documents regarding Single-Purpose Entity
status.
(3) The organizational documents for each Mortgagor, or group
of affiliated Mortgagors with Mortgage Loans having an unpaid principal
balance equal to or greater than $20 million require the Mortgagor to
have an outside independent director or member and the Mortgage File for
each such Mortgage Loan, or group of Mortgage Loans, contains a counsel's
opinion regarding non-consolidation of the Mortgagor in any insolvency
proceeding involving certain related parties set forth therein. The
organizational documents of any Mortgagor with respect to any Mortgage
Loan having an unpaid principal balance equal to or greater than $20
million which is single member limited liability company provide that the
Mortgagor shall not dissolve or liquidate upon the bankruptcy,
dissolution, liquidation or death of the sole member. Any such single
member limited liability company Mortgagors with respect to any Mortgage
Loan having an unpaid principal balance equal to or greater than $20
million are organized in jurisdictions that provide for such continued
existence and the Mortgage Loan File contains an opinion of such
Mortgagor's counsel confirming such continued existence.
(xxxi) The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (A) such Mortgage Loan is secured by an interest
in real property having a fair market value (1) at the date the Mortgage Loan
was originated at least equal to 80 percent of the original principal balance
of the Mortgage Loan or (2) at the Delivery Date at least equal to 80 percent
of the original principal balance of the Mortgage Loan on such date; provided
that for purposes hereof, the fair market value of the real property interest
must first be reduced by (X) the amount of any lien on the real property
interest that is senior to the Mortgage Loan and (Y) a proportionate amount of
any lien that is in parity with the Mortgage Loan (unless such other lien
secures a Mortgage Loan that is cross-collateralized with such Mortgage Loan,
in which event the computation described in clauses (1) and (2) of this
paragraph (xxxi) shall be made on a pro rata basis in accordance with the fair
market values of the Mortgaged Properties securing such cross-collateralized
Mortgage Loan; or (B) substantially all the proceeds of such Mortgage Loan
were used to acquire, improve or protect the real property which served as the
only security for such Mortgage Loan (other than a recourse feature or other
third party credit enhancement within the meaning of Treasury Regulations
Section 1.860G-2(a)(1)(ii)). If the Mortgage Loan was "significantly modified"
prior to the Delivery Date so as to result in a taxable exchange under Section
1001 of the Code, it either (i) was modified as a result of the default or
reasonably foreseeable default of such Mortgage Loan or (ii) satisfies the
provisions of either clause (A)(1) above (substituting the date on the last
such modification for the date the Mortgage Loan was originated) or clause
(A)(2), including the proviso thereto.
(xxxii) Each of the Mortgage Loans contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without the prior written consent of the
holder, the property subject to the Mortgage, or any controlling interest
therein, is directly or indirectly transferred or sold (except that it may
provide for assignments subject to the holder's approval of transferee (and
satisfaction of certain conditions specified in the Mortgage Loan Documents),
transfers to affiliates or transfers of passive interests so long as the key
principals or general partner retains control). The Mortgage prohibits any
further pledge or lien on the Mortgaged Property, whether equal or subordinate
to the lien of the Mortgage, unless the prior written consent of the holder is
obtained or certain conditions set forth on the Mortgage Loan are satisfied.
The Mortgage requires the Mortgagor to pay all fees and expenses associated
with securing the consent or approval of the holder of the Mortgage for all
actions requiring such consent or approval under the Mortgage including the
cost of counsel opinions relating to REMIC or other securitization and tax
issues. To the Seller's knowledge, no person other than the Mortgagor and the
holder of the Mortgage Loan has or owns any interest in any payments under the
related leases.
(xxxiii) Each Mortgage Loan is a whole loan and not a participation
interest in a mortgage loan.
(xxxiv) Intentionally omitted.
(xxxv) With respect to each Mortgage Loan, a separate guaranty for
losses related to fraud and certain environmental conditions has been obtained
from one or more principals of the related Mortgagor.
(xxxvi) Each Mortgage Loan containing provisions for defeasance of
mortgage collateral provides that: defeasance may not occur any earlier than
two years after the Closing Date; and requires either (i) the prior written
consent of, and compliance with the conditions set by, the holder of the
Mortgage Loan to any defeasance, or (ii) (A) the replacement collateral
consist of U.S. "government securities," within the meaning of Treas. Reg.
ss.1.860 G-2(a)(8)(i), in an amount sufficient to make all scheduled payments
under the Mortgage Note when due; (B) the loan may be assumed by a Single
Purpose Entity approved by the holder of the Mortgage Loan; (C) counsel
provide a REMIC opinion and an opinion that the trustee has a perfected
security interest in such collateral prior to any other claim or interest; (D)
a letter from the applicable rating agency confirming that the defeasance will
not result in a downgrade or qualification of ratings on any classes of
securities in the transaction; and (E) such other documents and certifications
as the mortgagee may reasonably require which may include, without limitation,
(i) a certification that the purpose of the defeasance is to facilitate the
disposition of the mortgage real property or any other customary commercial
transaction and not to be part of an arrangement to collateralize a REMIC
offering with obligations that are not real estate mortgages and (ii) a
certification from an independent certified public accountant that the
collateral is sufficient to make all scheduled payments under the Mortgage
Note when due. Each Mortgage Loan containing provisions for defeasance
provides that, in addition to any cost associated with defeasance (including,
without limitation, all rating agency fees), the related Mortgagor shall pay,
as of the date the mortgage collateral is defeased, all scheduled and accrued
interest and principal due as well as an amount sufficient to defease in full
the Mortgage Loan.
(xxxvii) In the event that a Mortgage Loan is secured by more than
one Mortgaged Property, a Mortgaged Property may not be released as collateral
for the related Mortgage Loan unless, in connection with such release, an
amount equal to not less than 125% of the Allocated Loan Amount for such
Mortgaged Property is prepaid or, in the case of a defeasance, an amount
sufficient to make all scheduled payments with respect to 125% of the
Allocated Loan Amount is defeased.
(xxxviii) Neither the Seller nor any affiliate thereof has any
obligation to make any capital contributions to the related Mortgagor under
the Mortgage Loan. The Mortgage Loan was not originated for the sole purpose
of financing the construction of incomplete improvements on the related
Mortgaged Property.
(xxxix) A UCC financing statement has been filed and/or recorded in
all places necessary to perfect a valid first priority security interest in
the personal property granted under each Mortgage (and any related security
agreement), which in all cases includes all furniture, fixtures and, equipment
material to the Mortgaged Property (including, without limitation, all
elevators) and, if such Mortgaged Property is operated by the Mortgagor
primarily as a hotel, mobile home park, restaurant, fitness center or
self-storage facility, the Seller has a security interest in all personal
property required to operate the Mortgagor's business in which the Mortgagor
has an interest. In the case of each Mortgage Loan secured by a hotel, mobile
home park, restaurant, fitness center or self-storage facility, assuming that
the personal property is the type which may be perfected by filing under
Article 9 of the Uniform Commercial Code, upon the proper indexing and filing
of the UCC financing statements, such filing will perfect a security interest
in the collateral covered thereby (other than with respect to items that
require recordation in the real property records).
(xl) No person other than the applicable servicer identified on
Schedule B(iv) has been granted or conveyed the right to service the Mortgage
Loans or receive any consideration in connection therewith.
(xli) With respect to any Mortgage Loan secured in whole or in part
by the interest of a Mortgagor under a Ground Lease and by the related Fee
Interest, such Fee Interest is subordinate to the related Mortgage and the
related Ground Lease is not and will not be subordinated to the lien of any
mortgage or other lien upon such Fee Interest other than Permitted
Encumbrances.
(xlii) Each Mortgage Loan and related collateral comply with all
Real Estate Mortgage Investment Conduit (REMIC) rules and regulations
including, but not limited to, the fact that such Mortgage Loan constitutes a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the
related Mortgage Property would constitute "foreclosure property" within the
meaning of Section 860G(a)(8) and any prepayment premium provided for in any
Mortgage Loan constitutes a "customary prepayment penalty" within the meaning
of Treasury Regulation Section 1.860G-1(b)(2).
(xliii) To the extent required under applicable law, as of the
Mortgage Loan funding date, the originator of each Mortgage Loan was
authorized to do business in the jurisdiction in which the related Mortgaged
Property is located at all times when it held the Mortgage Loan.
(xliv) The Seller is in possession of the related Mortgage Loan File
which contains all of the documents required pursuant to the terms of the
Pooling and Servicing Agreement, including but to limited to the related
Mortgage, Mortgage Note, Security Agreement and all material amendments
thereof.
(xlv) No fraud with respect to such Mortgage Loan has taken place on
the part of the Seller or Seller's employees or to the actual knowledge of the
Seller any originator nor, to the Seller's actual knowledge, on the part of
the Mortgagor, in connection with the origination of such Mortgage Loan.
(xlvi) The following statements are true with respect to each
Mortgaged Property: (i) the Mortgaged Property is located on or adjacent to a
public road, or has access to an irrevocable easement permitting ingress and
egress, (ii) the Mortgaged Property is served by public utilities, water and
sewer (or septic facilities), (iii) the Mortgaged Property has parking
materially in compliance with the requirements of applicable law, including
local ordinances, and (iv) to the extent the Mortgaged Property consists of
two or more adjoining parcels, such parcels are contiguous.
(xlvii) As of the Closing Date, neither the related Mortgagor nor
the Mortgaged Property is the subject of any state or federal bankruptcy or
insolvency proceeding. At the origination of such Mortgage Loan, no guarantor
was a debtor in any pending state or federal bankruptcy or insolvency
proceeding. Furthermore, at the Closing Date, without having reviewed any
public records, the Seller has no knowledge that any guarantor has become,
since origination of the related Mortgage Loan, a debtor in any pending state
or federal bankruptcy or insolvency proceeding.
(xlviii) Such Mortgage Loan does not permit the related Mortgaged
Property to be encumbered subsequent to the Closing Date by any lien junior to
or of equal or superior priority with the lien of the related Mortgage without
the prior written consent of the holder thereof.
(xlix) The Mortgage File contains an appraisal of the related
Mortgaged Property, which appraisal is signed by a qualified appraiser, who,
to the best of the Seller's knowledge, had no interest, direct or indirect, in
the Mortgaged Property or the Mortgagor or in any loan made on the security
thereof, and whose compensation is not affected by the approval or disapproval
of the Mortgage Loan; the appraisal and appraiser both satisfy the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation, all as
in effect on the date the Mortgage Loan was originated.
(l) The Seller has not deliberately selected mortgage loans for
sale, assignment and transfer to the Purchaser hereunder which, to the
Seller's actual knowledge, are expected to result in delinquencies and losses
on Mortgage Loans being materially in excess of delinquencies and losses on
the Seller's portfolio of similar commercial mortgage loans or which would
otherwise adversely affect the interests of the Certificateholders.
Defined Terms:
-------------
The term "Allocated Loan Amount" shall mean, for each Mortgaged
Property, the portion of principal of the related Mortgage Loan allocated to
such Mortgaged Property for certain purposes (including determining the
release prices of properties, if permitted) under such Mortgage Loan as set
forth in the related loan documents. There can be no assurance, and it is
unlikely, that the Allocated Loan Amounts represent the current values of
individual Mortgaged Properties, the price at which an individual Mortgaged
Property could be sold in the future to a willing buyer or the replacement
cost of the Mortgaged Properties.
The term "Anticipated Repayment Date" shall mean the date on which
all or substantially all of any Excess Cash Flow is required to be applied
toward prepayment of the relevant Mortgage Loan and on which any such Mortgage
Loan begins accruing Excess Interest.
The term "ARD Loan" shall mean those loans identified as such on the
Mortgage Loan Schedule.
The term "Excess Cash Flow" shall mean the cash flow from the
Mortgaged Property securing an ARD Loan, if any, after payments of interest
(at the Mortgage Interest Rate) and principal (based on the amortization
schedule), and (i) required payments for the tax and insurance fund and ground
lease escrows fund, (ii) payment of monthly debt service, (iii) payments to
any other required escrow funds and (iv) payment of operating expenses
pursuant to the terms of an annual budget approved by the Master Servicer and
discretionary (lender approved) capital expenditures or in an amount which is
capped at 1/12 of 105% of the prior year's operating expenses.
The term "Excess Interest" shall mean any accrued and deferred
interest on an ARD Loan in accordance with the following terms. Commencing on
the respective Anticipated Repayment Date each ARD Loan (pursuant to its
existing terms or a unilateral option, as defined in Treasury Regulations
under Section 1001 of the Code, in the Mortgage Loans exercisable during the
term of the Mortgage Loan) generally will bear interest at a fixed rate (the
"Revised Rate") per annum equal to the Mortgage Interest Rate plus a
percentage specified in the related Mortgage Loan Documents. Until the
principal balance of each such Mortgage Loan has been reduced to zero
(pursuant to its existing terms or a unilateral option, as defined in Treasury
Regulations under Section 1001 of the Code, in the Mortgage Loans exercisable
during the term of the Mortgage Loan), such Mortgage Loan will only be
required to pay interest at the Mortgage Interest Rate and the interest
accrued at the excess of the related Revised Rate over the related Mortgage
Interest Rate will be deferred (such accrued and deferred interest and
interest thereon, if any, is "Excess Interest").
The term "Environmental Site Assessment" shall mean a Phase I
environmental report meeting the requirements of the American Society for
Testing and Materials and, if required by the Seller, a Phase II environmental
report, each prepared by a licensed third party professional experienced in
environmental matters.
The term "in reliance on" shall mean that:
(1) the Seller has examined and relied in whole or in
part upon one or more of the specified documents or other information in
connection with a given representation or warranty;
(2) that the information contained in such document or
otherwise obtained by the Seller appears on its face to be consistent in
all material respects with the substance of such representation or
warranty;
(3) the Seller's reliance on such document or other information
is consistent with the standard of care exercised by prudent lending
institutions originating commercial mortgage loans; and
(4) although the Seller is under no obligation to verify
independently the information contained in any document specified as
being relied upon by it, the Seller believes the information contained
therein to be true, accurate and complete in all material respects and
has no actual knowledge of any facts or circumstances which would render
reliance thereon unjustified without further inquiry.
The term "Mortgage Interest Rate" shall mean the fixed rate of
interest per annum that each Mortgage Loan bears as of the Cut-off Date.
The term "Permitted Encumbrances" shall mean:
(1) the lien of current real property taxes, water charges,
sewer rents and assessments not yet due and payable;
(2) covenants, conditions and restrictions, rights of way,
easements and other matters of public record specifically referred to in
the lender's title insurance commitment or Title Insurance Policy and
acceptable to mortgage lending institutions generally;
(3) other matters to which like properties are commonly
subject; and
(4) the rights of tenants, as tenants only, whether under
ground leases or space leases at the Mortgaged Property.
which together do not materially and adversely affect the related Mortgagor's
ability to timely make payments on the related Mortgage Loan, which do not
materially interfere with the benefits of the security intended to be provided
by the related Mortgage or the use, for the use currently being made, the
operation as currently being operated, enjoyment, value or marketability of
such Mortgaged Property, provided, however, that, for the avoidance of doubt,
Permitted Encumbrances shall exclude all second, junior and subordinated
mortgages.
Other. For purposes of these representations and warranties, the
term "to the Seller's knowledge" shall mean that no officer, employee or agent
of the Seller responsible for the underwriting, origination or sale of the
Mortgage Loans believes that a given representation or warranty is not true or
incomplete or inaccurate based upon the Seller's reasonable inquiry and during
the course of such inquiry, no such officer, employee or agent of the Seller
has obtained any actual knowledge of any facts or circumstances that would
cause such person to believe that such representation or warranty was
inaccurate or incomplete. Furthermore, all information contained in documents
which are part of or required to be part of a Mortgage Loan File shall be
deemed to be within the Seller's knowledge. For purposes of these
representations and warranties, the term "to the Seller's actual knowledge"
shall mean that a director, officer, employee or agent of the Seller
responsible for the underwriting, origination and sale of the Mortgage Loans
does not actually know of any facts or circumstances that would cause such
person to believe that such representation or warranty was inaccurate or
incomplete.
EXHIBIT TO FORM OF MORTGAGE LOAN PURCHASE AGREEMENT - EXHIBIT "C"
EXHIBIT TO FORM MORTGAGE LOAN PURCHASE AGREEMENT - EXHIBIT "D"
[FORM OF SELLER'S OFFICER'S CERTIFICATE]
EXHIBIT J
FORM OF ACKNOWLEDGEMENT
EXHIBIT K
Confidentiality Agreement for Asset Strategy Report
[Date]
State Street Bank and Trust Company
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Ladies and Gentlemen:
The undersigned hereby requests the Asset Strategy Report as amended
or restated from time to time (the "Report") in connection with Mortgage Loan
Number (the "Mortgage Loan") as identified in the pooling and servicing
agreement (the "Pooling and Servicing Agreement") dated as of March 1, 2001,
by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as
depositor, State Street Bank and Trust Company, as trustee and ORIX Real
Estate Capital Markets LLC, as special servicer, GMAC Commercial Mortgage
Corporation, as master servicer. Capitalized terms used herein and not
otherwise defined shall have the meaning set forth in the Pooling and
Servicing Agreement.
The undersigned acknowledges and agrees that disclosing any
information contained in the Report to the related mortgagor, an affiliate
thereof or a person acting on their behalf would interfere with the property
rights of the Trust Fund and the Certificateholders and result in additional
losses and costs thereto. Such disclosure would also thus adversely impact the
planning, strategy and servicing by the Special Servicer of the related
Mortgage Loan, Mortgaged Property or REO Loan in accordance with the Pooling
and Servicing Agreement. The undersigned represents that none of it, or its
Representatives is the related mortgagor, an affiliate thereof or a person
acting on their behalf. Realizing the serious nature of any use or disclosure
adverse to the terms herein, the undersigned hereby agrees to indemnify and
hold harmless the Trust Fund, the Certificateholders and the Special Servicer
from any claim or legal action (whether in law or equity) and any other
monetary loss related to the undersigned's disclosure or use of the
information contained in the Asset Strategy Report inconsistent with the terms
of this Agreement.
The undersigned acknowledges and agrees that it is imperative that
the Report remains confidential. Accordingly, the undersigned agrees that
before it or any of its affiliates, or it or its affiliates' agents, advisors,
or representatives (each, a "Representative") may be given access to the
Reports, the undersigned and each such affiliate and Representative shall
agree to be bound by the terms of this Agreement. The undersigned agrees to be
responsible for any breach of this Agreement by its affiliates or its or their
Representatives.
To maintain the confidentiality of the Reports, the undersigned and
each individual or entity agreeing to be bound by this Agreement agree:
1. Not to use or allow the use for any purpose of the Reports or notes,
summaries, or other material derived by the undersigned, its affiliates,
or its or their Representatives from the Report (collectively, "Notes")
except to determine whether to implement the recommended actions outlined
in the Report;
2. Not to disclose or allow disclosure to others of the Report or Notes
except to its affiliates or to its or their Representatives, in each case
to the extent necessary to permit such affiliate or Representative to
assist the undersigned in making the determinations referred to in clause
(a) above;
3. Not to disclose or allow disclosure to persons other than those described
in clause (b) above that the Report has been made available to the
undersigned, that the undersigned, its affiliates, or its or their
Representatives have inspected the Reports; and
4. Not to make or allow to be made copies of the Report except in the form
of Notes made by the undersigned, its affiliates, or its or their
Representatives, or as the Trustee may specifically authorize in writing.
You may, upon reasonable belief that the undersigned, or any
individual or entity agreeing to be bound by this Agreement breached this
Agreement, elect at any time to terminate further access by any or all such
parties to the Report and the undersigned agrees that upon any such
termination, it will promptly (and in any case within 7 days of the Trustee's
request), return to the Trustee the Report except Notes and will cause all
Notes to be destroyed, and confirm in writing to the Trustee the fact that all
such material has been returned or destroyed in compliance with the terms of
this Agreement. No such termination will affect the undersigned's obligations
hereunder or those of its affiliates or its or their Representatives, all of
which obligations shall continue in effect.
This Agreement shall be inoperative as to particular portions of the
Report if such Report (i) becomes generally available to the public other than
as a result of a disclosure by the undersigned, its affiliates, or its or
their Representatives, (ii) was available to the undersigned on a
non-confidential basis prior to its disclosure to the undersigned by the
Trustee, or (iii) becomes available to the undersigned on a non-confidential
basis from a source other than the Trustee or its agents, advisors, or
representatives when such source is entitled, to the best of the undersigned's
knowledge, to make such disclosure. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the conflicts of laws principles thereof.
If the undersigned, its affiliates, or its or their Representatives
are requested or required (by oral questions, interrogatories, requests for
the Report, subpoena, civil investigative demand, or similar process) to
disclose the Report or Notes, it is agreed that the undersigned will provide
the Trustee and the Special Servicer with prompt written notice of such
request(s), to the extent practicable, so that they may seek an appropriate
protective order and/or waive your compliance with the provisions of this
Agreement. If, failing the entry of a protective order or the receipt of a
waiver hereunder, the undersigned, its affiliates, or its or their
Representatives are, in the opinion of the undersigned's counsel compelled to
disclose the Report or Notes under pain of liability for contempt or other
censure or penalty, the undersigned may disclose only that portion of the
Report as is legally required without liability hereunder, provided that the
undersigned agrees to exercise its best efforts to obtain assurance that
confidential treatment will be accorded the Report.
This Agreement sets forth the entire agreement between the parties
with respect to the matters described herein and supersedes all prior
agreements and understandings, oral and written, between the parties with
respect thereto.
Very truly yours,
[Certificateholder]
By: _______________________________
Name: ________________________
Title: ________________________
Accepted and agreed to as of the date above written
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: ________________________
Name: ________________________
Title: ________________________
EXHIBIT L
FORM OF SPECIAL SERVICER LETTER PURSUANT TO SECTION 4.01(e)
[SPECIAL SERVICER STATIONERY]
Date
Mortgagor's Name
Mortgagor's Address
Re: Transfer of Servicing of Loan in the Name of [Mortgagor's Name],
Loan [Mortgagor's Primary Loan ID Number]
Dear [Mortgagor]:
Please be advised that the servicing of the above referenced loan
has been returned to ["Master Servicer's Name"].
Please continue to remit all payments to ["Master Servicer's Name"].
["Master Servicer's Name"] will continue to process your checks and maintain
the accounting records for this loan. Please remember to use the above
["Master Servicer's Name"] Loan Number when communicating with us and making
your payments to ["Master Servicer's Name"].
Should you have any questions, please call _________________________
or write at the following address:
Master Servicer's Name
Master Servicer's Address
Sincerely,
cc: ["Special Servicer's Name"]
EXHIBIT M
FORM OF PROPERTY INSPECTION REPORT PURSUANT TO SECTION 4.09(a)
Company Name/Logo
Loan Number: ____________________
Investor Number: ____________________
Reviewed By: ____________________
Standard Inspection Form Property Type: ____________________
Page 1 of 3
=============================================================================================================================
I. Loan/ Inspection Information
_____________________________________________________________________________________________________________________________
Servicer Name: ____________________ Overall Property Rating: ____________________
Lender/Investor: ____________________ Deferred Maintenance? ____________________
Borrower: ____________________ Date of Inspection: ____________________
Property Name: ____________________ Inspected By: ____________________
Property Address: ____________________ Inspector Name: ____________________
City, State, Zip: ____________________ Rent Roll Attached? ____________________
Borrower Contact: ____________________ ____________________
Contact Phone: ____________________ Loan Balance: ____________________
General Comments for Subject Property:
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
Units Inspected
___________ __________
Occupied Units: ___________ Vacant Units: __________
_____________________________________________________________________________________________________________________________
II. Market Data
_____________________________________________________________________________________________________________________________
Area: __________________ Development: _____________________________
Growth Rate: __________________ Present Use - %: Single Family ____________
Change in Current Use: __________________ 2-4 Family ____________
New Construction: __________________ Apartment ____________
Area Trends Appear to be: __________________ Commercial ____________
Major Competition: __________________ Industrial ____________
Undeveloped ____________
Describe Surrounding Land Use and Subject's Competition in the Marketplace:
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
Site Data
Please answer each question using Above Average, Average, or Below Average ratings
Street Appeal __________________ Access to Major Arteries: __________________
Visibility: __________________ Access to Local Amenities: __________________
Ingress and Egress: __________________ Access to Public Transportation: __________________
Traffic Volume __________________ Compatibility with Neighborhood: __________________
_____________________________________________________________________________________________________________________________
III. Management Information
_____________________________________________________________________________________________________________________________
Management Company Name: ________________________________ Phone Number: ______________
Site Contact: ________________________________
Is Management Affiliated with Borrower: ___________________
Frequency Property Manager visits the property? ___________________
Management of the Property Appears to be: __________________
_____________________________________________________________________________________________________________________________
=============================================================================================================================
Company Name/Logo
Loan Number: _0__________________
Investor Number: _0__________________
Reviewed By: _0__________________
Standard Inspection Form Property Type: _0__________________
Page 2 of 3
=============================================================================================================================
IV. Property Information
_____________________________________________________________________________________________________________________________
Number of Buildings: ___________________ Square Feet: ___________________
Number of Units: ___________________ Number of Units Occupied: ___________________
Number of Floors: ___________________ Percent Occupied: ___________________
Number of Parking Spaces: ___________________ Owner Occupied: ___________________
Number of Elevators: ___________________ Sprinklers: ___________________
Occupancy Data
Office/Retail/Industrial
Five Largest Commercial Tenants Expiration Sq. Ft. %NRA Annual Rent Rent/Sq. Ft.
Multifamily/Hospitality/Healthcare/Mobile
Unit Type # of Units Avg. Sq.Ft./Unit Monthly Rent # Vacant
Amenities
1 __________________ 6 __________________ 11 __________________
2 __________________ 7 __________________ 12 __________________
3 __________________ 8 __________________ 13 __________________
4 __________________ 9 __________________ 14 __________________
5 __________________ 10 __________________ 15 __________________
Improvements
Describe in detail what Repairs, Replacements or Improvements have been or will be made this year.
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
Describe in detail what Repairs, Replacements or Improvements have been planned for the next 1-2 years.
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________________
Company Name/Logo
____________________
Loan Number: 0
Investor Number: 0
Reviewed By: 0
Standard Inspection Form Property Type: 0
____________________
Page 3 of 3
V. Property Condition
Please answer each question using Excellent, Good, Fair, Poor, Not Accessible, Not Inspected, or N/A ratings
Exterior Interior
Ingress/Egress Lobbies
Parking Lot Hallways
Striping Stairways
Drainage Interior Walls
Retaining Walls Painting/Wallcover
Sidewalks Flooring/Carpets/Tiles
Landscaping Ceilings
Signage Interior Doors
Site Lighting Windows
Roof Condition Kitchens
Flashing/Xxxxx/Ventilators Appliances
Gutters/Downspouts Fixtures
Foundations Cabinets
Exterior Walls Plumbing/Bathrooms
Glazing/Windows Electrical
Storefronts Lighting
Exterior Doors HVAC System
Stairs/Railings Basement
Loading Docks Mechanical Rooms
Paint Boilers/Water Heaters
Siding/Trim Laundry Rooms
Balconies/Patios Elevators/Escalators
Security Sprinklers/Fire
Protection
Refuse/Disposal Amenities
Amenities
Other 1 Other 1
Other 2 Other 2
Deferred Maintenance
Describe any deferred maintenance observed. Please also include comments
for fair or poor item noted above, as well as any health & safety
concerns.
Approved By:
_____________________________________________________________________________________________________________________________
EXHIBIT N-1
Confidentiality Letter (Certificate Owners)
[Date]
[State Street Bank and Trust Company
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000]
[GMAC Commercial Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000]
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Mortgage Pass-Through Certificates, Series 2001-CIBC1
-------------------------------------------------------
Ladies and Gentlemen:
The undersigned ___ hereby ___ acknowledges ___ that it has received
___ certain ___ information ___ (the "Information") pursuant to Section
7.03(d) of the pooling and servicing agreement (the "Pooling and Servicing
Agreement") dated as of March 1, 2001, by and among X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., as depositor, State Street Bank and
Trust Company, as trustee and ORIX Real Estate Capital Markets LLC, as special
servicer, GMAC Commercial Mortgage Corporation, as master servicer.
Capitalized terms used herein and not otherwise defined shall have the meaning
set forth in the Pooling and Servicing Agreement.
The undersign represents that it is a beneficial owner of a
Book-Entry Certificate issued pursuant to the Pooling and Servicing Agreement.
The undersigned acknowledges and agrees that it is imperative that
the Information remain confidential and represents and warrants that it shall
keep the Information confidential in accordance with and subject to Section
7.03(d) of the Pooling and Servicing Agreement (except that such Certificate
Owner may provide the Information to any other Person that holds or is
contemplating the purchase of any Certificate or interest therein, provided
that such other Person confirms in writing such ownership interest or
prospective ownership interest and agrees to keep the Information
confidential).
Very truly yours,
[Certificate Owner]
By:______________________________
Name:
Title:
EXHIBIT N-2
Confidentiality Letter (Prospective Owners)
[Date]
[State Street Bank and Trust Company
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000]
[GMAC Commercial Mortgage Corporation
00 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000]
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Mortgage Pass-Through Certificates, Series 2001-CIBC1
-------------------------------------------------------
Ladies and Gentlemen:
The undersigned ___ hereby ___ acknowledges ___ that it has received
___ certain ___ information ___ (the "Information") pursuant to Section
7.03(d) of the pooling and servicing agreement (the "Pooling and Servicing
Agreement") dated as of March 1, 2001, by and among X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., as depositor, State Street Bank and
Trust Company, as trustee and ORIX Real Estate Capital Markets LLC, as special
servicer, GMAC Commercial Mortgage Corporation, as master servicer.
Capitalized terms used herein and not otherwise defined shall have the meaning
set forth in the Pooling and Servicing Agreement.
The undersign represents that it is a prospective purchaser of a
Certificate, or an interest therein, issued pursuant to the Pooling and
Servicing Agreement and is requesting the Information for use in evaluating a
possible investment in such Certificate.
The undersigned acknowledges and agrees that it is imperative that
the Information remain confidential and represents and warrants that it shall
keep the Information confidential in accordance with and subject to Section
7.03(d) of the Pooling and Servicing Agreement.
Very truly yours,
[Prospective Owner]
By: _______________________________
Name:
Title:
EXHIBIT O
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
For loans having balance of (a) $5,000,000 or less, or (b) less than
1% of outstanding pool balance, whichever is less
To: Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: GMAC Commercial Mortgage Corporation, in its capacity
as Servicer (the "Servicer") under the Pooling and Servicing
Agreement dated as of March 1, 2001 (the "Pooling and Servicing
Agreement"), among the Servicer, State Street Bank and Trust Company
as Trustee, and others.
Date: _________, 20___
Re: _______________________________________
Commercial Mortgage Pass-Through Certificates
Series ___________
Mortgage Loan (the "Mortgage Loan") identified by loan number _____ on
the Mortgage Loan Schedule attached to the Pooling and Servicing
Agreement and heretofore secured by the Mortgaged Properties identified
identified on the Mortgage Loan Schedule by the following
names:____________________
____________________
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings
assigned to such terms in the Pooling and Servicing Agreement. [Note: all
terms in this Certification must be conformed to terms used in the Pooling and
Servicing Agreement]
As Servicer under the Pooling and Servicing Agreement, we hereby:
1. Notify you that the Mortgagor has consummated a defeasance of
the Mortgage Loan pursuant to the terms of the Mortgage Loan,
of the type checked below:
____ a full defeasance of the payments scheduled to be due
in respect of the entire principal balance of the
Mortgage Loan; or
____ a partial defeasance of the payments scheduled to be
due in respect of a portion of the principal balance
of the Mortgage Loan that represents ___% of the
entire principal balance of the Mortgage Loan and,
under the Mortgage, has an allocated loan amount of
$____________ or _______% of the entire principal
balance;
2. Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A
hereto, which exceptions the Servicer has determined,
consistent with the Servicing Standard, will have no material
adverse effect on the Mortgage Loan or the defeasance
transaction:
a. The Mortgage Loan Documents permit the defeasance, and the
terms and conditions for defeasance specified therein were
satisfied in all material respects in completing the
defeasance.
b. The defeasance was consummated on __________, 20__.
c. The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section
2(a)(16) of the Investment Company Act of 1940 as amended
(15 U.S.C. 80A1), (ii) are listed as "Qualified
Investments for `AAA' Financings" under Paragraphs 1, 2 or
3 of "Cash Flow Approach" in Standard & Poor's Public
Finance Criteria 2000, as amended to the date of the
defeasance, (iii) are rated `AAA' by Standard & Poor's,
(iv) if they include a principal obligation, the principal
due at maturity cannot vary or change, and (v) are not
subject to prepayment, call or early redemption. Such
securities have the characteristics set forth below:
CUSIP RATE MAT PAY DATES ISSUED
----------------------------------------
d. The Servicer received an opinion of counsel (from counsel
approved by Servicer in accordance with the Servicing
Standard) that the defeasance will not result in an
adverse REMIC event.
e. The Servicer determined that the defeasance collateral
will be owned by an entity (the "Defeasance Obligor") as
to which one of the statements checked below is true:
____ the related Mortgagor was a Single-Purpose Entity (as
defined in Standard & Poor's Structured Finance
Ratings Real Estate Finance Criteria, as amended to
the date of the defeasance (the "S&P Criteria")) as
of the date of the defeasance, and after the
defeasance owns no assets other than the defeasance
collateral and real property securing Mortgage Loans
included in the pool.
____ the related Mortgagor designated a Single-Purpose
Entity (as defined in the S&P Criteria) to own the
defeasance collateral; or
____ the Servicer designated a Single-Purpose Entity (as
defined in the S&P Criteria) established for the
benefit of the Trust to own the defeasance
collateral.
f. The Servicer received a broker or similar confirmation of
the credit, or the accountant's letter described below
contained statements that it reviewed a broker or similar
confirmation of the credit, of the defeasance collateral
to an Eligible Account (as defined in the S&P Criteria) in
the name of the Defeasance Obligor, which account is
maintained as a securities account by the Trustee acting
as a securities intermediary.
g. As securities intermediary, Trustee is obligated to make
the scheduled payments on the Mortgage Loan from the
proceeds of the defeasance collateral directly to the
Servicer's collection account in the amounts and on the
dates specified in the Mortgage Loan Documents or, in a
partial defeasance, the portion of such scheduled payments
attributed to the allocated loan amount for the real
property defeased, increased by any defeasance premium
specified in the Mortgage Loan Documents (the "Scheduled
Payments").
h. The Servicer received from the Mortgagor written
confirmation from a firm of independent certified public
accountants, who were approved by Servicer in accordance
with Accepted Master Servicing Practices or Accepted
Special Servicing Practices, as applicable, stating that
(i) revenues from principal and interest payments made on
the defeasance collateral (without taking into account any
earnings on reinvestment of such revenues) will be
sufficient to timely pay each of the Scheduled Payments
after the defeasance including the payment in full of the
Mortgage Loan (or the allocated portion thereof in
connection with a partial defeasance) on its Maturity Date
(or, in the case of an ARD Loan, on its Anticipated
Repayment Date), (ii) the revenues received in any month
from the defeasance collateral will be applied to make
Scheduled Payments within four (4) months after the date
of receipt, and (iii) interest income from the defeasance
collateral to the Defeasance Obligor in any calendar or
fiscal year will not exceed such Defeasance Obligor's
interest expense for the Mortgage Loan (or the allocated
portion thereof in a partial defeasance) for such year.
i. The Servicer received opinions from counsel, who were
approved by Servicer in accordance with Accepted Master
Servicing Practices or Accepted Special Servicing
Practices, as applicable, that (i) the agreements executed
by the Mortgagor and/or the Defeasance Obligor in
connection with the defeasance are enforceable against
them in accordance with their terms, and (ii) the Trustee
will have a perfected, first priority security interest in
the defeasance collateral described above.
j. The agreements executed in connection with the defeasance
(i) permit reinvestment of proceeds of the defeasance
collateral only in Permitted Investments (as defined in
the S&P Criteria), (ii) permit release of surplus
defeasance collateral and earnings on reinvestment to the
Defeasance Obligor or the Mortgagor only after the
Mortgage Loan has been paid in full, if any such release
is permitted, (iii) prohibit any subordinate liens against
the defeasance collateral, and (iv) provide for payment
from sources other than the defeasance collateral or other
assets of the Defeasance Obligor of all fees and expenses
of the securities intermediary for administering the
defeasance and the securities account and all fees and
expenses of maintaining the existence of the Defeasance
Obligor.
k. The entire principal balance of the Mortgage Loan as of
the date of defeasance was $___________ [$5,000,000 or
less or less than one percent of pool balance, whichever
is less] which is less than 1% of the aggregate
Certificate Balance of the Certificates as of the date of
the most recent Paying Agent's Monthly Certificateholder
Report received by us (the "Current Report").
l. The defeasance described herein, together with all prior
and simultaneous defeasances of Mortgage Loans, brings the
total of all fully and partially defeased Mortgage Loans
to $__________________, which is _____% of the Aggregate
Certificate Balance of the Certificates as of the date of
the Current Report.
3. Certify that, in addition to the foregoing, Servicer has
imposed such additional conditions to the defeasance, subject
to the limitations imposed by the Mortgage Loan Documents, as
are consistent with Accepted Master Servicing Practices or
Accepted Special Servicing Practices, as applicable.
4. Certify that Exhibit B hereto is a list of the material
agreements, instruments, organizational documents for the
Defeasance Obligor, and opinions of counsel and independent
accountants executed and delivered in connection with the
defeasance described above and that originals or copies of such
agreements, instruments and opinions have been transmitted to
the Trustee for placement in the related Mortgage File or, to
the extent not required to be part of the related Mortgage
File, are in the possession of the Servicer as part of the
Servicer's Mortgage File.
5. Certify and confirm that the determinations and
certifications described above were rendered in accordance with
Accepted Master Servicing Practices or Accepted Special
Servicing Practices, as applicable, set forth in, and the other
applicable terms and conditions of, the Pooling and Servicing
Agreement.
6. Certify that the individual under whose hand the Servicer has
caused this Notice and Certification to be executed did
constitute a Servicing Officer as of the date of the defeasance
described above.
7. Agree to provide copies of all items listed in Exhibit B to you
upon request.
IN WITNESS WHEREOF, the Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
SERVICER:_____________________________
By:___________________________________
Name:
Title:
EXHIBIT P
FOREIGN CURRENCY EXCHANGE CONTRACT,
SUMMARY OF U.S. DOLLAR CASH FLOWS
Date of Swap IN US$ Interest @ US$ Date of Swap Principal IN C$ Interest @ C$
Payment rate Payment rate
4/12/01 15,673.69 104,970.42 4/12/01 24,059.12 160,115.14
5/11/01 19,162.21 101,459.81 5/11/01 29,413.99 154,760.27
6/13/01 15,957.77 104,684.55 6/13/01 24,495.17 159,679.09
7/12/01 19,439.36 101,180.90 7/12/01 29,839.42 154,334.84
8/13/01 16,246.42 104,394.07 8/13/01 24,938.26 159,236.00
9/13/01 16,378.91 104,260.74 9/13/01 25,141.62 159,032.64
10/11/01 19,850.24 100,767.42 10/11/01 30,470.12 153,704.14
11/13/01 16,674.35 103,963.43 11/13/01 25,595.12 158,579.14
12/13/01 20,138.48 100,477.35 12/13/01 30,912.56 153,261.70
1/11/02 16,974.54 103,661.33 1/11/02 26,055.92 158,118.34
2/13/02 17,112.96 103,522.03 2/13/02 26,268.40 157,905.86
3/13/02 27,194.20 93,376.92 3/13/02 41,743.10 142,431.16
4/11/02 17,474.28 103,158.43 4/11/02 26,823.02 157,351.24
5/13/02 20,918.92 99,691.96 5/13/02 32,110.54 152,063.72
6/13/02 17,787.36 102,843.36 6/13/02 27,303.60 156,870.66
7/11/02 21,224.38 99,384.57 7/11/02 32,579.42 151,594.84
8/13/02 18,105.49 102,523.21 8/13/02 27,791.93 156,382.33
9/12/02 18,253.14 102,374.63 9/12/02 28,018.57 156,155.69
10/11/02 21,678.80 98,927.26 10/11/02 33,276.96 150,897.30
11/13/02 18,578.78 102,046.94 11/13/02 28,518.42 155,655.84
12/12/02 21,996.50 98,607.55 12/12/02 33,764.63 150,409.63
1/13/03 18,909.65 101,713.96 1/13/03 29,026.32 155,147.94
2/13/03 19,063.86 101,558.78 2/13/03 29,263.02 154,911.24
3/13/03 28,970.66 91,589.20 3/13/03 44,469.97 139,704.29
4/11/03 19,455.56 101,164.59 4/11/03 29,864.29 154,309.97
5/13/03 22,851.93 97,746.71 5/13/03 35,077.71 149,096.55
6/12/03 19,800.57 100,817.40 6/12/03 30,393.88 153,780.38
7/11/03 23,188.53 97,407.97 7/11/03 35,594.39 148,579.87
8/13/03 20,151.13 100,464.61 8/13/03 30,931.99 153,242.27
9/11/03 20,315.46 100,299.24 9/11/03 31,184.23 152,990.03
10/10/03 23,690.87 96,902.45 10/10/03 36,365.49 147,808.77
11/13/03 20,674.32 99,938.11 11/13/03 31,735.08 152,439.18
12/11/03 24,040.99 96,550.11 12/11/03 36,902.92 147,271.34
1/13/04 21,038.96 99,571.16 1/13/04 32,294.81 151,879.45
2/12/04 21,210.53 99,398.51 2/12/04 32,558.16 151,616.10
3/11/04 27,744.77 92,822.87 3/11/04 42,588.22 141,586.04
4/13/04 21,609.75 98,996.76 4/13/04 33,170.96 151,003.30
5/13/04 24,953.62 95,631.70 5/13/04 38,303.81 145,870.45
6/11/04 21,989.46 98,614.64 6/11/04 33,753.82 150,420.44
7/13/04 25,324.08 95,258.89 7/13/04 38,872.46 145,301.80
8/12/04 22,375.28 98,226.37 8/12/04 34,346.06 149,828.20
9/13/04 22,557.75 98,042.75 9/13/04 34,626.15 149,548.11
10/13/04 25,878.53 94,700.93 10/13/04 39,723.54 144,450.72
11/10/04 22,952.74 97,645.26 11/10/04 35,232.45 148,941.81
12/13/04 26,263.89 94,313.13 12/13/04 40,315.07 143,859.19
1/13/05 23,354.08 97,241.37 1/13/05 35,848.52 148,325.74
2/11/05 23,544.53 97,049.72 2/11/05 36,140.85 148,033.41
3/11/05 33,050.72 87,483.29 3/11/05 50,732.86 133,441.40
4/13/05 24,006.05 96,585.28 4/13/05 36,849.28 147,324.98
5/12/05 27,291.53 93,278.97 5/12/05 41,892.50 142,281.76
6/13/05 24,424.36 96,164.31 6/13/05 37,491.40 146,682.86
7/13/05 27,699.65 92,868.26 7/13/05 42,518.97 141,655.29
8/11/05 24,849.42 95,736.56 8/11/05 38,143.86 146,030.40
9/13/05 25,052.06 95,532.63 9/13/05 38,454.91 145,719.35
10/13/05 28,312.06 92,251.98 10/13/05 43,459.01 140,715.25
11/10/05 25,487.23 95,094.71 11/10/05 39,122.90 145,051.36
12/13/05 28,736.63 91,824.73 12/13/05 44,110.72 140,063.54
1/12/06 25,929.41 94,649.73 1/12/06 39,801.65 144,372.61
2/13/06 26,140.86 94,436.94 2/13/06 40,126.22 144,048.04
3/13/06 35,414.92 85,104.12 3/13/06 54,361.90 129,812.36
4/13/06 26,642.83 93,931.79 4/13/06 40,896.74 143,277.52
5/11/06 29,864.07 90,690.14 5/11/06 45,841.34 138,332.92
6/13/06 27,103.63 93,468.07 6/13/06 41,604.07 142,570.19
7/13/06 30,313.64 90,237.72 7/13/06 46,531.43 137,642.83
8/11/06 27,571.85 92,996.88 8/11/06 42,322.79 141,851.47
9/13/06 27,796.69 92,770.62 9/13/06 42,667.92 141,506.34
10/13/06 30,989.81 89,557.26 10/13/06 47,569.36 136,604.90
11/10/06 28,276.08 92,288.19 11/10/06 43,403.78 140,770.48
12/13/06 31,457.52 89,086.59 12/13/06 48,287.29 135,886.97
1/11/07 28,763.19 91,797.99 1/11/07 44,151.49 140,022.77
2/13/07 28,997.75 91,561.95 2/13/07 44,511.54 139,662.72
3/13/07 38,016.38 82,486.18 3/13/07 58,355.14 125,819.12
4/12/07 29,544.23 91,012.01 4/12/07 45,350.39 138,823.87
5/11/07 32,694.77 87,841.51 5/11/07 50,186.47 133,987.79
6/13/07 30,051.77 90,501.25 6/13/07 46,129.46 138,044.80
7/12/07 33,189.94 87,343.19 7/12/07 50,946.56 133,227.70
8/13/07 30,567.49 89,982.27 8/13/07 46,921.09 137,253.17
9/13/07 10,934,336.35 89,731.42 9/13/07 16,784,206.34 136,870.54
EXHIBIT Q
[RESERVED]
EXHIBIT R
[RESERVED]
EXHIBIT S
FORM OF NOTICE REGARDING TRANSFER TO SPECIAL SERVICING
PURSUANT TO SECTION 6.02(a)
[MASTER SERVICER STATIONERY]
Date
Trustee Name and Address
Depositor Name and Address
Master Servicer Name and Address
Special Servicer Name and Address
Re: Transfer of Servicing of Loan in the Name of [Mortgagor's
Name], Loan [Mortgagor's Primary ID Number]
Dear Sir/Madam:
Please be advised that the servicing of the above-referenced loan
will be transferred to ["Special Servicer's Name"] for special servicing as of
the date of this letter. This loan is being transferred to ["Special
Servicer's Name"] for servicing the following noted reason:
1. The loan has become a Defaulted Mortgage Loan;
2. The Mortgagor has entered into or consented to bankruptcy, appointment of
a receiver or conservator or a similar insolvency or a similar
proceeding, or the Mortgagor has become a subject of a decree or order
for such a proceeding which shall have remained in force on discharged or
unstayed for a period of 60 days;
3. Either ["Special Servicer's Name"] or ["Master Servicer's Name"] has
received notice of the foreclosure or proposed foreclosure of any other
lien on the Mortgaged Property;
4. In the judgment of ["Special Servicer' s Name"] or ["Master Servicer's
Name"], a payment default has occurred or is imminent and is not likely
to be cured by the related Mortgagor within sixty (60) days;
5. The related Mortgagor has admitted in writing its inability to pay its
debts generally as they become due, has filed a petition to take
advantage of any applicable insolvency or reorganization statute, made an
assignment for the benefit of its creditors, or voluntarily suspended
payment of its obligations;
6. With respect to a Balloon Mortgage Loan, the related Mortgagor, in
response to a letter from ["Master Servicer's Name"] pursuant to Section
4.11 of the Servicing Agreement, has requested either an extension of the
related Maturity Date of any other modification or has otherwise
indicated the inability to make the payment due on such Maturity Date, or
has failed to respond within thirty (30) days after the 3-months' notice
letter referenced in Section 4.11 of the Servicing Agreement;
7. Any other material default has, in ["Special Servicer's Name"]'s judgment
or ["Master Servicer's Name"]'s judgment, occurred which is not
reasonably susceptible of cure within the time periods and on the terms
and conditions, if any, provided in the related Mortgage;
8. the related Mortgaged Property has become REO Property; or
9. If for any reason, ["Master Servicer's Name"] cannot enter into an
assumption agreement pursuant to section 4.08 of the Servicing Agreement.
All capitalized terms used herein shall have the same meaning as
defined in, and all references to the "Servicing Agreement' shall refer to,
the Servicing Agreement among ["Special Servicer's Name"], ["Master Servicer's
Name"], and the Initial Owner, Xxxxxx Guaranty Trust Company of New York.
Sincerely,
By: ___________________________
Name: _________________________
Title: ________________________
cc: ["Special Servicer's Name"]
EXHIBIT T
FORM OF NOTIFICATION OF SERVICING TRANSFER
[SPECIAL SERVICER STATIONERY]
Date
Mortgagor's Name
Mortgagor's Address
Re: Transfer of Servicing of Loan in the Name of [Mortgagor's Name],
Loan [Mortgagor's Primary Loan ID Number]
Dear [Mortgagor]:
Your loan has been transferred to ["Special Servicer Name"]
("Special Servicer") for Special Servicing. After we review your records, we
will be contacting you soon.
Please continue to remit all payments to ["Master Servicer's Name"]
while your loan is being serviced by ("Special Servicer"). "Master Servicer's
Name" will continue to process your checks and maintain the accounting records
for this loan. The acceptance of any payments by ["Master Servicer's Name"]
does not constitute any agreement to modify or amend your loan in any way.
A Special Servicer employee will contact you shortly to discuss what
options are available to you at this time. Should you have any questions
regarding your loans, please contact Special Servicer's toll-free Customer
Service number ["Customer Service Number"], or write to Special Servicer at
the following address. Please remember to use the above ["Master Servicer's
Name"] loan number when communicating with Special Servicer and making your
payments to ["Master Servicer's Name"] while Special Servicer is servicing
your loan:
["Special Servicer's Name"]
["Special Servicer's Address"]
Attention: Special Servicing
Special Servicer may be engaging third party firms to perform
property inspections as well as certain other analyses and studies on property
which serves as collateral for your loan. You may be contacted by such third
party firms to provide access to your property and other information. We will
appreciate your cooperation during this process and look forward to completing
these activities in the near future.
No statement, act, omission or course of dealing or conduct on the
part of the ["Master Servicer's Name"] or Special Servicer, or both, shall be
construed to alter or waive any default or any obligation under applicable law
and/or the documents pertaining to your loan; no agreement or waiver shall be
binding on ["Master Servicer's Name"] or ("Special Servicer") unless reduced
to writing and signed by an employee duly authorized to do so; and neither
delay in nor failure of [Master Servicer's Name] or Special Servicer to
exercise any right, power or privilege under any loan document shall operate
as a waiver thereof, and no single or partial exercise of any right, power or
any privilege shall preclude any other and further exercise thereof or the
exercise of any right, power or privilege.
Sincerely,
By: ___________________________
Name: _________________________
Title: ________________________
ATTENTION TO ANY DEBTOR IN BANKRUPTCY OR WHO HAS RECEIVED A DISCHARGE IN
BANKRUPTCY OR WHO MAY HAVE PAID, SETTLED OR IS OTHERWISE NOT OBLIGATED: Please
be advised that this letter constitutes neither a demand for payment of the
captioned debt nor a notice of personal liability to any recipient hereof who:
might have received a discharge of such debt in accordance with applicable
bankruptcy laws or who might be subject to the automatic stay of Xxxxxxx 000
xx xxx Xxxxxx Xxxxxx Bankruptcy Code, has paid, settled, or is otherwise not
obligated by law.
cc: ("Master Servicer")
("Directing Certificateholder")
EXHIBIT U
[RESERVED]
EXHIBIT V
[RESERVED]
EXHIBIT W
FORM OF SPECIAL SERVICER NOTICE PURSUANT TO SECTION 6.12(a)
[SPECIAL SERVICER STATIONERY]
Date
Trustee
Trustee Address
Master Servicer
Master Servicer's address
Master Servicer
Master Servicer's Address
Re: Transfer of Servicing of Mortgage Loan in the Name of [Mortgagor's
Name], Loan [Mortgager's Number]
Dear [Mortgagor]:
Please be advised that the servicing of the above referenced Mortgage Loan
will be returned to ["Master Servicer Name"] as of [Date]. This Mortgage Loan
is being returned for the following reason:
_____ 1. Request from Master Servicer that the Mortgage Loan be
returned based on receipt of information which resulted in
the Mortgage Loan not being considered a Specially Serviced
Mortgage Loan.
_____ 2. The Mortgage Loan is current as to payments of principal
and interest. No Servicing Transfer Event is continuing.
Three Monthly Payments have been made in accordance with the
terms of the related Mortgage Note for the months of [List
Months], [Year].
_____ 3. Other:
All capitalized terms, unless otherwise defined, shall have the meanings set
forth in the Servicing Agreement among the above addresses and the
undersigned.
Very truly yours,
Name of Special Servicer Servicing Officer and Title
EXHIBIT X
FORM OF SPECIAL SERVICER NOTICE PURSUANT TO SECTION 6.12(b)
[SPECIAL SERVICER STATIONERY]
Date
Mortgagor's Name
Mortgagor's Address
Master Servicer's Name
Master Servicer's Address
Re: Transfer of Servicing of Loan in the Name of [Mortgagor's
Name], Loan [Mortgager's Primary ID Number]
Dear Sir or Madam:
Please be advised that the servicing of the above-referenced loan
will be returned to [Master Servicer's Name] for servicing as of the date of
this letter. This loan is being returned to ["Master Servicer's Name"] for
servicing for the following reason:
1. The loan has been current in payments under existing terms for three
consecutive monthly payments.
2. The loan is returned to ["Master Servicer's Name"] based upon
receipt of information which resulted in the loan not being
considered a Specially Serviced Mortgage Loan.
3. The loan has been modified and the three consecutive monthly
payments have been made in accordance with the terms of the modified
mortgage note.
4. Other:
Please continue to remit all payments to ["Master Servicer's Name"].
["Master Servicer's Name"] will continue to process your checks and maintain
the accounting records for this loan. Please remember to use the above
["Master Servicer's Name"] Loan Number when communicating with us and making
your payments to ["Master Servicer's Name"].
Please acknowledge receipt of this letter by signing the enclosed
copy and return it to my attention.
Sincerely,
By: ___________________________
Name: _________________________
Title: ________________________
cc: ["Master Servicer's Name"]
Borrower Acknowledgment
By: ___________________________
Name: _________________________
Title: ________________________
Date: ________________________
EXHIBIT Y
FORM OF REQUEST FOR RELEASE AND RECEIPT OF
DOCUMENTS PURSUANT TO SECTION 11.14
Date
To: State Street Bank and Trust Company
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, XX 00000
Re: Pooling and Servicing Agreement, dated as of March 1, 2001, by and among
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor,
GMAC Commercial Mortgage Corporation, as Master Servicer, ORIX Real
Estate Capital Markets, LLC, as Special Servicer, and State Street Bank
and Trust Company, as Trustee.
In connection with the administration of the Mortgage Loans held by
you as the Custodian for the Trustee, we request the release of the (Mortgage
Loan File/[specify documents]) for the Mortgage Loan described below, for the
reason indicated. The undersigned agrees to acknowledge receipt of such
Mortgage Loan File promptly upon receipt.
Mortgagor's Name, Address & Zip Code:
Mortgage Loan Number
Reason for Requesting Documents (check one)
_____ 1. Mortgage Loan paid in full. (Servicer hereby certifies that all
amounts received in connection therewith have been credited or will be
escrowed as provided in the Servicing Agreement.)
_____ 2. Mortgage Loan Liquidated. (Servicer hereby certifies that all
proceeds of foreclosure, insurance or other liquidation have been finally
received and credited to or will be escrowed pursuant to the Servicing
Agreement.)
_____ 3. Mortgage Loan in Foreclosure.
_____ 4. Other (explain)___________________________________
If item 1 or 2 above is checked, and if all or part of the Mortgage
Loan File was previously released to us, please release to us our previous
receipt on file with you, as well as any additional documents in your
possession relating to the above specified Mortgage Loan. If item 3 or 4 is
checked, upon our return of all of the above documents to you as Custodian,
please acknowledge your receipt by signing in the space indicated below, and
returning this form.
[Servicer]
By: ___________________________
Name: _________________________
Title: ________________________
Date: _________________________
Documents returned to Custodian:
State Street Bank and Trust Company,
as Custodian
By: __________________________
Name: ________________________
Title: _______________________
Date: ________________________
EXHIBIT Z
REO ACCOUNT LETTER PURSUANT TO SECTION 6.09(b)
REO ACCOUNTS REPORT Account #
FROM (DAY AFTER PRIOR PRIMARY REMITTANCE DATE)
TO AND INCLUDING (CURRENT PRIMARY REMITTANCE DATE)
BEGINNING BALANCE $0.00
COLLECTIONS:
-----------
DELINQUENT PAYMENTS $0.00
PAYMENTS FOR CURRENT DUE PERIOD
(Includes net liquidation proceeds & prepayments)
PAYMENTS FOR FUTURE DUE PERIODS $0.00
PRIMARY SERVICER ADVANCES $0.00
LIQUIDATION PROCEEDS - To be applied to servicer Advances $0.00
LATE FEES/PREPAYMENT PREMIUMS $0.00
UNAPPLIED FUNDS $0.00
LOANS IN PROCESS $0.00
INVESTMENT INCOME - Due to Master Servicer $0.00 -----
TOTAL COLLECTIONS $0.00
=====
DISBURSEMENTS:
-------------
TRANSFER TO ESCROW $0.00
SERVICE FEES $0.00
MASTER SERVICER REMITTANCE $0.00
PRINCIPAL ADVANCE REIMBURSEMENTS $0.00
INTEREST ADVANCE REIMBURSEMENTS $0.00
SERVICER ADVANCE REIMBURSEMENTS $0.00
ADVANCE INTEREST (Due and collected) $0.00
INVESTMENT INCOME - Due Master Servicer $0.00 -----
TOTAL DISBURSEMENTS $0.00
=====
REO ACCOUNTS REPORT
FROM (DAY AFTER PRIOR PRIMARY REMITTANCE DATE)
TO AND INCLUDING (CURRENT PRIMARY REMITTANCE DATE) Account #
BEGINNING BALANCE $0.00
COLLECTIONS:
-----------
DELINQUENT PAYMENTS $0.00
PAYMENTS FOR CURRENT DUE PERIOD
(Includes net liquidation proceeds & prepayments)
PAYMENTS FOR FUTURE DUE PERIODS $0.00
PRIMARY SERVICER ADVANCES $0.00
LIQUIDATION PROCEEDS - To be applied to Master Servicer Advances $0.00
LATE FEES/PREPAYMENT PREMIUMS $0.00
UNAPPLIED FUNDS $0.00
LOANS IN PROCESS $0.00
INVESTMENT INCOME - Due to Master Servicer $0.00 -----
TOTAL COLLECTIONS $0.00
=====
DISBURSEMENTS:
-------------
TRANSFER TO ESCROW $0.00
SERVICE FEES $0.00
MASTER SERVICER REMITTANCE $0.00
PRINCIPAL ADVANCE REIMBURSEMENTS $0.00
INTEREST ADVANCE REIMBURSEMENTS $0.00
SERVICER ADVANCE REIMBURSEMENTS $0.00
ADVANCE INTEREST (Due and collected) $0.00
INVESTMENT INCOME - Due Master Servicer $0.00 -----
TOTAL DISBURSEMENTS $0.00
=====
