EXHIBIT 4.1
CWCapital Commercial Funding Corp.,
as Depositor
and
[______]
as Master Servicer
and
[______],
as Special Servicer
and
[______],
as Trustee
POOLING AND SERVICING AGREEMENT
Dated as of [_________], 200_
-----------------------------------
$[_________]
Commercial Mortgage Trust 200_-___,
Commercial Mortgage Pass-Through Certificates,
Series 200_-___
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
Section 1.01 Defined Terms................................................
Section 1.02 General Interpretive Principles..............................
Section 1.03 Certain Adjustments to the Principal Distributions on the
Certificates................................................
Section 1.04 Certain Calculations Relating to REO Loans...................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Creation of Trust; Conveyance of Mortgage Loans..............
Section 2.02 Acceptance of Trust Fund by Trustee..........................
Section 2.03 Repurchase of Mortgage Loans for Document Defects and
Breaches of Representations and Warranties..................
Section 2.04 Representations, Warranties and Covenants of the Depositor...
Section 2.05 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests........................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Mortgage Loans.........................
Section 3.02 Collection of Loan Payments..................................
Section 3.03 Collection of Taxes, Assessments and Similar Items; Servicing
Accounts; Reserve Accounts..................................
Section 3.04 Custodial Account, Defeasance Deposit Account, Distribution
Account, Interest Reserve Account and Excess Liquidation
Proceeds Account............................................
Section 3.05 Permitted Withdrawals From the Custodial Account, the
Distribution Account, the Interest Reserve Account and the
Excess Liquidation Proceeds Account.........................
Section 3.06 Investment of Funds in the Servicing Accounts, the Reserve
Accounts, the Defeasance Deposit Account, the Custodial
Accounts and the REO Accounts...............................
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage; Environmental Insurance..................
Section 3.08 Enforcement of Due-on-Sale and Due on Encumbrance Provisions.
Section 3.09 Realization Upon Defaulted Loans; Required Appraisals;
Appraisal Reduction Calculation.............................
Section 3.10 Trustee and Custodian to Cooperate; Release of
Mortgage Files..............................................
Section 3.11 Servicing Compensation; Payment of Expenses..................
Section 3.12 Certain Matters Regarding Servicing Advances.................
Section 3.13 Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports.................................
Section 3.14 [Reserved.]..................................................
Section 3.15 [Reserved.]..................................................
Section 3.16 Access to Certain Information................................
Section 3.17 Title to REO Property; REO Accounts..........................
Section 3.18 Management of REO Property...................................
Section 3.19 Sale of Mortgage Loans and REO Properties....................
Section 3.20 Additional Obligations of the Master Servicer; Obligations to
Notify Ground Lessors; the Special Servicer's Right to
Request the Master Servicer to Make Servicing Advances......
Section 3.21 Modifications, Waivers, Amendments and Consents; Defeasance..
Section 3.22 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping....................................
Section 3.23 Sub-Servicing Agreements.....................................
Section 3.24 Representations and Warranties of the Master Servicer........
Section 3.25 Representations and Warranties of the Special Servicer.......
Section 3.26 [Reserved.]..................................................
Section 3.27 Application of Default Charges...............................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions................................................
Section 4.02 Statements to Certificateholders; CMSA Loan Periodic Update
File........................................................
Section 4.03 P&I Advances.................................................
Section 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses....................................................
Section 4.05 Various Reinstatement Amounts................................
Section 4.06 Calculations.................................................
Section 4.07 Use of Agents................................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................
Section 5.02 Registration of Transfer and Exchange of Certificates........
Section 5.03 Book-Entry Certificates......................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.05 Persons Deemed Owners........................................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER
AND THE DIRECTING HOLDER
Section 6.01 Liability of Depositor, Master Servicer and Special
Servicer....................................................
Section 6.02 Continued Qualification and Compliance of Master Servicer;
Merger, Consolidation or Conversion of Depositor, Master
Servicer or Special Servicer................................
Section 6.03 Limitation on Liability of Depositor, Master Servicer and
Special Servicer............................................
Section 6.04 Resignation of Master Servicer and the Special Servicer......
Section 6.05 Rights of Depositor and Trustee in Respect of the Master
Servicer and the Special Servicer...........................
Section 6.06 Depositor, Master Servicer and Special Servicer to Cooperate
with Trustee................................................
Section 6.07 Depositor, Special Servicer and Trustee to Cooperate with
Master Servicer.............................................
Section 6.08 Depositor, Master Servicer and Trustee to Cooperate with
Special Servicer............................................
Section 6.09 Termination and Designation of Special Servicer by the
Directing Holder............................................
Section 6.10 Master Servicer or Special Servicer as Owner of a
Certificate.................................................
Section 6.11 Certain Powers of the Controlling Class Representative.......
ARTICLE VII
DEFAULT
Section 7.01 Events of Default............................................
Section 7.02 Trustee to Act; Appointment of Successor.....................
Section 7.03 Notification to Certificateholders...........................
Section 7.04 Waiver of Events of Default..................................
Section 7.05 Additional Remedies of Trustee Upon Event of Default.........
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee............................................
Section 8.02 Certain Matters Affecting Trustee............................
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans..............................
Section 8.04 Trustee May Own Certificates.................................
Section 8.05 Fees and Expenses of Trustee; Indemnification of and
by Trustee..................................................
Section 8.06 Eligibility Requirements for Trustee.........................
Section 8.07 Resignation and Removal of Trustee...........................
Section 8.08 Successor Trustee............................................
Section 8.09 Merger or Consolidation of Trustee...........................
Section 8.10 Appointment of Co-Trustee or Separate Trustee................
Section 8.11 Appointment of Custodians....................................
Section 8.12 Appointment of Authenticating Agents.........................
Section 8.13 Appointment of Tax Administrators............................
Section 8.14 Access to Certain Information................................
Section 8.15 [Reserved.]..................................................
Section 8.16 Representations and Warranties of Trustee....................
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of All Mortgage
Loans.......................................................
Section 9.02 Additional Termination Requirements..........................
ARTICLE X
ADDITIONAL TAX PROVISIONS
Section 10.01 REMIC Administration.........................................
ARTICLE XI
EXCHANGE ACT REPORTING
Section 11.01 Intent of the Parties; Reasonableness........................
Section 11.02 Succession; Subcontractors...................................
Section 11.03 Filing Obligations...........................................
Section 11.04 Form 10-D Filings............................................
Section 11.05 Form 10-K Filings............................................
Section 11.06 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification.................................
Section 11.07 Form 8-K Filings.............................................
Section 11.08 Form 15 Filing...............................................
Section 11.09 Annual Compliance Statements.................................
Section 11.10 Annual Reports on Assessment of Compliance with Servicing
Criteria....................................................
Section 11.11 Annual Independent Public Accountants' Servicing Report......
Section 11.12 Indemnification..............................................
Section 11.13 Amendments...................................................
Section 11.14 Regulation AB Notices........................................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment....................................................
Section 12.02 Recordation of Agreement; Counterparts.......................
Section 12.03 Limitation on Rights of Certificateholders...................
Section 12.04 Governing Law; Consent to Jurisdiction.......................
Section 12.05 Notices......................................................
Section 12.06 Severability of Provisions...................................
Section 12.07 Grant of a Security Interest.................................
Section 12.08 ▇▇▇▇▇▇ Act...................................................
Section 12.09 Successors and Assigns; Beneficiaries........................
Section 12.10 Article and Section Headings.................................
Section 12.11 Notices to Rating Agencies...................................
Section 12.12 Global Opinions..............................................
Section 12.13 Complete Agreement...........................................
SCHEDULES AND EXHIBITS
Schedule No. Schedule Description
------------ --------------------
I Mortgage Loan Schedule
II Schedule of Exceptions to Mortgage File Delivery
III Environmentally Insured Mortgage Loans
IV Class XP Reference Rate Schedule
V [Reserved]
VI Supplemental Servicer Schedule
VII Primary Serviced Mortgage Loans
VIII [Reserved]
Exhibit No. Exhibit Description
----------- -------------------
A-1 Form of Class [A-1] [A-2] [A-3] Certificate
A-2 Form of Class [XP] [XC] Certificate
A-3 Form of Class [A-4] [B] [C] [D] [E] Certificate
A-4 Form of Class [F] [G] [H] Certificate
A-5 [Reserved]
A-6 Form of Class [J] [K] [L] [M] [N] [O] [P] Certificate
A-7 Form of Class [R-I] [R-II] Certificate
B Form of Distribution Date Statement
C Form of Custodial Certification
D-1 Form of Master Servicer Request for Release
D-2 Form of Special Servicer Request for Release
E Form of Mortgage Loan Payoff Notification Report
F-1 Form of Transferor Certificate for Transfers of Definitive
Non-Registered Certificates
F-2A Form I of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2B Form II of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2C Form of Transferee Certificate for Transfers of Interests in Rule
144A Global Certificates
F-2D Form of Transferee Certificate for Transfers of Interests in
Regulation S Global Certificates
G Form I of Transferee Certificate in Connection with ERISA
(Definitive Non-Registered Certificates)
H-1 Form of Transfer Affidavit and Agreement regarding Residual
Interest Certificates
H-2 Form of Transferor Certificate regarding Residual Interest
Certificates
I-1 Form of Notice and Acknowledgment
I-2 Form of Acknowledgment of Proposed Special Servicer
J Reserved
K Sub-Servicers in respect of which Sub-Servicing Agreements are in
effect or being negotiated as of the Closing Date
L Form of Defeasance Certification
M Form of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification
N-1 Form of Certification to be Provided to Depositor by the Trustee
N-2 Form of Certification to be Provided to Depositor by the Master
Servicer
N-3 Form of Certification to be Provided to Depositor by the Special
Servicer
O Servicing Criteria to be Addressed in Assessment of Compliance
P Additional Form 10-D Disclosure
Q Additional Form ▇▇-▇ ▇▇▇▇▇▇▇▇▇▇
▇ ▇▇▇▇ ▇-▇ ▇▇▇▇▇▇▇▇▇▇
▇ Form of Additional Disclosure Information
T Servicing and Subservicing Agreements
U Form Certification to be Provided with Form 10-K
This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of [________], 200_, among CWCAPITAL COMMERCIAL FUNDING CORP., as
Depositor, [______] as Master Servicer, [______], as Special Servicer, and
[______], as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell the Certificates, which are to be
issued hereunder in multiple Classes and which in the aggregate will evidence
the entire beneficial ownership interest in the Trust Fund.
CERTIFICATES
Original Class
Approx. Principal Balance
Initial (or Notional
Class Pass-Through Rate Amount) Original Rating
Designation (per annum) at Initial Issuance [____]/[____] (1)
----------- ----------- ------------------- -----------------
[Class A-1 [________]% $[________] [____]/[____]
Class A-2 [________]% $[________] [____]/[____]
Class A-3 [________]% $[________] [____]/[____]
Class A-4 [________]% $[________] [____]/[____]
Class B [________]% $[________] [____]/[____]
Class C [________]% $[________] [____]/[____]
Class D [________]% $[________] [____]/[____]
Class E [________]% $[________] [____]/[____]
Class F [________]% $[________] [____]/[____]
Class G [________]% $[________] [____]/[____]
Class H [________]% $[________] [____]/[____]
Class J [________]% $[________] [____]/[____]
Class K [________]% $[________] [____]/[____]
Class L [________]% $[________] [____]/[____]
Class M [________]% $[________] [____]/[____]
Class N [________]% $[________] [____]/[____]
Class O [________]% $[________] [____]/[____]
Class P] [________]% $[________] [____]/[____]
Class XP [________]%(2) $[________](3) [____]/[____]
Class XC [________]%(2) $[________](3) [____]/[____]
Class R-I N/A(4) N/A(4) [NR/NR]
Class R-II N/A(4) N/A(4) [NR/NR]
------------------
(1) "NR" indicates that the Class of Certificates has not been rated by the
applicable Rating Agency.
(2) The Pass-Through Rates for the Class XP and Class XC Certificates will be
a variable rate per annum as set forth herein.
(3) The Class XP and Class XC Certificates will not have a Class Principal
Balance and will not entitle their Holders to receive distributions of
principal. The Class XP and Class XC Certificates will each have a
Notional Amount as set forth herein.
(4) The Class R-I Certificates and Class R-II Certificates do not have a Class
Principal Balance or Notional Amount, do not bear interest and will not be
entitled to distributions of Net Prepayment Consideration. Any Available
Distribution Amount remaining in the Lower-Tier Distribution Account after
distributing the Lower-Tier Distribution Amount and Net Prepayment
Consideration shall be distributed to the Holders of the Class R-I
Certificates (but only to the extent of the Available Distribution Amount
for such Distribution Date, if any, remaining in the Lower-Tier
Distribution Account). Any Available Distribution Amount remaining in the
Upper-Tier Distribution Account, after all required distributions under
this Agreement have been made to each other Class of Certificates, will be
distributed to the Holders of the Class R-II Certificates.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of all of the Mortgage Loans and certain other related
assets subject to this Agreement as a REMIC for federal income tax purposes, and
such segregated pool of assets will be designated as the "Lower-Tier REMIC." The
Class R-I Certificates will represent the sole class of "residual interests" in
the Lower-Tier REMIC for purposes of the REMIC Provisions under federal income
tax law.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Uncertificated Lower-Tier Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets will be
designated as the "Upper-Tier REMIC." The Class R-II Certificates will evidence
the sole class of "residual interests" in the Upper-Tier REMIC for purposes of
the REMIC Provisions under federal income tax law. For federal income tax
purposes, each Class of the Regular Interest Certificates will be designated as
a separate "regular interest" in the Upper-Tier REMIC for purposes of the REMIC
Provisions under federal income tax law.
The following table sets forth the Class or Component designation,
the corresponding Uncertificated Lower-Tier Interest (the "Corresponding
Uncertificated Lower-Tier Interest"), the corresponding components of the Class
X Certificates (the "Corresponding Components"), if any, and the Original Class
Principal Balance for each Class of Principal Balance Certificates (the
"Corresponding Certificates").
Corresponding Original Corresponding
Original Class Uncertificated Lower-Tier Components of
Corresponding Principal Lower-Tier Principal Class X
Certificates Balance Interests(1) Amount Certificates(1)
------------ ------- ------------ ------ ---------------
[Class A-1] $[________]
[LA-1-1] $[________] [X-A-1-1]
[LA-1-2] $[________] [X-A-1-2]
[Class A-2] $[________]
[LA-2-1] $[________] [X-A-2-1]
[LA-2-2] $[________] [X-A-2-2]
[LA-2-3] $[________] [X-A-2-3]
[LA-2-4] $[________] [X-A-2-4]
[LA-2-5] $[________] [X-A-2-5]
[LA-2-6] $[________] [X-A-2-6]
[LA-2-7] $[________] [X-A-2-7]
[Class A-3] $[________]
[LA-3-1] $[________] [X-A-3-1]
[LA-3-2] $[________] [X-A-3-2]
[LA-3-3] $[________] [X-A-3-3]
[LA-3-4] $[________] [X-A-3-4]
[LA-3-5] $[________] [X-A-3-5]
[Class A-4] $[________]
[LA-4-1] $[________] [X-A-4-1]
[LA-4-2] $[________] [X-A-4-2]
[Class B] $[________]
[LB] $[________] [X-B]
[Class C] $[________]
[LC] $[________] [X-C]
[Class D] $[________]
[LD-1] $[________] [X-D-1]
[LD-2] $[________] [X-D-2]
[LD-3] $[________] [X-D-3]
[LD-4] $[________] [X-D-4]
[LD-5] $[________] [X-D-5]
[Class E] $[________]
[LE-1] $[________] [X-E-1]
[LE-2] $[________] [X-E-2]
[Class F] $[________]
[LF-1] $[________] [X-F-1]
[LF-2] $[________] [X-F-2]
[LF-3] $[________] [X-F-3]
[Class G] $[________]
[LG-1] $[________] [X-G-1]
[LG-2] $[________] [X-G-2]
[Class H] $[________]
[LH-1] $[________] [X-H-1]
[LH-2] $[________] [X-H-2]
[Class J] $[________]
[LJ] $[________] [X-J]
[Class K] $[________]
[LK-1] $[________] [X-K-1]
[LK-2] $[________] [X-K-2]
[Class L] $[________]
[LL] $[________] [X-L]
[Class M] $[________]
[LM] $[________] [X-M]
[Class N] $[________]
[LN] $[________] [X-N]
[Class O] $[________]
[LO] $[________] [X-O]
[Class P] $[________]
[LP] $[________] [X-P]
------------------
(1) The Uncertificated Lower-Tier Interest and the Components of the Class X
Certificates that correspond to any particular Class of Principal Balance
Certificates also correspond to each other and, accordingly, constitute
the "Corresponding Uncertificated Lower-Tier Interest" and the
"Corresponding Components," respectively, with respect to each other.
The initial aggregate principal balance of the Uncertificated
Lower-Tier Interests will be $[________].
Capitalized terms used but not otherwise defined in this Preliminary
Statement have the respective meanings assigned thereto in Section 1.01 of this
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the Trustee hereby
agree, in each case, as follows:
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, unless the context otherwise requires:
"ABN AMRO" shall mean ABN AMRO Bank N.V. or its successor in
interest.
"Affiliate" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Acceptable Insurance Default" shall mean, with respect to any
Mortgage Loan, any default under the related Loan documents resulting from (a)
the exclusion of acts of terrorism from coverage under the related all risk
casualty insurance policy maintained on the subject Mortgaged Property and (b)
the related Mortgagor's failure to obtain insurance that specifically covers
acts of terrorism, but only if the Special Servicer has determined, in
accordance with the Servicing Standard, that either (i) such insurance is not
available at commercially reasonable rates and the subject hazards are not
commonly insured against by prudent owners of similar real properties in similar
locales (but only by reference to such insurance that has been obtained by such
owners at current market rates), or (ii) such insurance is not available at any
rate. Subject to the Servicing Standard, in making any of the determinations
required in subclause (i) or (ii) of this definition, the Special Servicer shall
be entitled to rely on the opinion of an insurance consultant.
"Accrued Certificate Interest" shall mean the interest accrued from
time to time with respect to any Class of Regular Interest Certificates, the
amount of which interest shall equal: (a) in the case of any Class of Principal
Balance Certificates for any Interest Accrual Period, one-twelfth of the product
of (i) the Pass-Through Rate applicable to such Class of Certificates for such
Interest Accrual Period, multiplied by (ii) the Class Principal Balance of such
Class of Certificates outstanding immediately prior to the related Distribution
Date; and (b) in the case of each Class of the Class X Certificates for any
Interest Accrual Period, the sum of the Accrued Component Interest for all of
the Components of such Class for such Distribution Date.
"Accrued Component Interest" shall mean, with respect to each
Component of the Class XP and Class XC Certificates for any Distribution Date,
one-twelfth of the product of (i) the Class XP Strip Rate or Class XC Strip Rate
applicable to such Component for such Distribution Date, and (ii) the Component
Notional Amount of such Component outstanding immediately prior to such
Distribution Date.
"Acquisition Date" shall mean, with respect to any REO Property, the
first day on which such REO Property is considered to be acquired by the Trust
Fund within the meaning of Treasury Regulations Section 1.856-6(b)(1), which
shall be the first day on which the Trust Fund is treated as the owner of such
REO Property for federal income tax purposes.
"Actual/360 Basis" shall mean the accrual of interest calculated on
the basis of the actual number of days elapsed during any interest accrual
period in a year assumed to consist of 360 days.
"Additional Disclosure Notification" shall mean the form of
notification to be included with any Additional Form 10-D Disclosure, Additional
Form 10-K Disclosure or Form 8 K Disclosure Information which is attached hereto
as Exhibit S.
"Additional Form 10-D Disclosure" has the meaning set forth in
Section 11.04.
"Additional Form 10-K Disclosure" has the meaning set forth in
Section 11.05.
"Additional Information" shall have the meaning assigned thereto in
Section 4.02(a).
"Additional Principal Distribution Amount" shall mean, with respect
to any Distribution Date, the aggregate of the Recovered Amounts included in,
and added to the Principal Distribution Amount for such Distribution Date for
purposes of calculating, the Adjusted Principal Distribution Amount for such
Distribution Date, pursuant to Section 1.03(c).
"Additional Servicer" means each Affiliate of the Master Servicer
that Services any of the Mortgage Loans and each Person who is not an Affiliate
of the Master Servicer, other than the Special Servicer or the Trustee, who
Services 10% or more of the Mortgage Loans by unpaid balance calculated in
accordance with the provisions of Regulation AB.
"Additional Trust Fund Expense" shall mean any expense incurred with
respect to the Trust Fund (excluding any Unliquidated Advance) and not otherwise
included in the calculation of a Realized Loss that would result in the Holders
of Regular Interest Certificates receiving less than the full amount of
principal and/or Distributable Certificate Interest to which they are entitled
on any Distribution Date. Amounts paid as Additional Trust Fund Expenses shall
be paid out of funds on deposit in the Custodial Account or the Distribution
Account.
"Adjusted Principal Distribution Amount" shall mean, for any
Distribution Date, an amount equal to the Principal Distribution Amount for such
Distribution Date, plus all amounts added to such Principal Distribution Amount
pursuant to Section 1.03(c) for such Distribution Date, minus all amounts
subtracted from such Principal Distribution Amount pursuant to Section 1.03(b)
for such Distribution Date.
"Administrative Cost Rate" shall mean, with respect to each Mortgage
Loan (or any successor REO Mortgage Loan with respect thereto), the rate per
annum specified as the "Administrative Cost Rate" on the Mortgage Loan Schedule,
which, for each such other Mortgage Loan (or successor REO Mortgage Loan) is
equal to the sum of the related Master Servicing Fee Rate and the Trustee Fee
Rate.
"Advance" shall mean any P&I Advance or Servicing Advance.
"Adverse Rating Event" shall mean, when used with respect to any
Class of Certificates, as of any date of determination, the qualification,
downgrade or withdrawal of any rating then assigned to such Class of
Certificates by any Rating Agency.
"Adverse REMIC Event" shall have the meaning assigned thereto in
Section 10.01(i).
"Affiliate" shall mean, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control," when used with
respect to any specified Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" shall mean this Pooling and Servicing Agreement,
together with all amendments hereof and supplements hereto.
"Appraisal" shall mean an appraisal or update thereof prepared by an
Independent Appraiser.
"Appraisal Reduction Amount" shall mean, with respect to any
Required Appraisal Loan, an amount (calculated initially as of the Determination
Date immediately following the later of the date on which the subject Mortgage
Loan became a Required Appraisal Loan and the date on which the applicable
Required Appraisal was obtained) equal to the excess, if any, of: (a) the sum
of, without duplication, (i) the Stated Principal Balance of such Required
Appraisal Loan, (ii) to the extent not previously advanced by or on behalf of
the Master Servicer or the Trustee, all unpaid interest on such Required
Appraisal Loan through the most recent Due Date prior to the date of calculation
(exclusive of any portion thereof that represents Default Interest), (iii) all
accrued and unpaid Special Servicing Fees, Liquidation Fees and Workout Fees in
respect of such Required Appraisal Loan, (iv) all related unreimbursed Advances
(which shall include, without duplication, (1) any Advances as to which the
advancing party was reimbursed from a source other than the related Mortgagor
and (2) any Unliquidated Advances) made by or on behalf of (plus all accrued
interest on such Advances payable to) the Master Servicer, the Special Servicer
and/or the Trustee with respect to such Required Appraisal Loan, (v) any other
unpaid Additional Trust Fund Expenses in respect of such Required Appraisal
Loan, and (vi) all currently due and unpaid real estate taxes and assessments,
insurance premiums and, if applicable, ground rents, and any unfunded
improvement or other applicable reserves, in respect of the related Mortgaged
Property or REO Property, as the case may be (in each case, net of any amounts
escrowed with the Master Servicer or the Special Servicer for such items); over
(b) the Required Appraisal Value. Notwithstanding the foregoing, if (i) any
Mortgage Loan becomes a Required Appraisal Loan, (ii) either (A) no Required
Appraisal or update thereof has been obtained or conducted, as applicable, in
accordance with Section 3.09(a), with respect to the related Mortgaged Property
during the 12-month period prior to the date such Mortgage Loan became a
Required Appraisal Loan or (B) there shall have occurred since the date of the
most recent Required Appraisal or update thereof a material change in the
circumstances surrounding the related Mortgaged Property that would, in the
Special Servicer's reasonable judgment, materially affect the value of the
related Mortgaged Property, and (iii) no new Required Appraisal is obtained or
conducted, as applicable, in accordance with Section 3.09(a), within 60 days
after such Mortgage Loan became a Required Appraisal Loan, then (x) until such
new Required Appraisal is obtained or conducted, as applicable, in accordance
with Section 3.09(a), the Appraisal Reduction Amount shall equal 25% of the
Stated Principal Balance of such Required Appraisal Loan, and (y) upon receipt
or performance, as applicable, in accordance with Section 3.09(a), of such
Required Appraisal or update thereof by the Special Servicer, the Appraisal
Reduction Amount for such Required Appraisal Loan shall be recalculated in
accordance with the preceding sentence of this definition. For purposes of this
definition, each Required Appraisal Loan that is part of a Cross-Collateralized
Group shall be treated separately for the purposes of calculating any Appraisal
Reduction Amount.
"Appraised Value" shall mean, with respect to each Mortgaged
Property or REO Property, the appraised value thereof based upon the most recent
appraisal or update thereof prepared by an Independent Appraiser that is
contained in the related Servicing File or, in the case of any such property
with or that had, as the case may be, an allocated loan amount of, or securing a
Mortgage Loan or relating to an REO Loan, as the case may be, with a Stated
Principal Balance of, less than $2,000,000, either (a) the most recent appraisal
or update thereof that is contained in the related Servicing File or (b) the
most recent "desktop" value estimate performed by the Special Servicer that is
contained in the related Servicing File.
"Assignment of Leases" shall mean, with respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar document or
instrument executed by the Mortgagor in connection with the origination of the
related Mortgage Loan.
"Assumed Monthly Payment" shall mean: (a) with respect to any
Balloon Mortgage Loan delinquent in respect of its Balloon Payment, for each Due
Date coinciding with or following its Stated Maturity Date as of which such
Mortgage Loan remains outstanding and part of the Trust Fund (provided that such
Mortgage Loan was not paid in full, and no other Liquidation Event occurred in
respect thereof, before the end of the Collection Period in which the related
Stated Maturity Date occurs), the scheduled monthly payment of principal and/or
interest deemed to be due in respect of such Mortgage Loan on such Due Date
equal to the amount that would have been due in respect thereof on such Due Date
if such Mortgage Loan had been required to continue to accrue interest (other
than Default Interest) in accordance with its terms, and to pay principal in
accordance with the amortization schedule (if any) in effect immediately prior
to, and without regard to the occurrence of, the related Stated Maturity Date;
(b) with respect to any REO Loan, for any Due Date as of which the related REO
Property remains part of the Trust Fund, or the scheduled monthly payment of
principal and/or interest deemed to be due in respect thereof on such Due Date
equal to the Monthly Payment (or, in the case of a Balloon Loan described in
clause (a) of this definition, the Assumed Monthly Payment) that was due (or
deemed due) in respect of the related Mortgage Loan on the last Due Date prior
to its becoming an REO Loan.
"ASTM" shall mean the American Society for Testing and Materials.
"Authenticating Agent" shall mean any authenticating agent appointed
pursuant to Section 8.12 (or, in the absence of any such appointment, the
Trustee).
"Available Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to: (a) the sum, without duplication, of the
following amounts (i) the aggregate amount of all payments and other collections
on or with respect to the Mortgage Loans and any REO Properties and (B) are on
deposit in the Distribution Account as of 12:00 noon (New York City time) on
such Distribution Date, (ii) the aggregate amount of any P&I Advances made by
the Master Servicer or the Trustee for distribution on the Certificates on such
Distribution Date pursuant to Section 4.03, (iii) the aggregate amount deposited
by the Master Servicer in the Distribution Account for such Distribution Date
pursuant to Section 3.20(a) in connection with Prepayment Interest Shortfalls,
(iv) to the extent not included in clause (a)(i) of this definition, the
aggregate amount transferred from the Excess Liquidation Proceeds Account to the
Distribution Account pursuant to Section 3.05(d) in respect of such Distribution
Date and (v) to the extent not included in the amount described in clause (a)(i)
of this definition, if such Distribution Date occurs during March [_____] or any
year thereafter, the aggregate of the Interest Reserve Amounts transferred from
the Interest Reserve Account to the Distribution Account in respect of the
Interest Reserve Mortgage Loans and any Interest Reserve REO Mortgage Loans for
distribution on such Distribution Date; net of (b) the portion of the aggregate
amount described in clause (a) of this definition that represents one or more of
the following: (i) Monthly Payments that are due on a Due Date following the end
of the related Collection Period, (ii) any amounts payable or reimbursable to
any Person from the Distribution Account pursuant to clauses (ii) through (vii)
of Section 3.05(b), (iii) Prepayment Premiums and/or Yield Maintenance Charges,
(iv) if such Distribution Date occurs during January of any year that is not a
leap year or during February of any year, the Interest Reserve Amounts with
respect to the Interest Reserve Mortgage Loans and any Interest Reserve REO
Mortgage Loans to be withdrawn from the Distribution Account and deposited into
the Interest Reserve Account in respect of such Distribution Date and held for
future distribution, all pursuant to Section 3.04(c), and (v) amounts deposited
in the Distribution Account in error; provided that clauses (b)(i), (b)(iii) and
(b)(iv) of this definition shall not apply on the Final Distribution Date.
"Balloon Loan" shall mean any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the Closing Date
provides for an amortization schedule extending beyond its Stated Maturity Date
and as to which, in accordance with such terms, the payment due on its Stated
Maturity Date is significantly larger than the Monthly Payment due on the Due
Date preceding its Stated Maturity Date.
"Balloon Payment" shall mean, with respect to any Balloon Loan as of
any date of determination, the payment, other than any regularly scheduled
monthly payment, due with respect to such Mortgage Loan at maturity.
"Bid Allocation" shall mean, with respect to the Master Servicer or
any Sub-Servicer and the proceeds of any bid pursuant to Section 7.01(c), the
amount of such proceeds (net of any expenses incurred in connection with such
bid and the transfer of servicing), multiplied by a fraction equal to (a) the
Servicer Fee Amount for the Master Servicer or such Sub-Servicer, as the case
may be, as of such date of determination, over (b) the aggregate of the Servicer
Fee Amounts for the Master Servicer and all of the Sub-Servicers as of such date
of determination.
"Book-Entry Certificate" shall mean any Certificate registered in
the name of the Depository or its nominee.
"Book-Entry Non-Registered Certificate" shall mean any
Non-Registered Certificate that constitutes a Book-Entry Certificate.
"Breach" shall have the meaning assigned thereto in Section 2.03(a).
"Business Day" shall mean any day other than a Saturday, a Sunday or
a day on which banking institutions in New York, New York, or in any of the
cities in which the Corporate Trust Office of the Trustee, the Primary Servicing
Office of the Master Servicer, the Primary Servicer or the Special Servicer are
located, are authorized or obligated by law or executive order to remain closed.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificates" shall mean any of the [Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class
A-3, Class A-4, Class XP, Class XC, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P,
Class R-I or Class R-II] Certificates, as applicable.
"Certificate Factor" shall mean, with respect to any Class of
Regular Interest Certificates, as of any date of determination, a fraction,
expressed as a decimal carried to at least six places, the numerator of which is
the then current Class Principal Balance or Notional Amount, as the case may be,
of such Class of Regular Interest Certificates, and the denominator of which is
the Original Class Principal Balance or initial Notional Amount, as the case may
be, of such Class of Regular Interest Certificates.
"Certificate Owner" shall mean, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such Certificate as
reflected on the books of the Depository or on the books of a Depository
Participant or on the books of an indirect participating brokerage firm for
which a Depository Participant acts as agent.
"Certificate Principal Balance" shall mean, with respect to any
Principal Balance Certificate, as of any date of determination, the then
outstanding principal balance of such Certificate equal to the product of (a)
the then Certificate Factor for the Class of Principal Balance Certificates to
which such Certificate belongs, multiplied by (b) the amount specified on the
face of such Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register" shall mean the register maintained pursuant
to Section 5.02.
"Certificate Registrar" shall mean the registrar appointed pursuant
to Section 5.02.
"Certificateholder" shall mean the Person in whose name a
Certificate is registered in the Certificate Register, except that: (i) neither
a Disqualified Organization nor a Disqualified Non-United States Tax Person
shall be Holder of a Residual Interest Certificate for any purpose hereof; and
(ii) solely for the purposes of giving any consent, approval or waiver pursuant
to this Agreement that relates to the rights and/or obligations of any of the
Depositor, the Master Servicer, the Special Servicer or the Trustee in its
respective capacity as such, any Certificate registered in the name of the
Depositor, the Master Servicer, the Special Servicer or the Trustee, as the case
may be, or any Certificate registered in the name of any of its Affiliates,
shall be deemed not to be outstanding, and the Voting Rights to which it is
entitled shall not be taken into account in determining whether the requisite
percentage of Voting Rights necessary to effect any such consent, approval or
waiver that relates to it has been obtained. The Certificate Registrar shall be
entitled to request and rely upon a certificate of the Depositor, the Master
Servicer or the Special Servicer in determining whether a Certificate is
registered in the name of an Affiliate of such Person. All references herein to
"Certificateholders" shall reflect the rights of Certificate Owners as they may
indirectly exercise such rights through the Depository and the Depository
Participants, except as otherwise specified herein; provided, however, that the
parties hereto shall be required to recognize as a "Certificateholder" only the
Person in whose name a Certificate is registered in the Certificate Register.
"Certificateholder Reports" shall mean, collectively, the
Distribution Date Statement, the Mortgage Pool Data Update Report, the Mortgage
Loan Payoff Notification Report and the CMSA Investor Reporting Package.
"Certification Parties" shall have the meaning assigned thereto in
Section 11.06.
"Certifying Person" shall have the meaning assigned thereto in
Section 11.06.
"Certifying Servicer" shall have the meaning assigned thereto in
Section 11.09.
"Class" shall mean, collectively, all of the Certificates bearing
the same alphabetical and, if applicable, numerical class designation.
"Class A Certificates" shall mean the [Class A-1, Class A-2, Class
A-3 and Class A-4] Certificates.
"Class A-1 Certificate" shall mean any one of the Certificates with
a "Class A-1" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-2 Certificate" shall mean any one of the Certificates with
a "Class A-2" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-3 Certificate" shall mean any one of the Certificates with
a "Class A-3" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-4 Certificate" shall mean any one of the Certificates with
a "Class A-4" designation on the face thereof, substantially in the form of
Exhibit A-3 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class B Certificate" shall mean any one of the Certificates with a
"Class B" designation on the face thereof, substantially in the form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class C Certificate" shall mean any one of the Certificates with a
"Class C" designation on the face thereof, substantially in the form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class D Certificate" shall mean any one of the Certificates with a
"Class D" designation on the face thereof, substantially in the form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class E Certificate" shall mean any one of the Certificates with a
"Class E" designation on the face thereof, substantially in the form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class F Certificate" shall mean any one of the Certificates with a
"Class F" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class G Certificate" shall mean any one of the Certificates with a
"Class G" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class H Certificate" shall mean any of the Certificates with a
"Class H" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class J Certificate" shall mean any one of the Certificates with a
"Class J" designation on the face thereof, substantially in the form of Exhibit
A-6 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class K Certificate" shall mean any of the Certificates with a
"Class K" designation on the face thereof, substantially in the form of Exhibit
A-6 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class L Certificate" shall mean any of the Certificates with a
"Class L" designation on the face thereof, substantially in the form of Exhibit
A-6 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class LA-1-1 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-1-2 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-2-1 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-2-2 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-2-3 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-2-4 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-2-5 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-2-6 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-2-7 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-3-1 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-3-2 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-3-3 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-3-4 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-3-5 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-4-1 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-4-2 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LB Interest" shall mean a regular interest in the Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having the Original
Lower-Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LC Interest" shall mean a regular interest in the Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having the Original
Lower-Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LD-1 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LD-2 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LD-3 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LD-4 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LD-5 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LE-1 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LE-2 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LF-1 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LF-2 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LF-3 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LG-1 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LG-2 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LH-1 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LH-2 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LJ Interest" shall mean a regular interest in the Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having the Original
Lower-Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LK-1 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LK-2 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LL Interest" shall mean a regular interest in the Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having the Original
Lower-Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LM Interest" shall mean a regular interest in the Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having the Original
Lower-Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LN Interest" shall mean a regular interest in the Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having the Original
Lower-Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LO Interest" shall mean a regular interest in the Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having the Original
Lower-Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LP Interest" shall mean a regular interest in the Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having the Original
Lower-Tier Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class M Certificate" shall mean any of the Certificates with a
"Class M" designation on the face thereof, substantially in the form of Exhibit
A-6 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class N Certificate" shall mean any of the Certificates with a
"Class N" designation on the face thereof, substantially in the form of Exhibit
A-6 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class O Certificate" shall mean any of the Certificates with a
"Class O" designation on the face thereof, substantially in the form of Exhibit
A-6 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class P Certificate" shall mean any of the Certificates with a
"Class P" designation on the face thereof, substantially in the form of Exhibit
A-6 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class Principal Balance" shall mean the aggregate principal balance
of any Class of Principal Balance Certificates outstanding as of any date of
determination. As of the Closing Date, the Class Principal Balance of each Class
of Principal Balance Certificates shall equal the Original Class Principal
Balance thereof. On each Distribution Date, the Class Principal Balance of each
Class of Principal Balance Certificates shall be permanently reduced by the
amount of any distributions of principal made thereon on such Distribution Date
pursuant to Section 4.01 or 9.01, as applicable, and shall be further
permanently reduced (subject to Section 4.05) by the amount of any Realized
Losses and Additional Trust Fund Expenses deemed allocated thereto on such
Distribution Date pursuant to Section 4.04(a). On each Distribution Date, the
Class Principal Balance of each Class of Principal Balance Certificates shall be
increased by the related Class Principal Reinstatement Amount, if any, for such
Distribution Date.
"Class Principal Reinstatement Amount" shall have the meaning
assigned thereto in Section 4.05(a).
"Class R-I Certificate" shall mean any one of the Certificates with
a "Class R-I" designation on the face thereof, substantially in the form of
Exhibit A-7 attached hereto, and evidencing a portion of the sole class of
"residual interests" in the Lower-Tier REMIC for purposes of the REMIC
Provisions.
"Class R-II Certificate" shall mean any one of the Certificates with
a "Class R-II" designation on the face thereof, substantially in the form of
Exhibit A-7 attached hereto, and evidencing a portion of the sole class of
"residual interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class X Certificates" shall mean the Class XP Certificates and the
Class XC Certificates.
"Class XC Certificate" shall mean any one of the Certificates with a
"Class XC" designation on the face thereof, substantially in the form of Exhibit
A-2 attached hereto, and evidencing the Components and a portion of a class of
"regular interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class XC Notional Amount" shall mean, with respect to the Class XC
Certificates and any date of determination, the sum of the then Component
Notional Amounts of all of the Components.
"Class XC Strip Rate" shall mean, with respect to (A) any Class of
Components (other than the Class XP Components) for any Distribution Date, a
rate per annum equal to (i) the Weighted Average Net Mortgage Rate for such
Distribution Date, minus (ii) the Pass-Through Rate for the Corresponding
Certificates and (B) the Class XP Components (i) for any Distribution Date
occurring on or before the related Class XP Component Crossover Date, (x) the
Weighted Average Net Mortgage Rate for such Distribution Date minus (y) the sum
of the Pass-Through Rate for the Corresponding Certificates for such
Distribution Date and the Class XP Strip Rate for such Component for such
Distribution Date, and (ii) for any Distribution Date occurring after the
related Class XP Component Crossover Date, a rate per annum equal to (x) the
Weighted Average Net Mortgage Rate for such Distribution Date, minus (y) the
Pass-Through Rate for the Corresponding Certificates. In no event shall any
Class XC Strip Rate be less than zero.
"Class XP Certificate" shall mean any one of the Certificates with a
"Class XP" designation on the face thereof, substantially in the form of Exhibit
A-2 attached hereto, and evidencing the Class XP Components and a portion of a
class of "regular interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class XP Component Crossover Date" [shall mean (i) with respect to
Component X-A-1-2, Component X-A-2-1, the Distribution Date occurring in
[________], (ii) with respect to Component X-A-2-2, Component X-K-1 and
Component X-L the Distribution Date occurring in [________], (iii) with respect
to Component X-A-2-3, Component X-H-1, Component X-J and Component X-K-2, the
Distribution Date occurring in [________], (iv) with respect to Component
X-A-2-4, Component X-G-1, Component X-H-2, the Distribution Date occurring in
[________], (v) with respect to Component X-A-2-5, Component X-F-1 and Component
X-G-2, the Distribution Date occurring in [________], (vi) with respect to
Component X-A-2-6 and Component X-F-2, the Distribution Date occurring in
[________], (vii) with respect to Component X-A-2-7, Component X-A-3-1,
Component X-E-1 and Component X-F-3, the Distribution Date occurring in
[________], (viii) with respect to Component X-A-3-2, Component X-D-1 and
Component X-E-2, the Distribution Date occurring in [________], (ix) with
respect to Component X-A-3-3, Component X-D-2, the Distribution Date occurring
in [________], (x) with respect to Component X-A-3-4 and Component X-D-3, the
Distribution Date occurring in [________], (xi) with respect to Component
X-A-3-5, Component X-A-4-1 and Component X-D-4, the Distribution Date occurring
in [________], and (xii) with respect to Component X-A-4-2, Component X-B,
Component X-C and Component X-D-5, the Distribution Date in [--------].]
"Class XP Components" shall mean each of [Component X-A-1-2,
Component X-A-2-1, Component X-A-2-2, Component X-A-2-3, Component X-A-2-4,
Component X-A-2-5, Component X-A-2-6, Component X-A-2-7, Component X-A-3-1,
Component X-A-3-2, Component X-A-3-3, Component X-A-3-4, Component X-A-3-5,
Component X-A-4-1, Component X-A-4-2, Component X-B, Component X-C, Component
X-D-1, Component X-D-2, Component X-D-3, Component X-D-4, Component X-D-5,
Component X-E-1, Component X-E-2, Component X-F-1, Component X-F-2, Component
X-F-3, Component X-G-1, Component X-G-2, Component X-H-1, Component X-H-2,
Component X-J, Component X-K-1, Component X-K-2 and Component X-L].
"Class XP Notional Amount" shall mean, as of any date of
determination, the sum of the then Component Notional Amounts of the Class XP
Components for which the Class XP Component Crossover Date has not passed.
"Class XP Reference Rate" shall mean, for any Distribution Date, the
rate per annum corresponding to such Distribution Date on Schedule IV.
"Class XP Strip Rate" shall mean, with respect to each of the Class
XP Components for any Distribution Date, a rate per annum equal to (i) for any
Distribution Date occurring on or before the related Class XP Component
Crossover Date, (x) the lesser of (I) the Weighted Average Net Mortgage Rate for
such Distribution Date and (II) the Class XP Reference Rate for such
Distribution Date minus (y) the Pass-Through Rate for the Corresponding
Certificates (provided that in no event shall any Class XP Strip Rate be less
than zero) and (ii) for any Distribution Date occurring after the related Class
XP Component Crossover Date, 0% per annum.
"Clearstream" shall mean Clearstream Banking, Societe Anonyme or any
successor.
"Closing Date" shall mean [__________ __], 200_.
"CMSA" shall mean the Commercial Mortgage Securities Association, or
any association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, issuers, placement agents and
underwriters generally involved in the commercial mortgage loan securitization
industry, which is the principal such association or organization in the
commercial mortgage loan securitization industry and one of whose principal
purposes is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" shall be
deemed to refer to such other association or organization as shall be selected
by the Master Servicer and reasonably acceptable to the Trustee, the Special
Servicer and the Directing Holder.
"CMSA Advance Recovery Report" shall mean a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Advance Recoverability Report" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Bond Level File" shall mean the monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Bond Level File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Collateral Summary File" shall mean the report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Collateral Summary File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Comparative Financial Status Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Comparative Financial Status Report" available as
of the Closing Date on the CMSA Website, or such other form for the presentation
of such information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "CMSA Comparative Financial Status Report" available as of the
Closing Date on the CMSA Website, is reasonably acceptable to the Master
Servicer or the Special Servicer, as applicable.
"CMSA Delinquent Loan Status Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Delinquent Loan Status Report" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Financial File" shall mean a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally. The initial data for this
report shall be provided by each Mortgage Loan Seller.
"CMSA Historical Liquidation Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Historical Liquidation Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report" shall mean a report substantially in the form of, and containing the
information called for in, the downloadable form of the "Historical Loan
Modification and Corrected Mortgage Loan Report" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Investor Reporting Package" shall mean, collectively:
(a) the following seven 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, (vi) CMSA Collateral Summary
File and (vii) CMSA Special Servicer Loan File; and
(b) the following twelve supplemental reports: (i) CMSA Delinquent
Loan Status Report, (ii) CMSA Historical Loan Modification and Corrected
Mortgage Loan Report, (iii) CMSA Historical Liquidation Report, (iv) CMSA
REO Status Report, (v) CMSA Operating Statement Analysis Report, (vi) CMSA
Comparative Financial Status Report, (vii) CMSA Servicer Watch List,
(viii) CMSA Loan Level Reserve/LOC Report, (ix) CMSA NOI Adjustment
Worksheet, (x) CMSA Advance Recovery Report, (xi) CMSA Total Loan Report
and (xii) CMSA Reconciliation of Funds Report.
"CMSA Loan Level Reserve/LOC Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Level Reserve/LOC Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Loan Periodic Update File" shall mean the monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Periodic Update File" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be approved by the CMSA for commercial mortgage securities transactions
generally. The initial data for this report shall be provided by each Mortgage
Loan Seller. Each CMSA Loan Periodic Update File prepared by the Master Servicer
shall, if applicable, be accompanied by a Monthly Additional Report on
Recoveries and Reimbursements and all references herein to "CMSA Loan Periodic
Update File" shall be construed accordingly.
"CMSA Loan Setup File" shall mean the report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Loan Setup File" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Reconciliation of Funds Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Reconciliation of Funds Report" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Total Loan Report" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "CMSA Total Loan Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA NOI Adjustment Worksheet" shall mean a report prepared by the
Master Servicer with respect to all the Performing Mortgage Loans, and by the
Special Servicer with respect to Specially Serviced Mortgage Loans and REO
Loans, which report shall be substantially in the form of, and contain the
information called for in, the downloadable form of the "NOI Adjustment
Worksheet" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be approved by the CMSA for commercial
mortgage securities transactions generally.
"CMSA Operating Statement Analysis Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Operating Statement Analysis Report" available as
of the Closing Date on the CMSA Website or in such other form for the
presentation of such information and containing such additional information as
may from time to time be approved by the CMSA for commercial mortgage-backed
securities transactions generally.
"CMSA Property File" shall mean a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Property File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA REO Status Report" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "REO Status Report" available as of the Closing Date on the CMSA Website, or
in such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Servicer Watch List" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Servicer Watch List" available as of the Closing Date on the CMSA Website,
or in such other form for the presentation of such information and containing
such additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Special Servicer Loan File" shall mean a report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Special Servicer Loan File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Website" shall mean the CMSA's Website located at
"▇▇▇.▇▇▇▇.▇▇▇" or such other primary website as the CMSA may establish for
dissemination of its report forms.
"Code" shall mean the Internal Revenue Code of 1986 and regulations
promulgated thereunder, including temporary regulations and proposed regulations
to the extent that, by reason of their proposed effective date, could, as of the
date of any determination or opinion as to the tax consequences of any action or
proposed action or transaction, be applied to the Certificates.
"Collection Period" shall mean, with respect to any Distribution
Date or Master Servicer Remittance Date, the period commencing on the day
immediately following the Determination Date in the calendar month preceding the
month in which such Distribution Date or Master Servicer Remittance Date, as the
case may be, occurs (or, in the case of each of the initial Distribution Date
and the initial Master Servicer Remittance Date, commencing immediately
following the Cut-off Date) and ending on and including the Determination Date
in the calendar month in which such Distribution Date or Master Servicer
Remittance Date, as the case may be, occurs.
"Commission" shall mean the United States Securities and Exchange
Commission or any successor agency.
"Components" shall mean each of [Component X-A-1-1, Component
X-A-1-2, Component X-A-2-1, Component X-A-2-2, Component X-A-2-3, Component
X-A-2-4, Component X-A-2-5, Component X-A-2-6, Component X-A-2-7, Component
X-A-3-1, Component X-A-3-2, Component X-A-3-3, Component X-A-3-4, Component
X-A-3-5, Component X-A-4-1, Component X-A-4-2, Component X-B, Component X-C,
Component X-D-1, Component X-D-2, Component X-D-3, Component X-D-4, Component
X-D-5, Component X-E-1, Component X-E-2, Component X-F-1, Component X-F-2,
Component X-F-3, Component X-G-1, Component X-G-2, Component X-H-1, Component
X-H-2, Component X-J, Component X-K-1, Component X-K-2, Component X-L, Component
X-M, Component X-N, Component X-O and Component X-P].
"Component X-A-1-1" shall mean one of [________] components of the
Class XC Certificates having a Component Notional Amount which, as of any date
of determination, is equal to the then current Uncertificated Principal Balance
of the Class LA-1-1 Interest.
"Component X-A-1-2" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-1-2 Interest.
"Component X-A-2-1" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-2-1 Interest.
"Component X-A-2-2" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-2-2 Interest.
"Component X-A-2-3" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-2-3 Interest.
"Component X-A-2-4" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-2-4 Interest.
"Component X-A-2-5" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-2-5 Interest.
"Component X-A-2-6" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-2-6 Interest.
"Component X-A-2-7" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-2-7 Interest.
"Component X-A-3-1" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-3-1 Interest.
"Component X-A-3-2" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-3-2 Interest.
"Component X-A-3-3" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-3-3 Interest.
"Component X-A-3-4" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-3-4 Interest.
"Component X-A-3-5" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-3-5 Interest.
"Component X-A-4-1" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-4-1 Interest.
"Component X-A-4-2" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LA-4-2 Interest.
"Component X-B" shall mean one of [________] components of the Class
XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LB Interest.
"Component X-C" shall mean one of [________] components of the Class
XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LC Interest.
"Component X-D-1" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LD-1 Interest.
"Component X-D-2" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LD-2 Interest.
"Component X-D-3" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LD-3 Interest.
"Component X-D-4" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LD-4 Interest.
"Component X-D-5" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LD-5 Interest.
"Component X-E-1" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LE-1 Interest.
"Component X-E-2" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LE-2 Interest.
"Component X-F-1" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LF-1 Interest.
"Component X-F-2" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LF-2 Interest.
"Component X-F-3" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LF-3 Interest.
"Component X-G-1" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LG-1 Interest.
"Component X-G-2" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LG-2 Interest.
"Component X-H-1" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LH-1 Interest.
"Component X-H-2" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LH-2 Interest.
"Component X-J" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LJ Interest.
"Component X-K-1" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LK-1 Interest.
"Component X-K-2" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LK-2 Interest.
"Component X-L" shall mean one of [________] components of the Class
XC Certificates and one of the [________] components of the Class XP
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LL Interest.
"Component X-M" shall mean one of [________] components of the Class
XC Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LM Interest.
"Component X-N" shall mean one of [________] components of the Class
XC Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LN Interest.
"Component X-O" shall mean one of [________] components of the Class
XC Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LO Interest.
"Component X-P" shall mean one of [________] components of the Class
XC Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
the Class LP Interest.
"Component Notional Amount" shall mean with respect to each
Component and any date of determination, an amount equal to the then current
Uncertificated Principal Balance of its Corresponding Uncertificated Lower-Tier
Interest.
"Condemnation Proceeds" shall mean all cash amounts Received in
connection with the taking of all or a part of a Mortgaged Property or REO
Property by exercise of the power of eminent domain or condemnation, subject,
however, to the rights of any tenants and ground lessors, as the case may be,
and the terms of the related Mortgage.
"Controlling Class" shall mean the Class of Certificates (other than
the Residual Interest Certificates) with the latest alphabetical Class
designation that has a then-aggregate Class Principal Balance that is not less
than 25% of the Original Class Principal Balance of such Class; provided that if
no Class of Principal Balance Certificates has, as of such date of
determination, a Class Principal Balance that meets the requirements above, then
the Controlling Class shall be the then outstanding Class of Principal Balance
Certificates bearing the latest alphabetic Class designation that has a Class
Principal Balance greater than zero; and provided, further, that, for purposes
of determining the Controlling Class, the [Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3 and
Class A-4] Certificates shall be deemed a single Class of Certificates. As of
the Closing Date, the Controlling Class will be the Class [P] Certificates. If
the Controlling Class consists of Book-Entry Certificates, then the rights of
the Holders of the Controlling Class set forth in this Agreement may be
exercised directly by the relevant Certificate Owners, provided that the
identity of such Certificate Owners has been confirmed to the Trustee to its
reasonable satisfaction.
"Controlling Class Certificateholder" shall mean any Holder of a
Certificate of the Controlling Class.
"Controlling Class Representative" shall mean the Holder or Holders
of greater than 50% of the Voting Rights assigned to the Controlling Class;
provided that no Holder of Voting Rights allocated to the Controlling Class may
exercise any rights of such Class with respect to any Mortgage Loan as to which
such Holder is a Mortgagor Affiliate Holder.
"Corporate Trust Office" shall mean the principal corporate trust
office of the Trustee at which at any particular time its asset-backed
securities trust business with respect to this Agreement shall be administered,
which office at the date of the execution of this Agreement is located at
[_____________], [_______], [_________], Attention: [___________] - CWCapital
Commercial Funding Corp., Commercial Mortgage Trust Series 200_-___.
"Corrected Mortgage Loan" shall mean any Mortgage Loan that had been
a Specially Serviced Mortgage Loan but has ceased to be such in accordance with
the definition of "Specially Serviced Mortgage Loan" (other than by reason of a
Liquidation Event occurring in respect of such Mortgage Loan or the related
Mortgaged Property's becoming an REO Property).
"Corresponding Certificate" shall have the meaning assigned thereto
in the Preliminary Statement with respect to any Corresponding Component or any
Corresponding Uncertificated Lower-Tier Interest.
"Corresponding Component" shall have the meaning assigned thereto in
the Preliminary Statement with respect to any Corresponding Certificate or any
Corresponding Uncertificated Lower-Tier Interest.
"Corresponding Uncertificated Lower-Tier Interest" shall have the
meaning assigned thereto in the Preliminary Statement with respect to any
Corresponding Certificate or any Corresponding Component.
"Cross-Collateralized Group" shall mean any group of
Cross-Collateralized Mortgage Loans.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage Loan
that is cross-defaulted and cross-collateralized with any other Mortgage Loan.
"Cross-Over Date" shall mean the Distribution Date on which (i) the
[Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3 and Class A-4] Certificates, or any two or more
of such Classes, remain outstanding and (ii) the aggregate of the Class
Principal Balances of the [Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O and Class P]
Certificates are reduced to zero as a result of the allocation of Realized
Losses and Additional Trust Fund Expenses pursuant to Section 4.04(a).
"Custodial Account" shall mean the segregated account or accounts
created and maintained by the Master Servicer pursuant to Section 3.04(a) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "[______] as Master Servicer, on behalf of [______], as Trustee, in
trust for the registered holders of CWCapital Commercial Funding Corp.,
Commercial Mortgage Trust 200_-___, Commercial Mortgage Pass-Through
Certificates, Series 200_-___."
"Custodian" shall mean a Person who is at any time appointed by the
Trustee pursuant to Section 8.11 as a document custodian for the Mortgage Files,
which Person shall not be the Depositor, the Mortgage Loan Sellers or an
Affiliate of the Depositor or the Mortgage Loan Sellers. If no such custodian
has been appointed, or if such custodian has been so appointed but the Trustee
shall have terminated such appointment, then the Trustee shall be the Custodian.
"Cut-off Date" shall mean (i) with respect to each Mortgage Loan
originated before [______], 200_ and with a Due Date on the first day of each
month, [_____] [_], 200_, (ii) with respect to each Mortgage Loan originated
before [_______] 1, 200_ and with a Due Date on the sixth day of each month,
[______], 200_ and (iii) with respect to any Mortgage Loan originated in
[______], 200_, the date of its origination.
"Cut-off Date Balance" shall mean, with respect to any Mortgage
Loan, the outstanding principal balance of such Mortgage Loan as of the Cut-off
Date, net of all unpaid payments of principal due in respect thereof on or
before such date.
"Default Charges" shall mean Default Interest and/or late payment
charges that are paid or payable, as the context may require, to the Trust in
respect of any Mortgage Loan or any successor REO Loan with respect thereto.
"Default Interest" shall mean, with respect to any Mortgage Loan or
any successor REO Loan with respect thereto, any amounts Received thereon (other
than late payment charges, Prepayment Premiums or Yield Maintenance Charges)
that represent penalty interest (arising out of a default) in excess of interest
accrued on the principal balance of such Mortgage Loan (or successor REO Loan),
at the related Mortgage Rate.
"Defaulting Party" shall have the meaning assigned thereto in
Section 7.01(b).
"Defeasance Certificate" shall have the meaning assigned thereto in
Section 3.21(k).
"Defeasance Collateral" shall mean, with respect to any Defeasance
Loan, the Government Securities required or permitted to be pledged in lieu of
prepayment pursuant to the terms thereof in order to obtain a release of the
related Mortgaged Property.
"Defeasance Deposit Account" shall have the meaning assigned thereto
in Section 3.04(a).
"Defeasance Loan" shall mean any Mortgage Loan that permits the
related Mortgagor to pledge Defeasance Collateral to the holder of such Mortgage
Loan in lieu of prepayment.
"Definitive Certificate" shall have the meaning assigned thereto in
Section 5.03(a).
"Definitive Non-Registered Certificate" shall mean any
Non-Registered Certificate that has been issued as a Definitive Certificate.
"Depositor" shall mean CWCapital Commercial Funding Corp, and any
successor in interest.
"Depository" shall mean The Depository Trust Company or any
successor Depository hereafter named as contemplated by Section 5.03(c). The
nominee of the initial Depository for purposes of registering those Certificates
that are to be Book-Entry Certificates, is Cede & Co. The Depository shall at
all times be a "clearing corporation" as defined in Section 8-102(3) of the
Uniform Commercial Code of the State of New York and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act.
"Depository Participant" shall mean a broker, dealer, bank or other
financial institution or other Person for whom from time to time the Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Determination Date" shall mean the sixth calendar day of each month
(or, if such sixth day is not a Business Day, the Business Day immediately
following such sixth day), commencing in [________] 200_.
"Directly Operate" shall mean, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale or lease, the performance of any construction work thereon or any use of
such REO Property in a trade or business conducted by the Lower-Tier REMIC,
other than through an Independent Contractor; provided, however, that the
Trustee (or the Special Servicer or any Sub-Servicer on behalf of the Trustee)
shall not be considered to Directly Operate an REO Property solely because the
Trustee (or the Special Servicer or any Sub-Servicer on behalf of the Trustee)
establishes rental terms, chooses tenants, enters into or renews leases, deals
with taxes and insurance, or makes decisions as to repairs or capital
expenditures with respect to such REO Property.
"Discount Rate" shall mean, with respect to any prepaid Mortgage
Loan or REO Mortgage Loan, for purposes of allocating any Prepayment Premium or
Yield Maintenance Charge Received with respect thereto among the [Class ▇-▇,
▇▇▇▇▇ ▇-▇, Class A-3, Class A-4, Class B, Class C, Class D, Class E, Class F,
Class G and Class H] Certificates, a rate equal to the yield (when compounded
monthly) on the U.S. Treasury issue (primary issue) with a maturity date closest
to the maturity date, as published in Federal Reserve Statistical Release H.15
(519) published by the Federal Reserve Board; provided that if there are two
such U.S. Treasury issues (a) with the same coupon, the issue with the lower
yield shall apply, and (b) with maturity dates equally close to the maturity
date for such prepaid Mortgage Loan or REO Mortgage Loan, the issue with the
earliest maturity date shall apply.
"Disqualified Non-United States Tax Person" shall mean, with respect
to any Residual Interest Certificate, any Non-United States Tax Person or agent
thereof other than: (1) a Non-United States Tax Person that (a) holds such
Residual Interest Certificate and, for purposes of Treasury Regulations Section
1.860G-3(a)(3), is subject to tax under Section 882 of the Code, (b) certifies
that it understands that, for purposes of Treasury Regulations Section
1.860E-1(c)(4)(ii), as a Holder of such Residual Interest Certificate for United
States federal income tax purposes, it may incur tax liabilities in excess of
any cash flows generated by such Residual Interest Certificate and intends to
pay taxes associated with holding such Residual Interest Certificate, and (c)
has furnished the Transferor and the Trustee with an effective IRS Form W-8ECI
or successor form and has agreed to update such form as required under the
applicable Treasury regulations; or (2) a Non-United States Tax Person that has
delivered to the Transferor, the Trustee and the Certificate Registrar an
opinion of nationally recognized tax counsel to the effect that (x) the Transfer
of such Residual Interest Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and (y) such
Transfer of such Residual Interest Certificate will not be disregarded for
United States federal income tax purposes.
"Disqualified Organization" shall mean any of the following: (i) the
United States, any State or any political subdivision thereof, any foreign
government, international organization, or any agency or instrumentality of any
of the foregoing; (ii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) that is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business income); (iii) rural electric and
telephone cooperatives described in Section 1381 of the Code; or (iv) any other
Person so designated by the Trustee or the Tax Administrator based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Residual
Interest Certificate by such Person may cause the Trust Fund or any Person
having an Ownership Interest in any Class of Certificates, other than such
Person, to incur a liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the Transfer of an Ownership Interest in
a Residual Interest Certificate to such Person. The terms "United States,"
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
"Disqualified Partnership" shall mean any domestic entity classified
as a partnership under the Code if any of its beneficial owners are Disqualified
Non-United States Tax Persons.
"Distributable Certificate Interest" shall mean, with respect to any
Class of Regular Interest Certificates for any Distribution Date, subject to
Section 4.05(b), an amount of interest equal to the amount of Accrued
Certificate Interest in respect of such Class of Certificates for the related
Interest Accrual Period, reduced (to not less than zero) by that portion, if
any, of the Net Aggregate Prepayment Interest Shortfall for such Distribution
Date allocated to such Class of Certificates as provided below. The Net
Aggregate Prepayment Interest Shortfall, if any, for each Distribution Date
shall be allocated among the respective Classes of Regular Interest Certificates
on a pro rata basis in accordance with, the respective amounts of Accrued
Certificate Interest for each such Class of Certificates for the related
Interest Accrual Period.
"Distribution Account" shall mean the segregated account or accounts
created and maintained by the Trustee pursuant to Section 3.04(b), which shall
be entitled "[______], as Trustee, in trust for the registered holders of
CWCapital Commercial Funding Corp., Commercial Mortgage Trust 200_-___,
Commercial Mortgage Pass-Through Certificates, Series 200_-___" which account
shall be deemed to consist of, collectively, the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account and the Interest Reserve Account.
"Distribution Date" shall mean the date each month, commencing in
[_______] 200_, on which, among other things, the Trustee is to make
distributions on the Certificates, which date shall be the tenth day of the
month, or if such tenth day is not a Business Day, then the Business Day
immediately following such tenth day, provided that the Distribution Date will
be at least four Business Days following the related Determination Date.
"Distribution Date Statement" shall have the meaning assigned
thereto in Section 4.02(a).
"Document Defect" shall have the meaning assigned thereto in Section
2.03(a).
"Due Date" shall mean: (i) with respect to any Mortgage Loan on or
prior to its Stated Maturity Date, the day of the month set forth in the related
Mortgage Note on which each Mortgage Monthly Payment on such Mortgage Loan is
scheduled to be first due; (ii) with respect to any Mortgage Loan after its
Stated Maturity Date, the day of the month set forth in the related Mortgage
Note on which each Monthly Payment on such Mortgage Loan had been scheduled to
be first due; and (iii) with respect to any REO Loan, the day of the month set
forth in the related Mortgage Note on which each Monthly Payment on the related
Mortgage Loan had been scheduled to be first due.
"▇▇▇▇▇" shall mean the Commission's Electronic Data Gathering,
Analysis and Retrieval system.
"Eligible Account" shall mean any of: (i) an account maintained with
a federal or state chartered depository institution or trust company, the
long-term deposit or unsecured debt obligations of which are rated at least
"[__]" by [____] and at least "[__]" (or, if such depository institution or
trust company has short-term unsecured debt obligations rated at least "[__]" by
[____], at least "A+") by [____] (or, in the case of any Rating Agency, such
lower rating as will not result in an Adverse Rating Event with respect to any
Class of Certificates, as evidenced in writing by such Rating Agency) at any
time such funds are on deposit therein (if such funds are to be held for more
than 30 days), or the short-term deposits of which are rated at least "[__]" by
[____] and at least "[__]" by [____] (or, in the case of any Rating Agency, such
lower rating as will not result in an Adverse Rating Event with respect to any
Class of Certificates, as evidenced in writing by such Rating Agency) at any
time such funds are on deposit therein (if such funds are to be held for 30 days
or less); or (ii) a segregated trust account maintained with the trust
department of a federal or state chartered depository institution or trust
company acting in its fiduciary capacity (which may be the Trustee), is subject
to supervision or examination by federal or state authority and, in the case of
a state chartered depository institution or trust company, is subject to
regulations regarding fiduciary funds on deposit therein substantially similar
to 12 CFR ss. 9.10(b); or (iii) any other account, the use of which would not,
in and of itself, cause an Adverse Rating Event with respect to any Class of
Certificates, as evidenced in writing by each Rating Agency.
"Environmental Assessment" shall mean a "Phase I assessment" as
described in and meeting the criteria of Chapter 5 of the ▇▇▇▇▇▇ Mae Multifamily
Guide and the ASTM Standard for Environmental Site Assessments, each as amended
from time to time.
"Environmental Insurance Policy" shall mean, with respect to any
Mortgaged Property or REO Property, any insurance policy covering pollution
conditions and/or other environmental conditions that is maintained from time to
time in respect of such Mortgaged Property or REO Property, as the case may be,
for the benefit of, among others, the Trustee on behalf of the
Certificateholders.
"Environmentally Insured Mortgage Loans" shall mean the Mortgage
Loans identified on Schedule III hereto.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Escrow Payment" shall mean any payment received by the Master
Servicer or the Special Servicer for the account of any Mortgagor for
application toward the payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and other items for which an escrow has
been created in respect of the related Mortgaged Property.
"Euroclear" shall mean Euroclear Bank as operator of the Euroclear
System or any successor.
"Event of Default" shall have the meaning assigned thereto in
Section 7.01(a).
"Excess Liquidation Proceeds" shall mean the excess, if any, of (a)
the Net Liquidation Proceeds from the sale or liquidation of a Specially
Serviced Mortgage Loan or REO Property, net of (i) interest on any related
Advances, (ii) any related Servicing Advances and (iii) any Liquidation Fee
payable from such Net Liquidation Proceeds, over (b) the amount needed to pay
off the Mortgage Loan or related REO Loan in full and reimburse the Trust for
any prior Additional Trust Fund Expenses related to such Mortgage Loan.
"Excess Liquidation Proceeds Account" shall mean the segregated
account created and maintained by the Trustee pursuant to Section 3.04(d) in
trust for the Certificateholders, which shall be entitled "[______], as Trustee,
in trust for the registered Holders of CWCapital Commercial Funding Corp.,
Commercial Mortgage Trust 200_-___, Commercial Mortgage Pass-Through
Certificates, Series 200_-___."
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exemption-Favored Party" shall mean any of (i) [________], (ii) any
Person directly or indirectly, through one or more intermediaries, controlling,
controlled by or under common control with [________] and (iii) any member of
any underwriting syndicate or selling group of which any Person described in
clauses (i), (ii) or (iii) is a manager or co-manager with respect to a Class of
Investment Grade Certificates.
"▇▇▇▇▇▇ ▇▇▇" shall mean the Federal National Mortgage Association or
any successor.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor.
"FHLMC" shall mean the Federal Home Loan Mortgage Corporation or any
successor.
"Final Distribution Date" shall mean the Distribution Date on which
the final distribution is to be made with respect to the Certificates in
connection with a termination of the Trust Fund pursuant to Article IX.
"Final Recovery Determination" shall mean a determination by the
Special Servicer with respect to any Specially Serviced Mortgage Loan or REO
Property that there has been a recovery of all Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds and other payments or recoveries that the Special
Servicer has determined, in accordance with the Servicing Standard, will be
ultimately recoverable; provided that the term Final Recovery Determination
shall not apply to: (i) a Mortgage Loan that was paid in full; or (ii) a
Mortgage Loan or REO Property, as the case may be, that was purchased by (A) the
applicable Mortgage Loan Seller pursuant to Section 2.03(a) and the applicable
Mortgage Loan Purchase Agreement, (B) a Purchase Option Holder or its assignee
pursuant to Section 3.19, (C) the Depositor, the Mortgage Loan Sellers, the
Special Servicer, a Controlling Class Certificateholder or the Master Servicer
pursuant to Section 9.01, or the holder of a related mezzanine loan in
connection with a Mortgage Loan default, as set forth in the related
intercreditor agreement.
"Form 8-K Disclosure Information" shall have the meaning assigned
thereto in Section 11.07.
"FV Bid" shall have the meaning assigned thereto in Section 3.19(c).
"FV Price" shall have the meaning assigned thereto in Section
3.19(c).
"GAAP" shall mean generally accepted accounting principles in the
United States of America.
"Global Certificate" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates, either the related Rule 144A Global
Certificate or the Regulation S Global Certificate.
"Global Opinion" shall have the meaning assigned thereto in Section
12.12.
"Government Securities" shall mean "Government Securities" as
defined in Section 2(a)(16) of the Investment Company Act of 1940, excluding any
such securities that are not acceptable to any Rating Agency as Defeasance
Collateral.
"Ground Lease" shall mean, with respect to any Mortgage Loan for
which the related Mortgagor has a leasehold interest in the related Mortgaged
Property, the lease agreement(s) (including any lease agreement with respect to
a master space lease) creating such leasehold interest.
"Hazardous Materials" shall mean any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including, without limitation,
those so identified pursuant to CERCLA or any other federal, state or local
environmental related laws and regulations now existing or hereafter enacted,
and specifically including asbestos and asbestos-containing materials,
polychlorinated biphenyls, radon gas, petroleum and petroleum products, urea
formaldehyde and any substance classified as being "in inventory," "usable work
in process" or similar classification which would, if classified as unusable, be
included in the foregoing definition.
"Holder" shall mean, with respect to a Certificate, a
Certificateholder and, with respect to any Uncertificated Lower-Tier Interest,
the Trust.
"HUD-Approved Servicer" shall mean a servicer that is a mortgagee
approved by the Secretary of Housing and Urban Development pursuant to Sections
203 and 211 of the National Housing Act.
"Independent" shall mean, when used with respect to any specified
Person, any such Person who (i) is in fact independent of the Depositor, the
Mortgage Loan Sellers, the Master Servicer, the Special Servicer, any
Controlling Class Certificateholder, and any and all Affiliates thereof, (ii)
does not have any direct financial interest in or any material indirect
financial interest in any of the Depositor, the Mortgage Loan Sellers, the
Master Servicer, the Special Servicer, any Controlling Class Certificateholder,
or any Affiliate thereof, and (iii) is not connected with the Depositor, the
Mortgage Loan Sellers, the Master Servicer, the Special Servicer, any
Controlling Class Certificateholder, or any Affiliate thereof as an officer,
employee, promoter, underwriter, trustee, partner, director or Person performing
similar functions; provided, however, that a Person shall not fail to be
Independent of the Depositor, the Mortgage Loan Sellers, the Master Servicer,
the Special Servicer, any Controlling Class Certificateholder, or any Affiliate
thereof merely because such Person is the beneficial owner of 1% or less of any
class of securities issued by the Depositor, the Mortgage Loan Sellers, the
Master Servicer, the Special Servicer, such Controlling Class Certificateholder
or any Affiliate thereof, as the case may be, provided that such ownership
constitutes less than 1% of the total assets owned by such Person.
"Independent Appraiser" shall mean an Independent professional real
estate appraiser who (i) is a member in good standing of the Appraisal
Institute, (ii) if the state in which the subject Mortgaged Property is located
certifies or licenses appraisers, is certified or licensed in such state, and
(iii) has a minimum of five years experience in the subject property type and
market.
"Independent Contractor" shall mean: (a) any Person that would be an
"independent contractor" with respect to the Lower-Tier REMIC within the meaning
of Section 856(d)(3) of the Code if the Lower-Tier REMIC was a real estate
investment trust (except that the ownership test set forth in that Section shall
be considered to be met by any Person that owns, directly or indirectly, 35
percent or more of any Class of Certificates, or such other interest in any
Class of Certificates as is set forth in an Opinion of Counsel, which shall be
at no expense to the Master Servicer, the Special Servicer, the Trustee or the
Trust Fund, delivered to the Trustee, provided that (i) such REMIC Pool does not
receive or derive any income from such Person and (ii) the relationship between
such Person and such REMIC Pool is at arm's length, all within the meaning of
Treasury Regulations Section 1.856-4(b)(5); or (b) any other Person upon receipt
by the Trustee of an Opinion of Counsel, which shall be at no expense to the
Master Servicer, the Special Servicer, the Trustee or the Trust Fund, to the
effect that the taking of any action in respect of any REO Property by such
Person, subject to any conditions therein specified, that is otherwise herein
contemplated to be taken by an Independent Contractor, will not cause such REO
Property to cease to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code, or
cause any income realized in respect of such REO Property to fail to qualify as
Rents from Real Property, due to such Person's failure to be treated as an
Independent Contractor.
"Initial Bidder" shall have the meaning assigned thereto in Section
3.19(c).
"Initial Trust Balance" shall be as set forth in the Preliminary
Statement hereto and shall equal the aggregate Cut-off Date Balances of the
Mortgage Loans.
"Institutional Accredited Investor" or "IAI" shall mean an
"accredited investor" as defined in any of paragraphs (1), (2), (3) and (7) of
Rule 501(a) under the Securities Act or any entity in which all of the equity
owners come within such paragraphs.
"Insurance Policy" shall mean, with respect to any Mortgage Loan,
any hazard insurance policy, flood insurance policy, title policy, Environmental
Insurance Policy or other insurance policy that is maintained from time to time
in respect of such Mortgage Loan or the related Mortgaged Property.
"Insurance Proceeds" shall mean the proceeds paid under any
Insurance Policy, to the extent such proceeds are not applied to the restoration
of the related Mortgaged Property, released to the Mortgagor, or any tenants or
ground lessors, as the case may be, pursuant to the terms of the related
Mortgage or lease, in accordance with the Servicing Standard.
"Insured Environmental Event" shall have the meaning assigned
thereto in Section 3.07(d).
"Interest Accrual Basis" shall mean the basis on which interest
accrues in respect of any Mortgage Loan, any Uncertificated Lower-Tier Interests
or any Class of Regular Interest Certificates, in each case consisting of one of
the following: (i) a 360-day year consisting of twelve 30-day months; (ii)
actual number of days elapsed in a 360-day year; (iii) actual number of days
elapsed in a 365-day year; or (iv) actual number of days elapsed in an actual
calendar year (taking account of leap year).
"Interest Accrual Period" shall mean with respect to any Class of
Regular Interest Certificates or Uncertificated Lower-Tier Interests and any
Distribution Date, the period beginning on the first day of the calendar month
preceding the calendar month in which the related Distribution Date occurs and
ending on the last day of the calendar month preceding the calendar month in
which such Distribution Date occurs, calculated assuming that each month has 30
days and each year has 360 days.
"Interest Reserve Account" shall mean the sub-account of the
Distribution Account, which is created and maintained by the Trustee pursuant to
Section 3.04(c) in trust for Certificateholders, which shall be entitled
"[______], as Trustee, in trust for the registered holders of CWCapital
Commercial Funding Corp., Commercial Mortgage Trust 200_-___, Commercial
Mortgage Pass-Through
Certificates, Series 200_-___."
"Interest Reserve Amount" shall mean, with respect to each Interest
Reserve Mortgage Loan and Interest Reserve REO Mortgage Loan, for any
Distribution Date that occurs in February of any year and for any Distribution
Date that occurs in January of any year that is not a leap year, an amount equal
to one day's interest accrued at the related Mortgage Rate on the related Stated
Principal Balance as of the Due Date in the month in which such Distribution
Date occurs (but prior to the application of any amounts due on such Due Date),
to the extent that a Monthly Payment is Received in respect thereof for such Due
Date as of the related Determination Date or a P&I Advance is made under this
Agreement in respect thereof for such Due Date by such Distribution Date.
"Interest Reserve Mortgage Loan" shall mean any Mortgage Loan that
accrues interest on an Actual/360 Basis.
"Interest Reserve REO Mortgage Loan" shall mean any REO Mortgage
Loan that relates to a predecessor Interest Reserve Mortgage Loan.
"Interested Person" shall mean the Depositor, the Master Servicer,
the Special Servicer, the Trustee, any Certificateholder, or any Affiliate of
any such Person.
"Investment Account" shall have the meaning assigned thereto in
Section 3.06(a).
"Investment Grade Certificate" shall mean, as of any date of
determination, a Certificate, other than a Residual Interest Certificate, that
is rated in one of the four highest generic rating categories by at least one
Rating Agency.
"IRS" shall mean the Internal Revenue Service or any successor
agency.
"Late Collections" shall mean: (a) with respect to any Mortgage
Loan, all amounts Received in connection therewith during any Collection Period,
whether as payments, Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds or otherwise, which represent late collections of the principal and/or
interest portions of a Monthly Payment (other than a Balloon Payment) or an
Assumed Monthly Payment in respect of such Mortgage Loan due or deemed due on a
Due Date in a previous Collection Period, or on a Due Date coinciding with or
preceding the Cut-off Date, and not previously recovered; and (b) with respect
to any REO Loan, all amounts Received in connection with the related REO
Property during any Collection Period, whether as Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which
represent late collections of the principal and/or interest portions of a
Monthly Payment (other than a Balloon Payment) or an Assumed Monthly Payment in
respect of the predecessor Mortgage Loan, or the principal and/or interest
portions of an Assumed Monthly Payment in respect of such REO Loan, due or
deemed due on a Due Date in a previous Collection Period and not previously
recovered.
"Liquidation Event" shall mean: (a) with respect to any 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 applicable Mortgage Loan Seller
pursuant to Section 2.03(a) and the applicable Mortgage Loan Purchase Agreement,
(iv) such Mortgage Loan is purchased by a Purchase Option Holder or its assignee
pursuant to Section 3.19, (v) such Mortgage Loan is purchased by the Depositor,
the Special Servicer, a Mortgage Loan Seller, a Controlling Class
Certificateholder or the Master Servicer pursuant to Section 9.01, or (vi) such
Mortgage Loan is purchased by the holder of a related mezzanine loan on behalf
of the related Mortgagor in connection with a Mortgage Loan default, as set
forth in the related intercreditor agreement; and (b) with respect to any REO
Property (and the related REO Loan), any of the following events--(i) a Final
Recovery Determination is made with respect to such REO Property, or (ii) such
REO Property is purchased by the Depositor, the Special Servicer, a Mortgage
Loan Seller, a Controlling Class Certificateholder or the Master Servicer
pursuant to Section 9.01.
"Liquidation Expenses" shall mean all customary, reasonable and
necessary "out-of-pocket" costs and expenses due and owing (but not otherwise
covered by Servicing Advances) in connection with the liquidation of any
Specially Serviced Mortgage Loan or REO Property pursuant to Sections 3.09 or
3.19 (including legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee" shall mean the fee designated as such in, and
payable to the Special Servicer in connection with certain specified events
pursuant to Section 3.11(b).
"Liquidation Fee Rate" shall mean, with respect to each Specially
Serviced Mortgage Loan or REO Property as to which a Liquidation Fee is payable,
[___]%.
"Liquidation Proceeds" shall mean all cash amounts (other than
Insurance Proceeds and REO Revenues) Received in connection with: (i) the full
or partial liquidation of a Mortgaged Property or other collateral constituting
security for a defaulted Mortgage Loan, through trustee's sale, foreclosure
sale, REO Disposition or otherwise, exclusive of any portion thereof required to
be released to the related Mortgagor in accordance with applicable law and the
terms and conditions of the related Mortgage Note and Mortgage; (ii) the
realization upon any deficiency judgment obtained against a Mortgagor; (iii) the
purchase of a Specially Serviced Mortgage Loan by a Purchase Option Holder or
its assignee pursuant to Section 3.19; (iv) the repurchase of a Mortgage Loan by
the applicable Mortgage Loan Seller(s) pursuant to Section 2.03(a) and the
applicable Mortgage Loan Purchase Agreement(s); (v) the purchase of a Mortgage
Loan or REO Property by the Depositor, a Mortgage Loan Seller, the Special
Servicer, a Controlling Class Certificateholder or the Master Servicer pursuant
to Section 9.01; or (vi) the purchase of a Mortgage Loan by the holder of a
related mezzanine loan on behalf of the related Mortgagor in connection with a
Mortgage Loan default, as set forth in the related intercreditor agreement.
"Lockout Period" shall mean, with respect to any Mortgage Loan that
prohibits the Mortgagor from prepaying such Mortgage Loan until a date specified
in the related Mortgage Note or other Mortgage Loan document, the period from
the Closing Date until such specified date.
"Loss Reimbursement Amount" shall mean:
(a) with respect to any Class of Principal Balance Certificates, for
any Distribution Date, the total amount of all Unfunded Principal Balance
Reductions, if any, incurred by (but not reimbursed to) the Holders of
such Class of Certificates on all prior Distribution Dates, if any; and
(b) with respect to any Lower-Tier Regular Interest, for any
Distribution Date, the total amount of all Unfunded Principal Balance
Reductions, if any, incurred by (but not reimbursed to) the Lower-Tier
REMIC with respect to such Lower-Tier Regular Interest on all prior
Distribution Dates, if any.
For purposes of this definition: (x) any increase in the Class
Principal Balance of any Class of Principal Balance Certificates pursuant to
Section 4.05(a) shall constitute a reimbursement to the Holders of such Class of
Principal Balance Certificates of any related Unfunded Principal Balance
Reductions; and (y) any increase in the Lower-Tier Interest Principal Balance of
any Lower-Tier Regular Interest pursuant to Section 4.05(c) shall constitute a
reimbursement to the Lower-Tier REMIC with respect to any related Unfunded
Principal Balance Reductions relating to such Lower-Tier Regular Interest.
"Lower-Tier Distribution Account" shall mean the sub-account deemed
to be a part of the Distribution Account and maintained by the Trustee pursuant
to Section 3.04(b).
"Lower-Tier Distribution Amount" shall mean the aggregate of amounts
distributable to the Uncertificated Lower-Tier Interests pursuant to Section
4.01(i).
"Lower-Tier Interest Principal Reinstatement Amount" shall have the
meaning assigned thereto pursuant to Section 4.05(c).
"Lower-Tier REMIC" shall mean the segregated pool of assets
constituting the primary trust created hereby and to be administered hereunder
with respect to which a separate REMIC election is to be made, and consisting
of: (i) the Mortgage Loans as from time to time are subject to this Agreement
and all payments under and proceeds of such Mortgage Loans received by the Trust
after the Closing Date, together with all documents included in the related
Mortgage Files; (ii) any REO Properties as from time to time are subject to this
Agreement and all income and proceeds therefrom; and (iii) such funds or assets
as from time to time are deposited in the Custodial Account, the Lower-Tier
Distribution Account and, if established, the REO Account.
"Master Servicer" shall mean [______] in its capacity as master
servicer hereunder, or any successor master servicer appointed as herein
provided.
"Master Servicer Remittance Amount" shall mean, with respect to any
Master Servicer Remittance Date, an amount equal to: (a) the aggregate amount of
all payments and other collections on or with respect to the Mortgage Loans and
any related REO Properties that (A) were Received as of the close of business on
the immediately preceding Determination Date on the Master Servicer Remittance
Date and (B) are on deposit or are required to be on deposit in the Custodial
Account as of 12:00 noon (New York City time) on such Master Servicer Remittance
Date, including any such payments and other collections transferred to the
Custodial Account from the REO Account (if established); net of (b) the portion
of the aggregate amount described in clause (a) of this definition that
represents one or more of the following--(i) Monthly Payments that are due on a
Due Date following the end of the related Collection Period, (ii) any amount
payable or reimbursable to any Person from the Custodial Account pursuant to
clauses (ii) through (xviii) of Section 3.05(a), (iii) any Excess Liquidation
Proceeds and (iv) any amounts deposited in the Custodial Account in error.
"Master Servicer Remittance Date" shall mean the date each month,
commencing in [_________] 200_, on which, among other things, the Master
Servicer is required to (i) make P&I Advances and (ii) transfer the Master
Servicer Remittance Amount and any Excess Liquidation Proceeds to the Trustee,
which date shall be the Business Day immediately preceding each Distribution
Date.
"Master Servicing Fee" shall mean, with respect to each Mortgage
Loan (and, in each case, any successor REO Loan with respect thereto), the fee
designated as such and payable to the Master Servicer pursuant to Section
3.11(a). The Master Servicing Fee includes any servicing fee rate payable to any
third-party servicers that sub-service or primary service the Mortgage Loans on
behalf of the Master Servicer.
"Master Servicing Fee Rate" shall mean, with respect to each
Mortgage Loan and any successor REO Loan, the rate per annum specified as such
on the Mortgage Loan Schedule.
"Material Breach" shall have the meaning assigned thereto in Section
2.03(a).
"Material Document Defect" shall have the meaning assigned thereto
in Section 2.03(a).
"Modified Loan" shall mean any Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the Special
Servicer pursuant to Section 3.21 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing Monthly
Payments current with respect to such Mortgage Loan);
(b) except as expressly contemplated by the related Mortgage Loan
documents, results in a release of the lien of the related Mortgage on any
material portion of the related Mortgaged Property without a corresponding
Principal Prepayment in an amount, or the delivery of substitute real
property collateral with a fair market value (as is), that is not less
than the fair market value (as is) of the property to be released, as
determined by an appraisal delivered to the Special Servicer (at the
expense of the related Mortgagor and upon which the Special Servicer may
conclusively rely); or
(c) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impairs the security for such Mortgage Loan or
materially reduces the likelihood of timely payment of amounts due
thereon.
"Monthly Payment" shall mean, with respect to any Mortgage Loan, as
of any Due Date, the scheduled monthly debt service payment on such Mortgage
Loan that is actually payable by the related Mortgagor from time to time under
the terms of the related Mortgage Note (as such terms may be changed or modified
in connection with a bankruptcy or similar proceeding involving the related
Mortgagor or by reason of a modification, extension, waiver or amendment granted
or agreed to by the Special Servicer pursuant to Section 3.21), including any
Balloon Payment payable in respect of such Mortgage Loan on such Due Date;
provided that the Monthly Payment due in respect of any Mortgage Loan shall not
include Default Interest.
"Mortgage" shall mean, with respect to any Mortgage Loan, the
mortgage, deed of trust, deed to secure debt or similar instrument that secures
the related Mortgage Note and creates a lien on the related Mortgaged Property.
"Mortgage File" shall mean:
(a) with respect to any Mortgage Loan, the following documents
collectively:
(i) the original executed Mortgage Note for such Mortgage
Loan, endorsed (without recourse, representation or warranty,
express or implied) to the order of "[______], as trustee for the
registered holders of CWCapital Commercial Funding Corp., Commercial
Mortgage Trust 200_-___, Commercial Mortgage Pass-Through
Certificates, Series 200_-___" or in blank, and further showing a
complete, unbroken chain of endorsement from the originator (if such
originator is not the Mortgage Loan Seller) (or, alternatively, if
the original executed Mortgage Note has been lost, a lost note
affidavit and indemnity with a copy of such Mortgage Note);
(ii) an original or copy of the Mortgage, together with
originals or copies of any and all intervening assignments thereof,
in each case (unless the particular item has not been returned from
the applicable recording office) with evidence of recording
indicated thereon;
(iii) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage), together
with originals or copies of any and all intervening assignments
thereof, in each case (unless the particular item has not been
returned from the applicable recording office) with evidence of
recording indicated thereon;
(iv) an original executed assignment, in recordable form
(except for recording information not yet available if the
instrument being assigned has not been returned from the applicable
recording office), of (A) the Mortgage and (B) any related
Assignment of Leases (if such item is a document separate from the
Mortgage), in favor of "[______], in its capacity as trustee for the
registered holders of CWCapital Commercial Funding Corp., Commercial
Mortgage Trust 200_-___, Commercial Mortgage Pass-Through
Certificates, Series 200_-___" (or, in each case, a copy thereof,
certified to be the copy of such assignment submitted for
recording);
(v) an original or copy of the assignment of all unrecorded
documents relating to the Mortgage Loan, in favor of "[______], as
trustee for the registered holders of CWCapital Commercial Funding
Corp., Commercial Mortgage Trust 200_-___, Commercial Mortgage
Pass-Through Certificates, Series 200_-___";
(vi) originals or copies of final written modification
agreements in those instances where the terms or provisions of the
Mortgage Note for such Mortgage Loan or the related Mortgage have
been modified as to a monetary term or other material term thereof,
in each case (unless the particular item has not been returned from
the applicable recording office) with evidence of recording
indicated thereon if the instrument being modified is a recordable
document;
(vii) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with such Mortgage
Loan (or, if such policy has not been issued, a "marked-up" pro
forma title policy marked as binding and countersigned by the title
insurer or its authorized agent, or an irrevocable, binding
commitment to issue such title insurance policy);
(viii) filed copies (with evidence of filing) of any prior
effective UCC Financing Statements in favor of the originator of
such Mortgage Loan or in favor of any assignee prior to the Trustee
(but only to the extent the applicable Mortgage Loan Seller had
possession of such UCC Financing Statements prior to the Closing
Date) and an original UCC-2 or UCC-3 assignment thereof, as
appropriate, in form suitable for filing, in favor of "[______], in
its capacity as trustee for the registered holders of CWCapital
Commercial Funding Corp., Commercial Mortgage Trust 200_-___,
Commercial Mortgage Pass-Through Certificates, Series 200_-___";
(ix) an original or copy of the related Ground Lease relating
to such Mortgage Loan, if any;
(x) an original or copy of the related loan agreement, if any;
(xi) an original of the related guaranty of payment under, or
an original of the letter of credit (which original shall be
delivered by the Trustee to the Master Servicer with a copy
retained) in connection with, such Mortgage Loan, if any;
(xii) an original or copy of the lock-box agreement or cash
management agreement relating to such Mortgage Loan, if any;
(xiii) an original or copy of the environmental indemnity from
the related Mortgagor, if any;
(xiv) an original or copy of the related security agreement
(if such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening assignments
thereof;
(xv) an original assignment of the related security agreement
(if such item is a document separate from the Mortgage and if such
item is not included in the assignment described in clause (v)), in
favor of "[______], in its capacity as trustee for the registered
holders of CWCapital Commercial Funding Corp., Commercial Mortgage
Trust 200_-___, Commercial Mortgage Pass-Through Certificates,
Series 200_-___";
(xvi) in the case of any Mortgage Loan as to which there
exists a related mezzanine loan, the original or a copy of the
related intercreditor agreement;
(xvii) an original or copy of any related Environmental
Insurance Policy; and
(xviii) with respect to hospitality properties, a signed copy
of the franchise agreement (if any), franchisor comfort letter (if
any) and transfer documents for such comfort letter;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or a Custodian on its behalf for documents
described in clauses (a)(vi) and (a)(ix) through (a)(xviii) of this definition,
shall be deemed to include such documents only to the extent the Trustee or a
Custodian on its behalf has actual knowledge of their existence.
"Mortgage Loan" shall mean any Mortgage Loan (including a Specially
Serviced Mortgage Loan, but excluding an REO Loan) that is, as contemplated by
Section 3.01, to be serviced and administered by the Master Servicer and/or the
Special Servicer hereunder, which includes the Mortgage Loans.
"Mortgage Loan" shall mean each of the mortgage loans listed on the
Mortgage Loan Schedule and from time to time held in the Trust Fund. As used
herein, the term "Mortgage Loan" includes the related Mortgage Note(s), Mortgage
and other security documents contained in the related Mortgage File or otherwise
held on behalf of the Trust.
"Mortgage Loan Payoff Notification Report" shall mean a report
containing substantially the information described in Exhibit E attached hereto,
and setting forth for each Mortgage Loan as to which written notice of
anticipated payoff has been received by the Master Servicer as of the
Determination Date preceding the delivery of such report, among other things,
the mortgage loan number, the property name, the ending scheduled loan balance
for the Collection Period ending on such Determination Date, the expected date
of payment, the expected related Distribution Date and the estimated amount of
the Yield Maintenance Charge or Prepayment Premium due (if any).
"Mortgage Loan Purchase Agreement" shall mean the Mortgage Loan
Purchase Agreement dated as of [________], 200_ and entered into by and between
the Depositor and the applicable Mortgage Loan Seller.
"Mortgage Loan Schedule" shall mean the list of Mortgage Loans
transferred on the Closing Date to the Trustee as part of the Trust Fund,
attached hereto as Schedule I (and also delivered to the Trustee and the Master
Servicer in a computer readable format). Such list shall set forth the following
information with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code)
and name of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Monthly Payment due on the first Due
Date following the Closing Date;
(v) the original Mortgage Rate;
(vi) the (A) remaining term to stated maturity and (B) Stated
Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) the Interest Accrual Basis;
(ix) the (A) Administrative Cost Rate, and (B) Master
Servicing Fee Rate (separately identifying any primary servicing fee
rate or subservicing fee rate included in the Master Servicing Fee
Rate);
(x) whether the Mortgage Loan is secured by a Ground Lease;
(xi) the Mortgage Loan Seller(s);
(xii) the originator;
(xiii) whether the related Mortgage Loan is a Defeasance Loan;
(xiv) whether the Mortgage Loan is a Cross-Collateralized
Mortgage Loan and the Cross-Collateralized Group to which it
belongs; and
(xv) whether there is a letter of credit in place for the
related Mortgage Loan.
"Mortgage Loan Sellers" shall mean each of CWCapital LLC and
[________].
"Mortgage Note" shall mean the original executed note or notes
evidencing the indebtedness of a Mortgagor under a Mortgage Loan, together with
any rider, addendum or amendment thereto, or any renewal, substitution or
replacement of such note or notes.
"Mortgage Pool" shall mean all of the Mortgage Loans and any
successor REO Mortgage Loan.
"Mortgage Pool Data Update Report" shall mean, with respect to any
Distribution Date, a report (which may be included as part of the Distribution
Date Statement), prepared by the Trustee, containing information regarding the
Mortgage Loans as of the end of the related Collection Period, which report
shall contain substantially the categories of information regarding the Mortgage
Loans set forth on Annex A to the Prospectus Supplement (calculated, where
applicable, on the basis of the most recent relevant information provided by the
Mortgagors to the Master Servicer or the Special Servicer, as the case may be,
and by the Master Servicer or the Special Servicer, as the case may be, to the
Trustee), and which information shall be presented in tabular format
substantially similar to the format utilized on such annex and shall also
include a loan-by-loan listing (in descending balance order) showing loan
number, property type, location, unpaid principal balance, Mortgage Rate,
paid-through date, maturity date, gross interest portion of the Monthly Payment,
principal portion of the Monthly Payment, and any Prepayment Premium or Yield
Maintenance Charge received.
"Mortgage Rate" shall mean, with respect to each Mortgage Loan (and
any successor REO Loan with respect thereto), the related annualized rate at
which interest is scheduled (in the absence of a default) to accrue on such
Mortgage Loan from time to time in accordance with the related Mortgage Note and
applicable law, as such rate may be modified in accordance with Section 3.21 or
in connection with a bankruptcy, insolvency or similar proceeding involving the
related Mortgagor. Notwithstanding the foregoing, if any Mortgage Loan does not
accrue interest on the basis of a 360-day year consisting of twelve 30-day
months, then, solely for purposes of calculating Pass-Through Rates, the
Mortgage Rate of such Mortgage Loan for any one-month period preceding a related
Due Date shall be the annualized rate at which interest would have to accrue in
respect of such Mortgage Loan on the basis of a 360-day year consisting of
twelve 30-day months in order to produce the aggregate amount of interest
actually accrued (exclusive of Default Interest) in respect of such Mortgage
Loan during such one-month period at the related Mortgage Rate; provided,
however, that with respect to any Interest Reserve Mortgage Loan, the Mortgage
Rate for (A) the one month period preceding the Due Dates that occur in January
and February in any year that is not a leap year or the one month period
preceding the Due Date that occurs in February in any year that is a leap year
will be determined exclusive of the Interest Reserve Amount withheld from that
month, and (B) the one month period preceding the Due Date in March will be
determined inclusive of the amounts withheld from the immediately preceding
February and, if applicable, January.
"Mortgaged Property" shall mean the real property (together with all
improvements and fixtures thereon) subject to the lien of a Mortgage.
"Mortgagor" shall mean, individually and collectively, as the
context may require, the obligor or obligors under a Mortgage Loan, including
any Person that has not signed the related Mortgage Note but owns an interest in
the related Mortgaged Property, which interest has been encumbered to secure
such Mortgage Loan.
"Mortgagor Affiliate Holder" shall mean any Certificateholder that
is a Mortgagor or an Affiliate of the Mortgagor (including Certificateholder or
its Affiliate, in each case, that was a lender of the Mortgagor and has
foreclosed on the equity interests in the Mortgagor or any Certificateholder
that acquires, directly or through an Affiliate, a direct equity interest in the
Mortgaged Property).
"Net Aggregate Prepayment Interest Shortfall" shall mean, with
respect to any Distribution Date and any Mortgage Loan, the amount, if any, by
which (a) the aggregate of all Prepayment Interest Shortfalls incurred in
connection with the receipt of Principal Prepayments and/or, insofar as they
result from the application of Insurance Proceeds and/or Condemnation Proceeds,
other early recoveries of principal Received on such Mortgage Loans (including
Specially Serviced Mortgage Loans) during the related Collection Period, exceeds
(b) the aggregate amount deposited by the Master Servicer in the Distribution
Account for such Distribution Date pursuant to Section 3.20(a) in connection
with such Prepayment Interest Shortfalls.
"Net Default Charges" shall have the meaning assigned thereto in
Section 3.27(a).
"Net Investment Earnings" shall mean, with respect to any Investment
Account for any Collection Period, the amount, if any, by which the aggregate of
all interest and other income realized during such Collection Period on funds
held in such Investment Account (exclusive, in the case of a Servicing Account,
a Reserve Account or the Defeasance Deposit Account, of any portion of such
interest or other income payable to a Mortgagor in accordance with the related
Mortgage Loan documents and applicable law), exceeds the aggregate of all
losses, if any, incurred during such Collection Period in connection with the
investment of such funds in accordance with Section 3.06 (exclusive, in the case
of a Servicing Account, a Reserve Account or the Defeasance Deposit Account, of
any portion of such losses that were incurred in connection with investments
made for the benefit of a Mortgagor).
"Net Investment Loss" shall mean, with respect to any Investment
Account for any Collection Period, the amount by which the aggregate of all
losses, if any, incurred during such Collection Period in connection with the
investment of funds held in such Investment Account in accordance with Section
3.06 (exclusive, in the case of a Servicing Account, a Reserve Account or the
Defeasance Deposit Account, of any portion of such losses that were incurred in
connection with investments made for the benefit of a Mortgagor), exceeds the
aggregate of all interest and other income realized during such Collection
Period on such funds (exclusive, in the case of a Servicing Account, a Reserve
Account or the Defeasance Deposit Account, of any portion of such interest or
other income payable to a Mortgagor in accordance with the related Mortgage Loan
documents and applicable law).
"Net Liquidation Proceeds" shall mean the excess, if any, of all
Liquidation Proceeds received with respect to any Specially Serviced Mortgage
Loan or REO Property, over the amount of all Liquidation Expenses incurred with
respect thereto.
"Net Mortgage Rate" shall mean with respect to any Mortgage Loan or
REO Loan, as of any date of determination, a rate per annum equal to the related
Mortgage Rate then in effect, minus the Administrative Cost Rate; provided,
however, that for purposes of calculating Pass-Through Rates, the Net Mortgage
Rate for any Mortgage Loan will be determined without regard to any
modification, waiver or amendment of the terms of such Mortgage Loan, whether
agreed to by the Master Servicer or Special Servicer or resulting from a
bankruptcy, insolvency or similar proceeding involving the Mortgagor.
"Net Prepayment Consideration" shall mean the Prepayment
Consideration Received with respect to any Mortgage Loan or REO Mortgage Loan,
net of any Workout Fee or Liquidation Fee payable therefrom.
"New Lease" shall mean any lease of REO Property entered into at the
direction of the Special Servicer, including any lease renewed, modified or
extended on behalf of the Trustee, if the Trust has the right to renegotiate the
terms of such lease.
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I Advance
or Nonrecoverable Servicing Advance. Workout-Delayed Reimbursement Amounts shall
constitute a Nonrecoverable Advance only when the Person making such
determination in accordance with the procedures specified in the definition of
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, as applicable,
and taking into account factors such as all other outstanding Advances, either
(a) has determined that such Workout-Delayed Reimbursement Amounts, would not
ultimately be recoverable from Late Collections or any other recovery on or in
respect of the related Mortgage Loan or REO Loans, or (b) has determined that
such Workout-Delayed Reimbursement Amount, along with any other Workout-Delayed
Reimbursement Amounts (that have not been reimbursed to the party that made such
Advance) or unreimbursed Nonrecoverable Advances, would not be ultimately
recoverable from the principal portion of future general collections on the
Mortgage Loans and REO Properties. Any determination as to whether an Advance is
or, if made, would be a Nonrecoverable Advance, if made by the Master Servicer
or the Special Servicer shall be made in accordance with the Servicing Standard
and if made by the Trustee shall be made in such party's reasonable, good faith
judgment.
"Nonrecoverable P&I Advance" shall mean with respect to any Mortgage
Loan, any P&I Advance previously made or proposed to be made in respect of such
Mortgage Loan or a related REO Loan by the Master Servicer or the Trustee, which
P&I Advance such party has determined will not be ultimately recoverable from
late payments, Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds, or any other recovery on or in respect of such Mortgage Loan or REO
Loan, as the case may be. Any determination as to whether a P&I Advance is or,
if made, would be a Nonrecoverable P&I Advance, if made by the Master Servicer
shall be made in accordance with the Servicing Standard and if made by the
Trustee shall be made in such party's reasonable, good faith judgment.
"Nonrecoverable Servicing Advance" shall mean any Servicing Advance
previously made or proposed to be made in respect of a Mortgage Loan or REO
Property by the Master Servicer, the Special Servicer or the Trustee, which
Servicing Advance such party has determined will not be ultimately recoverable
from late payments, Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds, or any other recovery on or in respect of such Mortgage Loan or REO
Property, as the case may be. Any Servicing Advance that is (i) not required to
be repaid by the related Mortgagor under the terms of the related Mortgage Loan
documents or (ii) cannot be collected from the Mortgagor under applicable law
shall be deemed to be a Nonrecoverable Advance for purposes of the Master
Servicer's, the Special Servicer's, the Trustee's entitlement to reimbursement
for such Advance. Any determination as to whether a Servicing Advance is or, if
made, would be a Nonrecoverable Servicing Advance, if made by the Master
Servicer or the Special Servicer shall be made in accordance with the Servicing
Standard and if made by the Trustee shall be made in such party's reasonable,
good faith judgment.
"Non-Registered Certificate" shall mean any Certificate that has not
been the subject of registration under the Securities Act. As of the Closing
Date, the [Class XP, Class XC, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P,] Class R-I and Class R-II
Certificates are Non-Registered Certificates.
"Non-United States Tax Person" shall mean any Person other than a
United States Tax Person.
"Notional Amount" means, as of any date of determination: (i) with
respect to all of the Class XP or Class XC Certificates as a Class, Class XP
Notional Amount or Class XC Notional Amount, as applicable, as of such date of
determination; and (ii) with respect to any Class XP or Class XC Certificate,
the product of the Percentage Interest evidenced by such Certificate and the
Class XP Notional Amount or Class XC Notional Amount, as applicable, as of such
date of determination.
"Officer's Certificate" shall mean a certificate signed by a
Servicing Officer of the Master Servicer, the Special Servicer or Additional
Servicer, as the case may be, or by a Responsible Officer of the Trustee, and
shall mean with respect to any other Person, a certificate signed by any of the
Chairman of the Board, the Vice Chairman of the Board, the President, any Vice
President or Managing Director, an Assistant Vice President or any other
authorized officer (however denominated) or another officer customarily
performing functions similar to those performed by any of the above designated
officers or, with respect to a particular matter, any other officer to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Opinion of Counsel" shall mean a written opinion of counsel, who
may, without limitation, be salaried counsel for the Depositor, the Master
Servicer or the Special Servicer, acceptable in form and delivered to the
Trustee or any other specified Person, as the case may be, except that any
opinion of counsel relating to (a) the qualification of the Lower-Tier REMIC or
the Upper-Tier REMIC as a REMIC, (b) compliance with the REMIC Provisions, (c)
whether any act or event would cause an Adverse REMIC Event, or (e) the
resignation of the Master Servicer or the Special Servicer pursuant to this
Agreement, must be a written opinion of Independent counsel acceptable to and
delivered to the Trustee or any other specified Person, as the case may be.
"Original Lower-Tier Principal Amount" shall mean the amount set
forth under the column bearing such title in the table in the Preliminary
Statement hereto.
"Original Class Principal Balance" shall mean, with respect to any
Class of Principal Balance Certificates, the initial Class Principal Balance
thereof as of the Closing Date, in each case as specified in the Preliminary
Statement.
"OTS" shall mean the Office of Thrift Supervision or any successor
thereto.
"Ownership Interest" shall mean, as to any Certificate, any
ownership or security interest in such Certificate as the Holder thereof and any
other interest therein, whether direct or indirect, legal or beneficial, as
owner or as pledgee.
"P&I Advance" shall mean, as to any Mortgage Loan or a related REO
Loan, any advance made by the Master Servicer or the Trustee pursuant to Section
4.03.
"Pass-Through Rate" shall mean:
(b) with respect to the Class A-1 Certificates for any Interest
Accrual Period, [________]% per annum;
(c) with respect to the Class A-2 Certificates for any Interest
Accrual Period, [________]% per annum;
(d) with respect to the Class A-3 Certificates for any Interest
Accrual Period, [________]% per annum;
(e) with respect to the Class A-4 Certificates for any Interest
Accrual Period, an annual rate equal to [________]% per annum;
(f) with respect to the Class B Certificates for any Interest
Accrual Period, an annual rate equal to [________]% per annum;
(g) with respect to the Class C Certificates for any Interest
Accrual Period, an annual rate equal to [________]% per annum;
(h) with respect to the Class D Certificates for any Interest
Accrual Period, an annual rate equal to [________]% per annum;
(i) with respect to the Class E Certificates for any Interest
Accrual Period, an annual rate equal to [________]% per annum;
(j) with respect to the Class F Certificates for any Interest
Accrual Period, an annual rate equal to [________]% per annum;
(k) with respect to the Class G Certificates for any Interest
Accrual Period, an annual rate equal to [________]% per annum;
(l) with respect to the Class H Certificates for any Interest
Accrual Period, an annual rate equal to [__]% per annum;
(m) with respect to each of the [Class J, Class K, Class L, Class M,
Class N, Class O and Class P] Certificates for any Interest Accrual
Period, an annual rate equal to [________]% per annum;
(n) [with respect to the Class XC Certificates for any Interest
Accrual Period, an annual rate equal to the weighted average of the Class
XC Strip Rates for the Components for such Distribution Date (weighted on
the basis of the respective Component Notional Amounts of such Components
outstanding immediately prior to such Distribution Date)]; and
(o) [with respect to the Class XP Certificates for any Interest
Accrual Period, an annual rate equal to the weighted average of the Class
XP Strip Rates for the respective Class XP Components for such
Distribution Date (weighted on the basis of the respective Component
Notional Amounts of such Components outstanding immediately prior to such
Distribution Date)].
"PCAOB" means the Public Company Accounting Oversight Board.
"Percentage Interest" shall mean: (a) with respect to any Regular
Interest Certificate, the portion of the relevant Class evidenced by such
Certificate, expressed as a percentage, the numerator of which is the
Certificate Principal Balance or Notional Amount, as the case may be, of such
Certificate as of the Closing Date, as specified on the face thereof, and the
denominator of which is the Original Class Principal Balance or initial Notional
Amount, as the case may be, of the relevant Class; and (b) with respect to
Residual Interest Certificate, the percentage interest in distributions to be
made with respect to the relevant Class, as stated on the face of such
Certificate.
"Performance Certification" shall have the meaning assigned to such
term in Section 13.4.
"Performing Party" shall have the meaning assigned to such term in
Section 13.10.
"Performing Mortgage Loan" shall mean any Mortgage Loan as to which
a Servicing Transfer Event has never occurred and any Corrected Mortgage Loan.
"Permitted Encumbrances" shall have the meaning assigned thereto in
Section 2.04(b)(viii).
"Permitted Investments" shall mean any one or more of the following
obligations or securities (including obligations or securities of the Trustee if
otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States or
any agency or instrumentality thereof (having original maturities of
not more than 365 days), provided that such obligations are backed
by the full faith and credit of the United States. Such obligations
must be limited to those instruments that have a predetermined fixed
dollar amount of principal due at maturity that cannot vary or
change. Interest may either be fixed or variable. If such interest
is variable, interest must be tied to a single interest rate index
plus a single fixed spread (if any), and move proportionately with
that index;
(ii) repurchase obligations with respect to any security
described in clause (i) of this definition (having original
maturities of not more than 365 days), provided that the short-term
deposit or debt obligations of the party agreeing to repurchase such
obligations are rated in the highest rating category of each of
[_____] and [_____] (or, in the case of any Rating Agency, such
lower rating as will not result in an Adverse Rating Event with
respect to any Class of Certificates, as evidenced in writing by
such Rating Agency). In addition, any such item by its terms must
have a predetermined fixed dollar amount of principal due at
maturity that cannot vary or change. Interest may either be fixed or
variable. If such interest is variable, interest must be tied to a
single interest rate index plus a single fixed spread (if any), and
move proportionately with that index;
(iii) certificates of deposit, time deposits, demand deposits
and bankers' acceptances of any bank or trust company organized
under the laws of the United States or any state thereof (having
original maturities of not more than 365 days), the short term
obligations of which are rated in the highest rating category of
each of [_____] and [_____] (or, in the case of any Rating Agency,
such lower rating as will not result in an Adverse Rating Event with
respect to any Class of Certificates, as evidenced in writing by
such Rating Agency). In addition, any such item by its terms must
have a predetermined fixed dollar amount of principal due at
maturity that cannot vary or change. Interest may either be fixed or
variable. If such interest is variable, interest must be tied to a
single interest rate index plus a single fixed spread (if any), and
move proportionately with that index;
(iv) commercial paper (having original maturities of not more
than 90 days) of any corporation incorporated under the laws of the
United States or any state thereof (or if not so incorporated, the
commercial paper is United States Dollar denominated and amounts
payable thereunder are not subject to any withholding imposed by any
non-United States jurisdiction) which is rated in the highest rating
category of each of [_____] and [_____] (or, in the case of any
Rating Agency, such lower rating as will not result in an Adverse
Rating Event with respect to any Class of Certificates, as evidenced
in writing by such Rating Agency). In addition, such commercial
paper by its terms must have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change. Interest may
either be fixed or variable. If such interest is variable, interest
must be tied to a single interest rate index plus a single fixed
spread (if any), and move proportionately with that index;
(v) units of money market funds rated in the highest
applicable rating category of each of [_____] and [_____] (or, in
the case of any Rating Agency, such lower rating as will not result
in an Adverse Rating Event with respect to any Class of
Certificates, as evidenced in writing by such Rating Agency) and
which seeks to maintain a constant net asset value; and
(vi) any other obligation or security that (A) is acceptable
to each Rating Agency, evidence of which acceptability shall be
provided in writing by each Rating Agency to the Master Servicer,
the Special Servicer and the Trustee, and (B) constitutes a "cash
flow investment" (within the meaning of the REMIC Provisions), as
evidenced by an Opinion of Counsel obtained at the expense of the
Person that wishes to include such obligation or security as a
Permitted Investment;
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; (2) no investment described hereunder may be purchased
at a price greater than par if such investment may be prepaid or called at a
price less than its purchase price prior to stated maturity; and (3) no
investment described hereunder may have a "r" highlighter or other comparable
qualifier attached to its rating.
"Permitted Transferee" shall mean any Transferee of a Residual
Interest Certificate other than (a) a Disqualified Organization, (b) any Person
as to whom, as determined by the Trustee (based upon an Opinion of Counsel,
obtained at the request of the Trustee at the expense of such Person or the
Person seeking to Transfer a Residual Interest Certificate, supporting such
determination), the Transfer of a Residual Interest Certificate may cause either
REMIC Pool to fail to qualify as a REMIC at any time that any Certificate is
outstanding, (c) a Disqualified Non-United States Tax Person, (d) a Disqualified
Partnership, or (e) a United States Tax Person with respect to whom interest is
attributable to a foreign permanent establishment or fixed base (within the
meaning of any applicable income tax treaty between the United States and any
foreign jurisdiction) of such Person or any other United States Tax Person.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan" shall have the meaning assigned thereto in Section 5.02(c).
"Plurality Residual Interest Certificateholder" shall mean, as to
any taxable year of each REMIC Pool, the Holder of Certificates entitled to the
largest percentage of the Voting Rights allocated to the related Class of
Residual Interest Certificates.
"Prepayment Assumption" shall mean, for purposes of determining the
accrual of original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, the assumption that no Mortgage
Loan is prepaid prior to stated maturity.
"Prepayment Consideration" shall mean any Prepayment Premium or
Yield Maintenance Charge.
"Prepayment Consideration Entitlement" shall mean, with respect to
(i) any Distribution Date on which any Net Prepayment Consideration Received on
any Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) is
distributable and (ii) each of the [Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3, Class A-4,
Class B, Class C, Class D, Class E, Class F, Class G and Class H] Certificates
entitled to distributions of principal on such Distribution Date, an amount
equal to the product of (a) such Net Prepayment Consideration, multiplied by (b)
a fraction (not greater than 1.0 or less than 0.0), the numerator of which is
equal to the excess, if any, of the Pass-Through Rate for such Class of
Principal Balance Certificates over the relevant Discount Rate, and the
denominator of which is equal to the excess, if any, of the Mortgage Rate for
such Mortgage Loan (or REO Mortgage Loan) over the relevant Discount Rate.
"Prepayment Interest Excess" shall mean with respect to any Mortgage
Loan that were subject to a Principal Prepayment in full or in part made (or, if
resulting from the application of Insurance Proceeds or Condemnation Proceeds,
any other early recovery of principal received) after its Due Date in any
Collection Period, any payment of interest (net of related Master Servicing
Fees) actually collected from the related Mortgagor or otherwise and intended to
cover interest accrued on such Principal Prepayment during the period from and
after such Due Date (exclusive, however, of any related Prepayment Premium or
Yield Maintenance Charge that may have been collected).
"Prepayment Interest Shortfall" shall mean with respect to any
Mortgage Loan that were subject to a Principal Prepayment in full or in part
made (or, if resulting from the application of Insurance Proceeds or
Condemnation Proceeds, any other early recovery of principal received) prior to
its Due Date in any Collection Period, the amount of interest, to the extent not
collected from the related Mortgagor or otherwise (without regard to any
Prepayment Premium or Yield Maintenance Charge that may have been collected),
that would have accrued at a rate per annum equal to the related Mortgage Rate
(net of the rate at which the related Master Servicing Fees that are payable on
such Mortgage Loan accrue) on the amount of such Principal Prepayment during the
period from the date to which interest was paid by the related Mortgagor to, but
not including, such Due Date.
"Prepayment Premium" shall mean any premium, penalty or fee (other
than a Yield Maintenance Charge) paid or payable, as the context requires, as a
result of a Principal Prepayment on, or other early collection of principal of,
a Mortgage Loan.
["Primary Servicer" shall mean CWCapital LLC, in its capacity as
primary servicer with respect to those Mortgage Loans set forth on Schedule VII
herein.]
["Primary Servicing Agreement" shall mean the written contract
between the Master Servicer and the Primary Servicer relating to the Mortgage
Loans set forth on Schedule VII herein.]
"Primary Servicing Office" shall mean the offices of the Master
Servicer or the Special Servicer, as the context may require, that are primarily
responsible for such party's servicing obligations hereunder. As of the Closing
Date, the Primary Servicing Office of the Master Servicer is located at
[_________], and the Primary Servicing Office of the Special Servicer is located
at [_________].
"Prime Rate" shall mean the "prime rate" published in the "Money
Rates" section of The Wall Street Journal, as such "prime rate" may change from
time to time. If The Wall Street Journal ceases to publish the "prime rate,"
then the Trustee shall select an equivalent publication that publishes such
"prime rate"; and if such "prime rate" is no longer generally published or is
limited, regulated or administered by a governmental or quasi-governmental body,
then the Trustee shall select a comparable interest rate index. In either case,
such selection shall be made by the Trustee in its sole discretion and the
Trustee shall notify the Master Servicer and the Special Servicer in writing of
its selection.
"Principal Balance Certificate" shall mean any Regular Interest
Certificate (other than the Class X Certificates).
"Principal Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to the aggregate (without duplication) of the
following:
(a) the aggregate of all payments of principal (other than Principal
Prepayments) Received with respect to the Mortgage Loans during the
related Collection Period, in each case exclusive of any portion of the
particular payment that represents a Late Collection of principal for
which a P&I Advance was previously made under this Agreement for a prior
Distribution Date or that represents the principal portion of a Monthly
Payment due on or before the Cut-off Date or on a Due Date subsequent to
the related Collection Period;
(b) the aggregate of the principal portions of all Monthly Payments
due in respect of the Mortgage Loans for their respective Due Dates
occurring during the related Collection Period, that were Received prior
to the related Collection Period;
(c) the aggregate of all Principal Prepayments Received on the
Mortgage Loans during the related Collection Period;
(d) the aggregate of all Liquidation Proceeds, Condemnation Proceeds
and Insurance Proceeds Received with respect to any Mortgage Loans during
the related Collection Period that were identified and applied by the
Master Servicer as recoveries of principal of such Mortgage Loans, in each
case exclusive of any portion of such proceeds that represents a Late
Collection of principal due on or before the Cut-off Date or for which a
P&I Advance was previously made under this Agreement for a prior
Distribution Date;
(e) the aggregate of all Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds and REO Revenues Received with respect to any
REO Properties during the related Collection Period that were identified
and applied by the Master Servicer as recoveries of principal of the
related REO Mortgage Loans, in each case exclusive of any portion of such
proceeds and/or revenues that represents a Late Collection of principal
due on or before the Cut-off Date or for which a P&I Advance was
previously made under this Agreement for a prior Distribution Date; and
(f) the aggregate of the principal portions of all P&I Advances made
under this Agreement with respect to the Mortgage Loans and any REO
Mortgage Loans for such Distribution Date;
provided that the Principal Distribution Amount for any Distribution Date shall
be reduced by the amount of any reimbursements of (i) Nonrecoverable Advances
plus interest on such Nonrecoverable Advances that are deemed paid or reimbursed
from principal collections on the Mortgage Loans in a period during which such
principal collections would have otherwise been included in the Principal
Distribution Amount for such Distribution Date and (ii) Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal collections on
the Mortgage Loans in a period during which such principal collections would
have otherwise been included in the Principal Distribution Amount for such
Distribution Date.
"Principal Prepayment" shall mean any voluntary payment of principal
made by the Mortgagor on a Mortgage Loan that is Received in advance of its
scheduled Due Date and that is not accompanied by an amount of interest (without
regard to any Prepayment Premium or Yield Maintenance Charge that may have been
collected) representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
["Prohibited Transaction Exemption" shall mean Prohibited
Transaction Exemption [___] granted to [__________] by the United States
Department of Labor, as such Prohibited Transaction Exemption may be amended
from time to time.]
"Proposed Plan" shall have the meaning assigned thereto in Section
3.18(a)(iii).
"Prospectus" shall mean the prospectus dated [________], 200_, as
supplemented by the Prospectus Supplement, relating to the Registered
Certificates.
"Prospectus Supplement" shall mean the prospectus supplement dated
[________], 200_, relating to the Registered Certificates.
"Purchase Option Holders" shall have the meaning assigned thereto in
Section 3.19(b).
"Purchase Price" shall mean, with respect to any Mortgage Loan (or
REO Property), a cash price equal to the aggregate of: (a) the outstanding
principal balance of such Mortgage Loan (or the successor REO Loan) as of the
date of purchase, (b) all accrued and unpaid interest on such Mortgage Loan (or
the successor REO Loan) to, but not including, the Due Date in the Collection
Period of purchase (exclusive, however, of any portion of such accrued but
unpaid interest that represents Default Interest), (c) all related unreimbursed
Servicing Advances (including Advances that were reimbursed out of general
collections of the Mortgage Pool and not reimbursed by, or on behalf of, the
related Mortgagor), if any, (d) all accrued and unpaid interest, if any, in
respect of related Advances in accordance with, as applicable, Section 3.12(b)
and/or Section 4.03(d), and (e) in the case of a repurchase by the applicable
Mortgage Loan Seller pursuant to Section 2.03(a) and the applicable Mortgage
Loan Purchase Agreement, (i) to the extent not otherwise included in the amount
described in clause (d) of this definition, any unpaid Special Servicing Fees,
Workout Fees and other Additional Trust Fund Expenses with respect to such
Mortgage Loan (or REO Property), including any Liquidation Fee payable because
the subject repurchase occurred outside the applicable cure period set forth in
Section 2.03 with respect to the Material Document Defect or Material Breach
that gave rise to the repurchase, and (ii) to the extent not otherwise included
in the amount described in clause (c) of this definition, any costs and expenses
incurred by the Master Servicer, the Special Servicer or the Trustee (on behalf
of the Trust) in enforcing the obligation of such Person to purchase such
Mortgage Loan.
"Qualified Bidder" shall have the meaning assigned thereto in
Section 7.01(c).
"Qualified Institutional Buyer" or "QIB" shall mean a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act.
"Qualified Insurer" shall mean an insurance company or security or
bonding company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Rated Final Distribution Date" shall mean, for the purposes of this
Agreement, the Distribution Date in [________].
"Rating Agency" shall mean each of [_____] and [_____].
"Realized Loss" shall mean: (1) with respect to each Mortgage Loan
as to which a Final Recovery Determination has been made, or with respect to any
successor REO Loan as to which a Final Recovery Determination has been made as
to the related REO Property, an amount (not less than zero) equal to the excess,
if any, of (a) the sum of (i) the unpaid principal balance of such Mortgage Loan
or REO Loan, as the case may be, as of the commencement of the Collection Period
in which the Final Recovery Determination was made, plus (ii) without taking
into account the amount described in subclause (1)(b) of this definition, all
accrued but unpaid interest on such Mortgage Loan or such REO Loan, as the case
may be, to but not including the Due Date in the Collection Period in which the
Final Recovery Determination was made (exclusive, however, of any portion of
such accrued but unpaid interest that represents Default Interest), over (b) all
payments and proceeds, if any, Received in respect of such Mortgage Loan or, to
the extent allocable to such REO Loan, the related REO Property, as the case may
be, during the Collection Period in which such Final Recovery Determination was
made, insofar as such payments and proceeds are allocable to interest (other
than Default Interest) on or principal of such Mortgage Loan or REO Loan; (2)
with respect to each Mortgage Loan as to which any portion of the principal or
previously accrued interest payable thereunder was canceled in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, extension, waiver or amendment of such Mortgage Loan granted or
agreed to by the Special Servicer pursuant to Section 3.21, the amount of such
principal and/or interest (other than Default Interest) so canceled; and (3)
with respect to each Mortgage Loan as to which the Mortgage Rate thereon has
been permanently reduced and not recaptured for any period in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, extension, waiver or amendment of such Mortgage Loan granted or
agreed to by the Special Servicer pursuant to Section 3.21, the amount of the
consequent reduction in the interest portion of each successive Monthly Payment
due thereon (each such Realized Loss shall be deemed to have been incurred on
the Due Date for each affected Monthly Payment).
"Received" shall mean in the case of any Mortgage Loan or REO
Property, received by the Master Servicer or any of its Sub-Servicers, the
Special Servicer or any of its Sub-Servicers or the Trustee, as the case may be,
in any event on behalf of the Trust.
"Record Date" shall mean: with respect to the initial Distribution
Date, the Closing Date; and, with respect to any other Distribution Date, the
last Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Recording/Filing Agent" shall have the meaning assigned thereto in
Section 2.01(c).
"Recovered Amount" shall have the meaning assigned thereto in
Section 1.03(c).
"Reference Rate" shall mean, with respect to any Interest Accrual
Period, the rate per annum set forth on the Reference Rate Schedule.
"Registered Certificate" shall mean any Certificate that has been
the subject of registration under the Securities Act. As of the Closing Date,
the [Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3, Class A-4, Class B, Class C, Class D and
Class E] Certificates are Registered Certificates.
"Regular Interest Certificate" shall mean any Certificate other than
a Class R-I Certificate or Class R-II Certificate.
"Regulation S" shall mean Regulation S under the Securities Act.
"Regulation S Global Certificates" shall mean, with respect to any
Class of Book-Entry Non-Registered Certificates offered and sold outside of the
United States in reliance on Regulation S, one or more global Certificates,
collectively, in definitive, fully registered form without interest coupons,
each of which Certificates bears a Regulation S Legend.
"Regulation S Legend" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside the United
States in reliance on Regulation S, a legend generally to the effect that such
Certificates may not be offered, sold, pledged or otherwise transferred in the
United States or to a United States Securities Person prior to the date that is
40 days after the later of (a) the commencement of the offering to Persons other
than distributors in reliance on Regulation S, and (b) the date of closing of
the offering, except pursuant to an exemption from the registration requirements
of the Securities Act.
"Regulation S Restricted Certificate": Any Certificate that is not
rated in one of the four highest generic ratings categories by a Rating Agency.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Red. Reg. 1,506, 1,531 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
"Reimbursement Rate" shall mean the rate per annum applicable to the
accrual of interest, compounded annually, on Servicing Advances in accordance
with Section 3.12(b) and on P&I Advances in accordance with, as applicable,
Section 4.03(d), which rate per annum is equal to the Prime Rate.
"Release Date" shall have the meaning assigned thereto in Section
5.02(b).
"Relevant Servicing Criteria" means the Servicing Criteria
applicable to a specific party, as set forth on Exhibit O attached hereto. For
clarification purposes, multiple parties can have responsibility for the same
Relevant Servicing Criteria. With respect to a Servicing Function Participant
engaged by the Master Servicer, the Special Servicer or the Trustee, the term
"Relevant Servicing Criteria" may refer to a portion of the Relevant Servicing
Criteria applicable to the Master Servicer, the Special Servicer or the Trustee.
"REMIC" shall mean a "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
"REMIC Pool" shall mean either of the Lower-Tier REMIC and/or the
Upper-Tier REMIC, as applicable.
"REMIC Provisions" shall mean the provisions of the federal income
tax law relating to REMICs, which appear at Sections 860A through 860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and proposed,
temporary and final Treasury regulations and any published rulings, notices and
announcements promulgated thereunder, as the foregoing may be in effect from
time to time.
"Rents from Real Property" shall mean, with respect to any REO
Property, gross income of the character described in Section 856(d) of the Code.
"REO Account" shall mean the segregated account or accounts created
and maintained by the Special Servicer pursuant to Section 3.17 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "[______],
as Special Servicer, on behalf of [______], as Trustee, in trust for the
registered holders of CWCapital Commercial Funding Corp., Commercial Mortgage
Trust 200_-___, Commercial Mortgage Pass-Through Certificates, Series 200_-___."
"REO Acquisition" shall mean the acquisition of any REO Property
pursuant to Section 3.09.
"REO Disposition" shall mean the sale or other disposition of any
REO Property pursuant to Section 3.19.
"REO Extension" shall have the meaning assigned thereto in Section
3.17(a).
"REO Loan" shall mean the mortgage loan deemed for purposes hereof
to be outstanding with respect to each REO Property. Each REO Loan shall be
deemed to provide for monthly payments of principal and/or interest equal to its
Assumed Monthly Payment and otherwise to have the same terms and conditions as
its predecessor Mortgage Loan (such terms and conditions to be applied without
regard to the default on such predecessor Mortgage Loan and the acquisition of
the related REO Property as part of the Trust Fund).
"REO Mortgage Loan" shall mean any REO Loan that relates to a
predecessor Mortgage Loan.
"REO Property" shall mean a Mortgaged Property acquired on behalf
and in the name of the Trustee for the benefit of the Certificateholders,
through foreclosure, acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan.
"REO Revenues" shall mean all income, rents, profits and proceeds
derived from the ownership, operation or leasing of any REO Property.
"REO Tax" shall have the meaning assigned thereto in Section
3.18(a).
"Reportable Event" shall have the meaning assigned thereto in
Section 11.07.
"Reporting Servicer" shall have the meaning assigned thereto in
Section 11.10.
"Repurchased Note" shall have the meaning assigned thereto in
Section 3.29.
"Repurchased Percentage Interest" shall have the meaning assigned
thereto in Section 3.29.
"Repurchasing Seller" shall have the meaning assigned thereto in
Section 3.29.
"Request for Release" shall mean a request signed by a Servicing
Officer of, as applicable, the Master Servicer in the form of Exhibit D-1
attached hereto or the Special Servicer in the form of Exhibit D-2 attached
hereto.
"Required Appraisal" shall mean, with respect to each Required
Appraisal Loan, an appraisal of the related Mortgaged Property from an
Independent Appraiser selected by the party required or authorized to obtain
such appraisal hereunder, which appraisal shall be prepared in accordance with
12 CFR ss. 225.62 and conducted in accordance with the standards of the
Appraisal Institute or, in the case of a Required Appraisal Loan having a Stated
Principal Balance of, or in the case of a Mortgaged Property that has an
allocated loan amount of, less than $2,000,000, if no satisfactory (as
determined by the Special Servicer pursuant to Section 3.09(a)) appraisal
meeting the foregoing criteria was obtained or conducted within the prior 12
months, a "desktop" value estimate performed by the Special Servicer.
"Required Appraisal Loan" shall mean any Mortgage Loan:
(i) that becomes a Modified Loan,
(ii) that is 60 days or more delinquent in respect of any
Monthly Payment, except for a Balloon Payment,
(iii) solely in the case of a delinquent Balloon Payment, a
Mortgage Loan shall be considered to be a Required Appraisal Loan if
the related Mortgagor has failed to make when due any Balloon
Payment; provided, however, if (x) the related Mortgagor is actively
seeking a refinancing commitment, (y) the related Mortgagor
continues to make payments in the amount of its Assumed Monthly
Payment and (z) the Directing Holder consents, the Mortgage Loan
will not be considered a Required Appraisal Loan until 60 days
beyond the related maturity date; and provided, further, if the
related Mortgagor has delivered to the Master Servicer, on or before
the 60th day after the related maturity date, a refinancing
commitment reasonably acceptable to the Master Servicer, and the
Mortgagor continues to make its payments in the amount of its
Assumed Monthly Payments, the Mortgage Loan will not be considered a
Required Appraisal Loan until the earlier of (1) 120 days beyond the
related maturity date and (2) the termination of the refinancing
commitment;
(iv) with respect to which the related Mortgaged Property has
become an REO Property,
(v) with respect to which a receiver or similar official is
appointed and continues for 60 days in such capacity in respect of
the related Mortgaged Property,
(vi) with respect to which the related Mortgagor is subject to
a bankruptcy, insolvency or similar proceedings, which, in the case
of an involuntary bankruptcy, insolvency or similar proceeding, has
not been dismissed within 60 days of the commencement thereof, or
(vii) that remains outstanding five (5) years following any
extension of its maturity date pursuant to Section 3.21.
Any Required Appraisal Loan (other than a Mortgage Loan that became a Required
Appraisal Loan pursuant to clause (vii) above) shall cease to be such at such
time as it has become a Corrected Mortgage Loan (except if such Required
Appraisal Loan had not become a Specially Serviced Mortgage Loan at the time the
applicable event(s) described in any of clauses (i) through (vii) above ceased
to exist), it has remained current for at least three (3) consecutive Monthly
Payments, and no other event described in clauses (i) through (vii) above has
occurred with respect thereto during the preceding three-month period; provided
that the term "Required Appraisal Loan" shall include any successor REO Loan(s).
"Required Appraisal Value" shall mean, with respect to any Mortgaged
Property securing (or REO Property relating to) a Required Appraisal Loan, an
amount equal to the sum of: (a) the excess, if any, of (i) 90% of the Appraised
Value of such Mortgaged Property (or REO Property) as determined by the most
recent Required Appraisal or any letter update of such Required Appraisal (as it
may be adjusted downward by the Special Servicer in accordance with the
Servicing Standard (without implying any duty to do so) based upon its review of
the Appraisal or estimate and such other information as it may deem
appropriate), over (ii) the amount of any obligations secured by liens on such
Mortgaged Property (or REO Property) that are prior to the lien of the related
Required Appraisal Loan; plus (b) the amount of Escrow Payments and Reserve
Funds held by the Master Servicer in respect of such Required Appraisal Loan
that (i) are not being held in respect of any real estate taxes and assessments,
insurance premiums or, if applicable, ground rents, (ii) are not otherwise
scheduled to be applied or utilized (except to pay debt service on such Required
Appraisal Loan) within the twelve-month period following the date of
determination and (iii) may be applied towards the reduction of the principal
balance of such Required Appraisal Loan; plus (c) the amount of any letter of
credit constituting additional security for such Required Appraisal Loan and
that may be applied towards the reduction of the principal balance of such
Required Appraisal Loan.
"Reserve Account" shall mean any account established by the Master
Servicer, pursuant to Section 3.03(d), as to which Reserve Funds shall be
deposited.
"Reserve Funds" shall mean, with respect to any Mortgage Loan, any
amounts delivered by the related Mortgagor to be held by or on behalf of the
mortgagee representing reserves for repairs, capital improvements and/or
environmental remediation in respect of the related Mortgaged Property or debt
service on such Mortgage Loan.
"Residual Interest Certificate" shall mean a Class R-I or Class R-II
Certificate.
"Responsible Officer" shall mean when used with respect to the
Trustee, any Vice President, any Assistant Vice President, any Trust Officer,
any Assistant Secretary or any other officer of the Trustee's Asset-Backed
Services Trust Group customarily performing functions similar to those performed
by any of the above designated officers and having direct responsibility for the
administration of this Agreement.
"Review Package" shall mean a package of documents consisting of a
memorandum outlining the analysis and recommendation (in accordance with the
Servicing Standard) of the Master Servicer or the Special Servicer, as the case
may be, with respect to the matters that are the subject thereof, and copies of
all relevant documentation.
"Rule 144A Global Certificate" shall mean, with respect to any Class
of Book-Entry Non-Registered Certificates, one or collectively more global
certificates representing such Class registered in the name of the Depository or
its nominee, in definitive, fully registered form without interest coupons, none
of which certificates bears a Regulation S Legend, and each of which
certificates has a Rule 144A CUSIP number.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act" means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the
rules and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification" shall have the meaning assigned to
such term in Section 11.06.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Service(s)(ing)" means, in accordance with Regulation AB, the act
of servicing and administering the Mortgage Loans or any other assets of the
Trust by an entity that meets the definition of "servicer" set forth in Item
1101 of Regulation AB and is subject to the disclosure requirements set forth in
Item 1108 of Regulation AB. For clarification purposes, any uncapitalized
occurrence of this term shall have the meaning commonly understood by
participants in the commercial mortgage-backed securities market.
"Servicer Fee Amount" shall mean: (a) with respect to each
Sub-Servicer, as of any date of determination, the aggregate of the products
obtained by multiplying, for each Mortgage Loan primary serviced by such
Sub-Servicer, (i) the principal balance of such Mortgage Loan as of the end of
the immediately preceding Collection Period and (ii) the sub-servicing fee rate
specified in the related Sub-Servicing Agreement for such Mortgage Loan; and (b)
with respect to the Master Servicer, as of any date of determination, the
aggregate of the products obtained by multiplying, for each Mortgage Loan (i)
the principal balance of such Mortgage Loan as of the end of the immediately
preceding Collection Period and (ii) the excess, if any, of the Master Servicing
Fee Rate for such Mortgage Loan over the sub-servicing fee rate (if any)
applicable to such Mortgage Loan, as specified in any Sub-Servicing Agreement
related to such Mortgage Loan.
"Servicer Reports" shall mean each of the files and reports
comprising the CMSA Investor Reporting Package (excluding the CMSA Bond Level
File, the CMSA Collateral Summary File and CMSA Reconciliation of Funds).
"Servicing Account" shall have the meaning assigned thereto in
Section 3.03(a).
"Servicing Advances" shall mean all customary, reasonable and
necessary "out of pocket" costs and expenses (including attorneys' fees and fees
and expenses of real estate brokers) incurred by the Master Servicer, the
Special Servicer or the Trustee in connection with the servicing and
administration of a Mortgage Loan, if a default is imminent thereunder or a
default, delinquency or other unanticipated event has occurred with respect
thereto, or in connection with the administration of any REO Property,
including, but not limited to, the cost of (a) compliance with the obligations
of the Master Servicer, the Special Servicer or the Trustee, if any, set forth
in Section 3.03(c), (b) the preservation, insurance, restoration, protection and
management of a Mortgaged Property, including the cost of any "forced placed"
insurance policy purchased by the Master Servicer to the extent such cost is
allocable to a particular Mortgaged Property that the Master Servicer or the
Special Servicer is required to cause to be insured pursuant to Section 3.07(a),
(c) obtaining any Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds, (d) any enforcement or judicial proceedings with respect to a
Mortgaged Property, including foreclosures, (e) any Required Appraisal or any
other appraisal or update thereof expressly permitted or required to be obtained
hereunder, (f) the operation, management, maintenance and liquidation of any REO
Property, (g) obtaining any related ratings confirmation and (h) the Master
Servicer, Special Servicer or Trustee fulfilling its obligations under Section
2.03; provided that, notwithstanding anything to the contrary, "Servicing
Advances" shall not include allocable overhead of the Master Servicer, the
Special Servicer or the Trustee, such as costs for office space, office
equipment, supplies and related expenses, employee salaries and related expenses
and similar internal costs and expenses, or costs and expenses incurred by any
such party in connection with its purchase of any Mortgage Loan or REO Property
pursuant to any provision of this Agreement.
"Servicing Criteria" means the criteria set forth in paragraph (d)
of Item 1122 of Regulation AB, as such may be amended from time to time.
"Servicing Fees" shall mean with respect to each Mortgage Loan (and
any successor REO Loan with respect thereto), the Master Servicing Fee and the
Special Servicing Fee.
"Servicing File" shall mean, with respect to each Mortgage Loan,
collectively, any and all documents (other than documents required to be part of
the related Mortgage File) in the possession of the Master Servicer or the
Special Servicer and relating to the servicing of any Mortgage Loan, including
any original letter of credit (together with any transfer or assignment
documents related thereto), any franchise agreement and any franchise comfort
letter (together with any transfer or assignment documents relating thereto),
appraisals, surveys, engineering reports, environmental reports, opinion letters
of counsel to a related Mortgagor, escrow agreements, property management
agreements and franchise agreements.
"Servicing Function Participant" means any Person, other than the
Master Servicers, the Special Servicer and the Trustee, that, within the meaning
of Item 1122 of Regulation AB, is performing activities that address the
Servicing Criteria, unless such Person's activities relate only to 5% or less of
the Mortgage Loans (based on their Stated Principal Balance).
"Servicing Officer" shall mean any officer or employee of the Master
Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by such party to the
Trustee and the Depositor on the Closing Date, as such list may be amended from
time to time.
"Servicing-Released Bid" shall have the meaning assigned thereto in
Section 7.01(c).
"Servicing-Retained Bid" shall have the meaning assigned thereto in
Section 7.01(c).
"Servicing Standard" shall mean with respect to the Master Servicer
or the Special Servicer, to service and administer the Mortgage Loans and any
REO Properties that such party is obligated to service and administer pursuant
to this Agreement: (i) in accordance with the higher of the following standards
of care: (A) the same manner in which, and with the same care, skill, prudence
and diligence with which, the Master Servicer or the Special Servicer, as the
case may be, services and administers comparable mortgage loans with similar
borrowers and comparable REO properties for other third-party portfolios (giving
due consideration to the customary and usual standards of practice of prudent
institutional commercial mortgage lenders servicing their own mortgage loans and
REO properties), and (B) the same manner in which, and with the same care,
skill, prudence and diligence with which, the Master Servicer or the Special
Servicer, as the case may be, services and administers comparable mortgage loans
owned by the Master Servicer or the Special Servicer, as the case may be, in
either case exercising reasonable business judgment and acting in accordance
with applicable law, the terms of this Agreement and the terms of the respective
Mortgage Loans; (ii) with a view to: the timely recovery of all payments of
principal and interest, including Balloon Payments, under the Mortgage Loans or,
in the case of any such Mortgage Loan that is (1) a Specially Serviced Mortgage
Loan or (2) a Mortgage Loan as to which the related Mortgaged Property has
become an REO Property, the maximization of recovery on the Mortgage Loan to the
Certificateholders (as a collective whole) to be performed at the related
Mortgage Rate; and (iii) without regard to (A) any relationship, including as
lender on any other debt, that the Master Servicer or the Special Servicer, as
the case may be, or any Affiliate thereof, may have with any of the related
Mortgagors, or any Affiliate thereof, or any other party to this Agreement; (B)
the ownership of any Certificate by the Master Servicer or the Special Servicer,
as the case may be, or any Affiliate thereof; (C) the obligation of the Master
Servicer or the Special Servicer, as the case may be, to make Advances; (D) the
right of the Master Servicer or the Special Servicer, as the case may be, or any
Affiliate of either of them, to receive compensation or reimbursement of costs
hereunder generally or with respect to any particular transaction; and (E) the
ownership, servicing or management for others of any other mortgage loan or real
property not subject to this Agreement by the Master Servicer or the Special
Servicer, as the case may be, or any Affiliate thereof.
"Servicing Transfer Event" shall mean, with respect to any Mortgage
Loan, the occurrence of any of the events described in clauses (a) through (h)
of the definition of "Specially Serviced Mortgage Loan."
"Similar Law" shall have the meaning assigned thereto in Section
5.02(c).
"Single Certificate" shall mean, for purposes of Section 4.02, a
hypothetical Regular Interest Certificate evidencing an initial $1,000
denomination.
"Single Purpose Entity" shall mean an entity, other than an
individual, whose organizational documents and/or the related Mortgage Loan
documents provide substantially to the effect that: (i) it was formed or
organized solely for the purpose of either owning and operating the Mortgaged
Property or Properties securing one or more Mortgage Loans, or owning and
pledging Defeasance Collateral in connection with the defeasance of a Defeasance
Loan, as the case may be, (ii) it may not engage in any business unrelated to
such Mortgaged Property or Properties or such Defeasance Collateral, as the case
may be, (iii) it will not have any assets other than those related to its
interest in and operation of such Mortgaged Property or such Defeasance
Collateral, as the case may be, (iv) it may not incur indebtedness other than
incidental to its ownership and operation of the applicable Mortgaged Property
or Properties or Defeasance Collateral, as the case may be, (v) it will maintain
its own books and records and accounts separate and apart from any other Person,
(vi) it will hold itself out as a legal entity, separate and apart from any
other Person, and (vii) in the case of such an entity whose sole purpose is
owning or operating a Mortgaged Property, it will have an independent director
or, if such entity is a partnership or a limited liability company, at least one
general partner or limited liability company member thereof, as applicable,
which shall itself be a "single purpose entity" (having as its sole asset its
interest in the Single Purpose Entity) with an independent director.
"Special Servicer" shall mean [______], in its capacity as special
servicer hereunder, or any successor special servicer appointed as herein
provided.
"Special Servicing Fee" shall mean, with respect to each Specially
Serviced Mortgage Loan and each REO Loan, the fee designated as such in, and
payable to the Special Servicer pursuant to, Section 3.11(b).
"Special Servicing Fee Rate" shall mean, with respect to each
Specially Serviced Mortgage Loan and each REO Loan, [__]% per annum, subject to
a minimum monthly fee of $4,000 for each Specially Serviced Mortgage Loan and
each REO Loan.
"Specially Serviced Mortgage Loan" shall mean any Mortgage Loan as
to which any of the following events has occurred:
(a) the related Mortgagor has failed to make when due any Monthly
Payment (including a Balloon Payment), which failure continues, or the
Master Servicer determines, in its reasonable, good faith judgment, will
continue, unremedied (without regard to any grace period) (i) except in
the case of a Balloon Loan delinquent in respect of its Balloon Payment,
for 60 days beyond the date on which the subject payment was due, or (ii)
solely in the case of a delinquent Balloon Payment, (A) for one Business
Day beyond the date on which the subject Balloon Payment was due or (B) in
the case of a Balloon Loan as to which the related Mortgagor shall have
delivered a refinancing commitment acceptable to the Special Servicer
prior to the date the subject Balloon Payment was due, for 30 days beyond
the date on which the subject Balloon Payment was due (or for such shorter
period beyond the date on which the subject Balloon Payment was due during
which the refinancing is scheduled to occur);
(b) the Master Servicer or Special Servicer (in the case of the
Special Servicer, with the consent of the applicable Directing Holder,
subject to Section 6.11) shall have determined in accordance with the
Servicing Standard, based on communications with the related Mortgagor,
that a default in the making of a Monthly Payment on such Mortgage Loan,
including a Balloon Payment, is likely to occur and is likely to remain
unremedied (without regard to any grace period) for at least the
applicable period contemplated by clause (a) of this definition; or
(c) there shall have occurred a default (other than as described in
clause (a) above and other than an Acceptable Insurance Default) that (i)
in the judgment of the Master Servicer or the Special Servicer (in the
case of the Special Servicer, with the consent of the applicable Directing
Holder, subject to Section 6.11) materially impairs the value of the
related Mortgaged Property as security for such Mortgage Loan or otherwise
materially adversely affects the interests of Certificateholders, and (ii)
continues unremedied for the applicable grace period under the terms of
such Mortgage Loan (or, if no grace period is specified and the default is
capable of being cured, for 30 days); provided that any default that
results in acceleration of the related Mortgage Loan without the
application of any grace period under the related Mortgage Loan documents
shall be deemed not to have a grace period; and provided, further, that
any default requiring a Servicing Advance shall be deemed to materially
and adversely affect the interests of Certificateholders; or
(d) the Master Servicer or the Special Servicer (in the case of the
Special Servicer, with the consent of the applicable Directing Holder,
subject to Section 6.11) has determined that (i) a default (other than as
described in clause (b) of this definition) under the Mortgage Loan is
imminent, (ii) such default will materially impair the value of the
related Mortgaged Property as security for such Mortgage Loan or otherwise
materially adversely affects the interests of Certificateholders, and
(iii) the default is likely to continue unremedied for the applicable
grace period under the terms of such Mortgage Loan (or, if no grace period
is specified and the default is capable of being cured, for 30 days);
provided that any default that results in acceleration of the related
Mortgage Loan without the application of any grace period under the
related Mortgage Loan documents shall be deemed not to have a grace
period; and provided, further, that any determination that a Servicing
Transfer Event has occurred under this clause (d) with respect to any
Mortgage Loan solely by reason of the failure of the related Mortgagor to
maintain or cause to be maintained insurance coverage against damages or
losses arising from acts of terrorism will be subject to Section 6.11, and
the second paragraph of Section 3.07(a); or
(e) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
or the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the related Mortgagor and such decree or
order shall have remained in force and not dismissed for a period of 60
days; or
(f) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to such Mortgagor or of or relating to all or substantially all
of its property; or
(g) the related Mortgagor shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(h) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the
related Mortgaged Property;
provided, however, that a Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan, when a Liquidation Event has occurred with respect to such
Mortgage Loan, when the related Mortgaged Property has become an REO Property
or, so long as at such time no circumstance identified in clauses (a) through
(h) above exists that would cause the Mortgage Loan to continue to be
characterized as a Specially Serviced Mortgage Loan, when:
(w) with respect to the circumstances described in clause (a) of
this definition, the related Mortgagor has made three consecutive full and
timely Monthly Payments under the terms of such Mortgage Loan (as such terms may
be changed or modified in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or by reason of a modification, extension,
waiver or amendment granted or agreed to by the Master Servicer or the Special
Servicer pursuant to Section 3.21);
(x) with respect to the circumstances described in clauses (b), (d),
(e), (f) and (g) of this definition, such circumstances cease to exist in the
good faith, reasonable judgment of the Special Servicer, but, with respect to
any bankruptcy or insolvency proceedings described in clauses (e), (f) and (g),
no later than the entry of an order or decree dismissing such proceeding;
(y) with respect to the circumstances described in clause (c) of
this definition, such default is cured as determined by the Special Servicer in
its reasonable, good faith judgment; and
(z) with respect to the circumstances described in clause (h) of
this definition, such proceedings are terminated.
The Special Servicer may conclusively rely on the Master Servicer's
determination and the Master Servicer may conclusively rely on the Special
Servicer's determination as to whether a Servicing Transfer Event has occurred
giving rise to a Mortgage Loan's becoming a Specially Serviced Mortgage Loan.
"Startup Day" shall mean, with respect to each REMIC Pool, the day
designated as such in Section 10.01(c).
"Stated Maturity Date" shall mean, with respect to any Mortgage
Loan, the Due Date specified in the related Mortgage Note (as in effect on the
Closing Date) on which the last payment of principal is due and payable under
the terms of such Mortgage Note (as in effect on the Closing Date), without
regard to any change in or modification of such terms in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, extension, waiver or amendment of such Mortgage Loan granted or
agreed to by the Special Servicer pursuant to Section 3.21.
"Stated Principal Balance" shall mean with respect to any Mortgage
Loan (and any successor REO Mortgage Loan with respect thereto), the Cut off
Date Balance of such Mortgage Loan, as permanently reduced on each Distribution
Date (to not less than zero) by (i) any principal payments (whether received or
advanced) or other collections in respect of such Mortgage Loan that were
identified and applied as a recovery of principal for such Mortgage Loan (or any
such successor REO Mortgage Loan with respect thereto) during the related
Collection Period, (ii) the principal portion of any Realized Loss incurred in
respect of such Mortgage Loan (or any such successor REO Mortgage Loan with
respect thereto) during the related Collection Period.
Other than for purposes of determining the Weighted Average Net
Mortgage Rate, the Stated Principal Balance of the Mortgage Pool will not be
reduced by the amount of any principal collections from the Mortgage Pool that
were used to reimburse a Workout-Delayed Reimbursement Amount pursuant to
Section 3.05(a)(vii), unless the corresponding Advance was determined to be a
Nonrecoverable Advance.
Notwithstanding the foregoing, if a Liquidation Event or Final
Recovery Determination occurs in respect of any Mortgage Loan or REO Property,
then the "Stated Principal Balance" of such Mortgage Loan or of the related REO
Loan, as the case may be, shall be zero commencing as of the Distribution Date
in the Collection Period next following the Collection Period in which such
Liquidation Event occurred.
"Sub-Servicer" means any person that Services Mortgage Loan on
behalf of the Master Servicer, the Special Servicer or an Additional Servicer
and is responsible for the performance (whether directly or through
Sub-Servicers or Subcontractors) of a substantial portion of the material
servicing functions required to be performed by the Master Servicer, the Special
Servicer or an Additional Servicer under this Agreement, with respect to some or
all of the Mortgage Loans, that are identified in the Servicing Criteria.
"Sub-Servicing Agreement" shall mean the written contract between
the Master Servicer or the Special Servicer, on the one hand, and the Primary
Servicer or any Sub-Servicer, on the other hand, relating to servicing and
administration of Mortgage Loans as provided in Section 3.23.
"Subcontractor" means any vendor, subcontractor or other Person that
is not responsible for the overall servicing (as "servicing" is commonly
understood by participants in the mortgaged-backed securities market) of
Mortgage Loans but performs one or more discrete functions of the Servicing
Criteria with respect to Mortgage Loans under the direction or authority of the
Master Servicer, the Special Servicer, the Trustee, an Additional Servicer, or a
Sub-Servicer.
"Successful Bidder" shall have the meaning assigned thereto in
Section 7.01(c).
"Supplemental Servicer Schedule": With respect to the Mortgage Loans
to be serviced by the Master Servicer, a list attached hereto as Schedule VI,
which list sets forth the following information with respect to each Mortgage
Loan:
(i) the Mortgagor's name;
(ii) property type;
(iii) the original balance;
(iv) the original and remaining amortization term;
(v) whether such Mortgage Loan has a guarantor;
(vi) whether such Mortgage Loan is secured by a letter of
credit;
(vii) the current balance and monthly amount of any reserve
or escrowed funds;
(viii) the grace period with respect to both default
interest and late payment charges;
(ix) whether such Mortgage Loan is insured by RVI, lease
enhancement policy or environmental policies;
(x) whether an operation and maintenance plan exists and,
if so, what repairs are required;
(xi) whether a cash management agreement or lock-box
agreement is in place; and
(xii) the number of units, pads, rooms or square feet of
the Mortgaged Property.
Such list may be in the form of more than one list, collectively setting forth
all of the information required.
"Tax Administrator" shall mean any tax administrator appointed
pursuant to Section 8.13 (or, in the absence of any such appointment, the
Trustee).
"Tax Matters Person" shall mean, with respect to each REMIC Pool,
the Person designated as the "tax matters person" of such REMIC Pool in the
manner provided under Treasury Regulations Section 1.860F-4(d) and Treasury
Regulations Section 301.6231(a)(7)-1, which Person shall be the Plurality
Residual Interest Certificateholder in respect of the related Class of Residual
Interest Certificates.
"Tax Returns" shall mean the federal income tax return on Internal
Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC)
Income Tax Return, including Schedule Q thereto, Quarterly Notice to Residual
Interest Holders of REMIC Taxable Income or Net Loss Allocation, or any
successor forms, to be filed on behalf of each REMIC Pool due to its
classification as a REMIC under the REMIC Provisions, together with any and all
other information, reports or returns that may be required to be furnished to
the Certificateholders or filed with the IRS under any applicable provisions of
federal tax law or any other governmental taxing authority under applicable
state and local tax law.
"Total Principal Reinstatement Amount" shall mean, with respect to
any Distribution Date, an amount (to be calculated by the Trustee immediately
following, and after taking into account, all distributions to be made with
respect to the Certificates on such Distribution Date) equal to the least of:
(1) the Additional Principal Distribution Amount for the subject Distribution
Date; (2) the amount, if any, by which (a) the aggregate Stated Principal
Balance of the Mortgage Pool that will be outstanding immediately following the
subject Distribution Date, exceeds (b) the aggregate of the Class Principal
Balances of all the Classes of Principal Balance Certificates (after taking into
account the distributions made with respect to the Certificates on such
Distribution Date, but prior to any adjustments to any of those Classes of
Principal Balance Certificates pursuant to Section 4.04 or Section 4.05); and
(3) the aggregate Loss Reimbursement Amount in respect of the Principal Balance
Certificates for the subject Distribution Date (reduced by all distributions
made with respect to the Principal Balance Certificates in reimbursement of such
aggregate Loss Reimbursement Amount on the subject Distribution Date).
"Transfer" shall mean any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement" shall have the meaning assigned
thereto in Section 5.02(d)(i)(B).
"Transfer Date" shall have the meaning assigned thereto in Section
5.02(b).
"Transferee" shall mean any Person who is acquiring, by Transfer,
any Ownership Interest in a Certificate.
"Transferor" shall mean any Person who is disposing of, by Transfer,
any Ownership Interest in a Certificate.
"Trust" shall mean the common law trust created hereunder.
"Trust Fund" shall mean, collectively, all of the assets of the
Lower-Tier REMIC and the Upper-Tier REMIC.
"Trustee" shall mean [______], in its capacity as trustee hereunder,
or any successor trustee appointed as herein provided.
"Trustee Fee" shall mean, with respect to each Distribution Date, an
amount equal to one-twelfth of the product of (i) the Trustee Fee Rate,
multiplied by (ii) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately prior to such Distribution Date.
"Trustee Fee Rate" shall mean [__]% per annum.
"Trustee Liability" shall have the meaning assigned thereto in
Section 8.05(b).
"UCC" shall mean the Uniform Commercial Code in effect in the
applicable jurisdiction.
"UCC Financing Statement" shall mean a financing statement executed
(if required by the UCC) and filed pursuant to the UCC.
"Uncertificated Lower-Tier Interest" shall mean each separate
non-certificated beneficial ownership interest in the Lower-Tier REMIC issued
hereunder and designated as a "regular interest" in the Lower-Tier REMIC. Each
Uncertificated Lower-Tier Interest shall accrue interest at the Weighted Average
Net Mortgage Rate, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto. The designations for the respective Uncertificated Lower-Tier Interests
are set forth in the Preliminary Statement hereto.
"Uncertificated Principal Balance" shall mean the principal balance
of any Uncertificated Lower-Tier Interest outstanding as of any date of
determination. As of the Closing Date, the Uncertificated Principal Balance of
each Uncertificated Lower-Tier Interest shall equal the amount set forth in the
Preliminary Statement hereto. On each Distribution Date, the Uncertificated
Principal Balance of each Uncertificated Lower-Tier Interest shall be
permanently reduced by all distributions of principal deemed to have been made
thereon on such Distribution Date pursuant to Section 4.01(i), and shall be
further permanently reduced on such Distribution Date by all Realized Losses and
Additional Trust Fund Expenses deemed to have been allocated thereto on such
Distribution Date pursuant to Section 4.04(b).
"Underwriters" shall mean [____________] and [___________], and
their respective successors in interest.
"Unfunded Principal Balance Reduction" shall mean any reduction made
in the Class Principal Balance of any Class of Principal Balance Certificates
pursuant to Section 4.04(a) or the Uncertificated Principal Balance of any
Uncertificated Lower-Tier Interest pursuant to Section 4.04(b).
"United States Tax Person" shall mean a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any State thereof or the District
of Columbia, or an estate whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more such United States Tax Persons have the authority to control all
substantial decisions of the trust (or to the extent provided in the Treasury
regulations, if the trust was in existence on August 20, 1996 and elected to be
treated as a United States person), all within the meaning of Section
7701(a)(30) of the Code.
"United States Securities Person" shall mean any "U.S. person" as
defined in Rule 902(k) of Regulation S.
"Unliquidated Advance" shall mean any Advance previously made by a
party hereto that has been previously reimbursed, as between the Person that
made the Advance hereunder, on the one hand, and the Trust Fund, on the other,
as part of a Workout-Delayed Reimbursement Amount pursuant to subsections (ii)
and (vi) of Section 3.05(a) but that has not been recovered from the Mortgagor
or otherwise from collections on or the proceeds of the Mortgage Loan or REO
Property in respect of which the Advance was made.
"Upper-Tier Distribution Account" shall mean the subaccount deemed
to be a part of the Distribution Account and maintained by the Trustee pursuant
to Section 3.04(b).
"Upper-Tier REMIC" One of the two separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"Voting Rights" shall mean the portion of the voting rights of all
of the Certificates that is allocated to any Certificate. At all times during
the term of this Agreement, 99% of the Voting Rights shall be allocated among
the Holders of the various Classes of the Principal Balance Certificates in
proportion to the respective Class Principal Balances of their Certificates, and
1% of the Voting Rights shall be allocated to the Holders of the Class XP and
Class XC Certificates, pro rata, based on the Class XP Notional Amount and Class
XC Notional Amount, respectively. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective
Certificates. No Voting Rights shall be allocated to the Class R-I or Class R-II
Certificates.
"Weighted Average Net Mortgage Rate" shall mean, with respect to any
Distribution Date, the weighted average of the Net Mortgage Rates of the
Mortgage Loans as of the first day of the related Collection Period, weighted on
the basis of their respective Stated Principal Balances as of the first day of
such Collection Period (after giving effect to any payments received during any
applicable grace period).
"Workout-Delayed Reimbursement Amounts" shall mean with respect to
any Mortgage Loan, the amount of any Advance made with respect to such Mortgage
Loan on or before the date such Mortgage Loan becomes (or, but for the making of
three Monthly Payments under its modified terms, would then constitute) a
Corrected Mortgage Loan, together with (to the extent accrued and unpaid)
interest on such Advances, to the extent that (i) such Advance is not reimbursed
to the Person who made such Advance on or before the date, if any, on which such
Mortgage Loan becomes a Corrected Mortgage Loan and (ii) the amount of such
Advance becomes an obligation of the Mortgagor to pay such amount under the
terms of the modified Mortgage Loan documents.
"Workout Fee" shall mean the fee designated as such in, and payable
to the Special Servicer with respect to certain collections on each Corrected
Mortgage Loan pursuant to, Section 3.11(b).
"Workout Fee Rate" shall mean, with respect to each Corrected
Mortgage Loan as to which a Workout Fee is payable, [__]%.
"Yield Maintenance Charge" shall mean the payments paid or payable,
as the context requires, as the result of a Principal Prepayment on, or other
early collection of principal of, a Mortgage Loan, which payments are not
otherwise due thereon in respect of principal or interest and have been
calculated (based on scheduled payments of interest and/or principal on such
Mortgage Loan) to compensate the Holder for reinvestment losses based on the
value of an interest rate index at or near the time of prepayment. Any other
prepayment premiums, penalties and fees not so calculated will not be considered
"Yield Maintenance Charges." In the event that a Yield Maintenance Charge shall
become due for any particular Mortgage Loan, the Master Servicer shall be
required to follow the terms and provisions contained in the applicable Mortgage
Note, provided, however, in the event the particular Mortgage Note shall not
specify the U.S. Treasuries which shall be used in determining the discount rate
or the reinvestment yield to be applied in such calculation, the Master Servicer
shall be required to use those U.S. Treasuries which shall generate the lowest
discount rate or reinvestment yield for the purposes thereof. Accordingly, if
either no U.S. Treasury issue, or more than one U.S. Treasury issue, shall
coincide with the term over which the Yield Maintenance Charge shall be
calculated (which depending on the applicable Mortgage Note is based on the
remaining average life of the Mortgage Loan or the actual term remaining through
the related Stated Maturity Date), the Master Servicer shall use the applicable
U.S. Treasury whose reinvestment yield is the lowest, with such yield being
based on the bid price for such issue as published in The Wall Street Journal on
the date that is 14 days prior to the date that the Yield Maintenance Charge
shall become due and payable (or, if such bid price is not published on that
date, the next preceding date on which such bid price is so published) and
converted to a monthly compounded nominal yield. The monthly compounded nominal
yield ("MEY") is derived from the reinvestment yield or discount rate and shall
be defined as MEY = (12 X [{(1+ "BEY"/2) ^1/6}-1]) X 100, where BEY is defined
as the U.S. Treasury Reinvestment Yield which is in decimal form and not in
percentage, and 1/6 is the exponential power to which a portion of the equation
is raised. For example, using a BEY of 5.50%, the MEY = (12 X [{(1+ .055/2) ^
0.16667}- 1]) X 100 where .055 is the decimal version of the percentage 5.5% and
0.16667 is the decimal version of the exponential power. The MEY in the above
calculation is 5.44%.
Section 1.02 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement include the plural as well
as the singular, and the use of any gender herein shall be deemed to
include the other gender;
(ii) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP;
(iii) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs" and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein," "hereof," "hereunder," "hereto," "hereby"
and other words of similar import refer to this Agreement as a whole and
not to any particular provision; and
(vi) the terms "include" or "including" shall mean without
limitation by reason of enumeration.
Section 1.03 Certain Adjustments to the Principal Distributions on
the Certificates.
(a) If any party hereto is reimbursed out of general collections on
the Mortgage Pool on deposit in the Custodial Account for any unreimbursed
Advances that have been or are determined to be Nonrecoverable Advances
(together with interest accrued and payable thereon pursuant to Section 3.12(b)
or Section 4.03(d), as applicable, to the extent such interest was paid
hereunder from a source other than Default Charges Received by the Trust on the
Mortgage Pool), then (for purposes of calculating distributions on the
Certificates) each such reimbursement and payment of interest shall be deemed to
have been made:
(i) first, out of any amounts then on deposit in the Custodial
Account that represent payments or other collections of principal Received
by the Trust that, but for their application to reimburse a Nonrecoverable
Advance and/or to pay interest thereon, would be included in the Available
Distribution Amount for the related Distribution Date;
(ii) second, out of any amounts then on deposit in the Custodial
Account that represent any other payments or other collections Received by
the Trust that, but for their application to reimburse a Nonrecoverable
Advance and/or to pay interest thereon, would be included in the Available
Distribution Amount for the related Distribution Date;
(iii) third, out of any amounts representing payments or other
collections of principal Received by the Trust that, but for their
application to reimburse a Nonrecoverable Advance and/or to pay interest
thereon, would be included in the Available Distribution Amount for any
subsequent Distribution Date;
(iv) fourth, out of any amounts representing any other payments or
other collections Received by the Trust that, but for their application to
reimburse a Nonrecoverable Advance and/or to pay interest thereon, would
be included in the Available Distribution Amount for any subsequent
Distribution Date; and
(v) fifth, out of any other amounts then on deposit in the Custodial
Account that may be available to reimburse the subject Nonrecoverable
Advance and/or to pay interest thereon.
(b) If and to the extent that any payment or other collection of
principal of any Mortgage Loan or REO Mortgage Loan is deemed to be applied in
accordance with Section 1.03(a)(i) to reimburse a Nonrecoverable Advance or to
pay interest thereon or is applied to reimburse a Workout-Delayed Reimbursement
Amount, and further if and to the extent that such payment or other collection
of principal constitutes part of the Principal Distribution Amount for any
Distribution Date, then for purposes of calculating the Adjusted Principal
Distribution Amount, for such Distribution Date, the amount of such payment or
other collection of principal shall be subtracted from the Principal
Distribution Amount for such Distribution Date.
(c) If and to the extent that any Advance is determined to be a
Nonrecoverable Advance, such Advance or interest thereon is reimbursed out of
general principal collections on the Mortgage Pool as contemplated by Section
1.03(a) above or if any Workout-Delayed Reimbursement Amount is paid from
principal collections on the Mortgage Pool, and the particular item for which
such Advance was originally made is subsequently collected (in whole or in part)
out of payments or other collections in respect of the related Mortgage Loan or
REO Mortgage Loan (such item, and interest thereon, to the extent such interest
was paid out of general collections on the Mortgage Pool, if and to the extent
so collected, a "Recovered Amount"), then for purposes of calculating the
Adjusted Principal Distribution Amount for the Distribution Date that
corresponds to the Collection Period in which such item was recovered, such
Recovered Amount (to the extent not already included therein) shall be added to
the Principal Distribution Amount for such Distribution Date.
(d) Nothing contained in this Section 1.03 is intended to limit the
ability of any party hereto that is entitled to reimbursement hereunder for any
unreimbursed Advances that have been or are determined to be Nonrecoverable
Advances (together with interest accrued and payable thereon pursuant to Section
3.12(b) or Section 4.03(d)) to collections of principal Received by the Trust
with respect to the Mortgage Pool; instead the order of priority set forth in
Section 1.03(a) is a deemed allocation only for purposes of calculating
distributions on the Certificates.
Section 1.04 Certain Calculations Relating to REO Loans.
Each REO Loan shall be deemed to have an initial unpaid principal
balance and Stated Principal Balance equal to the unpaid principal balance and
Stated Principal Balance, respectively, of its predecessor Mortgage Loan as of
the date of the related REO Acquisition. All Monthly Payments (other than a
Balloon Payment), Assumed Monthly Payments (in the case of a Balloon Loan
delinquent in respect of its Balloon Payment) and other amounts due and owing,
or deemed to be due and owing, in respect of the predecessor Mortgage Loan as of
the date of the related REO Acquisition, shall be deemed to continue to be due
and owing in respect of an REO Loan.
Amounts Received with respect to each REO Loan that is a successor
to a Mortgage Loan (after provision for amounts to be applied to the payment of,
or to be reimbursed (1) to the Master Servicer or the Special Servicer for the
payment of, the costs of operating, managing and maintaining the related REO
Property and (2) to the Master Servicer, the Special Servicer or the Trustee for
the reimbursement of any outstanding unreimbursed Advances on such REO Loan (and
predecessor Mortgage Loan) and interest thereon) shall be treated: first, as a
recovery of any amounts withdrawn from general principal collections on the
Mortgage Pool in order to reimburse any Workout-Delayed Reimbursement Amounts
and Nonrecoverable Advance with respect to such Mortgage Loan and interest on
any such Advance; second, as a recovery of accrued and unpaid interest on such
REO Loan at the related Mortgage Rate to but not including the Due Date in the
Collection Period of receipt; third, as a recovery of principal of such REO Loan
to the extent of its entire unpaid principal balance (to the extent not already
reimbursed pursuant to clause first above); and fourth, in accordance with the
normal servicing practices of the Master Servicer, as a recovery of any other
amounts due and owing in respect of such REO Loan. Notwithstanding the
foregoing, all amounts payable or reimbursable to the Master Servicer, the
Special Servicer, the Trustee or the Trust in respect of the predecessor
Mortgage Loan as of the date of the related REO Acquisition, including any
unpaid Servicing Fees and any unreimbursed Servicing Advances and P&I Advances,
together with any interest accrued and payable to the Master Servicer, the
Special Servicer or the Trustee in respect of such Servicing Advances and P&I
Advances (including any Unliquidated Advance) in accordance with Sections
3.12(b) and 4.03(d), respectively, shall continue to be payable or reimbursable
to the Master Servicer, the Special Servicer, the Trustee or the Trust, as the
case may be, in respect of an REO Loan.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Creation of Trust; Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law
trust be established pursuant to this Agreement and that such trust be
designated as "Commercial Mortgage Trust 200_-___, Commercial Mortgage
Pass-Through Certificates, Series 200_-___." [______] is hereby appointed, and
does hereby agree, to act as Trustee hereunder and, in such capacity, to hold
the Trust Fund in trust for the exclusive use and benefit of all present and
future Certificateholders. The Depositor, concurrently with the execution and
delivery hereof, does hereby assign, sell, transfer, set over and otherwise
convey to the Trustee in trust, without recourse, for the benefit of the
Certificateholders, all the right, title and interest of the Depositor in, to
and under (i) the Mortgage Loans, (ii) the Mortgage Loan Purchase Agreement and
(iii) all other assets included or to be included in the Trust Fund. Such
assignment includes all interest and principal received or receivable on or with
respect to the Mortgage Loans and due after the Cut-off Date.
The parties hereto acknowledge and agree that, notwithstanding
Section 12.07, the transfer of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and is intended by them to constitute a
sale.
(b) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall direct each Mortgage Loan Seller
(pursuant to the applicable Mortgage Loan Purchase Agreement) to deliver to and
deposit with the Trustee or a Custodian appointed thereby (with a copy to the
Master Servicer), on or before the Closing Date, the Mortgage File for each
Mortgage Loan, with copies of the related reserve and cash management agreements
for such Mortgage Loan to be delivered to the Master Servicer and the Special
Servicer. None of the Trustee, any Custodian, the Master Servicer or the Special
Servicer shall be liable for any failure by a Mortgage Loan Seller or the
Depositor to comply with the document delivery requirements of the applicable
Mortgage Loan Purchase Agreement and this Section 2.01(b).
After the Depositor's transfer of the Mortgage Loans to the Trustee
pursuant to this Section 2.01(b), the Depositor shall not take any action
inconsistent with the Trust's ownership of the Mortgage Loans.
(c) The Depositor hereby represents and warrants that each Mortgage
Loan Seller has covenanted in the applicable Mortgage Loan Purchase Agreement
that it shall bear the costs related to recording or filing, as the case may be,
in the appropriate public office for real property records or UCC Financing
Statements, as appropriate, each related assignment of Mortgage and assignment
of Assignment of Leases, in favor of the Trustee referred to in clause (a)(iv)
of the definition of "Mortgage File" and each related UCC-2 and UCC-3 assignment
referred to in clause (a)(viii) of the definition of "Mortgage File" and the
Trustee shall promptly undertake to record or file any such document upon its
receipt thereof.
The Depositor hereby represents and warrants that each Mortgage Loan
Seller has covenanted in the applicable Mortgage Loan Purchase Agreement as to
each Mortgage Loan, that if it cannot deliver or cause to be delivered the
documents and/or instruments referred to in clauses (a)(ii), (a)(iii), (a)(vi)
(if recorded) and (a)(viii) of the definition of "Mortgage File" solely because
of a delay caused by the public recording office where such document or
instrument has been delivered for recordation, a copy of the original certified
by the applicable Mortgage Loan Seller to be a true and complete copy of the
original thereof submitted for recording, shall be forwarded to the Trustee.
Each assignment referred to in the second preceding paragraph that
is recorded by the Trustee shall reflect that it should be returned by the
public recording office to the Trustee or its agent following recording, and
each UCC-2 and UCC-3 assignment referred to in the second preceding paragraph
that is filed by the Trustee shall reflect that the file copy thereof should be
returned to the Trustee or its agent following filing; provided that, in those
instances where the public recording office retains the original assignment of
Mortgage or assignment of Assignment of Leases, the Trustee shall obtain
therefrom a certified copy of the recorded original. On a monthly basis, at the
expense of the applicable Mortgage Loan Seller, the Trustee shall forward to the
Master Servicer a copy of each of the aforementioned assignments following the
Trustee's receipt thereof.
If any of the aforementioned assignments is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, then the
Trustee shall direct the applicable Mortgage Loan Seller (pursuant to the
applicable Mortgage Loan Purchase Agreement) promptly to prepare or cause the
preparation of a substitute therefor or to cure such defect, as the case may be,
and to deliver to the Trustee the substitute or corrected document. The Trustee
shall upon receipt from the applicable Mortgage Loan Seller cause the same to be
duly recorded or filed, as appropriate.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall direct each Mortgage Loan Seller
(pursuant to the applicable Mortgage Loan Purchase Agreement) to deliver to and
deposit (or cause to be delivered and deposited) with the Master Servicer within
10 Business Days after the Closing Date, documents and records that (A) relate
to the servicing and administration of the Mortgage Loans, (B) are reasonably
necessary for the ongoing administration and/or servicing of the Mortgage Loans
under this Agreement (including any asset summaries related to the Mortgage
Loans that were delivered to the Rating Agencies in connection with the rating
of the Certificates) and (C) are in possession or under control of the
applicable Mortgage Loan Seller, together with (i) all unapplied Escrow Payments
and Reserve Funds in the possession of the applicable Mortgage Loan Seller that
relate to such Mortgage Loans and (ii) a statement indicating which Escrow
Payments and Reserve Funds are allocable to such Mortgage Loans, provided that
the applicable Mortgage Loan Seller shall not be required to deliver any draft
documents, privileged or other internal communications, credit underwriting, due
diligence analyses or data, or internal worksheets, memoranda, communications or
evaluations. The Master Servicer shall hold all such documents, records and
funds on behalf of the Trustee in trust for the benefit of the
Certificateholders.
(e) It is not intended that this Agreement create a partnership or a
joint-stock association.
Section 2.02 Acceptance of Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
hereby accepts receipt, directly or through a Custodian on its behalf, of (i)
the Mortgage Loans and all documents delivered to it that constitute portions of
the related Mortgage Files and (ii) all other assets delivered to it and
included in the Trust Fund, in good faith and without notice of any adverse
claim, and declares that it or a Custodian on its behalf holds and will hold
such documents and any other documents subsequently received by it that
constitute portions of the Mortgage Files, and that it holds and will hold the
Mortgage Loans and such other assets, together with any other assets
subsequently delivered to it that are to be included in the Trust Fund, in trust
for the exclusive use and benefit of all present and future Certificateholders.
In connection with the foregoing, the Trustee hereby certifies to
each of the other parties hereto, each Mortgage Loan Seller and each Underwriter
that, as to each Mortgage Loan, except as specifically identified in the
Schedule of Exceptions to Mortgage File Delivery attached hereto as Schedule II,
(i) all documents specified in clauses (a)(i), (ii), (vii), (ix), (xi) and (xix)
of the definition of "Mortgage File" (but in the case of documents specified in
clauses (ix) and (xix) only to the extent the Trustee or a Custodian on its
behalf has actual knowledge of their existence) of the definition of "Mortgage
File" are in its possession or the possession of a Custodian on its behalf, and
(ii) the original Mortgage Note (or, if accompanied by a lost note affidavit,
the copy of such Mortgage Note) received by it or any Custodian with respect to
such Mortgage Loan has been reviewed by it or by such Custodian on its behalf
and (A) appears regular on its face (handwritten additions, changes or
corrections shall not constitute irregularities if initialed by the Mortgagor),
(B) appears to have been executed (where appropriate) and (C) purports to relate
to such Mortgage Loan.
(b) On or about the 45th day following the Closing Date (and, if any
exceptions are noted, again on or about the 90th day following the Closing Date
and monthly thereafter until the earliest of (i) the second anniversary of the
Closing Date, (ii) the day on which all material exceptions have been removed
and (iii) the day on which the Depositor has repurchased the last affected
Mortgage Loan), the Trustee or a Custodian on its behalf shall review the
documents delivered to it or such Custodian with respect to each Mortgage Loan,
and the Trustee shall, subject to Sections 2.01, 2.02(c) and 2.02(d), certify in
writing (substantially in the form of Exhibit C hereto) to each of the other
parties hereto, each Mortgage Loan Seller and each Underwriter that, as to each
Mortgage Loan then subject to this Agreement (except as specifically identified
in any exception report annexed to such certification): (i) all documents
specified in clauses (a)(i) through (a)(v), (a)(vii) and, if applicable,
(a)(viii) (without regard to the second parenthetical in such clause (a)(viii))
of the definition of "Mortgage File") that are required to be delivered
hereunder have been delivered; (ii) the recordation/filing contemplated by
Section 2.01(c) has been completed (based solely on receipt by the Trustee of
the particular recorded/filed documents); (iii) all documents received by it or
any Custodian with respect to such Mortgage Loan have been reviewed by it or by
such Custodian on its behalf and (A) appear regular on their face (handwritten
additions, changes or corrections shall not constitute irregularities if
initialed by the Mortgagor), (B) appear to have been executed (where
appropriate) and (C) purport to relate to such Mortgage Loan; and (iv) based on
the examinations referred to in Section 2.02(a) above and this Section 2.02(b)
and only as to the foregoing documents, the information set forth in the
Mortgage Loan Schedule with respect to the items specified in clauses (v) and
(vi)(B) of the definition of "Mortgage Loan Schedule" accurately reflects the
information set forth in the Mortgage File. With respect to the items listed in
clauses (ii), (iii), (iv) and, if applicable, (vi) of the definition of Mortgage
File if the original of such document is not in the Trustee's possession because
it has not been returned from the applicable recording office, then the
Trustee's or Custodian's certification prepared pursuant to this Section 2.02(b)
should indicate the absence of such original. If the Trustee's obligation to
deliver the certifications contemplated in this subsection terminates because
two years have elapsed since the Closing Date, the Trustee shall deliver a
comparable certification to any party hereto and any Underwriter on request.
(c) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation to inspect, review or examine
any of the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are valid, legal,
effective, genuine, binding, enforceable, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face. Furthermore, none of the Trustee, the Master Servicer, the Special
Servicer or any Custodian shall have any responsibility for determining whether
the text of any assignment or endorsement is in proper or recordable form,
whether the requisite recording of any document is in accordance with the
requirements of any applicable jurisdiction, or whether a blanket assignment is
permitted in any applicable jurisdiction.
(d) It is understood that the scope of the Trustee's review of the
Mortgage Files is limited solely to confirming that the documents specified in
clauses (a)(i) through (a)(v), (a)(vii) and (a)(viii) of the definition of
"Mortgage File" have been received and such additional information as will be
necessary for delivering the certifications required by Sections 2.02(a) and (b)
above.
(e) If, after the Closing Date, the Depositor comes into possession
of any documents or records that constitute part of the Mortgage File or
Servicing File for any Mortgage Loan, the Depositor shall promptly deliver such
document to the Trustee (with a copy to the Master Servicer) (if it constitutes
part of the Mortgage File) or the Master Servicer (if it constitutes part of the
Servicing File), as applicable.
Section 2.03 Repurchase of Mortgage Loans for Document Defects and
Breaches of Representations and Warranties.
(a) If any party hereto discovers that any document constituting a
part of a Mortgage File has not been properly executed, is missing, contains
information that does not conform in any material respect with the corresponding
information set forth in the Mortgage Loan Schedule, or does not appear to be
regular on its face (each, a "Document Defect"), or discovers or receives notice
of a breach of any representation or warranty of a Mortgage Loan Seller made
pursuant to Section 3(b) of the applicable Mortgage Loan Purchase Agreement with
respect to any Mortgage Loan (a "Breach"), such party shall give prompt written
notice thereof to each of the Rating Agencies, the applicable Mortgage Loan
Seller and the other parties hereto. If any such Document Defect or Breach with
respect to any Mortgage Loan materially and adversely affects the interests of
the Certificateholders therein, then such Document Defect shall constitute a
"Material Document Defect" or such Breach shall constitute a "Material Breach,"
as the case may be. Promptly upon becoming aware of any such Material Document
Defect or Material Breach (including through a written notice given by any party
hereto, as provided above), the Trustee shall require the applicable Mortgage
Loan Seller, not later than 90 days from the earlier of the Mortgage Loan
Seller's discovery or receipt of notice of such Material Document Defect or
Material Breach, as the case may be (or, in the case of a Material Document
Defect or Material Breach relating to a Mortgage Loan not being a "qualified
mortgage" within the meaning of the REMIC Provisions, not later than 90 days of
any party discovering such Material Document Defect or Material Breach), to cure
the same in all material respects (which cure shall include payment of losses
and any Additional Trust Fund Expenses associated therewith) or repurchase the
affected Mortgage Loan at the applicable Purchase Price by wire transfer of
immediately available funds to the Custodial Account; provided, however, that if
(i) such Material Document Defect or Material Breach is capable of being cured
but not within the applicable 90-day period, (ii) such Material Document Defect
or Material Breach is not related to any Mortgage Loan's not being a "qualified
mortgage" within the meaning of the REMIC Provisions, (iii) the applicable
Mortgage Loan Seller has commenced and is diligently proceeding with the cure of
such Material Document Defect or Material Breach within such 90-day period and
(iv) the affected Mortgage Loan is not then a Specially Serviced Mortgage Loan,
then the applicable Mortgage Loan Seller shall have an additional 90 days to
complete such cure or, in the event of a failure to so cure, to complete such
repurchase (it being understood and agreed that, in connection with the
applicable Mortgage Loan Seller's receiving such additional 90-day period, the
applicable Mortgage Loan Seller shall deliver an Officer's Certificate to the
Trustee setting forth the reasons such Material Document Defect or Material
Breach is not capable of being cured within the initial 90-day period and what
actions the applicable Mortgage Loan Seller is pursuing in connection with the
cure thereof and stating that the applicable Mortgage Loan Seller anticipates
that such Material Document Defect or Material Breach will be cured within such
additional 90-day period); and provided, further, that, if any such Material
Document Defect is still not cured after the initial 90-day period and any such
additional 90-day period solely due to the failure of the applicable Mortgage
Loan Seller to have received the recorded document, then the applicable Mortgage
Loan Seller shall be entitled to continue to defer its cure and repurchase
obligations in respect of such Document Defect so long as the applicable
Mortgage Loan Seller certifies to the Trustee every 30 days thereafter that the
Document Defect is still in effect solely because of its failure to have
received the recorded document and that the applicable Mortgage Loan Seller is
diligently pursuing the cure of such defect (specifying the actions being
taken), except that no such deferral of cure or repurchase may continue beyond
the second anniversary of the Closing Date. Provided that the Master Servicer
has notice of such Material Document Defect or Material Breach, the Master
Servicer shall notify the Mortgage Loan Seller if the related Mortgage Loan
becomes a Specially Serviced Mortgage Loan during any applicable cure periods.
Any of the following document defects shall be conclusively presumed to be a
Material Document Defect: (a) the absence from the Mortgage File of the original
signed Mortgage Note, together with the endorsements referred to in clause
(a)(i) of the definition of "Mortgage File," unless the Mortgage File contains a
signed lost note affidavit and indemnity with respect to the missing Mortgage
Note and any missing endorsements that appears to be regular on its face, (b)
the absence from the Mortgage File of the original executed Mortgage or a copy
of such Mortgage certified by the local authority with which the Mortgage was
recorded, in each case with evidence of recording thereon, that appears to be
regular on its face, unless there is included in the Mortgage File a copy of the
executed Mortgage and a certificate stating that the original signed Mortgage
was sent for recordation, (c) the absence from the Mortgage File of the original
or a copy of the lender's title insurance policy, together with all endorsements
or riders (or copies thereof) that were issued with or subsequent to the
issuance of such policy, or marked up insurance binder or title commitment which
is marked as a binding commitment and countersigned by title company, insuring
the priority of the Mortgage as a first lien on the Mortgaged Property, (d) the
absence from the Mortgage File of any intervening assignments required to create
a complete chain of assignment to the Trustee on behalf of the Trust and a
certificate stating that the original intervening assignments were sent for
recordation, unless there is included in the Mortgage File a certified copy of
the intervening assignment or (e) the absence from the Servicing File of any
original letter of credit.
If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased by a Mortgage Loan Seller as
contemplated by this Section 2.03(a), then, prior to the subject repurchase, the
applicable Mortgage Loan Seller or its designee shall use its reasonable
efforts, subject to the terms of the related Mortgage Loan(s), to prepare and,
to the extent necessary and appropriate, have executed by the related Mortgagor
and record, such documentation as may be necessary to terminate the
cross-collateralization between the Mortgage Loan(s) in such
Cross-Collateralized Group that are to be repurchased, on the one hand, and the
remaining Mortgage Loan(s) therein, on the other hand, such that those two
groups of Mortgage Loans are each secured only by the Mortgaged Properties
identified in the Mortgage Loan Schedule as directly corresponding thereto;
provided that no such termination shall be effected unless and until (i) the
Controlling Class Representative acting as the Directing Holder, if one is then
acting, has consented (which consent shall not be unreasonably withheld and
shall be deemed to have been given if no written objection is received by the
applicable Mortgage Loan Seller within 10 Business Days of such Directing
Holder's receipt of a written request for such consent), (ii) the Trustee has
received from the applicable Mortgage Loan Seller (A) an Opinion of Counsel to
the effect that such termination would not cause an Adverse REMIC Event to occur
with respect to either REMIC Pool and (B) written confirmation from each Rating
Agency that such termination would not cause an Adverse Rating Event to occur
with respect to any Class of Certificates, (iii) the debt service coverage ratio
for the four preceding calendar quarters for all of the Mortgage Loans relating
to such Cross-Collateralized Group remaining is not less than 0.05x below the
debt service coverage ratio for all Mortgage Loans of such Cross-Collateralized
Group (including the affected Mortgage Loan) set forth in the Prospectus
Supplement, (iv) the loan-to-value ratio for all of the Mortgage Loans of such
Cross-Collateralized Group remaining is not greater than 5% more than the
loan-to-value ratio for all Mortgage Loans of such Cross-Collateralized Group
(including the affected Mortgage Loan) set forth in the Prospectus Supplement;
and provided, further, that the applicable Mortgage Loan Seller may, at its
option, purchase the entire subject Cross-Collateralized Group in lieu of
effecting a termination of the cross-collateralization. All costs and expenses
incurred by the Trustee or any Person on its behalf pursuant to this paragraph
shall be included in the calculation of the Purchase Price for the Mortgage
Loan(s) to be repurchased. If the cross-collateralization of any
Cross-Collateralized Group is not or cannot be terminated as contemplated by
this paragraph, then, for purposes of (i) determining whether any Breach or
Document Defect, as the case may be, is a Material Breach or Material Document
Defect, and (ii) the application of remedies, such Cross-Collateralized Group
shall be treated as a single Mortgage Loan.
(b) In connection with any repurchase of a Mortgage Loan pursuant to
this Section 2.03, and subject to Section 3.26, the Trustee, the Custodian, the
Master Servicer and the Special Servicer shall each tender to the repurchasing
entity, upon delivery to each of them of a receipt executed by the repurchasing
entity, all portions (including, without limitation, the Servicing File) of the
Mortgage File and other documents pertaining to such Mortgage Loan possessed by
it, and each document that constitutes a part of the Mortgage File shall be
endorsed or assigned to the extent necessary or appropriate to the repurchasing
entity or its designee in the same manner, but only if the respective documents
have been previously assigned or endorsed to the Trustee, and pursuant to
appropriate forms of assignment, substantially similar to the manner and forms
pursuant to which such documents were previously assigned to the Trustee;
provided that such tender by the Trustee shall be conditioned upon its receipt
from the Master Servicer of a Request for Release and an Officer's Certificate
to the effect that the requirements for repurchase have been satisfied. The
Master Servicer shall, and is hereby authorized and empowered by the Trustee to,
prepare, execute and deliver in its own name, on behalf of the
Certificateholders and the Trustee or any of them, the endorsements and
assignments contemplated by this Section 2.03(c), and such other instruments as
may be necessary or appropriate to transfer title to an REO Property in
connection with the repurchase of an REO Loan and the Trustee shall execute and
deliver any powers of attorney necessary to permit the Master Servicer to do so;
provided, however, that the Trustee shall not be held liable for any misuse of
any such power of attorney by the Master Servicer.
(c) Notwithstanding the foregoing, if there exists a Breach of that
portion of the representation or warranty on the part of a Mortgage Loan Seller
set forth in, or made pursuant to, paragraph 23 or paragraph 43 of Exhibit B to
the applicable Mortgage Loan Purchase Agreement, specifically relating to
whether or not the Mortgage Loan documents or any particular Mortgage Loan
document for any Mortgage Loan requires the related Mortgagor to bear the cost
of Rating Agency fees reflected in paragraph 23 or reasonable costs and expenses
associated with a defeasance, as set forth in paragraph 43 of Exhibit B to the
Mortgage Loan Purchase Agreement (any such fees, costs or expenses, referred to
in this subsection (d) as "Covered Costs"), then the Master Servicer shall
direct the applicable Mortgage Loan Seller in writing to wire transfer to the
Custodial Account, within 90 days of receipt of such direction, the amount of
any such reasonable costs and expenses incurred by the Trust that (i) otherwise
would have been required to be paid by the Mortgagor if such representation or
warranty with respect to such costs and expenses had in fact been true, as set
forth in the related representation or warranty, (ii) have not been paid by the
Mortgagor, (iii) are the basis of such Breach and (iv) constitute "Covered
Costs."
(d) Each Mortgage Loan Purchase Agreement and Section 2.03(a)
provide the sole remedies available to the Certificateholders, or the Trustee on
behalf of the Certificateholders, respecting any Document Defect or Breach with
respect to any Mortgage Loan.
Section 2.04 Representations, Warranties and Covenants of the
Depositor.
(a) The Depositor hereby represents, warrants and covenants to the
Trustee, for its own benefit and the benefit of the Certificateholders and to
the Master Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and the
Depositor has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign and transfer the Mortgage Loans in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this
Agreement by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulations to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Depositor or any
indenture, agreement or instrument to which the Depositor is a party or by
which it is bound, or any order or decree applicable to the Depositor, or
result in the creation or imposition of any lien on any of the Depositor's
assets or property, which would materially and adversely affect the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; the Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Depositor of
this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Mortgage Loans or the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free and
clear of all liens, claims, encumbrances and other interests with the full
right to transfer the Mortgage Loans to the Trust and the Mortgage Loans
have been validly transferred to the Trust.
The representations, warranties and covenants of the Depositor set
forth in this Section 2.04 shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of such representations, warranties and
covenants, the party discovering such breach shall give prompt written notice
thereof to the other parties.
Section 2.05 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests.
The Trustee hereby acknowledges the assignment to it of the Mortgage
Loans, and, subject to Sections 2.01 and 2.02, the delivery to it or a Custodian
on its behalf of the Mortgage Files and a fully executed original counterpart of
the Mortgage Loan Purchase Agreement, together with the assignment to it of all
other assets included in the Trust Fund. Concurrently with such assignment and
delivery and in exchange therefor, the Trustee (i) acknowledges the issuance of
the Uncertificated Lower-Tier Interests to or upon the order of the Depositor,
(ii) acknowledges and hereby declares that it holds the Uncertificated
Lower-Tier Interests on behalf of the Upper-Tier REMIC and Holders of the
Certificates (other than the Class R-I Certificates) and (iii) acknowledges the
execution by the Certificate Registrar and the authentication and delivery by
the Authenticating Agent of the Class R-I Certificates to or upon the order of
the Depositor, in exchange for the Mortgage Loans, receipt of which is hereby
acknowledged, and immediately thereafter, the Trustee acknowledges that it has
caused the Certificate Registrar to execute and caused the Authenticating Agent
to authenticate and to deliver to or upon the order of the Depositor, in
exchange for the Uncertificated Lower-Tier Interests, the Regular Interest
Certificates and the Class R-II Certificates, and the Depositor hereby
acknowledges the receipt by it or its designees, of such Certificates in
authorized denominations evidencing the entire beneficial ownership of the
Upper-Tier REMIC.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Mortgage Loans.
(a) All of the Mortgage Loans and REO Properties are to be serviced
and administered by the Master Servicer and/or the Special Servicer hereunder.
Each of the Master Servicer and the Special Servicer shall service and
administer the Mortgage Loans and REO Properties that it is obligated to service
and administer pursuant to this Agreement on behalf of the Trustee, for the
benefit of the Certificateholders, as determined in the good faith and
reasonable judgment of the Master Servicer or the Special Servicer, as the case
may be, in accordance with: (i) any and all applicable laws; (ii) the express
terms of this Agreement and the respective Mortgage Loans; and (iii) to the
extent consistent with the foregoing, the Servicing Standard. The Master
Servicer or the Special Servicer, as applicable in accordance with this
Agreement, shall service and administer each Cross-Collateralized Group, if any,
as a single Mortgage Loan as and when necessary and appropriate consistent with
the Servicing Standard. Without limiting the foregoing, and subject to Section
3.22, (i) the Master Servicer shall service and administer all of the Performing
Mortgage Loans and shall render such services with respect to the Specially
Serviced Mortgage Loans as are specifically provided for herein, and (ii) the
Special Servicer shall service and administer each Specially Serviced Mortgage
Loan and REO Property and shall render such services with respect to the
Performing Mortgage Loans as are specifically provided for herein. All
references herein to the respective duties of the Master Servicer and the
Special Servicer, and to the areas in which they may exercise discretion, shall
be subject to Section 3.22.
(b) Subject to Section 3.01(a) and Section 6.11 (taking account of
Section 6.11(b)), the Master Servicer and the Special Servicer shall each have
full power and authority, acting alone or through sub-servicers, to do or cause
to be done any and all things in connection with the servicing and
administration contemplated by Section 3.01(a) that it may deem necessary or
desirable. Without limiting the generality of the foregoing, each of the Master
Servicer and the Special Servicer, in its own name, with respect to each of the
Mortgage Loans it is obligated to service hereunder, is hereby authorized and
empowered by the Trustee to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, (i) any and all financing
statements, continuation statements and other documents or instruments necessary
to maintain the lien created by any Mortgage or other security document in the
related Mortgage File on the related Mortgaged Property and related collateral;
(ii) in accordance with the Servicing Standard and subject to Section 3.21 and
Section 6.11 (taking account of Section 6.11(b)), any and all modifications,
extensions, waivers, amendments or consents to or with respect to any documents
contained in the related Mortgage File; (iii) any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge or of
assignment, and all other comparable instruments; and (iv) any and all
instruments that such party may be required to execute on behalf of the Trustee
in connection with the defeasance of a Mortgage Loan as contemplated in this
Agreement. Subject to Section 3.10, the Trustee shall, at the written request of
the Master Servicer or the Special Servicer, promptly execute any limited powers
of attorney and other documents furnished by the Master Servicer or the Special
Servicer that are necessary or appropriate to enable them to carry out their
servicing and administrative duties hereunder; provided, however, that the
Trustee shall not be held liable for any misuse of any such power of attorney by
the Master Servicer or the Special Servicer. Notwithstanding anything contained
herein to the contrary, neither the Master Servicer nor the Special Servicer
shall, without the Trustee's written consent: (i) initiate any action, suit or
proceeding solely under the Trustee's name without indicating the Master
Servicer's or Special Servicer's, as applicable, representative capacity; or
(ii) take any action with the intent to cause, and that actually causes, the
Trustee to be registered to do business in any state.
(c) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
Section 3.02 Collection of Loan Payments.
(a) Each of the Master Servicer (with respect to Performing Mortgage
Loans) and the Special Servicer (with respect to Specially Serviced Mortgage
Loans) shall undertake reasonable efforts to collect all payments required under
the terms and provisions of the Mortgage Loans it is obligated to service
hereunder and shall follow such collection procedures as are consistent with the
Servicing Standard. The Special Servicer shall ensure that, with respect to
Specially Serviced Mortgage Loans, the Mortgagors make payments directly to the
Master Servicer; provided that, in the event the Special Servicer receives a
payment that should have been made directly to the Master Servicer, the Special
Servicer shall promptly forward such payment to the Master Servicer. Upon
receipt of any such payment with respect to a Specially Serviced Mortgage Loan,
the Master Servicer shall promptly notify the Special Servicer, and the Special
Servicer shall direct the Master Servicer as to the proper posting of such
payment. Consistent with the foregoing, the Special Servicer, with regard to a
Specially Serviced Mortgage Loan, or the Master Servicer, with regard to a
Performing Mortgage Loan, may waive or defer any Default Charges in connection
with collecting any late payment on a Mortgage Loan; provided that without the
consent of the Special Servicer in the case of a proposed waiver by the Master
Servicer, no such waiver or deferral may be made by the Master Servicer pursuant
to this Section 3.02 if any Advance has been made as to such delinquent payment.
(b) [Reserved]
(c) All amounts Received with respect to any Cross-Collateralized
Group in the form of payments from Mortgagors, Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds, shall be applied by the Master Servicer among
the Mortgage Loans constituting such Cross-Collateralized Group in accordance
with the express provisions of the related loan documents and, in the absence of
such express provisions or to the extent that such payments and other
collections may be applied at the discretion of the lender, on a pro rata basis
in accordance with the respective amounts then "due and owing" as to each such
Mortgage Loan. Amounts Received in respect of or allocable to any particular
Mortgage Loan (whether or not such Mortgage Loan constitutes part of a
Cross-Collateralized Group) in the form of payments from Mortgagors, Liquidation
Proceeds, Condemnation Proceeds or Insurance Proceeds shall be applied to
amounts due and owing under the related Mortgage Note and Mortgage (including
for principal and accrued and unpaid interest) in accordance with the express
provisions of the related Mortgage Note and Mortgage and, in the absence of such
express provisions or to the extent that such payments and other collections may
be applied at the discretion of the lender, as follows (without duplication):
first, as a recovery of any related and unreimbursed Servicing Advances
(together with interest thereon), and if applicable, unpaid Liquidation
Expenses, in each case to the extent such application is permitted under the
terms of the related Mortgage Loan documents; second, as a recovery of any
Nonrecoverable Advance and Unliquidated Advance in respect of such Mortgage Loan
and, in each case, interest thereon that was reimbursed from general principal
collections on the Mortgage Pool, to the extent such application is permitted
under the terms of the related Mortgage Loan documents; third, as a recovery of
accrued and unpaid interest on, and principal of, such Mortgage Loan to the
extent of any outstanding P&I Advances and unpaid Master Servicing Fees in
respect of such Mortgage Loan; fourth, as a recovery of any remaining accrued
and unpaid interest on such Mortgage Loan at the related Mortgage Rate to, but
not including, the related Due Date; fifth, as a recovery of any remaining
principal of such Mortgage Loan then due and owing, including by reason of
acceleration of the Mortgage Loan following a default thereunder (or, if a
Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery
of principal to the extent of its entire remaining unpaid principal balance);
sixth, unless a Liquidation Event has occurred with respect to such Mortgage
Loan, as a recovery of amounts to be currently applied to the payment of, or
escrowed for the future payment of, real estate taxes, assessments, insurance
premiums (including premiums on any Environmental Insurance Policy), ground
rents (if applicable) and similar items; seventh, unless a Liquidation Event has
occurred with respect to such Mortgage Loan, as a recovery of Reserve Funds to
the extent then required to be held in escrow; eighth, as a recovery of any
Prepayment Premium or Yield Maintenance Charge then due and owing under such
Mortgage Loan; ninth, as a recovery of any Default Charges then due and owing
under such Mortgage Loan; tenth, as a recovery of any assumption fees,
modification fees and extension fees then due and owing under such Mortgage
Loan; eleventh, as a recovery of any other amounts then due and owing under such
Mortgage Loan; and, twelfth, as a recovery of any remaining principal of such
Mortgage Loan to the extent of its entire remaining unpaid principal balance.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Mortgage Loans, establish
and maintain one or more accounts, in which all related Escrow Payments shall be
deposited and retained (each a "Servicing Account"). Subject to the terms of the
related Mortgage Loan documents, each Servicing Account shall be an Eligible
Account. Withdrawals of amounts so collected from a Servicing Account may be
made (to the extent of amounts on deposit therein in respect of the related
Mortgage Loan or, in the case of clauses (iv) and (v) below, to the extent of
interest or other income earned on such amounts) only for the following
purposes: (i) consistent with the related Mortgage Loan documents, to effect the
payment of real estate taxes, assessments, insurance premiums (including
premiums on any Environmental Insurance Policy), ground rents (if applicable)
and comparable items in respect of the respective Mortgaged Properties; (ii)
insofar as the particular Escrow Payment represents a late payment that was
intended to cover an item described in the immediately preceding clause (i) for
which a Servicing Advance was made, to reimburse the Master Servicer, the
Special Servicer or the Trustee, as applicable, for such Servicing Advance;
(iii) to refund to Mortgagors any sums as may be determined to be overages; (iv)
to pay interest, if required and as described below, to Mortgagors on balances
in such Servicing Account; (v) to pay the Master Servicer interest and
investment income on balances in such Servicing Account as described in Section
3.06(b), if and to the extent not required by law or the terms of the related
Loan documents to be paid to the Mortgagor; or (vi) to clear and terminate such
Servicing Account at the termination of this Agreement in accordance with
Section 9.01. To the extent permitted by law or the applicable Mortgage Loan
documents, funds in the Servicing Accounts may be invested only in Permitted
Investments in accordance with the provisions of Section 3.06. The Master
Servicer shall pay or cause to be paid to the Mortgagors interest, if any,
earned on the investment of funds in the related Servicing Accounts, if required
by law or the terms of the related Mortgage Loan. If the Master Servicer shall
deposit in a Servicing Account any amount not required to be deposited therein,
it may at any time withdraw such amount from such Servicing Account, any
provision herein to the contrary notwithstanding.
(b) The Master Servicer shall, as to each and every Mortgage Loan,
(i) maintain accurate records with respect to the related Mortgaged Property
reflecting the status of real estate taxes, assessments and other similar items
that are or may become a lien thereon and the status of insurance premiums and
any ground rents payable in respect thereof and (ii) use reasonable efforts to
obtain, from time to time, all bills for (or otherwise confirm) the payment of
such items (including renewal premiums) and, if the subject Mortgage Loan
requires the related Mortgagor to escrow for such items, shall effect payment
thereof prior to the applicable penalty or termination date. For purposes of
effecting any such payment for which it is responsible, the Master Servicer
shall apply Escrow Payments as allowed under the terms of the related Mortgage
Loan (or, if such Mortgage Loan does not require the related Mortgagor to escrow
for the payment of real estate taxes, assessments, insurance premiums, ground
rents (if applicable) and similar items, the Master Servicer shall use
reasonable efforts consistent with the Servicing Standard to cause the related
Mortgagor to comply with the requirement of the related Mortgage that the
Mortgagor make payments in respect of such items at the time they first become
due and, in any event, prior to the institution of foreclosure or similar
proceedings with respect to the related Mortgaged Property for nonpayment of
such items). Subject to Section 3.12(d), the Master Servicer shall timely make a
Servicing Advance to cover any such item which is not so paid, including any
penalties or other charges arising from the Mortgagor's failure to timely pay
such items.
(c) The Master Servicer shall, as to each and every Mortgage Loan,
make a Servicing Advance with respect to the related Mortgaged Property in an
amount equal to all such funds as are necessary for the purpose of effecting the
payment of (i) real estate taxes, assessments and other similar items, (ii)
ground rents (if applicable), and (iii) premiums on Insurance Policies
(including Environmental Insurance Policies), in each instance if and to the
extent Escrow Payments (if any) collected from the related Mortgagor are
insufficient to pay such item when due and the related Mortgagor has failed to
pay such item on a timely basis. All such Servicing Advances shall be
reimbursable in the first instance from related collections from the Mortgagors,
and further as provided in Section 3.05(a). No costs incurred by the Master
Servicer in effecting the payment of real estate taxes, assessments and, if
applicable, ground rents on or in respect of the Mortgaged Properties shall, for
purposes of this Agreement, including the Trustee's calculation of monthly
distributions to Certificateholders, be added to the unpaid Stated Principal
Balances of the related Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans so permit. The foregoing shall in no way limit the Master
Servicer's ability to charge and collect from the Mortgagor such costs together
with interest thereon.
(d) The Master Servicer shall, as to all Mortgage Loans, establish
and maintain, as applicable, one or more accounts ("Reserve Accounts"), into
which all Reserve Funds, if any, shall be deposited and retained. Withdrawals of
amounts so deposited may be made (i) for the specific purposes for which the
particular Reserve Funds were delivered, in accordance with the Servicing
Standard and the terms of the related Mortgage Note, Mortgage and any other
agreement with the related Mortgagor governing such Reserve Funds, and (ii) to
pay the Master Servicer interest and investment income earned on amounts in the
Reserve Accounts as described below. To the extent permitted in the applicable
Mortgage Loan documents, funds in the Reserve Accounts may be invested in
Permitted Investments in accordance with the provisions of Section 3.06. Subject
to the related Mortgage Loan documents, all Reserve Accounts shall be Eligible
Accounts. Consistent with the Servicing Standard, the Master Servicer may waive
or extend the date set forth in any agreement governing Reserve Funds by which
any required repairs, capital improvements and/or environmental remediation at
the related Mortgaged Property must be completed; provided that any waiver, any
extension for more than 120 days and any subsequent extension may only be
granted with the consent of the Special Servicer.
Section 3.04 Custodial Account, Defeasance Deposit Account,
Distribution Account, Interest Reserve Account and Excess Liquidation Proceeds
Account.
(a) The Master Servicer shall establish and maintain one or more
separate accounts (collectively, the "Custodial Account"), in which the amounts
described in clauses (i) through (ix) below shall be deposited and held on
behalf of the Trustee in trust for the benefit of the Certificateholders and the
Trustee as the Holder of the Uncertificated Lower-Tier Interests. The Custodial
Account shall be an Eligible Account. The Master Servicer shall deposit or cause
to be deposited in the Custodial Account, within one Business Day of receipt (in
the case of payments by Mortgagors or other collections on the Mortgage Loans)
or as otherwise required hereunder, the following payments and collections
received or made by the Master Servicer or on its behalf subsequent to the
Cut-off Date (other than in respect of principal and interest on the Mortgage
Loans due and payable on or before the Cut-off Date, which amounts shall be
delivered promptly to the Depositor or its designee, with negotiable instruments
endorsed as necessary and appropriate without recourse, and other than amounts
required to be deposited in the Defeasance Deposit Account), or payments (other
than Principal Prepayments) received by it on or prior to the Cut-off Date but
allocable to a period subsequent thereto:
(i) all payments on account of principal of the Mortgage Loans,
including Principal Prepayments, and regardless of whether those payments
are made by the related Mortgagor or any related guarantor, out of any
related Reserve Funds maintained for such purpose, out of collections on
any related Defeasance Collateral or from any other source;
(ii) all payments on account of interest on the Mortgage Loans,
including Default Interest, and regardless of whether those payments are
made by the related Mortgagor or any related guarantor, out of any related
Reserve Funds maintained for such purpose, out of collections on any
related Defeasance Collateral or from any other source;
(iii) all Prepayment Premiums, Yield Maintenance Charges and late
payment charges received in respect of any Mortgage Loan;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of any Mortgage Loan (including any amounts
paid by a Mortgagor or received as Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds that represent recoveries for an Advance
(or interest thereon) that was previously reimbursed to the party that
made such Advance as either a Nonrecoverable Advance or as a
Workout-Delayed Reimbursement Amount);
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Custodial Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard policy;
(vii) any amounts required to be transferred from an REO Account
pursuant to Section 3.17(c); and
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by a Mortgagor specifically to cover items for which a
Servicing Advance has been made.
The foregoing requirements for deposit in the Custodial Account
shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, Reserve Funds, assumption fees,
assumption application fees, funds representing a Mortgagor's payment of costs
and expenses associated with assumptions and defeasance, modification fees,
extension fees, charges for beneficiary statements or demands, amounts collected
for checks returned for insufficient funds and any similar fees not expressly
referred to in the prior paragraph need not be deposited by the Master Servicer
in the Custodial Account. If the Master Servicer shall deposit in the Custodial
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from the Custodial Account, any provision herein to the
contrary notwithstanding. The Master Servicer shall promptly deliver to the
Special Servicer, as additional special servicing compensation in accordance
with Section 3.11(c), all assumption fees and assumption application fees (or
the applicable portions thereof) and other transaction fees received by the
Master Servicer to which the Special Servicer is entitled pursuant to such
Section upon receipt of a written statement (on which the Master Servicer is
entitled to rely) of a Servicing Officer of the Special Servicer describing the
item and amount (unless pursuant to this Agreement it is otherwise clear that
the Special Servicer is entitled to such amounts, in which case a written
statement is not required). The Custodial Account shall be maintained as a
segregated account, separate and apart from trust funds created for
mortgage-backed securities of other series and the other accounts of the Master
Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (vi) through (viii) above with respect to any Mortgage Loan, the
Special Servicer shall promptly, but in no event later than two Business Days
after receipt, remit such amounts to the Master Servicer for deposit into the
Custodial Account in accordance with the second preceding paragraph, unless the
Special Servicer determines, consistent with the Servicing Standard, that a
particular item should not be deposited because of a restrictive endorsement or
other appropriate reason. With respect to any such amounts paid by check to the
order of the Special Servicer, the Special Servicer shall endorse such check to
the order of the Master Servicer, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item cannot be so
endorsed and delivered because of a restrictive endorsement or other appropriate
reason. Any such amounts received by the Special Servicer with respect to an REO
Property shall be deposited by the Special Servicer into the REO Account and
thereafter remitted to the Master Servicer for deposit into the Custodial
Account as and to the extent provided in Section 3.17(c).
If and when any Mortgagor under a Defeasance Loan that is a Mortgage
Loan elects to defease all or any part of its Mortgage Loan and, pursuant to the
provisions of the related Mortgage Loan documents, delivers cash to the Master
Servicer to purchase the required Defeasance Collateral, the Master Servicer
shall establish and maintain one or more separate segregated accounts
(collectively, the "Defeasance Deposit Account"), in which the Master Servicer
shall deposit such cash within one Business Day of receipt by the Master
Servicer. The Master Servicer shall retain such cash in the Defeasance Deposit
Account pending its prompt application to purchase Defeasance Collateral. The
Master Servicer shall hold such cash and maintain the Defeasance Deposit Account
on behalf of the Mortgagor, as beneficial owner of the Defeasance Collateral,
and the Trustee to secure payment on the related Defeasance Loan. The Defeasance
Deposit Account shall be an Eligible Account. To the extent permitted by law or
the applicable Defeasance Loan, prior to the purchase of Defeasance Collateral,
funds in the Defeasance Deposit Account may be invested only in Permitted
Investments in accordance with the provisions of Section 3.06. The Master
Servicer shall pay or cause to be paid to the related Mortgagor(s) interest, if
any, earned on the investment of funds in the Defeasance Deposit Account, if
required by law or the terms of the related Mortgage Loan(s).
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the
Distribution Account shall be an Eligible Account. The Distribution Account
shall be deemed to consist of three separate sub-accounts, which shall be
established and maintained on a book-entry basis: the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account and the Interest Reserve Account.
The Master Servicer shall deliver to the Trustee each month on or before the
Master Servicer Remittance Date, for deposit in the Lower-Tier Distribution
Account, an aggregate amount of immediately available funds equal to the Master
Servicer Remittance Amount for such Master Servicer Remittance Date, together
with, in the case of the final Distribution Date, any additional amounts
contemplated by the second paragraph of Section 9.01.
Notwithstanding anything herein to the contrary, the Lower-Tier
Distribution Account, the Upper-Tier Distribution Account and the Interest
Reserve Account may be maintained as part of a single Distribution Account.
Amounts actually deposited into or distributed from the Distribution Account
will be deemed to be deposited or distributed from the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account or the Interest Reserve Account, as
applicable.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee (without duplication) for deposit in the
Lower-Tier Distribution Account:
(i) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03(a); and
(ii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.20(a) in connection with Prepayment Interest
Shortfalls.
The Trustee shall, upon receipt, deposit in the Lower-Tier
Distribution Account, any and all amounts received by the Trustee that are
required by the terms of this Agreement to be deposited therein.
Promptly on each Distribution Date, the Trustee shall be deemed to
withdraw from the Lower-Tier Distribution Account and deposit in the Upper-Tier
Distribution Account an aggregate amount of immediately available funds equal to
the Lower-Tier Distribution Amount and the amount of any Net Prepayment
Consideration for such Distribution Date allocated in payment of the
Uncertificated Lower-Tier Interests as specified in Sections 4.01(i) and
4.01(j), respectively.
In the event that the Master Servicer fails, on any Master Servicer
Remittance Date, to remit to the Trustee any amount(s) required to be so
remitted to the Trustee hereunder by such date, the Master Servicer shall pay
the Trustee, for the account of the Trustee, interest, calculated at the Prime
Rate, on such amount(s) not timely remitted, from and including that Master
Servicer Remittance Date, to but not including the date such payment was made.
On the Master Servicer Remittance Date in March of each year
(commencing in March [_________]), the Trustee shall transfer from the Interest
Reserve Account to the Lower-Tier Distribution Account all Interest Reserve
Amounts then on deposit in the Interest Reserve Account with respect to the
Interest Reserve Mortgage Loans and any Interest Reserve REO Mortgage Loans.
As and when required pursuant to Section 3.04(d), the Trustee shall
transfer monies from the Excess Liquidation Proceeds Account to the Lower-Tier
Distribution Account.
(c) The Trustee shall establish and maintain one or more accounts
(collectively, the "Interest Reserve Account"), which may be a sub-account of
the Distribution Account, to be held in trust for the benefit of the
Certificateholders and the Trust as Holder of the Uncertificated Lower-Tier
Interests. Each account that constitutes the Interest Reserve Account shall be
an Eligible Account. On each Distribution Date in February and, during a year
that is not a leap year, in January, prior to any distributions being made in
respect of the Certificates on such Distribution Date, the Trustee shall
withdraw from the Lower-Tier Distribution Account and deposit in the Interest
Reserve Account with respect to each Interest Reserve Mortgage Loan and Interest
Reserve REO Mortgage Loan, an amount equal to the Interest Reserve Amount, if
any, in respect of such Mortgage Loan or REO Mortgage Loan, as the case may be,
for such Distribution Date.
Notwithstanding that the Interest Reserve Account, the Lower-Tier
Distribution Account and the Upper-Tier Distribution Account may be sub-accounts
of the Distribution Account for reasons of administrative convenience, the
Interest Reserve Account, the Lower-Tier Distribution Account and the Upper-Tier
Distribution Account shall, for all purposes of this Agreement (including the
obligations and responsibilities of the Trustee hereunder), be considered to be
and shall be required to be treated as, separate and distinct accounts. The
Trustee shall indemnify and hold harmless the Trust Fund against any losses
arising out of the failure by the Trustee to perform its duties and obligations
hereunder as if such accounts were separate. The provisions of this paragraph
shall survive any resignation or removal of the Trustee and appointment of a
successor trustee.
(d) If any Excess Liquidation Proceeds are received on the Mortgage
Pool, the Trustee shall establish and maintain one or more accounts
(collectively, the "Excess Liquidation Proceeds Account") to be held in trust
for the benefit of the Certificateholders. Each account that constitutes the
Excess Liquidation Proceeds Account shall be an Eligible Account. On each Master
Servicer Remittance Date, the Master Servicer shall withdraw from the Custodial
Account and remit to the Trustee for deposit in the Excess Liquidation Proceeds
Account all Excess Liquidation Proceeds received during the Collection Period
ending on the Determination Date immediately prior to such Master Servicer
Remittance Date.
(e) Funds in the Custodial Account may be invested only in Permitted
Investments in accordance with the provisions of Section 3.06. Funds in the
Distribution Account (and all subaccounts thereof) and the Excess Liquidation
Proceeds Account shall remain uninvested. The Master Servicer shall give notice
to the Trustee, the Special Servicer and the Rating Agencies of the location of
the Custodial Account as of the Closing Date and of the new location of the
Custodial Account within two Business Days of any change thereof. As of the
Closing Date, the Distribution Account (and all subaccounts thereof) and, when
established, the Excess Liquidation Proceeds Account shall be located at the
Trustee's offices in [______],[_____]. The Trustee shall give notice to the
Master Servicer, the Special Servicer and the Rating Agencies of any change in
the location of the Distribution Account (and all subaccounts thereof), the
Interest Reserve Account or the Excess Liquidation Proceeds Account prior to any
change thereof.
Section 3.05 Permitted Withdrawals From the Custodial Account, the
Distribution Account, the Interest Reserve Account and the Excess Liquidation
Proceeds Account.
(a) The Master Servicer may, from time to time, make withdrawals
from the Custodial Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Distribution Account
the amounts required to be so deposited pursuant to the first paragraph of
Section 3.04(b), and any amounts that may be applied to make P&I Advances
pursuant to Section 4.03(a);
(ii) to reimburse the Trustee and itself, in that order, for
▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances made thereby with respect to the Mortgage Pool,
the Trustee's and Master Servicer's, as the case may be, respective rights
to reimbursement pursuant to this clause (ii) with respect to any such P&I
Advance being limited to amounts on deposit in the Custodial Account that
represent Late Collections of interest and principal (net of the related
Master Servicing Fees and any related Workout Fees or Liquidation Fees)
received in respect of the particular Mortgage Loan or REO Mortgage Loan
as to which such P&I Advance was made; provided, however, that if any P&I
Advance that was made with respect to the Mortgage Pool becomes a
Workout-Delayed Reimbursement Amount, then such P&I Advance shall
thereafter be reimbursed from the portion of general collections and
recoveries on or in respect of all of the Mortgage Loans and REO
Properties on deposit in the Custodial Account from time to time that
represent collections or recoveries of principal to the extent provided in
clause (vii) below until such Advance becomes a Nonrecoverable Advance;
(iii) to pay (A) to itself earned and unpaid Master Servicing Fees
with respect to the Mortgage Pool, the Master Servicer's right to payment
pursuant to this clause (iii)(A) with respect to any such Master Servicing
Fees being limited to amounts on deposit in the Custodial Account that are
allocable as a recovery of interest on or in respect of the Mortgage Loan
or REO Mortgage Loan as to which such Master Servicing Fees were earned,
and (B) to itself, out of general collections on the Mortgage Pool on
deposit in the Custodial Account, any Master Servicing Fee earned in
respect of any Mortgage Loan or REO Mortgage Loan that remains unpaid
after the application of clause (A) above following a Final Recovery
Determination made with respect to such Mortgage Loan or the related REO
Property and the deposit into the Custodial Account of all amounts
received in connection with such Final Recovery Determination;
(iv) to pay to the Special Servicer, out of general collections on
the Mortgage Pool on deposit in the Custodial Account, earned and unpaid
Special Servicing Fees in respect of each Specially Serviced Mortgage Loan
and REO Mortgage Loan;
(v) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) any earned and unpaid Workout Fees and Liquidation Fees
in respect of each Specially Serviced Mortgage Loan, Corrected Mortgage
Loan and/or REO Mortgage Loan, as applicable, in the amounts and from the
sources specified in Section 3.11(b);
(vi) to reimburse the Trustee, itself and the Special Servicer, in
that order, for any unreimbursed Servicing Advances made thereby with
respect to any Mortgage Loan or REO Property, the Trustee's, the Master
Servicer's and the Special Servicer's respective rights to reimbursement
pursuant to this clause (vi) with respect to any Servicing Advance being
limited to amounts on deposit in the Custodial Account that represent
payments made by the related Mortgagor to cover the item for which such
Servicing Advance was made, and to amounts on deposit in the Custodial
Account that represent Liquidation Proceeds (net of Liquidation Fees or
Workout Fees payable therefrom), Condemnation Proceeds, Insurance Proceeds
and, if applicable, REO Revenues received in respect of the particular
Mortgage Loan or REO Property as to which such Servicing Advance was made;
provided, however, that if such Servicing Advance becomes a
Workout-Delayed Reimbursement Amount, then such Servicing Advance shall
thereafter be reimbursed from the portion of general collections and
recoveries on or in respect of all of the Mortgage Loans and REO
Properties on deposit in the Custodial Account from time to time that
represent collections or recoveries of principal to the extent provided in
clause (vii) below until such Advance becomes a Nonrecoverable Advance;
(vii) to reimburse the Trustee, itself and the Special Servicer, in
that order, out of general collections on the Mortgage Pool on deposit in
the Custodial Account for (1) any unreimbursed Advances that have been or
are determined to be Nonrecoverable Advances, and (2) for any
Workout-Delayed Reimbursement Amounts, such reimbursement to be made out
of the principal portion of the general collections on the Mortgage Loans
and REO Properties, net of such amounts being reimbursed pursuant to
clause (1) above, until such Workout-Delayed Reimbursement Amount becomes
a Nonrecoverable Advance, in which event it shall be reimbursable pursuant
to clause (1) above; provided that the amounts referred to in clause (1)
above may be withdrawn over time in accordance with Section 3.05(e);
(viii) to pay the Trustee, itself and the Special Servicer, in that
order, any interest accrued and payable in accordance with Section 3.12(b)
or 4.03(d), as applicable, on any Advance made thereby with respect to the
Mortgage Pool, the Trustee's, the Master Servicer's and the Special
Servicer's respective rights to payment pursuant to this clause (viii)
with respect to interest on any such Advance being limited to amounts on
deposit in the Custodial Account that represent Default Charges collected
on or in respect of the related Mortgage Loan during the Collection Period
in which such Advance is reimbursed, as and to the extent contemplated by
Sections 3.27(a) and (b);
(ix) to pay, out of general collections on the Mortgage Pool on
deposit in the Custodial Account, the Trustee, itself and the Special
Servicer, in that order, any interest accrued and payable in accordance
with Section 3.12(b) or 4.03(d), as applicable, on any Advance (including
any Advance that constitutes a Workout-Delayed Reimbursement Amount) made
thereby with respect to the Mortgage Pool, but only to the extent that
such Advance has been reimbursed and the interest thereon is not otherwise
payable as contemplated by the immediately preceding clause (viii);
(x) to pay, out of amounts on deposit in the Custodial Account that
represent Default Charges collected on or in respect of the related
Mortgage Loan and not otherwise applied as contemplated by clause (viii)
above, any unpaid expense (other than interest accrued on Advances, which
is payable pursuant to clause (viii) above, and other than Special
Servicing Fees, Liquidation Fees and Workout Fees) incurred with respect
to any Mortgage Loan or REO Mortgage Loan that, if paid from a source
other than Default Charges, would constitute an Additional Trust Fund
Expense, as and to the extent contemplated by Sections 3.27(a) and (b);
(xi) to pay, out of general collections on the Mortgage Pool on
deposit in the Custodial Account, (A) costs and expenses incurred by the
Trust Fund pursuant to Section 3.09(c) (other than the costs of
environmental testing, which are to be covered by, and reimbursable as, a
Servicing Advance), (B) the cost of an independent appraiser or other
expert in real estate matters retained pursuant to Sections 3.12(d),
3.19(g), or 4.03(c), and (C) the fees of any Independent Contractor
retained with respect to any related REO Property pursuant to Section
3.18(d) (to the extent that it has not paid itself such fees prior to
remitting collections on such REO Property to the Special Servicer);
(xii) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (A) interest and investment income earned
in respect of amounts held in the Custodial Account as provided in Section
3.06(b), but only to the extent of the Net Investment Earnings with
respect to the Custodial Account for any Collection Period, (B) Prepayment
Interest Excesses collected on the Mortgage Pool and (C) Net Default
Charges (after application pursuant to Sections 3.27(a) and (b)) actually
collected that accrued in respect of Mortgage Loans that are not Specially
Serviced Mortgage Loans, and to pay the Special Servicer, as additional
special servicing compensation in accordance with Section 3.11(c), Net
Default Charges (after application pursuant to Sections 3.27(a) and (b))
actually collected that accrued in respect of Specially Serviced Mortgage
Loans and REO Mortgage Loans;
(xiii) to pay itself, the Special Servicer, the Depositor, or any of
their respective members, managers, directors, officers, employees and
agents, as the case may be, out of general collections on the Mortgage
Pool on deposit in the Custodial Account, any amounts payable to any such
Person pursuant to Section 6.03;
(xiv) to pay, out of general collections on the Mortgage Pool on
deposit in the Custodial Account, for (A) the cost of the Opinion of
Counsel contemplated by Section 12.02(a), (B) the cost of an Opinion of
Counsel contemplated by Section 12.01(a) or 12.01(c) in connection with
any amendment to this Agreement requested by the Master Servicer or the
Special Servicer that protects or is in furtherance of the rights and
interests of Certificateholders, and (C) the cost of recording this
Agreement in accordance with Section 12.02(a);
(xv) to pay itself, the Special Servicer, any Controlling Class
Certificateholder or any other Person, as the case may be, with respect to
each Mortgage Loan, if any, previously purchased by such Person pursuant
to this Agreement, all amounts received thereon subsequent to the date of
purchase that have been deposited in the Custodial Account;
(xvi) on each Master Servicer Remittance Date, to transfer Excess
Liquidation Proceeds in respect of the Mortgage Pool to the Trustee, for
deposit in the Excess Liquidation Proceeds Account, in accordance with
Section 3.04(d); and
(xvii) to clear and terminate the Custodial Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis when appropriate, in connection with any
withdrawal from the Custodial Account pursuant to clauses (ii) through (xviii)
above.
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer) or the Trustee from
the Custodial Account, amounts permitted to be paid to the Special Servicer (or
to any such third party contractor) or the Trustee therefrom promptly upon
receipt of a written statement of a Servicing Officer of the Special Servicer or
of a Responsible Officer of the Trustee describing the item and amount to which
the Special Servicer (or such third party contractor) or the Trustee, as
applicable, is entitled (unless such payment to the Special Servicer or the
Trustee (for example, the Trustee Fee), as the case may be, is clearly required
pursuant to this Agreement, in which case a written statement is not required).
The Master Servicer may rely conclusively on any such written statement and
shall have no duty to re-calculate the amounts stated therein.
The Special Servicer shall keep and maintain separate accounting for
each Specially Serviced Mortgage Loan and REO Property, on a loan-by-loan basis,
for the purpose of justifying any request for withdrawal from the Custodial
Account. With respect to each Mortgage Loan for which it makes an Advance, the
Trustee shall keep and maintain separate accounting, on a loan-by-loan basis,
for the purpose of justifying any request for withdrawal from the Custodial
Account for reimbursements of Advances or interest thereon.
(b) Promptly on each Distribution Date, the Trustee shall be deemed
to withdraw from the Lower-Tier Distribution Account and deposit in the
Upper-Tier Distribution Account an aggregate amount of immediately available
funds equal to the Lower-Tier Distribution Amount and the amount of any Net
Prepayment Consideration for such Distribution Date allocated in payment of the
Uncertificated Lower-Tier Interests as specified in Sections 4.01(i) and
4.01(j), respectively. The Trustee may, from time to time, make withdrawals from
the Distribution Account (which in the case of clauses (ii) through (vii) shall
be deemed to have been withdrawn from the Lower-Tier Distribution Account) for
any of the following purposes (in no particular order of priority):
(i) to make distributions to Certificateholders from the applicable
sub-account on each Distribution Date pursuant to Section 4.01 or 9.01, as
applicable;
(ii) to pay (A) the Trustee or any of its respective directors,
officers, employees and agents, as the case may be, out of general
collections on the Mortgage Loans on deposit in the Distribution Account,
any amounts payable or reimbursable to any such Person pursuant to Section
7.01(b) and/or Section 8.05, as applicable, and (B) as and when
contemplated by Section 8.08, the cost of the Trustee's transferring
Mortgage Files and other documents to a successor after being terminated
by Certificateholders pursuant to Section 8.07(c) without cause;
(iii) to pay, out of general collections on the Mortgage Loans on
deposit in the Distribution Account, for the cost of the Opinions of
Counsel sought by the Trustee or the Tax Administrator (A) as provided in
clause (iv) of the definition of "Disqualified Organization," (B) as
contemplated by Section 10.01(i), or (C) as contemplated by Section
12.01(a) or 12.01(c) in connection with any amendment to this Agreement
requested by the Trustee which amendment is in furtherance of the rights
and interests of Certificateholders;
(iv) to pay, out of general collections on the Mortgage Loans on
deposit in the Distribution Account, any and all federal, state and local
taxes imposed on the REMIC Pool or on the assets or transactions of the
REMIC Pool, together with all incidental costs and expenses, to the extent
none of the Trustee, the Tax Administrator, the Master Servicer or the
Special Servicer is liable therefor pursuant to Section 10.01(j);
(v) to pay the Tax Administrator, out of general collections on the
Mortgage Loans on deposit in the Distribution Account, any amounts
reimbursable to it pursuant to Section 10.01(f);
(vi) to pay the Master Servicer any amounts deposited by the Master
Servicer in the Distribution Account in error;
(vii) to transfer Interest Reserve Amounts in respect of the
Interest Reserve Mortgage Loans and any Interest Reserve REO Mortgage
Loans from the Distribution Account to the Interest Reserve Account as and
when required by Section 3.04(c); and
(viii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
On or prior to a Distribution Date, the Trustee shall be entitled to
withdraw amounts that are payable or reimbursable as set forth in clauses (ii)
through (vii) above from the Distribution Account (which will be deemed to be
withdrawn from the Lower-Tier Distribution Account) prior to making
distributions to Certificateholders on such Distribution Date.
(c) On each Master Servicer Remittance Date in March (commencing in
March [______]), the Trustee shall withdraw from the Interest Reserve Account
and deposit in the Lower-Tier Distribution Account all Interest Reserve Amounts
that have been deposited in the Interest Reserve Account in respect of the
Interest Reserve Mortgage Loans and any Interest Reserve REO Mortgage Loans
during February and/or January of the same year in accordance with Section
3.04(c).
(d) On each Master Servicer Remittance Date, the Trustee shall
withdraw from the Excess Liquidation Proceeds Account and deposit in the
Lower-Tier Distribution Account, for distribution on the following Distribution
Date, an amount equal to the lesser of (i) the entire amount, if any, then on
deposit in the Excess Liquidation Proceeds Account and (ii) the excess, if any,
of the aggregate amount distributable with respect to the Regular Interest
Certificates on such Distribution Date pursuant to Sections 4.01(a) and 4.01(b),
over the Available Distribution Amount for such Distribution Date (calculated
without regard to such transfer from the Excess Liquidation Proceeds Account to
the Distribution Account); provided that on the Master Servicer Remittance Date
immediately prior to the Final Distribution Date, the Trustee shall withdraw
from the Excess Liquidation Proceeds Account and deposit in the Lower-Tier
Distribution Account, for distribution on such Distribution Date, any and all
amounts then on deposit in the Excess Liquidation Proceeds Account.
(e) Notwithstanding anything to the contrary contained herein, upon
a determination that a previously made Advance is a Nonrecoverable Advance,
instead of obtaining reimbursement out of general collections on the Mortgage
Pool on deposit in the Custodial Account immediately as contemplated by Section
3.05(a)(vii), the Master Servicer, the Special Servicer or the Trustee, as
applicable, may, in its sole discretion, elect to obtain reimbursement for such
Nonrecoverable Advance over time and the unreimbursed portion of such Advance
will accrue interest at the Prime Rate. At any time after such a determination
to obtain reimbursement over time (not to exceed a period longer than 12
months), the Master Servicer, the Special Servicer or the Trustee, as
applicable, may, in its sole discretion, decide to obtain reimbursement
immediately. The fact that a decision to recover such Nonrecoverable Advances
over time, or not to do so, benefits some Classes of Certificateholders to the
detriment of other Classes shall not constitute a violation of the Servicing
Standard by the Master Servicer or the Special Servicer or be deemed a breach of
any fiduciary duty of the Trustee to Certificateholders by the Trustee, or a
breach of a contractual obligation by the Master Servicer, the Special Servicer
or the Trustee. The Master Servicer's, the Special Servicer's or the Trustee's
agreement to defer reimbursements of Nonrecoverable Advances as set forth in
this Section 3.05(e) is an accommodation to the Certificateholders and is not to
be construed as on obligation on the part of the Master Servicer, the Special
Servicer or the Trustee or a right of the Certificateholders.
To the extent a Nonrecoverable Advance with respect to a Mortgage
Loan is required to be reimbursed from general collections on the Mortgage Loans
pursuant to clauses (vi) or (vii) of Section 3.05(a), such reimbursement shall
be allocated first, to the principal portion of the general collections
available on the Mortgage Loans. To the extent a Workout-Delayed Reimbursement
Amount is reimbursed pursuant to clause (vii) of Section 3.05(a), such
reimbursement shall be limited to an amount equal to, and be allocable solely
to, principal collections available on the Mortgage Loans, net of amounts paid
pursuant to the previous sentence until it becomes a Nonrecoverable Advance.
The Master Servicer shall give each Rating Agency at least 15 days
notice prior to any reimbursement to it of Nonrecoverable Advances from amounts
in the Custodial Account allocable to interest on the Mortgage Loans unless (1)
the Master Servicer determines in its sole discretion that waiting 15 days after
such a notice could jeopardize the Master Servicer's ability to recover
Nonrecoverable Advances, (2) changed circumstances or new or different
information becomes known to the Master Servicer that could affect or cause a
determination of whether any Advance is a Nonrecoverable Advance, whether to
defer reimbursement of a Nonrecoverable Advance or the determination in clause
(1) above, or (3) the Master Servicer has not timely received from the Trustee
information requested by the Master Servicer to consider in determining whether
to defer reimbursement of a Nonrecoverable Advance; provided that, if clause
(1), (2) or (3) apply, the Master Servicer shall give each Rating Agency notice
of an anticipated reimbursement to it of Nonrecoverable Advances from amounts in
the Custodial Account allocable to interest on the Mortgage Loans as soon as
reasonably practicable in such circumstances. The Master Servicer shall have no
liability for any loss, liability or expense resulting from any notice provided
to each Rating Agency contemplated by the immediately preceding sentence.
Section 3.06 Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Defeasance Deposit Account, the Custodial Accounts and the
REO Accounts.
(a) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, the Defeasance
Deposit Account or a Custodial Account (each, for purposes of this Section 3.06,
an "Investment Account"), and the Special Servicer may direct in writing any
depository institution maintaining an REO Account (also, for purposes of this
Section 3.06, an "Investment Account"), to invest, or if it is such depository
institution, may itself invest, the funds held therein in one or more Permitted
Investments bearing interest or sold at a discount, and maturing, unless payable
on demand, no later than the Business Day immediately preceding the next
succeeding date on which such funds are required to be withdrawn from such
account pursuant to this Agreement; provided that in the case of any Servicing
Account, any Reserve Account or the Defeasance Deposit Account, such investment
direction shall be subject to the related Mortgage Loan documents and applicable
law. Funds in the Distribution Account, the Interest Reserve Account and the
Excess Liquidation Proceeds Account will remain uninvested. All such Permitted
Investments shall be held to maturity, unless payable on demand. Any investment
of funds in an Investment Account shall be made in the name of the Trustee (in
its capacity as such). The Master Servicer (with respect to Permitted
Investments of amounts in the Servicing Accounts, the Reserve Accounts, the
Defeasance Deposit Account and the Custodial Accounts) and the Special Servicer
(with respect to Permitted Investments of amounts in the REO Accounts), on
behalf of the Trustee, shall (and the Trustee hereby designates the Master
Servicer and the Special Servicer, as applicable, as the Person that shall) (i)
be the "entitlement holder" of any Permitted Investment that is a "security
entitlement" and (ii) maintain "control" of any Permitted Investment that is a
"certificated security," "uncertificated security" or "deposit account." For
purposes of this Section 3.06(a), (i) the terms "entitlement holder," "security
entitlement," "control" (except with respect to deposit accounts), "certificated
security" and "uncertificated security" shall have the meanings given such terms
in Revised Article 8 (1994 Revision) of the UCC, and the terms "control" (with
respect to deposit accounts) and "deposit account" shall have the meanings given
such terms in Revised Article 9 (1998 Revision) of the UCC, and (ii) "control"
of any Permitted Investment in any Investment Account by the Master Servicer or
the Special Servicer shall constitute "control" by a Person designated by, and
acting on behalf of, the Trustee, for purposes of Revised Article 8 (1994
Revision) of the UCC or Revised Article 9 (1998 Revision) of the UCC, as
applicable. If amounts on deposit in an Investment Account are at any time
invested in a Permitted Investment payable on demand, the Master Servicer (in
the case of the Custodial Accounts, the Servicing Accounts, the Reserve Accounts
and the Defeasance Deposit Account) or the Special Servicer (in the case of the
REO Accounts) shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to at least
the lesser of (1) all amounts then payable thereunder and (2) the amount
required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer or the Special Servicer, as the case
may be, that such Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the Investment
Account.
(b) Whether or not the Master Servicer directs the investment of
funds in any of the Servicing Accounts, the Reserve Accounts, the Defeasance
Deposit Account or the Custodial Accounts, interest and investment income
realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for each such Investment Account for each Collection Period
(and, in the case of Servicing Accounts, Reserve Accounts and the Defeasance
Deposit Account, to the extent not otherwise payable to Mortgagors under
applicable law or the related Mortgage Loan documents), shall be for the sole
and exclusive benefit of the Master Servicer and shall be subject to its
withdrawal in accordance with Section 3.03(a), 3.03(d), 3.04(a) or 3.05(a).
Whether or not the Special Servicer directs the investment of funds in either of
the REO Accounts, interest and investment income realized on funds deposited
therein, to the extent of the Net Investment Earnings, if any, for such
Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Special Servicer and shall be subject to its withdrawal
in accordance with Section 3.17(b). If any loss shall be incurred in respect of
any Permitted Investment on deposit in any Investment Account, the Master
Servicer (in the case of (i) the Servicing Accounts, the Reserve Accounts and
the Defeasance Deposit Account (except to the extent that any investment of
funds with respect thereto is at the direction of a Mortgagor or for the benefit
of the Mortgagor in accordance with the related Mortgage Loan documents or
applicable law) and (ii) the Custodial Accounts) and the Special Servicer (in
the case of the REO Accounts) shall promptly deposit therein from its own funds,
without right of reimbursement, no later than the end of the Collection Period
during which such loss was incurred, the amount of the Net Investment Loss, if
any, for such Investment Account for such Collection Period. Notwithstanding any
of the foregoing provisions of this Section 3.06, no party shall be required
under this Agreement to deposit any loss on a deposit of funds in an Investment
Account if such loss is incurred solely as a result of the insolvency of the
federal or state chartered depository institution or trust company with which
such deposit was maintained so long as such depository institution or trust
company satisfied the conditions set forth in the definition of "Eligible
Account" at the time such deposit was made and also as of a date no earlier than
30 days prior to the insolvency.
(c) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee may, and subject to Section 8.02, upon the request of
Certificateholders entitled to a majority of the Voting Rights allocated to a
Class, shall, take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including the calculation
of the Available Distribution Amount, the Master Servicer Remittance Amount, the
amounts so invested shall be deemed to remain on deposit in such Investment
Account.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage; Environmental Insurance.
(a) The Master Servicer shall, consistent with the Servicing
Standard, cause to be maintained for each Mortgaged Property that is not an REO
Property, all insurance coverage as is required under the related Mortgage
(except to the extent that the failure to maintain such insurance coverage is an
Acceptable Insurance Default); provided that, if and to the extent that any such
Mortgage permits the holder thereof any discretion (by way of consent, approval
or otherwise) as to the insurance coverage that the related Mortgagor is
required to maintain, the Master Servicer or Special Servicer, as the case may
be, shall exercise such discretion in a manner consistent with the Servicing
Standard; and provided, further, that, if and to the extent that a Mortgage so
permits, the Master Servicer or Special Servicer, as the case may be, shall use
reasonable best efforts to require the related Mortgagor to obtain the required
insurance coverage from Qualified Insurers that have a "claims paying ability"
or "financial strength" rating, as applicable, of at least "[__]" from [___] and
"[__]" by [___] (or, in the case of any such Rating Agency, such lower rating as
will not result in an Adverse Rating Event with respect to the Certificates, as
evidenced in writing by such Rating Agency); and provided, further, that the
Master Servicer shall cause to be maintained for any such Mortgaged Property
from Qualified Insurers that have a "claims paying ability" or "financial
strength rating," as applicable, of at least "[__]" from [___] and "[__]" from
[___], any such insurance that the related Mortgagor is required but fails to
maintain, only to the extent that the Trustee (as mortgagee of record on behalf
of the Certificateholders) has an insurable interest, and such insurance is
available at a commercially reasonable rate and the subject hazards are at the
time commonly insured against by prudent owners of properties similar to the
Mortgaged Property located in or around the region in which such Mortgaged
Property is located (or, in the case of all-risk insurance or other insurance
that covers acts of terrorism, the Master Servicer shall not be required to
cause to be maintained for any such Mortgaged Property any such insurance that
the related Mortgagor is required but fails to maintain if the Trustee (as
mortgagee of record on behalf of the Certificateholders) does not have an
insurable interest or the Special Servicer has determined (in its reasonable
judgment and in accordance with the Servicing Standard) that either (i) such
insurance is not available at a commercially reasonable rate and the subject
hazards are at the time commonly insured against by prudent owners of properties
similar to the Mortgaged Property located in or around the region in which such
Mortgaged Property is located or (ii) such insurance is not available at any
rate).
Any Controlling Class Certificateholder may request that earthquake
insurance be secured for one or more Mortgaged Properties by the related
Mortgagor, to the extent such insurance may reasonably be obtained and provided
the related loan documents and applicable law give the mortgagee the right to
request such insurance coverage and such Mortgage Loan documents require the
Mortgagor to obtain earthquake insurance at the request of the mortgagee.
Subject to Section 3.18(a), the Special Servicer, in accordance with
the Servicing Standard, shall also cause to be maintained for each REO Property
no less insurance coverage than was previously required of the Mortgagor under
the related Mortgage (including insurance that covers losses arising from acts
of terrorism); provided that such insurance is available at commercially
reasonable rates and the subject hazards are at the time commonly insured
against by prudent owners of properties similar to the REO Property located in
or around the region in which such REO Property is located (or, in the case of
all-risk insurance or other insurance that covers acts of terrorism, such
insurance is available at a commercially reasonable rate or the subject hazards
are at the time commonly insured against by prudent owners of properties similar
to the REO Property located in or around the region in which such REO Property
is located); and provided, further, that all such insurance shall be obtained
from Qualified Insurers that, if they are providing casualty insurance, shall
have a "claims paying ability" or "financial strength" rating, as applicable, of
at least "[__]" from [__] and "[__]" from [__] (or, in the case of either Rating
Agency, such lower rating as will not result in an Adverse Rating Event with
respect to the Certificates, as evidenced in writing by such Rating Agency). All
such insurance policies shall contain (if they insure against loss to property
and do not relate to an REO Property) a "standard" mortgagee clause, with loss
payable to the Master Servicer (in the case of insurance maintained in respect
of Mortgage Loans, including Specially Serviced Mortgage Loans), or the Special
Servicer (in the case of insurance maintained in respect of REO Properties), on
behalf of the Trustee; and, in each case, such insurance shall be issued by a
Qualified Insurer. Any amounts collected by the Master Servicer or the Special
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the related Mortgaged Property or REO Property or
amounts to be released to the related Mortgagor, in each case subject to the
rights of any tenants and ground lessors, as the case may be, and in each case
in accordance with the terms of the related Mortgage and the Servicing Standard)
shall be deposited in the applicable Custodial Account in accordance with
Section 3.04(a) in the case of amounts received in respect of a Mortgage Loan,
or in the applicable REO Account in accordance with Section 3.17(b), in the case
of amounts received in respect of an REO Property. Any cost incurred by the
Master Servicer or the Special Servicer in maintaining any such insurance
(including any earthquake insurance maintained at the request of a Controlling
Class Certificateholder) shall not, for purposes hereof, including calculating
monthly distributions to Certificateholders, be added to the unpaid principal
balance or Stated Principal Balance of the related Mortgage Loan or REO Loan,
notwithstanding that the terms of such loan so permit, but shall be recoverable
by the Master Servicer and the Special Servicer as a Servicing Advance.
(b) If either the Master Servicer or the Special Servicer shall
obtain and maintain, or cause to be obtained and maintained, a blanket policy or
forced placed policy insuring against hazard losses on all of the Mortgage Loans
and/or REO Properties that it is required to service and administer, then, to
the extent such policy (i) is obtained from a Qualified Insurer having (or whose
obligations are guaranteed or backed, in writing, by an entity having) a "claims
paying ability" or "financial strength" rating, as applicable, of at least
"[___]" from [___] and "[___]" from [___] (if then rated by [___], and if not
then rated by [___], then a rating of at least "[___]" by [___]) (or, in the
case of each Rating Agency, such lower rating as will not result in an Adverse
Rating Event with respect to the Certificates, as evidenced in writing by such
Rating Agency), and (ii) provides protection equivalent to the individual
policies otherwise required, the Master Servicer or the Special Servicer, as the
case may be, shall conclusively be deemed to have satisfied its obligation to
cause hazard insurance to be maintained on the related Mortgaged Properties
and/or REO Properties. Such blanket policy or forced placed policy may contain a
deductible clause (not in excess of a customary amount), in which case the
Master Servicer or the Special Servicer, as appropriate, shall, if there shall
not have been maintained on the related Mortgaged Property or REO Property an
individual hazard insurance policy complying with the requirements of Section
3.07(a), and there shall have been one or more losses that would have been
covered by such individual policy, promptly deposit into the applicable
Custodial Account from its own funds the amount not otherwise payable under the
blanket policy or forced placed policy because of the deductible clause therein,
to the extent that any such deductible exceeds the deductible limitation that
pertained to the related Mortgage Loan (or in the absence of any such deductible
limitation, the deductible limitation for an individual policy which is
consistent with the Servicing Standard). The Master Servicer or the Special
Servicer, as appropriate, shall prepare and present, on behalf of itself, the
Trustee and the Certificateholders, claims under any such blanket policy or
forced placed policy in a timely fashion in accordance with the terms of such
policy.
(c) Subject to the third paragraph of this Section 3.07(c), each of
the Master Servicer and the Special Servicer shall at all times during the term
of this Agreement (or, in the case of the Special Servicer, at all times during
the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO
Properties are part of the Trust Fund) keep in force with Qualified Insurers
having (or whose obligations are guaranteed or backed, in writing, by entities
having) a "claims paying ability" or "financial strength" rating, as applicable,
of at least "[___]" from [___] and "[___]" from [___] (or, if not then rated by
[___], then at least "[___]" by [_____]) (or, in the case of either Rating
Agency, such lower rating as will not result in an Adverse Rating Event with
respect to the Certificates, as evidenced in writing by such Rating Agency), a
fidelity bond, which fidelity bond shall be in such form and amount as would
permit it to be a qualified ▇▇▇▇▇▇ ▇▇▇ seller-servicer of multifamily mortgage
loans, or in such other form and amount as would not cause an Adverse Rating
Event with respect to the Certificates (as evidenced in writing from each Rating
Agency). Each of the Master Servicer and the Special Servicer shall be deemed to
have complied with the foregoing provision if an Affiliate thereof has such
fidelity bond coverage and, by the terms of such fidelity bond, the coverage
afforded thereunder extends to the Master Servicer or the Special Servicer, as
the case may be.
Subject to the third paragraph of this Section 3.07(c), each of the
Master Servicer and the Special Servicer shall at all times during the term of
this Agreement (or, in the case of the Special Servicer, at all times during the
term of this Agreement in which Specially Serviced Mortgage Loans and/or REO
Properties are part of the Trust Fund) also keep in force with Qualified
Insurers having (or whose obligations are guaranteed or backed, in writing, by
entities having) a "claims paying ability" or "financial strength" rating, as
applicable, of at least "[___]" from [___] and "[___]" from [___] (or, if not
then rated by [___], then at least "[___]" by [______]) (or, in the case of
either Rating Agency, such lower rating as will not result in an Adverse Rating
Event with respect to the Certificates, as evidenced in writing by such Rating
Agency), a policy or policies of insurance covering loss occasioned by the
errors and omissions of its officers, employees and agents in connection with
its servicing obligations hereunder, which policy or policies shall be in such
form and amount as would permit it to be a qualified ▇▇▇▇▇▇ Mae seller-servicer
of multifamily mortgage loans, or in such other form and amount as would not
cause an Adverse Rating Event with respect to the Certificates (as evidenced in
writing from each Rating Agency). Each of the Master Servicer and the Special
Servicer shall be deemed to have complied with the foregoing provisions if an
Affiliate thereof has such insurance and, by the terms of such policy or
policies, the coverage afforded thereunder extends to the Master Servicer or the
Special Servicer, as the case may be.
Notwithstanding the foregoing, for so long as the long-term debt
obligations of the Master Servicer or Special Servicer or its corporate parent,
as the case may be, are rated at least "[___]" from [___] (if then rated by
[___], and if not then rated by [___], then an equivalent rating by at least one
additional nationally recognized statistical rating agency besides [___]) and
"[___]" from [___] (or, in the case of any such Rating Agency, such lower rating
as will not result in an Adverse Rating Event with respect to the Certificates,
as evidenced in writing by such Rating Agency), such Person may self-insure with
respect to the risks described in this Section 3.07(c).
(d) In the event that either of the Master Servicer or the Special
Servicer has actual knowledge of any event (an "Insured Environmental Event")
giving rise to a claim under any Environmental Insurance Policy in respect of
any Environmentally Insured Mortgage Loan for which the Mortgagor has not filed
a claim or in respect of an REO Property, the Master Servicer shall notify the
Special Servicer if such Mortgage Loan is a Specially Serviced Mortgage Loan,
and the Special Servicer shall notify the Master Servicer in all cases. Upon
becoming aware of such Insured Environmental Event, the Master Servicer, in the
case of a Performing Mortgage Loan, and the Special Servicer, in the case of a
Specially Serviced Mortgage Loan or an REO Property, in accordance with the
terms of such Environmental Insurance Policy and the Servicing Standard, shall
timely make a claim thereunder with the appropriate insurer and shall take such
other actions necessary under such Environmental Insurance Policy in order to
realize the full value thereof for the benefit of the Certificateholders. With
respect to each Environmental Insurance Policy in respect of an Environmentally
Insured Mortgage Loan, the Master Servicer (in the case of any such Mortgage
Loan that is a Performing Mortgage Loan) and the Special Servicer (in the case
of any such Mortgage Loan that is a Specially Serviced Mortgage Loan or in the
case of an REO Property) shall each review and familiarize itself with the terms
and conditions relating to enforcement of claims and shall, in the event the
Master Servicer or the Special Servicer has actual knowledge of an Insured
Environmental Event giving rise to a claim under such policy, monitor the dates
by which any claim must be made or any action must be taken under such policy to
realize the full value thereof for the benefit of the Certificateholders.
The Master Servicer (in the case of Performing Mortgage Loans) and
the Special Servicer (in the case of Specially Serviced Mortgage Loans and REO
Properties) shall each abide by the terms and conditions precedent to payment of
claims under the Environmental Insurance Policies with respect to the
Environmentally Insured Mortgage Loans and take all such actions as may be
required to comply with the terms and provisions of such policies in order to
maintain such policies in full force and effect and to make claims thereunder.
In the event that either the Master Servicer or the Special Servicer
receives notice of a termination of any Environmental Insurance Policy with
respect to an Environmentally Insured Mortgage Loan, then the party receiving
such notice shall, within five Business Days after receipt thereof, provide
written notice of such termination to the other such party and the Trustee. Upon
receipt of such notice, the Master Servicer, with respect to a Performing
Mortgage Loan, or the Special Servicer, with respect to a Specially Serviced
Mortgage Loan or an REO Property, shall address such termination in accordance
with Section 3.07(a). Any legal fees, premiums or other out-of-pocket costs
incurred in accordance with the Servicing Standard in connection with enforcing
the obligations of the Mortgagor under any Environmental Insurance Policy or a
resolution of such termination of an Environmental Insurance Policy shall be
paid by the Master Servicer and shall be reimbursable to it as a Servicing
Advance.
The Master Servicer (with respect to Performing Mortgage Loans) and
the Special Servicer (with respect to Specially Serviced Mortgage Loans) shall
monitor the actions, and enforce the obligations, of the related Mortgagor under
each Environmentally Insured Mortgage Loan insofar as such actions/obligations
relate to (i) to the extent consistent with Section 3.07(a), the maintenance
(including, without limitation, any required renewal) of an Environmental
Insurance Policy with respect to the related Mortgaged Property or (ii)
environmental testing or remediation at the related Mortgaged Property.
Section 3.08 Enforcement of Due-on-Sale and Due on Encumbrance
Provisions.
(a) In the event that the Master Servicer receives a request from a
Mortgagor pursuant to the provisions of any Performing Mortgage Loan that
expressly permit, with the lender's consent, subject to the conditions described
in the Mortgage Loan documents, the transfer of the related Mortgaged Property
to, and assumption of such Mortgage Loan by, another Person or transfers of
certain interests in such Mortgagor, the Master Servicer shall promptly obtain
relevant information for purposes of evaluating such request. For the purpose of
the foregoing sentence, the term "expressly permits" means outright permission
to assign, permission to assign upon satisfaction of certain conditions or
prohibition against assignment except upon the satisfaction of stated
conditions. If the Master Servicer recommends to approve such transfer and/or
assumption, the Master Servicer shall promptly provide to the Special Servicer a
copy of such recommendation (which shall include the reason therefor) and the
materials upon which such recommendation is based. The Special Servicer shall
have the right hereunder, within 15 days of receipt of such recommendation and
supporting materials and any other materials reasonably requested by the Special
Servicer, to reasonably withhold or, subject to Section 3.08(b), Section 3.08(c)
and Section 6.11, grant consent to any such request for such transfer and/or
assumption in accordance with the terms of the Mortgage Loan and this Agreement,
including, without limitation, the Servicing Standard. If the Special Servicer
does not respond within such 15 day period, the Special Servicer's consent shall
be deemed granted. If the Special Servicer consents or is deemed to have
consented to such proposed transfer and/or assumption, the Master Servicer shall
process such request of the related Mortgagor; and, in the case of a transfer of
the related Mortgaged Property to, and assumption of such Mortgage Loan by,
another Person, the Master Servicer shall be authorized to enter into an
assumption or substitution agreement with the Person, which shall be a Single
Purpose Entity, to whom the related Mortgaged Property has been or is proposed
to be conveyed and/or release the original Mortgagor from liability under the
related Mortgage Loan and substitute as obligor thereunder the Person to whom
the related Mortgaged Property has been or is proposed to be conveyed; provided,
however, that the Master Servicer shall not enter into any such agreement to the
extent that any terms thereof would result in an Adverse REMIC Event or create
any lien on a Mortgaged Property that is senior to, or on parity with, the lien
of the related Mortgage. The Master Servicer shall notify the Trustee, the
Special Servicer, each Rating Agency of any assumption or substitution agreement
executed pursuant to this Section 3.08(a) and shall forward thereto a copy of
such agreement together with a Review Package. Subject to the terms of the
related loan documents, no assumption of a Cross Collateralized Mortgage Loan
shall be made without the assumption of all other Mortgage Loans making up the
related Cross Collateralized Group. Further, subject to the terms of the related
loan documents and applicable law, no assumption of a Mortgage Loan shall be
made or transfer of interest in a Mortgagor approved, unless all costs in
connection therewith, including any arising from seeking Rating Agency
confirmation, are paid by the related Mortgagor.
(b) Other than with respect to a transfer and assumption referred to
in subsection (a) above, if any Mortgage Loan contains a provision in the nature
of a "due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the lender's
option) become due and payable upon the sale or other transfer of an
interest in the related Mortgaged Property or related Mortgagor, or
(ii) provides that such Mortgage Loan may not be assumed without the
consent of the lender in connection with any such sale or other transfer,
then the Special Servicer on behalf of the Trustee (as mortgagee of record on
behalf of the Certificateholders), shall, to the extent permitted by applicable
law, enforce such restrictions, unless the Special Servicer has determined in
its reasonable, good faith judgment, that a waiver of such restrictions would be
in accordance with the Servicing Standard (as evidenced by an Officer's
Certificate setting forth the basis for such determination delivered, together
with a Review Package in respect thereof, to the Trustee, the Master Servicer
and each Rating Agency); provided that any such waiver of such restrictions
shall be subject to Section 6.11. In addition, the Special Servicer may not
waive any "due-on-sale" provision unless:
(x) the Special Servicer, as the case may be, shall have
received prior written confirmation from each Rating
Agency that such action would not result in an Adverse
Rating Event or
(y) the related Mortgage Loan (A) represents less than 5% of
the principal balance of all of the Mortgage Loans in
the Trust Fund, (B) has a principal balance that is
equal to or less than $35,000,000 and (C) is not one of
the 10 largest Mortgage Loans in the Mortgage Pool based
on principal balance; and
If the Master Servicer receives a request for consent to a transfer
and assumption of any Mortgage Loan, the Master Servicer shall promptly notify
the Special Servicer of such request and deliver to the Special Servicer all
documents and records (or copies thereof) in the Master Servicer's possession
regarding the proposed transfer and assumption and such other documents in the
Master Servicer's possession (or copies thereof) regarding the related Mortgage
Loans as the Special Servicer shall reasonably require in order to consider the
request.
Upon consent by the Special Servicer to any proposed transfer of a
Mortgaged Property and assumption by the proposed transferee of the related
Mortgage Loan pursuant to this Section 3.08(b), the Special Servicer shall
process the request of the related Mortgagor for such transfer and assumption
and shall be authorized to enter into an assumption or substitution agreement
with the Person, which shall be a Single Purpose Entity, to whom the related
Mortgaged Property has been or is proposed to be conveyed and/or release the
original Mortgagor from liability under the related Mortgage Loan and substitute
as obligor thereunder the Person to whom the related Mortgaged Property has been
or is proposed to be conveyed; provided, however, that the Special Servicer may
not enter into any such agreement to the extent that any terms thereof would
result in an Adverse REMIC Event or create any lien on a Mortgaged Property that
is senior to, or on parity with, the lien of the related Mortgage. The Special
Servicer shall notify the Trustee, the Master Servicer and each Rating Agency,
of any assumption or substitution agreement executed pursuant to this Section
3.08(b) and shall forward thereto a copy of such agreement.
Subject to the terms of the related loan documents, no assumption of
a Cross-Collateralized Mortgage Loan shall be made without the assumption of all
other Mortgage Loans making up the related Cross-Collateralized Group. Further,
subject to the terms of the related loan documents and applicable law, the
Master Servicer or the Special Servicer, as applicable, shall use reasonable
efforts to ensure that all costs in connection with any assumption, including
any arising from seeking Rating Agency confirmation, are paid by the related
Mortgagor. To the extent not collected from the related Mortgagor, any rating
agency charges in connection with the foregoing shall be paid by the Master
Servicer as a Servicing Advance. In connection with any request for rating
confirmation from a Rating Agency pursuant to this Section 3.08(b), the Special
Servicer shall deliver a Review Package to such Rating Agency. To the extent
permitted by the applicable loan documents and applicable law, the Special
Servicer may charge the related Mortgagor a fee in connection with any
enforcement or waiver contemplated in this subsection (b).
(c) If any Mortgage Loan contains a provision in the nature of a
"due on encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the lender's
option) become due and payable upon the creation of any lien or other
encumbrance on the related Mortgaged Property or interests in the related
Mortgagor, or
(ii) requires the consent of the lender to the creation of any such
lien or other encumbrance on the related Mortgaged Property or any
interest in the related Mortgagor,
then the Special Servicer, on behalf of the Trustee (as mortgagee of record on
behalf of the Certificateholders), shall, to the extent permitted by applicable
law, enforce such restrictions, unless the Special Servicer has determined in
its reasonable, good faith judgment, that a waiver of such restrictions would be
in accordance with the Servicing Standard (as evidenced by an Officer's
Certificate setting forth the basis for such determination delivered, together
with a Review Package in respect thereof, to the Trustee, the Master Servicer
and each Rating Agency); provided that any such waiver of such restrictions
shall be subject Section 6.11. In addition, the Special Servicer may not waive
any "due-on-encumbrance" provision unless:
(1) the Special Servicer shall have received prior written
confirmation from each Rating Agency that such action would not result in
an Adverse Rating Event,
(2) the related Mortgage Loan (A) represents less than 2% the
principal balance of all of the Mortgage Loans in the Trust Fund, (B) has
a principal balance that is equal to or less than $20,000,000, (C) is not
one of the 10 largest mortgage loans in the Mortgage Pool based on
principal balance, (D) does not have an aggregate loan-to-value ratio
(including existing and proposed additional debt) that is equal to or
greater than 85%, and (E) does not have an aggregate debt service coverage
ratio (including the debt service on the existing and proposed additional
debt) that is equal to or less than 1.2x to 1.0x, or
(3) the encumbrance relates to the grant of an easement,
right-of-way or similar encumbrance that the Special Servicer determines
will not have a material adverse impact on the value, use or operation of
the Mortgaged Property or the ability of the borrower to perform its
obligations under the Mortgage Loan.
If the Master Servicer receives a request for consent to an
encumbrance or becomes aware of a further encumbrance on a Mortgaged Property or
becomes aware that there is going to be a further encumbrance on a Mortgaged
Property, the Master Servicer shall promptly notify the Special Servicer of such
request or such encumbrance and deliver to the Special Servicer all documents
and records in the Master Servicer's possession (or copies thereof) regarding
the further encumbrance and such other documents in the Master Servicer's
possession (or copies thereof) regarding the related Mortgage Loans as the
Special Servicer shall reasonably require in order to consider the request.
Further, subject to the terms of the related loan documents and
applicable law, the Master Servicer or the Special Servicer, as applicable,
shall use reasonable efforts to ensure that all costs in connection with any
assumption, including any arising from seeking Rating Agency confirmation, are
paid by the related Mortgagor. To the extent not collected from the related
Mortgagor, the Special Servicer shall use reasonable efforts to ensure that all
costs in connection with any encumbrance, including any arising from seeking
Rating Agency confirmation, are paid by the related Mortgagor. To the extent not
collected from the related Mortgagor, any rating agency charges in connection
with the foregoing shall be paid by the Master Servicer as a Servicing Advance.
In connection with any request for rating confirmation from a Rating Agency
pursuant to this Section 3.08(c), the Special Servicer shall deliver a Review
Package to such Rating Agency. To the extent permitted by the applicable loan
documents and applicable law, the Special Servicer may charge the related
Mortgagor a fee in connection with any enforcement or waiver contemplated in
this subsection (c).
Section 3.09 Realization Upon Defaulted Loans; Required Appraisals;
Appraisal Reduction Calculation.
(a) The Special Servicer shall, subject to Sections 3.09(b),
3.09(c), 3.09(d) and 6.11, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Specially Serviced Mortgage Loans
as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, including
pursuant to Section 3.21. Subject to Section 3.12(d) and Section 3.20(d), the
Special Servicer shall advance all costs and expenses incurred by it in any such
proceedings, and shall be entitled to reimbursement therefor as provided in
Section 3.05(a). The Special Servicer shall be responsible, consistent with the
Servicing Standard, for determining whether to exercise any rights it may have
under the cross-collateralization and/or cross-default provisions of a
Cross-Collateralized Mortgage Loan. Nothing contained in this Section 3.09 shall
be construed so as to require the Special Servicer, on behalf of the
Certificateholders, to make a bid on any Mortgaged Property at a foreclosure
sale or similar proceeding that is in excess of the fair market value of such
property, as determined by the Special Servicer in its reasonable and good faith
judgment taking into account the factors described in Section 3.19 and the
results of any appraisal obtained as provided below in this Section 3.09, all
such bids to be made in a manner consistent with the Servicing Standard.
If and when the Master Servicer or the Special Servicer deems it
necessary and prudent for purposes of establishing the fair market value of any
Mortgaged Property securing a Specially Serviced Mortgage Loan, whether for
purposes of bidding at foreclosure or otherwise, it may have an appraisal
performed with respect to such property by an Independent Appraiser or other
expert in real estate matters, which appraisal shall take into account the
factors specified in Section 3.19, and the cost of which appraisal shall be
covered by, and be reimbursable as, a Servicing Advance; provided that if the
Master Servicer intends to obtain an appraisal in connection with the foregoing,
the Master Servicer shall so notify the Special Servicer and consult with the
Special Servicer regarding such appraisal.
If any Mortgage Loan becomes a Required Appraisal Loan, then the
Special Servicer shall (i) obtain or conduct, as applicable, a Required
Appraisal within 60 days of such Mortgage Loan's becoming a Required Appraisal
Loan (unless a Required Appraisal was obtained or conducted, as applicable, with
respect to such Required Appraisal Loan within the prior 12 months and the
Special Servicer reasonably believes, in accordance with the Servicing Standard,
that no material change has subsequently occurred with respect to the related
Mortgaged Property that would draw into question the applicability of such
Required Appraisal) and (ii) obtain or conduct, as applicable, an update of the
most recent Required Appraisal approximately 12 months following the most recent
Required Appraisal or subsequent update thereof for so long as such Mortgage
Loan or any successor REO Loan, as the case may be, remains a Required Appraisal
Loan. The Special Sericer shall deliver copies of all such Required Appraisals
and updated Required Appraisals to the Trustee and the Master Servicer, in each
such case, promptly following the Special Servicer's receipt of the subject
appraisal, and to the Controlling Class Representative upon request, and based
thereon, the Special Servicer shall calculate and notify the Trustee, the Master
Servicer and the Controlling Class Representative of any resulting Appraisal
Reduction Amount. Such calculations by the Special Servicer shall be subject to
review and confirmation by the Master Servicer, provided that the Master
Servicer may rely on any information provided by the Special Servicer.
The Special Servicer shall advance the cost of each such Required
Appraisal and updated Required Appraisal; provided, however, that such expense
will be subject to reimbursement to the Special Servicer as a Servicing Advance
out of the related Custodial Account pursuant to Section 3.05(a).
Notwithstanding any other provision of this Agreement, no Mortgaged
Property shall be acquired by the Special Servicer on behalf of the
Certificateholders under such circumstances, in such manner or pursuant to such
terms as would, in the reasonable, good faith judgment of the Special Servicer
(exercised in accordance with the Servicing Standard), (i) cause such Mortgaged
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code (unless the portion of such Mortgaged Property
that is not treated as "foreclosure property" and that is held by the Lower-Tier
REMIC at any given time constitutes not more than a de minimis amount of the
assets of the Lower-Tier REMIC within the meaning of Treasury Regulations
Section 1.860D-1(b)(3)(i) and (ii)), or (ii) except as permitted by Section
3.18(a), subject the Trust Fund to the imposition of any federal income taxes
under the Code. Subject to the foregoing, however, a Mortgaged Property may be
acquired through a single member limited liability company if the Special
Servicer determines that such an action is appropriate to protect the Trust from
potential liability.
In addition, the Special Servicer shall not acquire any personal
property pursuant to this Section 3.09 unless either:
(i) such personal property is, in the reasonable, good faith
judgment of the Special Servicer (exercised in accordance with the
Servicing Standard), incident to real property (within the meaning of
Section 856(e)(1) of the Code) so acquired by the Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be covered by, and be reimbursable as, a
Servicing Advance) to the effect that the holding of such personal
property as part of the Trust Fund will not cause the imposition of a tax
on the REMIC Pool under the REMIC Provisions or cause the REMIC Pool to
fail to qualify as a REMIC at any time that any Certificate is
outstanding.
(b) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trustee, obtain title to a Mortgaged Property by foreclosure, deed in lieu of
foreclosure or otherwise, or take any other action with respect to any Mortgaged
Property, if, as a result of any such action, the Trustee, on behalf of the
Certificateholders, could, in the reasonable, good faith judgment of the Special
Servicer, exercised in accordance with the Servicing Standard, be considered to
hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law (a "potentially responsible party"), unless such action is
consistent with Section 6.11 and the Special Servicer has previously determined
(as evidenced by an Officer's Certificate to such effect delivered to the
Trustee that shall specify all of the bases for such determination), in
accordance with the Servicing Standard and based on an Environmental Assessment
of such Mortgaged Property performed by an Independent Person, who regularly
conducts Environmental Assessments, within six months prior to any such
acquisition of title or other action (a copy of which Environmental Assessment
shall be delivered to the Trustee and the Master Servicer, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that it would (taking into
account the coverage provided under any related Environmental Insurance
Policy) maximize the recovery on the related Mortgage Loan to the
Certificateholders (as a collective whole), on a present value basis (the
relevant discounting of anticipated collections that will be distributable
to Certificateholders to be performed at a rate taking into account the
related Mortgage Rate and the risk of collection, in each case), to
acquire title to or possession of the Mortgaged Property and to take such
actions as are necessary to bring the Mortgaged Property into compliance
therewith in all material respects; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could reasonably be
expected to be required, that it would (taking into account the coverage
provided under any related Environmental Insurance Policy) maximize the
recovery on the related Mortgage Loan to the Certificateholders (as a
collective whole), on a present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders
to be performed at a rate taking into account the related Mortgage Rate in
each case), and taking into account the risk of collection to acquire
title to or possession of the Mortgaged Property and to take such actions
with respect to the affected Mortgaged Property.
The Special Servicer shall, in good faith, undertake reasonable
efforts to make the determination referred to in the preceding paragraph and may
conclusively rely on the Environmental Assessment referred to above in making
such determination. The cost of any such Environmental Assessment shall be
covered by, and reimbursable as, a Servicing Advance; and if any such
Environmental Assessment so warrants, the Special Servicer shall perform or
cause to be performed such additional environmental testing as it deems
necessary and prudent to determine whether the conditions described in clauses
(i) and (ii) of the preceding paragraph have been satisfied (the cost of any
such additional testing also to be covered by, and reimbursable as, a Servicing
Advance). The cost of any remedial, corrective or other further action
contemplated by clause (i) and/or clause (ii) of the preceding paragraph, shall
be payable out of the related Custodial Account pursuant to Section 3.05.
(c) If the environmental testing contemplated by Section 3.09(c)
above establishes that any of the conditions set forth in clauses (i) and (ii)
of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a defaulted Mortgage Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property). At such time as it deems
appropriate, the Special Servicer may, on behalf of the Trust, subject to
Section 6.11, release all or a portion of such Mortgaged Property from the lien
of the related Mortgage.
(d) The Special Servicer shall report to the Master Servicer, the
Underwriters and the Trustee monthly in writing as to any actions taken by the
Special Servicer with respect to any Mortgaged Property that represents security
for a defaulted Mortgage Loan as to which the environmental testing contemplated
in Section 3.09(c) above has revealed that any of the conditions set forth in
clauses (i) and (ii) of the first sentence thereof has not been satisfied, in
each case until the earlier to occur of satisfaction of all such conditions and
release of the lien of the related Mortgage on such Mortgaged Property.
(e) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the affected Mortgage Loan permit such an action, and shall, in
accordance with the Servicing Standard, seek such deficiency judgment if it
deems advisable (the cost of which undertaking shall be covered by, and be
reimbursable as, a Servicing Advance).
(f) The Master Servicer shall, with the reasonable cooperation of
the Special Servicer, prepare and file information returns with respect to the
receipt of mortgage interest received with respect to any Mortgage Loan required
by Section 6050H of the Code and, as to any Mortgage Loan, the reports of
foreclosures and abandonments of any Mortgaged Property and the information
returns relating to cancellation of indebtedness income with respect to any
Mortgaged Property required by Sections 6050J and 6050P of the Code. Such
reports shall be in form and substance sufficient to meet the reporting
requirements imposed by Sections 6050H, 6050J and 6050P of the Code.
(g) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Mortgage Loan or REO Property, it shall
promptly notify the Trustee and the Master Servicer. The Special Servicer shall
maintain accurate records, prepared by a Servicing Officer, of each such Final
Recovery Determination (if any) and the basis thereof. Each such Final Recovery
Determination (if any) shall be evidenced by an Officer's Certificate delivered
to the Trustee and the Master Servicer no later than the seventh Business Day
following such Final Recovery Determination.
Section 3.10 Trustee and Custodian to Cooperate; Release of Mortgage
Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Master Servicer or the Special Servicer of a notification that payment in
full shall be escrowed in a manner customary for such purposes, the Master
Servicer or the Special Servicer shall promptly notify the Trustee by a
certification (which certification shall be in the form of a Request for Release
in the form of Exhibit D-1 attached hereto and shall be accompanied by the form
of a release or discharge and shall include a statement to the effect that all
amounts received or to be received in connection with such payment which are
required to be deposited in the appropriate Custodial Account pursuant to
Section 3.04(a) have been or will be so deposited) of a Servicing Officer (a
copy of which certification shall be delivered to the Special Servicer) and
shall request delivery to it of the related Mortgage File. Upon receipt of such
certification and request, the Trustee shall release, or cause any related
Custodian to release, the related Mortgage File to the Master Servicer or
Special Servicer and shall deliver to the Master Servicer or Special Servicer,
as applicable, such release or discharge, duly executed. No expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the Distribution Account or any Custodial Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), the Trustee,
upon request of the Master Servicer and receipt from the Master Servicer of a
Request for Release in the form of Exhibit D-1 attached hereto signed by a
Servicing Officer thereof, or upon request of the Special Servicer and receipt
from the Special Servicer of a Request for Release in the form of Exhibit D-2
attached hereto, shall release, or cause any related Custodian to release, such
Mortgage File (or such portion thereof) to the Master Servicer or the Special
Servicer, as the case may be. Upon return of such Mortgage File (or such portion
thereof) to the Trustee or related Custodian, or the delivery to the Trustee of
a certificate of a Servicing Officer of the Special Servicer stating that such
Mortgage Loan was liquidated and that all amounts received or to be received in
connection with such liquidation that are required to be deposited into the
related Custodial Account pursuant to Section 3.04(a) have been or will be so
deposited, or that the related Mortgaged Property has become an REO Property,
the Request for Release shall be released by the Trustee or related Custodian to
the Master Servicer or the Special Servicer, as applicable.
(c) Within seven Business Days (or within such shorter period (but
no less than three Business Days) as execution and delivery can reasonably be
accomplished if the Special Servicer notifies the Trustee of an exigency) of the
Special Servicer's request therefor, the Trustee shall execute and deliver to
the Special Servicer (or the Special Servicer may execute and deliver in the
name of the Trustee (on behalf of the Certificateholders) based on a limited
power of attorney issued in favor of the Special Servicer pursuant to Section
3.01(b)), in the form supplied to the Trustee, any court pleadings, requests for
trustee's sale or other documents stated by the Special Servicer to be
reasonably necessary to the foreclosure or trustee's sale in respect of a
Mortgaged Property or to any legal action brought to obtain judgment against any
Mortgagor on the Mortgage Note or Mortgage or to obtain a deficiency judgment,
or to enforce any other remedies or rights provided by the Mortgage Note or
Mortgage or otherwise available at law or in equity or to defend any legal
action or counterclaim filed against the Trust Fund, the Master Servicer or the
Special Servicer. Together with such documents or pleadings, the Special
Servicer shall deliver to the Trustee a certificate of a Servicing Officer
requesting that such pleadings or documents be executed by the Trustee and
certifying as to the reason such documents or pleadings are required and that
the execution and delivery thereof by the Trustee (on behalf of the
Certificateholders) will not invalidate or otherwise affect the lien of the
Mortgage, except for the termination of such a lien upon completion of the
foreclosure or trustee's sale. Notwithstanding anything contained herein to the
contrary, neither the Master Servicer nor the Special Servicer shall, without
the Trustee's written consent: (i) initiate any action, suit or proceeding
solely under the Trustee's name without indicating the Master Servicer's or
Special Servicer's, as applicable, representative capacity, or (ii) take any
action with the intent to cause, and that actually causes, the Trustee to be
registered to do business in any state.
Section 3.11 Servicing Compensation; Payment of Expenses.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan, including each Specially Serviced Mortgage Loan, and each
REO Loan. As to each Mortgage Loan and REO Loan, the Master Servicing Fee shall:
(i) accrue from time to time at the related Master Servicing Fee Rate on the
same principal amount as interest accrues from time to time on such Mortgage
Loan or is deemed to accrue from time to time on such REO Loan; and (ii) be
calculated on a 30/360 Basis (or, in the event that a Principal Prepayment in
full or other Liquidation Event shall occur with respect to any such Mortgage
Loan or REO Loan on a date that is not a Due Date, on the basis of the actual
number of days to elapse from and including the most recently preceding related
Due Date to but excluding the date of such Principal Prepayment or Liquidation
Event in a month consisting of 30 days). The Master Servicing Fee with respect
to any such Mortgage Loan or REO Loan shall cease to accrue if a Liquidation
Event occurs in respect thereof. Earned but unpaid Master Servicing Fees shall
be payable monthly, on a loan-by-loan basis, from payments of interest on each
such Mortgage Loan and REO Revenues allocable as interest on each such REO Loan.
The Master Servicer shall be entitled to recover unpaid Master Servicing Fees in
respect of any such Mortgage Loan or REO Loan out of that portion of related
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds allocable as
recoveries of interest, to the extent permitted by Section 3.05(a). The right to
receive the Master Servicing Fee may not be transferred in whole or in part
except in connection with the transfer of all of the Master Servicer's
responsibilities and obligations under this Agreement.
Additional servicing compensation in the form of (i) Net Default
Charges, charges for beneficiary statements or demands, amounts collected for
checks returned for insufficient funds, and any similar fees (excluding
Prepayment Premiums and Yield Maintenance Charges), in each case to the extent
actually paid by a Mortgagor with respect to any Mortgage Loan and accrued
during the time that such Mortgage Loan was not a Specially Serviced Mortgage
Loan, (ii) 100% of each modification fee or extension fee actually paid by a
Mortgagor with respect to a modification, consent, extension, waiver or
amendment agreed to by the Master Servicer pursuant to Section 3.21(c) (except
that the Master Servicer shall be entitled to only 50% of each modification fee
or extension fee actually paid by the Mortgagor with respect to a modification,
consent, waiver or amendment agreed to by the Master Servicer pursuant to this
Agreement if the approval or consent of the Special Servicer (or the Directing
Holder with respect to an extension of maturity granted pursuant to Section
3.21(c)) was required in connection therewith) and 100% of any fee actually paid
by a Mortgagor in connection with a defeasance of a Mortgage Loan as
contemplated under Section 3.21(k), and (iii) 50% of any and all assumption fees
and 100% of any and all assumption application fees up to $5,000 in connection
with each assumption, transfer or substitution and 50% of the excess, if any, of
the assumption application fees received with respect to each assumption,
transfer or substitution over $5,000, in each case, actually paid by a Mortgagor
in accordance with the related Mortgage Loan documents, with respect to any
transfer of a Mortgaged Property or any assumption or substitution agreement
entered into by the Master Servicer on behalf of the Trust pursuant to Section
3.08(a) or paid by a Mortgagor with respect to any transfer of an interest in a
Mortgagor pursuant to Section 3.08(a), shall be retained by the Master Servicer
or promptly paid to the Master Servicer by the Special Servicer and such
additional servicing compensation is not required to be deposited in any
Custodial Account. The Master Servicer shall also be entitled to additional
servicing compensation in the form of (i) Prepayment Interest Excesses; (ii)
interest or other income earned on deposits in the Custodial Accounts in
accordance with Section 3.06(b) (but only to the extent of the Net Investment
Earnings, if any, with respect to each such account for each Collection Period);
and (iii) to the extent not required to be paid to any Mortgagor under
applicable law, any interest or other income earned on deposits in the Servicing
Accounts, the Reserve Accounts and the Defeasance Deposit Account maintained
thereby (but only to the extent of the Net Investment Earnings, if any, with
respect to each such account for each Collection Period).
(b) Except as provided in the last sentence of this paragraph, as
compensation for its activities hereunder, the Special Servicer shall be
entitled to receive the Special Servicing Fee with respect to each Specially
Serviced Mortgage Loan and each REO Loan that was previously a Mortgage Loan.
With respect to each such Specially Serviced Mortgage Loan and REO Loan, for any
calendar month (or portion thereof), the Special Servicing Fee shall: (i) accrue
from time to time at the Special Servicing Fee Rate on the same principal amount
as interest accrues from time to time on such Mortgage Loan or is deemed to
accrue from time to time on such REO Loan; and (ii) be calculated on a 30/360
Basis (or, in the event that a Principal Prepayment in full or other Liquidation
Event shall occur with respect to any such Specially Serviced Mortgage Loan or
REO Loan on a date that is not a Due Date, on the basis of the actual number of
days to elapse from and including the most recently preceding related Due Date
to but excluding the date of such Principal Prepayment or Liquidation Event, in
a month consisting of 30 days and, in the case of any other partial period that
does not run from one Due Date through and including the day immediately
preceding the next Due Date, on the basis of the actual number of days in such
period in a month consisting of 30 days). The Special Servicing Fee with respect
to any such Specially Serviced Mortgage Loan or REO Loan shall cease to accrue
as of the date a Liquidation Event occurs in respect thereof or it becomes a
Corrected Mortgage Loan. Earned but unpaid Special Servicing Fees shall be
payable monthly out of general collections on the Mortgage Loans and any REO
Properties on deposit in the appropriate Custodial Account pursuant to Section
3.05(a).
As further compensation for its services hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan. As to each such Corrected Mortgage Loan, the Workout
Fee shall be payable from, and shall be calculated by application of the Workout
Fee Rate to, all collections of principal, interest (other than Default
Interest), Prepayment Premiums and/or Yield Maintenance Charges received on such
Mortgage Loan for so long as it remains a Corrected Mortgage Loan; provided that
no Workout Fee shall be payable from, or based upon the receipt of, Liquidation
Proceeds collected in connection with the purchase of any such Specially
Serviced Mortgage Loan or REO Property by a Purchase Option Holder pursuant to
Section 3.19, by the Depositor, each Mortgage Loan Seller, the Special Servicer,
a Controlling Class Certificateholder or the Master Servicer pursuant to Section
9.01, by the Mortgage Loan Seller pursuant to Section 2.03(a) within the time
period provided for therein, or by the holder of a related mezzanine loan
pursuant to a purchase right in connection with a Mortgage Loan default as set
forth in the related intercreditor agreement, or out of any Condemnation
Proceeds. The Workout Fee with respect to any Corrected Mortgage Loan will cease
to be payable if such Corrected Mortgage Loan again becomes a Specially Serviced
Mortgage Loan or if the related Mortgaged Property becomes an REO Property;
provided that a new Workout Fee will become payable if and when the particular
Mortgage Loan again becomes a Corrected Mortgage Loan. If the Special Servicer
is terminated or removed other than for cause (and other than as a result of an
Event of Default under Sections 7.01(a)(x), 7.01(a)(xi) or 7.01(a)(xii)) or
resigns in accordance with the first sentence of the first paragraph of Section
6.04, it shall retain the right to receive any and all Workout Fees payable in
respect of (i) 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, removal or resignation and (ii) any Specially Serviced Mortgage
Loan for which the Special Servicer has resolved the circumstances and/or
conditions causing any such Mortgage Loan to be a Specially Serviced Mortgage
Loan except that the requirement for three consecutive full and timely Monthly
Payments with respect to such Mortgage Loan has not yet been satisfied as of the
date of such termination or resignation but is subsequently satisfied and such
Mortgage Loan otherwise meets the requirements of a Corrected Mortgage Loan,
with the Workout Fee with respect to such Mortgage Loan payable only after such
requirements have been met (including the requirement that three payments be
made) (and any successor Special Servicer shall not be entitled to any portion
of such Workout Fees), in each case until the Workout Fee for any such Mortgage
Loan ceases to be payable in accordance with the preceding sentence.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive the Liquidation Fee with respect to
(i) each Specially Serviced Mortgage Loan as to which it receives a full,
partial or discounted payoff, (ii) each Specially Serviced Mortgage Loan that
was repurchased by a Mortgage Loan Seller, and (iii) each Specially Serviced
Mortgage Loan and REO Property as to which it receives Liquidation Proceeds, in
each case, subject to the provisos to the next sentence. 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 Liquidation Proceeds
(exclusive of any portion of such payoff or proceeds that represents Default
Interest); provided that no Liquidation Fee shall be payable (i) with respect to
any such Specially Serviced Mortgage Loan that becomes a Corrected Mortgage Loan
(unless it is subsequently liquidated in connection with a subsequent event that
causes it to become a Specially Serviced Mortgage Loan and a Liquidation Fee
would be payable in connection with such liquidation), or (ii) from, or based
upon the receipt of, Liquidation Proceeds collected in connection with the
purchase of any such Specially Serviced Mortgage Loan or REO Property by a
Purchase Option Holder pursuant to Section 3.19, by the Depositor, a Mortgage
Loan Seller, the Special Servicer, a Controlling Class Certificateholder or the
Master Servicer pursuant to Section 9.01, by a Mortgage Loan Seller pursuant to
Section 2.03(a) in connection with a Material Document Defect or a Material
Breach (within the applicable cure period contained in Section 2.03 with respect
to the Material Document Defect or Material Breach, as applicable, that gave
rise to the particular repurchase obligation), or by the holder of a related
mezzanine loan pursuant to a purchase right in connection with a Mortgage Loan
default as set forth in the related intercreditor agreement within 60 days after
the purchase right is first exercisable.
If the Special Servicer is terminated or resigns in accordance with
Section 6.09 or Section 6.04, respectively, it shall retain the right to receive
any and all Workout Fees payable in respect of (i) any Mortgage Loan that became
a Corrected Mortgage Loan during the period that it acted as Special Servicer
and was still a Corrected Mortgage Loan at the time of such termination or
resignation and (ii) any Specially Serviced Mortgage Loan for which the Special
Servicer has resolved the circumstances and/or conditions causing any such
Mortgage Loan to be a Specially Serviced Mortgage Loan except that the
requirement of three consecutive full and timely Monthly Payments with respect
to such Mortgage Loan has not yet been satisfied as of the date of such
termination or resignation and such Mortgage Loan otherwise meets the
requirements of a Corrected Mortgage Loan, with the Workout Fee with respect to
such Mortgage Loan payable only after such requirements have been met (including
the requirement that three payments be made) (and any successor Special Servicer
shall not be entitled to any portion of such Workout Fees), in each case until
the Workout Fee for any such Mortgage Loan ceases to be payable in accordance
with this Agreement.
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 with respect to such Mortgage Loan.
The Special Servicer's right to receive the Special Servicing Fee,
the Workout Fee and the Liquidation Fee may not be transferred in whole or in
part except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement.
(c) Additional special servicing compensation in the form of (i) Net
Default Charges actually collected on the Mortgage Pool that accrued with
respect to a Specially Serviced Mortgage Loan or an REO Loan, (ii) with respect
to any Specially Serviced Mortgage Loan, 100% of any and all assumption fees,
assumption application fees and other applicable fees, actually paid by a
Mortgagor in accordance with the related Mortgage Loan documents, with respect
to any transfer of the Mortgaged Property or any assumption or substitution
agreement entered into by the Special Servicer on behalf of the Trust pursuant
to Section 3.08(b) or paid by a Mortgagor with respect to any transfer of an
interest in a Mortgagor pursuant to Section 3.08(b), (iii) with respect to any
Performing Mortgage Loan, 50% of the excess, if any, of any assumption
application fees over $5,000 received by the Master Servicer with respect to
each assumption, transfer or substitution, and 50% of any and all assumption
fees, in each case actually paid by the Mortgagor in accordance with the related
Mortgage Loan documents with respect to any transfer of a Mortgaged Property or
any assumption or substitution agreement entered into by the Master Servicer on
behalf of the Trust pursuant to Section 3.08(a) or paid by the Mortgagor with
respect to any transfer of an interest in a Mortgagor pursuant to Section
3.08(a), (iv) any and all assumption fees, modification fees, consent fees,
extension fees and similar fees actually collected on the Mortgage Loans that
are not otherwise payable to the Master Servicer as additional servicing
compensation pursuant to Section 3.11(a) and (v) 50% of each modification fee or
extension fee actually paid by the Mortgagor with respect to a modification,
consent, waiver or amendment agreed to by the Master Servicer pursuant to this
Agreement if the approval or consent of the Special Servicer (or the Directing
Holder with respect to an extension of maturity granted pursuant to Section
3.21(c)) was required in connection therewith and 100% of any modification fee
or extension fee and any other applicable fee that is actually paid by the
Mortgagor in connection with an extension of the maturity date of a Performing
Mortgage Loan approved by the Special Servicer in accordance with Section
3.21(d), shall be retained by the Special Servicer or promptly paid to the
Special Servicer by the Master Servicer, as the case may be, and shall not be
required to be deposited in any Custodial Account pursuant to Section 3.04(a).
The Special Servicer shall also be entitled to additional special servicing
compensation in the form of interest or other income earned on deposits in any
of the REO Accounts, if established, in accordance with Section 3.06(b) (but
only to the extent of the Net Investment Earnings, if any, with respect to such
account for each Collection Period).
(d) The Master Servicer and the Special Servicer shall each be
required to pay out of its own funds all expenses incurred by it in connection
with its servicing activities hereunder (including payment of any amounts due
and owing to the Primary Servicer or any of its Sub-Servicers and the premiums
for any blanket policy obtained by it insuring against hazard losses pursuant to
Section 3.07(b)), if and to the extent such expenses are not payable directly
out of any of the Custodial Accounts or, in the case of the Special Servicer,
any of the REO Accounts, and neither the Master Servicer nor the Special
Servicer shall be entitled to reimbursement for such expenses except as
expressly provided in this Agreement.
Section 3.12 Certain Matters Regarding Servicing Advances.
(a) If the Master Servicer or Special Servicer is required under any
provision of this Agreement to make a Servicing Advance, but neither does so
within 15 days after such Advance is required to be made, the Trustee shall, if
it has actual knowledge of such failure on the part of the Master Servicer or
Special Servicer, as the case may be, give written notice of such failure, as
applicable, to the Master Servicer or the Special Servicer. If such Servicing
Advance is not made by the Master Servicer or the Special Servicer, as
applicable, within three Business Days after such notice is given to the Master
Servicer or the Special Servicer, as applicable, then (subject to Section
3.12(d)) the Trustee shall make such Servicing Advance.
(b) The Master Servicer, the Special Servicer and the Trustee shall
each be entitled to receive interest at the Reimbursement Rate in effect from
time to time, compounded annually, accrued on the amount of each Servicing
Advance made thereby (with its own funds) for so long as such Servicing Advance
is outstanding, such interest to be payable: (i) out of any Default Charges on
deposit in the Custodial Account that were collected on or in respect of the
related Mortgage Loan during the same Collection Period in which such Servicing
Advance is reimbursed; and (ii) to the extent that such Default Charges are
insufficient, but not before the related Advance has been reimbursed pursuant to
this Agreement, out of general collections on the Mortgage Loans and REO
Properties on deposit in the Custodial Account.
(c) The Master Servicer shall reimburse itself, the Special Servicer
or the Trustee, as appropriate and in accordance with Section 3.03, Section
3.05(a), Section 3.05(e), for any Servicing Advance as soon as practicable after
funds available for such purpose are deposited in the related Custodial Account.
(d) Notwithstanding anything herein to the contrary, none of the
Master Servicer, the Special Servicer or the Trustee shall be required to make
out of its own funds any Servicing Advance that would, if made, constitute a
Nonrecoverable Servicing Advance. The determination by either the Master
Servicer or the Special Servicer that it has made a Nonrecoverable Servicing
Advance or that any proposed Servicing Advance, if made, would constitute a
Nonrecoverable Servicing Advance, shall be made in accordance with the Servicing
Standard and shall be evidenced by an Officer's Certificate delivered promptly
to the Trustee and the Depositor, setting forth the basis for such
determination, together with a copy of any appraisal of the related Mortgaged
Property or REO Property, as the case may be (which appraisal shall be an
expense of the Trust, shall take into account the factors specified in Section
3.19 and shall have been conducted by an Independent Appraiser in accordance
with the standards of the Appraisal Institute within the twelve months preceding
such determination of nonrecoverability), and further accompanied by related
Mortgagor operating statements and financial statements, budgets and rent rolls
of the related Mortgaged Property (to the extent available and/or in the Master
Servicer's or the Special Servicer's possession) and any engineers' reports,
environmental surveys or similar reports that the Master Servicer or the Special
Servicer may have obtained and that support such determination. If the Master
Servicer intends to obtain an appraisal in connection with the foregoing, the
Master Servicer shall so notify the Special Servicer and consult with the
Special Servicer regarding such appraisal. The Trustee shall be entitled to
rely, conclusively, on any determination by the Master Servicer or the Special
Servicer that a Servicing Advance, if made, would be a Nonrecoverable Advance;
provided, however, that if the Master Servicer or the Special Servicer has
failed to make a Servicing Advance for reasons other than a determination by the
Master Servicer or the Special Servicer, as applicable, that such Servicing
Advance would be a Nonrecoverable Advance or the Trustee, as applicable, shall
make such Servicing Advance within the time periods required by Section 3.12(a)
unless the Trustee, in good faith, makes a determination that such Servicing
Advance would be a Nonrecoverable Advance. In addition, the Master Servicer and
Special Servicer shall consider Workout-Delayed Reimbursement Amounts in respect
of prior Servicing Advances on the applicable Mortgage Loan that have not been
repaid by the related Mortgagor for the purposes of nonrecoverability
determinations as if such amounts were unreimbursed Servicing Advances.
(e) Notwithstanding anything set forth herein to the contrary, the
Master Servicer shall (at the direction of the Special Servicer if a Specially
Serviced Mortgage Loan or an REO Property is involved) pay directly out of the
Custodial Account, any servicing expense that, if advanced by the Master
Servicer or the Special Servicer, would constitute a Nonrecoverable Servicing
Advance; provided that the Master Servicer (or the Special Servicer, if a
Specially Serviced Mortgage Loan or an REO Property is involved) has determined
in accordance with the Servicing Standard that making such payment, in the case
of withdrawals from the Custodial Account, is in the best interests of the
Certificateholders (as a collective whole) or, in the case of a Custodial
Account, is in the best interests of the Certificateholders, as evidenced in
each case by an Officer's Certificate delivered promptly to the Trustee, the
Depositor and the Controlling Class Representative, setting forth the basis for
such determination and accompanied by any information that such Person may have
obtained that supports such determination. A copy of any such Officer's
Certificate (and accompanying information) of the Master Servicer shall also be
promptly delivered to the Special Servicer, and a copy of any such Officer's
Certificate (and accompanying information) of the Special Servicer shall also be
promptly delivered to the Master Servicer. The Master Servicer may conclusively
rely on any information in this regard provided by the Special Servicer (if
other than the Master Servicer or an Affiliate thereof).
(f) Notwithstanding anything to the contrary in this Agreement, the
Master Servicer shall not waive any fees that would be due or partially due to
the Special Servicer without the Special Servicer's consent and the Special
Servicer shall not waive any fees that would be due or partially due to the
Master Servicer without the Master Servicer's consent.
Section 3.13 Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as practicable after the
related Mortgage Loan becomes a Specially Serviced Mortgage Loan and annually
thereafter for so long as the related Mortgage Loan remains a Specially Serviced
Mortgage Loan, the cost of which shall be paid by the Special Servicer and shall
be reimbursable to the Special Servicer as a Servicing Advance or, if such
Servicing Advance would be a Nonrecoverable Advance, shall be paid out of the
Custodial Account as an Additional Trust Fund Expense. In addition, the Special
Servicer shall perform or cause to be performed a physical inspection of each of
the REO Properties at least once per calendar year, the cost of which shall be
paid by the Special Servicer and shall be reimbursable to the Special Servicer
as a Servicing Advance or, if such Servicing Advance would be a Nonrecoverable
Advance, shall be paid out of the Custodial Account as an Additional Trust Fund
Expense. Beginning in Mortgage Loan, the Master Servicer shall at its expense
perform or cause to be performed a physical inspection of each Mortgaged
Property securing a Performing Mortgage Loan: (i) at least once every two
calendar years in the case of Mortgaged Properties securing Mortgage Loans that
have outstanding principal balances of (or Mortgaged Properties having allocated
loan amounts of) $2,000,000 or less; and (ii) at least once every calendar year
in the case of all other such Mortgaged Properties; provided, that the Master
Servicer will not be required to perform or cause to be performed an inspection
on a Mortgaged Property if such Mortgaged Property has been inspected by the
Master Servicer or the Special Servicer in the preceding six months. The Master
Servicer and the Special Servicer shall each promptly prepare or cause to be
prepared and deliver to the Trustee and each other a written report of each such
inspection performed by it that sets forth in detail the condition of the
Mortgaged Property and that specifies the existence of: (i) any sale, transfer
or abandonment of the Mortgaged Property of which the Master Servicer or the
Special Servicer, as applicable, is aware, (ii) any change in the condition or
value of the Mortgaged Property that the Master Servicer or the Special
Servicer, as applicable, in its reasonable, good faith judgment, considers
material, or (iii) any waste committed on the Mortgaged Property. The Master
Servicer and Special Servicer shall each forward copies of any such inspection
reports prepared by it to the Underwriters and the Controlling Class
Representative upon request, subject to payment of a reasonable fee.
(b) The Special Servicer, in the case of each Specially Serviced
Mortgage Loan and each REO Loan that was previously a Mortgage Loan, and the
Master Servicer, in the case of each Performing Mortgage Loan, shall each,
consistent with the Servicing Standard and to the extent permitted under the
Mortgage Loan Documents, use reasonable efforts to obtain quarterly, annual and
other periodic operating statements and rent rolls with respect to each of the
related Mortgaged Properties and REO Properties. The Special Servicer shall,
promptly following receipt, deliver copies of the operating statements and rent
rolls received or obtained by it to the Master Servicer, and the Master Servicer
shall promptly deliver copies of the operating statements and rent rolls
received or obtained by it to the Trustee, the Special Servicer or any
Controlling Class Certificateholder, in each case upon request. The Special
Servicer shall, promptly following receipt, deliver copies (in either physical
or electronic form) of the materials received or obtained by it pursuant to the
foregoing sentence to the Master Servicer, and the Master Servicer shall
promptly deliver copies (in either physical or electronic form) of all such
materials received or obtained by it pursuant to the foregoing sentence and this
sentence to the Trustee, the Special Servicer and any Controlling Class
Certificateholders, in each case upon request.
Within 30 days after receipt by the Master Servicer of any annual
operating statements with respect to any Mortgaged Property or REO Property, the
Master Servicer with respect to a Performing Mortgage Loan and the Special
Servicer with respect to a Specially Serviced Mortgage Loan shall prepare or
update and forward to the Trustee a CMSA NOI Adjustment Worksheet for such
Mortgaged Property or REO Property (with, upon request, the annual operating
statements attached thereto as an exhibit).
The Master Servicer with respect to a Performing Mortgage Loan and
the Special Servicer with respect to a Specially Serviced Mortgage Loan shall
prepare and maintain one CMSA Operating Statement Analysis Report for each
Mortgaged Property and REO Property. The CMSA Operating Statement Analysis
Report for each such Mortgaged Property and REO Property is to be updated by the
Master Servicer or Special Servicer, as applicable, within 30 days after its
receipt of updated operating statements for a Mortgaged Property or REO
Property, as the case may be. The Master Servicer or Special Servicer, as
applicable, shall use the "Normalized" column from the CMSA NOI Adjustment
Worksheet for any such Mortgaged Property or REO Property, as the case may be,
to update and normalize the corresponding annual year-end information in the
CMSA Operating Statement Analysis Report and shall use any annual operating
statements and related data fields received with respect to any such Mortgaged
Property or REO Property, as the case may be, to prepare the CMSA NOI Adjustment
Worksheet for such property. Copies of CMSA Operating Statement Analysis Reports
and CMSA NOI Adjustment Worksheets are to be forwarded to the Trustee
automatically until such time as a Form 15 is filed with respect to the Trust
pursuant to Section 11.06, and are otherwise to be made available by the Master
Servicer to the Trustee, the Special Servicer or any Controlling Class
Certificateholder, in each case upon request.
(c) Not later than 2:00 p.m. (New York City time) on the second
Business Day prior to each Determination Date, the Special Servicer shall
deliver or cause to be delivered to the Master Servicer the following reports
with respect to the Specially Serviced Mortgage Loans and any REO Properties,
providing the required information as of the end of the preceding calendar
month: (i) a CMSA Property File; (ii) a CMSA Comparative Financial Status
Report; and (iii) a CMSA Special Servicer Loan File. Not later than 2:00 p.m.
(New York City time) on the third Business Day prior to each Distribution Date,
the Special Servicer shall deliver or cause to be delivered to the Master
Servicer the following reports with respect to the Specially Serviced Mortgage
Loans, any REO Properties and, to the extent that the subject information
relates to when they were Specially Serviced Mortgage Loans, any Corrected
Mortgage Loans: (i) a CMSA Delinquent Loan Status Report; (ii) a Mortgage Loan
Payoff Notification Report; (iii) a CMSA Historical Liquidation Report; (iv) a
CMSA Historical Loan Modification and Corrected Mortgage Loan Report; (v) a CMSA
REO Status Report; and (vi) a CMSA Mortgage Loan Level Reserve/LOC Report.
(d) Not later than 2:00 p.m. (New York City time) on the first
Business Day prior to each Distribution Date, the Master Servicer shall deliver
or cause to be delivered to the Trustee, and the Trustee shall on such
Distribution Date make copies available to the Rating Agencies, the Special
Servicer and, upon request, any Controlling Class Certificateholder: (i) the
most recent CMSA Historical Loan Modification and Corrected Mortgage Loan
Report, CMSA Historical Liquidation Report, CMSA REO Status Report and CMSA
Mortgage Loan Level Reserve/LOC Report received from the Special Servicer
pursuant to Section 3.13(c); (ii) the most recent CMSA Property File, CMSA
Financial File, CMSA Mortgage Loan Set-up File (if modified), CMSA Delinquent
Loan Status Report, CMSA Comparative Financial Status Report and Loan Payoff
Notification Report (in each case combining the reports prepared by the Special
Servicer and the Master Servicer); and (iii) a CMSA Servicer Watch List with
information that is current as of the related Determination Date with respect to
the Mortgage Loans.
If the Master Servicer determines, in its reasonable judgment, that
information regarding the Mortgage Loans and REO Properties (in addition to the
information otherwise required to be contained in the CMSA Investor Reporting
Package) should be disclosed to Certificateholders and Certificate Owners, then
it shall forward such information in the form of a Supplemental Report to the
Trustee in accordance with Section 4.02(a).
(e) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.13(c) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer, and the Master
Servicer shall deliver to the Trustee (and the Trustee shall make available,
upon request, to the Special Servicer and any Controlling Class
Certificateholder) the reports set forth in Section 3.13(d) in an electronic
format reasonably acceptable to the Master Servicer and the Trustee. The Master
Servicer may, absent manifest error, conclusively rely on the reports to be
provided by the Special Servicer pursuant to Section 3.13(c). The Trustee may,
absent manifest error, conclusively rely on the reports to be provided by the
Master Servicer pursuant to Section 3.13(d). In the case of information or
reports to be furnished by the Master Servicer to the Trustee pursuant to
Section 3.13(d), to the extent that such information is based on reports to be
provided by the Special Servicer pursuant to Section 3.13(c) and/or that such
reports are to be prepared and delivered by the Special Servicer pursuant to
Section 3.13(c), so long as the Master Servicer and the Special Servicer are not
the same Person or Affiliates, the Master Servicer shall have no obligation to
provide such information or reports until it has received such information or
reports from the Special Servicer, and the Master Servicer shall not be in
default hereunder due to a delay in providing the reports required by Section
3.13(d) caused by the Special Servicer's failure to timely provide any report
required under Section 3.13(c) of this Agreement.
(f) The preparation and maintenance by the Master Servicer and the
Special Servicer of all the reports specified in this Section 3.13, including
the calculations made therein, shall be done in accordance with CMSA standards
to the extent applicable thereto.
Section 3.14 [Reserved.]
Section 3.15 [Reserved.]
Section 3.16 Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, the Underwriters, the Rating Agencies, the Depositor, any
Certificateholder and any Certificate Owner (identified as such to the
reasonable satisfaction of the Master Servicer or the Special Servicer, as the
case may be), and to the OTS, the FDIC and any other banking or insurance
regulatory authority that may exercise authority over any Certificateholder or
Certificate Owner (identified as such to the reasonable satisfaction of the
Master Servicer or the Special Servicer, as the case may be), access to any
records regarding the Mortgage Loans and the servicing thereof within its
control, except to the extent it is prohibited from doing so by applicable law
or contract or to the extent such information is subject to a privilege under
applicable law to be asserted on behalf of the Certificateholders. Such access
shall be afforded only upon reasonable prior written request and during normal
business hours at the offices of the Master Servicer or the Special Servicer, as
the case may be, designated by it.
In connection with providing or granting any information or access
pursuant to the prior paragraph to a Certificateholder, a Certificate Owner or
any regulatory authority that may exercise authority over a Certificateholder or
a Certificate Owner, the Master Servicer and the Special Servicer may each
require payment from such Certificateholder or Certificate Owner of a sum
sufficient to cover the reasonable costs and expenses of providing such
information or access, including copy charges and reasonable fees for employee
time and for space; provided that no charge may be made if such information or
access was required to be given or made available under applicable law. In
connection with providing Certificateholders and Certificate Owners access to
the information described in the preceding paragraph, the Master Servicer and
the Special Servicer shall require (prior to affording such access) a written
confirmation executed by the requesting Person substantially in such form as may
be reasonably acceptable to the Master Servicer or the Special Servicer, as the
case may be, generally to the effect that such Person is a Holder of
Certificates or a beneficial holder of Book-Entry Certificates and will keep
such information confidential.
Upon the reasonable request of any Certificateholder, or any
Certificate Owner identified to the Master Servicer to the Master Servicer's
reasonable satisfaction, the Master Servicer may provide (or forward
electronically) (at the expense of such Certificateholder or Certificate Owner)
copies of any operating statements, rent rolls and financial statements obtained
by the Master Servicer or the Special Servicer; provided that, in connection
therewith, the Master Servicer shall require a written confirmation executed by
the requesting Person substantially in such form as may be reasonably acceptable
to the Master Servicer, generally to the effect that such Person is a Holder of
Certificates or a beneficial holder of Book-Entry Certificates and will keep
such information confidential.
Section 3.17 Title to REO Property; REO Accounts.
(a) If title to any Mortgaged Property with respect to a Mortgage
Loan is acquired, the deed or certificate of sale shall be issued to the Trustee
or its nominee on behalf of the Certificateholders. If, pursuant to Section
3.09(b), the Special Servicer formed or caused to be formed, at the expense of
the Trust, a single member limited liability company (of which the Trust is the
sole member) for the purpose of taking title to one or more REO Properties
pursuant to this Agreement, then the deed or certificate of sale with respect to
any such REO Property shall be issued to such single member limited liability
company. The limited liability company shall be a manager-managed limited
liability company, with the Special Servicer to serve as the initial manager to
manage the property of the limited liability company, including any applicable
REO Property, in accordance with the terms of this Agreement as if such property
was held directly in the name of the Trust or Trustee under this Agreement.
The Special Servicer, on behalf of the Trust Fund, shall sell any
REO Property by the end of the third calendar year following the calendar year
in which the Lower-Tier REMIC acquires ownership of its proportionate interest
in such REO Property for purposes of Section 860G(a)(8) of the Code, unless the
Special Servicer either (i) applies, more than 60 days prior to the end of such
third succeeding year, for and is granted an extension of time (an "REO
Extension") by the IRS to sell such REO Property or (ii) obtains for the Trustee
an Opinion of Counsel, addressed to the Trustee, the Special Servicer and the
Master Servicer, to the effect that the holding by the Lower-Tier REMIC of its
proportionate interest in such REO Property subsequent to the end of such third
succeeding year will not result in the imposition of taxes on "prohibited
transactions" (as defined in Section 860F of the Code) of either REMIC Pool or
cause either REMIC Pool to fail to qualify as a REMIC at any time that any
Certificates are outstanding. If the Special Servicer is granted the REO
Extension contemplated by clause (i) of the immediately preceding sentence or
obtains the Opinion of Counsel contemplated by clause (ii) of the immediately
preceding sentence, the Special Servicer shall sell the subject REO Property
within such extended period as is permitted by such REO Extension or such
Opinion of Counsel, as the case may be. Any expense incurred by the Special
Servicer in connection with its obtaining the REO Extension contemplated by
clause (i) of the second preceding sentence or its obtaining the Opinion of
Counsel contemplated by clause (ii) of the second preceding sentence, or for the
creation of and the operating of a single member limited liability company,
shall be covered by, and reimbursable as, a Servicing Advance.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur in
respect of any Mortgaged Property, the Special Servicer shall establish and
maintain one or more accounts (collectively, the "REO Account"), held on behalf
of the Trustee in trust for the benefit of the Certificateholders, for the
retention of revenues and other proceeds derived from each REO Property. The REO
Account shall each be an Eligible Account. The Special Servicer shall deposit,
or cause to be deposited, in the related REO Account, upon receipt, all REO
Revenues, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds
received in respect of any REO Property. Funds in an REO Account may be invested
in Permitted Investments in accordance with Section 3.06. The Special Servicer
shall be entitled to make withdrawals from an REO Account to pay itself, as
additional special servicing compensation in accordance with Section 3.11(c),
interest and investment income earned in respect of amounts held in such REO
Account as provided in Section 3.06(b) (but only to the extent of the Net
Investment Earnings with respect to such REO Account for any Collection Period).
The Special Servicer shall give notice to the Trustee and the Master Servicer of
the location of each REO Account, in each case when first established and of the
new location of any such REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the related REO Account
funds necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
the REO Account relating to such REO Property. On the Business Day following
each Determination Date, the Special Servicer shall withdraw from each REO
Account and deposit into the Custodial Account (or deliver to the Master
Servicer or such other Person as may be designated by the Master Servicer for
deposit into the Custodial Account) the aggregate of all amounts received in
respect of each REO Property during the Collection Period ending on such
Determination Date, net of any withdrawals made out of such amounts pursuant to
the preceding sentence; provided that the Special Servicer may retain in an REO
Account such portion of proceeds and collections in respect of any related REO
Property as may be necessary to maintain a reserve of sufficient funds for the
proper operation, management, leasing, maintenance and disposition of such REO
Property (including the creation of a reasonable reserve for repairs,
replacements, necessary capital replacements and other related expenses), such
reserve not to exceed an amount sufficient to cover such items to be incurred
during the following twelve-month period.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, each REO Account pursuant to Section 3.17(b) or (c).
The Special Servicer shall provide the Master Servicer any information with
respect to each REO Account as is reasonably requested by the Master Servicer.
Section 3.18 Management of REO Property.
(a) Prior to the acquisition by it of title to a Mortgaged Property
with respect to a Mortgage Loan, the Special Servicer shall review the operation
of such Mortgaged Property and determine the nature of the income that would be
derived from such property if it were acquired by the Trust Fund. If the Special
Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged
Property as REO Property would be subject to tax as "net income from
foreclosure property" within the meaning of the REMIC Provisions (such tax
referred to herein as an "REO Tax"), then such Mortgaged Property may be
Directly Operated by the Special Servicer (other than the holding of such
Mortgaged Property for sale to customers in the ordinary course of trade
or business or the performance of any construction work thereon) as REO
Property;
(ii) Directly Operating such Mortgaged Property as REO Property
could result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor
with respect to such property, or another method of operating such
property would not result in income subject to an REO Tax, then the
Special Servicer may (provided, that in the good faith and reasonable
judgment of the Special Servicer, it is commercially reasonable) acquire
such Mortgaged Property as REO Property and so lease or operate such REO
Property; or
(iii) It is reasonable to believe that Directly Operating such
Mortgaged Property as REO Property could result in income subject to an
REO Tax and that no commercially reasonable means exists to operate such
property as REO Property without the Trust Fund incurring or possibly
incurring an REO Tax on income from such property, the Special Servicer
shall deliver to the Tax Administrator, in writing, a proposed plan (the
"Proposed Plan") to manage such property as REO Property. Such plan shall
include potential sources of income, and, to the extent reasonably
possible, estimates of the amount of income from each such source. Upon
request of the Special Servicer, the Tax Administrator shall advise the
Special Servicer of the Tax Administrator's federal income tax reporting
position with respect to the various sources of income that the Trust Fund
would derive under the Proposed Plan. After receiving the information
described in the preceding sentence from the Tax Administrator, the
Special Servicer shall either (A) implement the Proposed Plan (after
acquiring the respective Mortgaged Property as REO Property), with any
amendments required to be made thereto as a result of the Tax
Administrator's tax reporting position or (B) manage and operate such
property in a manner that would not result in the imposition of an REO Tax
on income derived from such property.
The Special Servicer's decision as to how each REO Property, shall
be managed and operated shall be based on the Servicing Standard and, further,
based on the good faith and reasonable judgment of the Special Servicer as to
which means would be in the best interest of the Certificateholders by
maximizing (to the extent commercially reasonable and consistent with Section
3.18(b)) the net after-tax REO Revenues received by the Trust Fund with respect
to such property without materially and adversely affecting the Special
Servicer's ability to promptly sell the REO Property in accordance with this
Agreement and, to the extent consistent with the foregoing, in accordance with
the Servicing Standard. [Neither the Special Servicer nor the Tax Administrator
shall be liable to the Certificateholders, the Trust Fund, the other parties
hereto or each other for errors in judgment made in good faith in the reasonable
exercise of their discretion while performing their duties under this Section
3.18 except as provided in Section 6.03.] In connection with performing their
respective duties under this Section 3.18(a), both the Special Servicer and the
Tax Administrator may consult with counsel and tax accountants, the reasonable
cost of which consultation shall be covered by, and be reimbursable as, a
Servicing Advance to be made by the Special Servicer.
(b) If title to any REO Property, is acquired, the Special Servicer
shall manage, conserve, protect and operate such REO Property for the benefit of
the Certificateholders solely for the purpose of its prompt disposition and sale
in a manner that does not and will not: (i) cause such REO Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code for purposes of Section 860D(a) of the Code; or (ii) except as
contemplated by Section 3.18(a), either result in the receipt by either REMIC
Pool of any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code or result in an Adverse REMIC Event. Subject to the
foregoing, however, the Special Servicer shall have full power and authority to
do any and all things in connection therewith as are consistent with the
Servicing Standard and, consistent therewith, shall withdraw from the applicable
REO Account, to the extent of amounts on deposit therein with respect to such
REO Property, funds necessary for the proper operation, management, maintenance
and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell,
protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the applicable REO Account
in respect of any REO Property are insufficient for the purposes set forth in
the preceding sentence with respect to such REO Property, the Special Servicer,
shall make Servicing Advances in such amounts as are necessary for such purposes
unless the Special Servicer determines, in accordance with the Servicing
Standard, that such payment would be a Nonrecoverable Advance; provided,
however, that the Special Servicer may make any such Servicing Advance without
regard to recoverability if it is a necessary fee or expense incurred in
connection with the defense or prosecution of legal proceedings. The Special
Servicer shall notify the Master Servicer if it shall have made any such
Servicing Advance within the previous 30-day period.
(c) Without limiting the generality of the foregoing, the Special
Servicer shall not, with respect to any REO Property:
(i) enter into, renew or extend any New Lease with respect to any
REO Property, if the New Lease, by its terms would give rise to any income
that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Mortgage Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Except as provided in Section 3.18(a)(i), Directly Operate, or
allow any other Person, other than an Independent Contractor, to Directly
Operate any Mortgaged Property as REO Property on any date more than 90
days after the related REO Acquisition;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Special Servicer, as a Servicing
Advance, [or, if such Servicing Advance would be a Nonrecoverable Advance, shall
be paid out of the Custodial Account as an Additional Trust Fund Expense]) to
the effect that such action would not cause such REO Property to fail to qualify
as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code
for purposes of Section 860D(a) of the Code at any time that it is held by the
Lower-Tier REMIC, in which case the Special Servicer may take such actions as
are specified in such Opinion of Counsel.
(d) The Special Servicer may, and if so required to prevent the REO
Property from failing to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code, shall contract with any Independent Contractor
for the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be
expenses of the Trust Fund) shall be reasonable and customary in
consideration of the nature and locality of such REO Property;
(iii) except as permitted under Section 3.18(a), any such contract
shall require, or shall be administered to require, that the Independent
Contractor, in a timely manner, (A) pay out of related REO Revenues all
costs and expenses incurred in connection with the operation and
management of such REO Property, including those listed in Section 3.18(b)
above, and (B) except to the extent that such revenues are derived from
any services rendered by the Independent Contractor to tenants of such REO
Property that are not customarily furnished or rendered in connection with
the rental of real property (within the meaning of Treasury Regulations
Section 1.856-4(b)(5)), remit all related revenues collected (net of its
fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.18(d) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of such
REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations under Section 3.17 and this Section 3.18 for indemnification of
the Special Servicer by any such Independent Contractor, and nothing in this
Agreement shall be deemed to limit or modify such indemnification. No agreement
entered into pursuant to this Section 3.18(d) shall be deemed a Sub-Servicing
Agreement for purposes of Section 3.23.
Section 3.19 Sale of Mortgage Loans and REO Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may
sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO
Property only (i) on the terms and subject to the conditions set forth in this
Section 3.19, (ii) as otherwise expressly provided in or contemplated by
Sections 2.03(a) and 9.01 of this Agreement, and (iii) in the case of a Mortgage
Loan with a related mezzanine loan, in connection with a Mortgage Loan default
as set forth in the related intercreditor agreement.
(b) Within five Business Days after any Mortgage Loan has become a
Specially Serviced Mortgage Loan, the Special Servicer shall give notice of such
event to the Trustee, and the Trustee will promptly notify each Holder of a
Certificate of the Controlling Class. The Special Servicer, any single Holder or
any group of Certificateholders evidencing a majority of the Voting Rights
allocated to the Controlling Class and any assignees (other than an assignee
whose purchase of such Specially Serviced Mortgage Loan would violate the terms
of any related mezzanine loan intercreditor agreement) of the foregoing parties
(collectively, the "Purchase Option Holders") shall each have the option to
purchase such Specially Serviced Mortgage Loan at a cash price that is at least
equal to the Purchase Price.
(c) If none of the Purchase Option Holders exercises its option to
purchase any Specially Serviced Mortgage Loan as described in subsection (b)
above, then each Purchase Option Holder (other than an assignee whose purchase
of such Specially Serviced Mortgage Loan would violate the terms of any related
mezzanine loan intercreditor agreement or co-lender agreement) will also have
the option to purchase that Specially Serviced Mortgage Loan at a price equal to
the fair value of such Specially Serviced Mortgage Loan (the "FV Price").
Upon receipt of a request from any Purchase Option Holder to
determine the FV Price in contemplation of its intention to exercise its option
to purchase a Specially Serviced Mortgage Loan at a price that is below the
Purchase Price, the Special Servicer shall promptly obtain an MAI appraisal of
the related Mortgaged Property by an Independent Appraiser (unless such an
appraisal was obtained within one year of such date and the Special Servicer has
no knowledge of any circumstances that would materially affect the validity of
such appraisal). Promptly after obtaining such appraisal, the Special Servicer
shall determine the FV Price in accordance with the Servicing Standard and the
provisions of subsection (j) below. Promptly after determining the FV Price, the
Special Servicer shall report such FV Price to the Trustee and each Purchase
Option Holder.
(d) In the event that the Special Servicer determines that it is
willing, or another Purchase Option Holder notifies the Special Servicer that it
is willing, to purchase any Specially Serviced Mortgage Loan (the party
submitting such bid, the "Initial Bidder") at a price equal to or above the FV
Price (a "FV Bid"), the Special Servicer shall notify all other Purchase Option
Holders that it has made or received, as the case may be, such FV Bid (without
disclosing the amount of such FV Bid). All other Purchase Option Holders may
submit competing bids within the ten Business Day period following such notice.
At the conclusion of the above-described ten Business Day period, the Special
Servicer shall accept the highest bid received from any Purchase Option Holder
that is at least equal to the FV Price.
(e) If the Special Servicer accepts the bid of any Purchase Option
Holder, such Purchase Option Holder shall be required to purchase the subject
Specially Serviced Mortgage Loan within ten Business Days of receipt of notice
of such acceptance.
(f) If the Special Servicer has not accepted a FV Bid prior to the
expiration of 120 days from the Special Servicer's most recent determination of
the FV Price and thereafter receives a FV Bid or a request from a Purchase
Option Holder for an updated FV Price, the Special Servicer shall within 45 days
recalculate the FV Price (with no presumption that such FV Price should be
reduced on account of the lack of an FV Bid) and repeat the notice and bidding
procedure provided in subsection (c) above until the purchase option terminates
under subsection (j) below. In connection with such recalculation, the Special
Servicer may obtain an updated Appraisal if it determines that market conditions
or conditions at the mortgaged property warrant an updated Appraisal. In
addition, the Special Servicer shall recalculate the FV Price of any Mortgage
Loan if there has been a material change in circumstances of which the Special
Servicer is aware or the Special Servicer has received new information, either
of which has a material effect on the fair value.
(g) If the party exercising the purchase option at the FV Price for
any Specially Serviced Mortgage Loan is the Special Servicer or an Affiliate
thereof, the Trustee shall verify that the FV Price is at least equal to the
fair value of such Mortgage Loan. In determining whether the FV Price is at
least equal to the fair value of such Mortgage Loan the Trustee will be
permitted to conclusively rely on an appraisal obtained by the Trustee from an
Independent Appraiser at the time it is required to verify the FV Price and/or
the opinion of an Independent expert in real estate matters (including the
Master Servicer) with at least 5 years' experience in valuing or investing in
loans, similar to such Mortgage Loan, that has been selected by the Trustee with
reasonable care at the expense of the Trust Fund.
(h) Any Purchase Option Holder may, once such option is exercisable,
assign its purchase option with respect to any Specially Serviced Mortgage Loan
to a third party other than another Purchase Option Holder or any Person whose
purchase of such Specially Serviced Mortgage Loan would violate any restrictions
contained in any mezzanine intercreditor agreement and upon such assignment such
third party shall have all of the rights that had been granted to the Purchase
Option Holder hereunder in respect of the purchase option. Such assignment shall
only be effective upon written notice (together with a copy of the executed
assignment and assumption agreement) being delivered to the Trustee, the Master
Servicer and the Special Servicer.
(i) In determining the FV Price for any Specially Serviced Mortgage
Loan, the Special Servicer may take into account, among other factors, the
results of any appraisal or updated appraisal that it or the Master Servicer may
have obtained in accordance with this Agreement within the prior twelve months;
the opinions on fair value expressed by Independent investors in mortgage loans
comparable to the subject Specially Serviced Mortgage Loan; the period and
amount of any delinquency on the subject Specially Serviced Mortgage Loan; the
physical condition of the related Mortgaged Property; the state of the local
economy; and the expected recoveries from the subject Specially Serviced
Mortgage Loan if the Special Servicer were to pursue a workout or foreclosure
strategy instead of selling such Mortgage Loan to a Purchase Option Holder.
(j) The purchase option for any Specially Serviced Mortgage Loan
pursuant to this Section 3.19 shall terminate, and shall not be exercisable as
set forth in subsections (b) and (c) above (or if exercised, but the purchase of
the subject Mortgage Loan has not yet occurred, shall terminate and be of no
further force or effect) if and when (i) such Specially Serviced Mortgage Loan
has become a Corrected Mortgage Loan, (ii) the related Mortgaged Property has
become an REO Property or (iii) a Final Recovery Determination has been made
with respect to such Specially Serviced Mortgage Loan.
(k) Until such time as an FV Bid is accepted, the Special Servicer
shall continue to pursue all of the other resolution options available to it
with respect to the Specially Serviced Mortgage Loan in accordance with the
Servicing Standard.
(l) The Special Servicer shall use its best efforts to solicit bids
for each REO Property in such manner that is in accordance with the Servicing
Standard and that is within the time period provided for by Section 3.17(a).
Subject to Section 6.11, the Special Servicer shall accept the first (and, if
multiple bids are received contemporaneously or subsequently, the highest) cash
bid received from any Person that constitutes a fair price for such REO
Property. If the Special Servicer reasonably believes that it will be unable to
realize a fair price for any REO Property within the time constraints imposed by
Section 3.17(a), then (subject to Section 6.11) the Special Servicer shall
dispose of such REO Property upon such terms and conditions as the Special
Servicer shall deem necessary and desirable to maximize the recovery thereon
under the circumstances and, in connection therewith, shall accept the highest
outstanding cash bid, regardless of from whom received.
(m) The Special Servicer shall give the Trustee and the Depositor
prior written notice of its intention to sell any REO Property pursuant to this
Section 3.19.
(n) No Interested Person shall be obligated to submit a bid to
purchase any 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 REO Property pursuant hereto.
(o) Whether any cash bid constitutes a fair price for any REO
Property for purposes of this Section 3.19, shall be determined by the Special
Servicer or, if such cash bid is from an Interested Person, by the Trustee. In
determining whether any bid received from an Interested Person represents a fair
price for any REO Property, the Trustee shall be supplied with and shall be
entitled to rely on the most recent appraisal in the related Servicing File
conducted in accordance with this Agreement within the preceding 12-month period
(or, in the absence of any such appraisal or if there has been a material change
at the subject property since any such appraisal, on a new appraisal to be
obtained by the Special Servicer (the cost of which shall be covered by, and be
reimbursable as, a Servicing Advance)). The appraiser conducting any such new
appraisal shall be an Independent Appraiser selected by the Special Servicer if
neither the Special Servicer nor any Affiliate thereof is bidding with respect
to an REO Property and selected by the Trustee if either the Special Servicer or
any Affiliate thereof is so bidding. Where any Interested Person is among those
bidding with respect to an REO Property, the Special Servicer shall require that
all bids be submitted to it (and, if the Special Servicer or any Affiliate
thereof is bidding, to the Trustee) in writing and be accompanied by a
refundable deposit of cash in an amount equal to 5% of the bid amount. In
determining whether any bid from a Person other than an Interested Person
constitutes a fair price for any REO Property, the Special Servicer shall take
into account the results of any appraisal or updated appraisal that it or the
Master Servicer may have obtained in accordance with this Agreement within the
prior twelve months, and any Independent Appraiser shall be instructed to take
into account, as applicable, among other factors, the occupancy level and
physical condition of the subject REO Property, the state of the local economy
and the obligation to dispose of the subject REO Property within the time period
specified in Section 3.17(a). The Purchase Price for any REO Property shall in
all cases be deemed a fair price. Notwithstanding the other provisions of this
Section 3.19, no cash bid from the Special Servicer or any Affiliate thereof
shall constitute a fair price for any REO Property unless such bid is the
highest cash bid received and at least two independent bids (not including the
bid of the Special Servicer or any Affiliate) have been received. In the event
the bid of the Special Servicer or any Affiliate thereof is the only bid
received or is the higher of only two bids received, then additional bids shall
be solicited. If an additional bid or bids, as the case may be, are received and
the original bid of the Special Servicer or any Affiliate thereof is the highest
of all cash bids received, then the bid of the Special Servicer or such
Affiliate shall be accepted, provided that the Trustee has otherwise determined,
as provided above in this Section 3.19(s), that such bid constitutes a fair
price for any REO Property. Any bid by the Special Servicer shall be
unconditional; and, if accepted, the subject REO Property shall be transferred
to the Special Servicer without recourse, representation or warranty other than
customary representations as to title given in connection with the sale of a
real property.
(p) Subject to Sections 3.19(a) through 3.19(g) above, and further
subject to Section 6.11, the Special Servicer shall act on behalf of the Trustee
in negotiating with independent third parties seeking to purchase an REO
Property and taking any other action necessary or appropriate in connection with
the sale of any Specially Serviced Mortgage Loan or REO Property pursuant to
this Section 3.19, and the collection of all amounts payable in connection
therewith. In connection therewith, the Special Servicer may charge prospective
bidders for any REO Property, and may retain, fees that approximate the Special
Servicer's actual costs in the preparation and delivery of information
pertaining to, or evaluating bids for, such REO Property without obligation to
deposit such amounts into the Custodial Account. Any sale of a Specially
Serviced Mortgage Loan or an REO Property pursuant to this Section 3.19 shall be
final and without recourse to the Trustee or the Trust, and if such sale is
consummated in accordance with the terms of this Agreement, neither the Special
Servicer nor the Trustee shall have any liability to any Certificateholder with
respect to the purchase price therefor accepted by the Special Servicer or the
Trustee.
(q) Any sale of a Specially Serviced Mortgage Loan or an REO
Property pursuant to this Section 3.19 shall be for cash only and shall be on a
servicing released basis.
Section 3.20 Additional Obligations of the Master Servicer;
Obligations to Notify Ground Lessors; the Special Servicer's Right to Request
the Master Servicer to Make Servicing Advances.
(a) The Master Servicer shall deliver to the Trustee for deposit in
the Distribution Account on each Master Servicer Remittance Date, without any
right of reimbursement therefor, an amount equal to the lesser of (i) the
aggregate amount of all Prepayment Interest Shortfalls, if any, incurred in
connection with Principal Prepayments received during the most recently ended
Collection Period with respect to Performing Mortgage Loans in the Mortgage Pool
and (ii) the aggregate of all Master Servicing Fees received by the Master
Servicer during such Collection Period with respect to the entire Mortgage Pool
(but only to the extent of that portion thereof calculated at a rate of 0.01%
per annum with respect to each and every Mortgage Loan and each and every REO
Mortgage Loan that was previously a Mortgage Loan); provided, however, that if
any such Prepayment Interest Shortfall occurs as a result of the Master
Servicer's allowing the Mortgagor to deviate from the terms of the related
Mortgage Loan documents regarding Principal Prepayments, the Master Servicer
shall be obligated to pay an amount equal to the entire Prepayment Interest
Shortfall with respect to the subject Serviced Mortgage Loan without any
limitation of the kind set forth in clause (ii) of this sentence.
(b) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor under a Ground Lease, even if
the corresponding fee interest is encumbered, promptly (and in any event within
60 days) following the Closing Date, notify the related ground lessor of the
transfer of such Mortgage Loan to the Trust Fund pursuant to this Agreement and
inform such ground lessor that any notices of default under the related Ground
Lease should thereafter be forwarded to the Master Servicer.
(c) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor in a hospitality property, not
later than the later of (i) 30 days following the Master Servicer's receipt of
the subject franchise agreement and (ii) the expiration of the period that may
be required for such notice pursuant to the terms of the applicable franchise
documents, if any, notify the related hospitality franchisor of the transfer of
such Mortgage Loan to the Trust Fund pursuant to this Agreement and inform such
hospitality franchisor that any notices of default under the related franchise
agreement should thereafter be forwarded to the Master Servicer (and also to the
Special Servicer if such Mortgage Loan becomes a Specially Serviced Mortgage
Loan).
(d) Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer is required under this Agreement to make any
Servicing Advance but does not desire to do so, the Special Servicer may, in its
sole discretion, request that the Master Servicer make such Servicing Advance,
such request to be made, in writing, at least five (5) Business Days (or, in an
emergency situation or on an urgent basis, two (2) Business Days, provided that
the written request set forth the nature of the emergency or the basis of the
urgency) in advance of the date on which such Servicing Advance is required to
be made hereunder and to be accompanied by such information and documentation
regarding the subject Servicing Advance as the Master Servicer may reasonably
request. The Master Servicer shall have the obligation to make any such
Servicing Advance that it is so requested by the Special Servicer to make,
within five (5) Business Days (or, in an emergency situation or on an urgent
basis, two (2) Business Days) of the Master Servicer's receipt of such request.
If the request is timely and properly made, the Special Servicer shall be
relieved of any obligations with respect to a Servicing Advance that it so
requests the Master Servicer to make (regardless of whether or not the Master
Servicer shall make such Servicing Advance). The Master Servicer shall be
entitled to reimbursement for any Servicing Advance made by it at the direction
of the Special Servicer, together with interest thereon in accordance with
Sections 3.05(a) and 3.12(b), as applicable, at the same time, in the same
manner and to the same extent as the Master Servicer is entitled with respect to
any other Servicing Advances made thereby.
Notwithstanding the foregoing provisions of this Section 3.20(d),
but subject to the provisions of Section 3.12(e), the Master Servicer shall not
be required to make at the direction of the Special Servicer, any Servicing
Advance if the Master Servicer determines in its reasonable, good faith judgment
that such Servicing Advance, although not characterized by the Special Servicer
as a Nonrecoverable Servicing Advance, is in fact a Nonrecoverable Servicing
Advance. The Master Servicer shall notify the Special Servicer in writing of
such determination, which shall be made pursuant to Section 3.12(d). Any request
by the Special Servicer that the Master Servicer make a Servicing Advance shall
be deemed to be a determination by the Special Servicer that such requested
Servicing Advance is not a Nonrecoverable Servicing Advance, and the Master
Servicer and the Trustee shall be entitled to conclusively rely on such
determination. Upon determining that any Servicing Advance previously made with
respect to a Specially Serviced Mortgage Loan or REO Property is a
Nonrecoverable Servicing Advance, the Special Servicer shall report to the
Master Servicer the Special Servicer's determination. The Master Servicer shall
be entitled to conclusively rely on such a determination.
Section 3.21 Modifications, Waivers, Amendments and Consents;
Defeasance.
(a) Subject to Sections 3.21(b) through 3.21(f) below, and further
subject to Section 6.11, the Special Servicer (or, under the limited
circumstances set forth in Section 3.21(c), the Master Servicer) may, on behalf
of the Trustee, agree to any modification, extension, waiver or amendment of any
term of any Mortgage Loan and respond to various Mortgagor requests for consent
on the part of the mortgagee (including the lease reviews and lease consents
related thereto), without the consent of the Trustee, any Certificateholder, the
Master Servicer (in the case of any such action taken by the Special Servicer)
or, except as expressly set forth below, the Special Servicer (in the case of
any such action taken by the Master Servicer).
(b) All modifications, extensions, waivers or amendments of any
Mortgage Loan, including the lease reviews and lease consents related thereto,
shall be in writing and shall be considered and effected in a manner consistent
with the Servicing Standard.
(c) In the case of any Performing Mortgage Loan, and subject to the
rights of the Special Servicer set forth below, the Master Servicer shall be
responsible for responding to any request by a Mortgagor for the consent or
approval of the mortgagee with respect to a modification, extension, waiver or
amendment of any term thereof, provided that such consent or approval or such
modification, extension, waiver or amendment would not (except as permitted by
Sections 3.02(a), 3.03(d), 3.07, 3.08(a) and 3.20(l) hereof) affect the amount
or timing of any of the payment terms of such Mortgage Loan (including payment
terms related to late payment charges), result in the release of the related
Mortgagor from any material term thereunder, waive any rights thereunder with
respect to any guarantor thereof, relate to the release, addition or
substitution of any material collateral for such Mortgage Loan or relate to any
waiver of or granting of consent under a "due-on-sale" or "due-on-encumbrance"
clause. With respect to any action proposed to be taken by the Master Servicer
under this Section 3.21(c) where the thresholds in clauses (i) through (v) of
the next sentence are exceeded, or which involves the situations set forth in
the proviso to the previous sentence, the Special Servicer only may take such
action. To the extent consistent with the foregoing, but subject to Section
3.21(f), the Master Servicer shall also be responsible for the following with
respect to the Performing Mortgage Loans:
(i) consent to subordination of the related Mortgage Loan to an
easement or right of way for utilities, access, parking, public
improvements or another similar purpose, provided the Master Servicer
shall have determined in accordance with the Servicing Standard that such
easement or right of way shall not materially interfere with the then
current use of the related Mortgaged Property, or the security intended to
be provided by such Mortgage, the related Mortgagor's ability to repay the
Mortgage Loan, or materially or adversely affect the value of the related
Mortgaged Property;
(ii) grant waivers of minor covenant defaults (other than financial
covenants) including late financial statements and approving any waiver
affecting the timing of receipt of financial statements from any
Mortgagor; provided that such financial statements are delivered no less
than quarterly and within 60 days of the end of the calendar quarter to
which such financial statements relate;
(iii) grant releases of non-material parcels of a Mortgaged Property
(provided that releases as to which the related Mortgage Loan documents
expressly require the mortgagee thereunder to make releases upon the
satisfaction of certain conditions (which do not provide for lender
consent or lender discretion) shall be made as required by the related
Mortgage Loan documents);
(iv) approve or consent to grants of easements and rights of way
that do not materially affect the use or value of a Mortgaged Property or
the Mortgagor's ability to make any payments with respect to the related
Mortgage Loan;
(v) grant other non-material waivers, consents, modifications or
amendments;
(vi) approve routine leasing activity with respect to leases for
less than the lesser of (A) 50,000 square feet and (B) 20% of the related
Mortgaged Property;
(vii) approve annual budgets for the related Mortgaged Property,
provided that no such budget (A) provides for the payment of operating
expenses in an amount equal to more than 110% of the amounts budgeted
therefor for the prior year or (B) provides for the payment of any
material expenses to any affiliate of the Mortgagor (other than with
respect to the payment of the management fee to any property manager if
such management fee is no more than the management fee in effect on the
Cut off Date); and
(viii) Approving a change of the property manager at the request of
the related Mortgagor, provided that (A) the successor property manager is
not affiliated with the Mortgagor and is a nationally or regionally
recognized manager of similar properties, and (B) the related Mortgage
Loan does not represent 2% or more of the then aggregate principal balance
of the Mortgage Pool;
Except as permitted by Section 3.02(a), Section 3.03(d), Section
3.07, Section 3.08(a), this Section 3.21(c) and Section 3.21(l), the Master
Servicer may not agree to waive, modify or amend any term of any Mortgage Loan
or respond to any Mortgagor requests for mortgagee consent. Furthermore, the
Master Servicer may not agree to any modification, extension, waiver or
amendment of any term of any Mortgage Loan that would cause an Adverse REMIC
Event with respect to either REMIC Pool.
(d) Except as provided in Section 3.02(a), Section 3.07, Section
3.08 or Section 3.21(e), the Special Servicer, on behalf of the Trustee, shall
not agree or consent to any modification, extension, waiver or amendment of any
term of any Mortgage Loan that would:
(i) affect the amount or timing of any scheduled payment of
principal, interest or other amount (including Prepayment Premiums or
Yield Maintenance Charges, but excluding Default Interest and other
amounts payable as additional servicing compensation) payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge or effect the waiver of any
prepayment restriction thereunder or permit a Principal Prepayment during
any period in which the related Mortgage Note prohibits Principal
Prepayments;
(iii) except as expressly contemplated by the related Mortgage or
pursuant to Section 3.09(d), result in a release of the lien of the
Mortgage on any material portion of the related Mortgaged Property without
a corresponding Principal Prepayment in an amount not less than the fair
market value (as determined by an appraisal by an Independent Appraiser
delivered to the Special Servicer at the expense of the related Mortgagor
and upon which the Special Servicer may conclusively rely) of the property
to be released; or
(iv) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impair the security for such Mortgage Loan or reduce
the likelihood of timely payment of amounts due thereon.
[Notwithstanding the prior provisions of this Section 3.21(d), and
subject to the Servicing Standard, and further subject to clause (C) of the
first paragraph of, and the entire second paragraph of, Section 3.21(e) and
Section 6.11, following any extensions of the maturity date of a Performing
Mortgage Loan that the Master Servicer is permitted to approve pursuant to
Section 3.21(c), the Special Servicer may extend the maturity date of a
Performing Mortgage Loan for up to one year (subject to a limit of a total of
four such one-year extensions); provided that the related Mortgagor has failed
to make any Balloon Payment on such Performing Mortgage Loan. In connection with
an extension of the maturity date of a Performing Mortgage Loan approved by the
Special Servicer in accordance with this subsection (d), the Special Servicer
shall process all requests and related documentation and shall be entitled to
retain 100% of any modification fee or extension fee that is actually paid by
the related Mortgagor. The Special Servicer shall promptly notify the Master
Servicer of any extension granted by the Special Servicer in accordance with
this paragraph.]
(e) Notwithstanding Section 3.21(d), but subject to Section 6.11 and
the second paragraph of this Section 3.21(e), the Special Servicer may (i)
reduce the amounts owing under any Specially Serviced Mortgage Loan by forgiving
principal, accrued interest or any Prepayment Premium or Yield Maintenance
Charge, (ii) reduce the amount of the Monthly Payment on any Specially Serviced
Mortgage Loan, including by way of a reduction in the related Mortgage Rate,
(iii) forbear in the enforcement of any right granted under any Mortgage Note,
Mortgage or other Mortgage Loan document relating to a Specially Serviced
Mortgage Loan, (iv) accept a Principal Prepayment on any Specially Serviced
Mortgage Loan during any Lockout Period or (v) extend the maturity of any
Specially Serviced Mortgage Loan; provided that (A) the related Mortgagor is in
monetary default or material non-monetary default with respect to such Specially
Serviced Mortgage Loan or, in the reasonable, good faith judgment of the Special
Servicer, such default is reasonably foreseeable, (B) in the reasonable, good
faith judgment of the Special Servicer, such modification, extension, waiver or
amendment would increase the recovery on such Specially Serviced Mortgage Loan
to Certificateholders (as a collective whole), on a present value basis (the
relevant discounting of anticipated collections that will be distributable to
the Certificateholders, to be performed at a rate taking into account the
related Mortgage Rate in each case) and taking into account the risk of
collection, and (C) such modification, extension, waiver or amendment would not
cause an Adverse REMIC Event in respect of either REMIC Pool.
In no event shall the Special Servicer: (i) extend the maturity date
of a Mortgage Loan beyond the date that is two years prior to the Rated Final
Distribution Date; (ii) extend the maturity date of any Mortgage Loan for more
than five years beyond its Stated Maturity Date; or (iii) if the Mortgage Loan
is secured solely or primarily by a Mortgage on the leasehold interest under a
Ground Lease (but not the related fee interest), extend the maturity date of
such Mortgage Loan beyond the date which is 20 years (or, to the extent
consistent with the Servicing Standard, giving due consideration to the
remaining term of the Ground Lease, 10 years) prior to the expiration of the
term of such Ground Lease.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 3.21(e) shall be evidenced
by an Officer's Certificate to such effect delivered to the Trustee and the
Master Servicer and describing in reasonable detail the basis for the Special
Servicer's determination. The Special Servicer shall attach to such Officer's
Certificate any information including but not limited to income and expense
statements, rent rolls, property inspection reports and appraisals that support
such determination.
(f) Notwithstanding anything to the contrary in this Agreement,
neither the Master Servicer nor the Special Servicer, as applicable, shall give
any consent, approval or direction regarding the termination of the related
property manager or the designation of any replacement property manager or, if
such Mortgaged Property is hospitality property, give any consent, approval or
direction regarding the termination of the franchise or the designation of a new
franchise, with respect to any Mortgaged Property that secures a Mortgage Loan
that has an unpaid principal balance that is at least equal to the lesser of
$20,000,000 and 2% of the then aggregate principal balance of the Mortgage Pool,
unless: (1) the mortgagee is not given discretion under the terms of the related
Mortgage Loan; or (2) it has received prior written confirmation from each
Rating Agency that such action will not result in an Adverse Rating Event with
respect to the Certificates.
Any party hereto seeking Rating Agency confirmation with respect to
the matters described above shall deliver a Review Package to such Rating
Agency.
(g) Any payment of interest that is deferred pursuant to any
modification, extension, waiver or amendment permitted hereunder, shall not, for
purposes hereof, including calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Mortgage Loan, notwithstanding that the terms of such
modification, extension, waiver or amendment so permit. The foregoing shall in
no way limit the Special Servicer's ability to charge and collect from the
Mortgagor costs otherwise collectible under the terms of the related Mortgage
Note.
(h) The Special Servicer or Master Servicer may, as a condition to
granting any request by a Mortgagor for consent, modification, extension, waiver
or indulgence or any other matter or thing, the granting of which is within its
discretion pursuant to the terms of the instruments evidencing or securing the
related Mortgage Loan and, further, by the terms of this Agreement and
applicable law, require that such Mortgagor pay to it (i) as additional
servicing compensation, a reasonable or customary fee for the additional
services performed in connection with such request, provided such fee does not
cause a "significant modification" of the Mortgage Loan pursuant to Treasury
Regulations Sections 1.1001-3(e)(2) or 1.860G-2(b), and (ii) any related costs
and expenses incurred by it. Any such fee that is to be shared by the Master
Servicer and the Special Servicer may not be waived or reduced by either such
party without the consent of the other party. In no event shall the Special
Servicer or Master Servicer be entitled to payment for such fees or expenses
unless such payment is collected from the related Mortgagor.
(i) The Special Servicer and Master Servicer shall each notify the
other, any related Sub-Servicers, the Trustee, in writing, of any modification,
extension, waiver or amendment of any term of any Mortgage Loan (including fees
charged the Mortgagor) agreed to by it and the date thereof, and shall deliver
to the Trustee or any related Custodian for deposit in the related Mortgage File
(with a copy to be delivered to or retained by, as applicable, the Master
Servicer), an executed counterpart of the agreement relating to such
modification, extension, waiver or amendment promptly following execution and
delivery thereof, to be followed by an original recorded counterpart promptly
following the recordation (and receipt).
(j) To the extent that either the Master Servicer or Special
Servicer waives any Default Charge in respect of any Mortgage Loan, whether
pursuant to Section 3.02(a) or this Section 3.21, the respective amounts of
additional servicing compensation payable to the Master Servicer and the Special
Servicer as Net Default Charges out of such Default Charges shall be reduced
proportionately based upon the respective amounts that would have been payable
thereto as Net Default Charges out of such Default Charges if such waiver had
not been granted.
(k) With respect to any Mortgage Loan that permits the release of
Mortgaged Properties through defeasance, to the extent permitted under the
related Mortgage Loan documents, the Master Servicer shall, subject to the next
paragraph and the related Mortgage Loan documents, (1) notify each Rating
Agency, the Trustee, the Underwriters and the Special Servicer upon receipt of a
Mortgagor's notice of defeasance of such Mortgage Loan, (2) obtain the written
confirmation from each Rating Agency that the acceptance of a pledge of the
Defeasance Collateral will not result in an Adverse Rating Event with respect to
the Certificates, and (3) take such further action as provided in such Mortgage
Note to effectuate such defeasance, including the purchase and perfection of the
Defeasance Collateral on behalf of the Trustee (as mortgagee of record on behalf
of the Certificateholders). The confirmation described in clause (2) above shall
not be required:
(i) from [__] in the case of a Mortgage Loan with an unpaid
principal balance less than or equal to $20,000,000 and constitutes less
than 5% of the aggregate unpaid principal balance of the Mortgage Pool,
and is not then one of the ten largest (measured by unpaid principal
balance) Mortgage Loans in the Mortgage Pool, provided the Master Servicer
delivers to [__] a certification in the form attached hereto as Exhibit L
(a "Defeasance Certificate"); or
(ii) from [__] in the case of any Mortgage Loan that is not then one
of the ten largest (measured by unpaid principal balance) Mortgage Loans
in the Mortgage Pool and that is not then one of the ten largest groups
(measured by aggregate unpaid principal balance) of Mortgage Loans with
related Mortgagors, provided the Master Servicer delivers to [__] a
Defeasance Certificate;
provided that, in the case of (i) or (ii) above, such written confirmation shall
not be required from [__] and/or [__] (provided that the Master Servicer
delivers a Defeasance Certificate to the applicable Rating Agency), as
applicable, in the event the subject Mortgage Loan complies with the then
current applicable guidelines set forth by such Rating Agency, or the unpaid
principal balance of such Mortgage Loan, the percentage such Mortgage Loan
constitutes of the Mortgage Pool or the relative size of such Mortgage Loan with
respect to the Mortgage Pool, as applicable, does not exceed the current
applicable threshold for review as set forth by such Rating Agency).
Notwithstanding the foregoing, but subject to the related Mortgage
Loan documents, the Master Servicer shall not permit a pledge of Defeasance
Collateral under a Defeasance Loan if (i) such defeasance would occur within two
years of the Startup Day, (ii) if the Defeasance Collateral shall not be
Government Securities; (iii) such Defeasance Loan (or any applicable agreement
executed in connection with the related defeasance) provides that the Mortgagor
shall be liable for any shortfalls from such Defeasance Collateral or otherwise
be subject to recourse liability with respect to the Defeasance Loan (except for
any liability that, pursuant to the terms of the related Mortgage Loan
documents, survives such defeasance), (iv) all costs to be incurred in
connection with such defeasance (including Rating Agency fees, accountants' fees
and costs incurred in connection with any required opinions of counsel) would
not be paid by the related Mortgagor[; provided, however, that if the related
Mortgage Loan documents do not require the Borrower to pay such costs, such
costs shall be paid as an Additional Trust Fund Expense out of the Custodial
Account and the Master Servicer shall provide notice to, and demand payment for
such costs from, the related Mortgage Loan Seller pursuant to Section 5(f) of
the related Mortgage Loan Purchase Agreement], or (v) unless such confirmation
is not required pursuant to the first paragraph of this Section 3.21(k), either
Rating Agency does not confirm in writing to the Master Servicer that the
acceptance of a pledge of the Defeasance Collateral in lieu of a prepayment will
not result in an Adverse Rating Event with respect to the Certificates.
All expenses related to the defeasance of a Defeasance Loan shall be
charged to the related Mortgagor or other responsible party.
Section 3.22 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Mortgage Loan that had otherwise been a Performing Mortgage
Loan, and if the Master Servicer is not also the Special Servicer, the Master
Servicer shall immediately give notice thereof to the Special Servicer, and
shall deliver a copy of the related Servicing File, to the Special Servicer and
shall use reasonable efforts to provide the Special Servicer with all
information, documents (or copies thereof) and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to such
Mortgage Loan, either in the Master Servicer's or any of its directors',
officers', employees', affiliates' or agents' possession or control or otherwise
available to the Master Servicer without undue burden or expense, and reasonably
requested by the Special Servicer to enable it to assume its functions hereunder
with respect thereto without acting through a Sub-Servicer. The Master Servicer
shall use reasonable efforts to comply with the preceding sentence within five
Business Days of the occurrence of each related Servicing Transfer Event;
provided, however, that if the information, documents and records requested by
the Special Servicer are not contained in the Servicing File, the Master
Servicer shall have such period of time as reasonably necessary to make such
delivery. The Special Servicer may conclusively rely on the Master Servicer's
determination that a Servicing Transfer Event has occurred giving rise to a
Mortgage Loan's becoming a Specially Serviced Mortgage Loan. Neither the Master
Servicer nor the Special Servicer shall be liable or in default hereunder for
any reasonable act or failure to act because of or arising out of the other
party's failure to deliver information, documents or records with respect to any
Specially Serviced Mortgage Loan in accordance with the requirements hereof.
Upon determining that a Specially Serviced Mortgage Loan has become
a Corrected Mortgage Loan, and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof, and shall
within five Business Days of such occurrence return the related Servicing File,
together with any and all new information, documents and records relating to the
subject Mortgage Loan that were not part of the Servicing File when it was
delivered to the Special Servicer, to the Master Servicer (or such other Person
as may be directed by the Master Servicer) and upon giving such notice, and
returning such Servicing File, to the Master Servicer (or such other Person as
may be directed by the Master Servicer), the Special Servicer's obligation to
service such Mortgage Loan, and the Special Servicer's right to receive the
Special Servicing Fee with respect to such Mortgage Loan shall terminate, and
the obligations of the Master Servicer to service and administer such Mortgage
Loan shall resume.
Notwithstanding anything herein to the contrary, in connection with
the transfer to the Special Servicer of the servicing of a Cross-Collateralized
Mortgage Loan as a result of a Servicing Transfer Event or the re-assumption of
servicing responsibilities by the Master Servicer with respect to any such
Mortgage Loan upon its becoming a Corrected Mortgage Loan, the Master Servicer
and the Special Servicer shall each transfer to the other, as and when
applicable, the servicing of all other Cross-Collateralized Mortgage Loans
constituting part of the same Cross-Collateralized Group; provided that no
Cross-Collateralized Mortgage Loan may become a Corrected Mortgage Loan at
anytime that a continuing Servicing Transfer Event exists with respect to
another Cross-Collateralized Mortgage Loan in the same Cross-Collateralized
Group.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Custodian originals of newly executed documents
included within the definition of "Mortgage File" for inclusion in the related
Mortgage File (with a copy of each such original to the Master Servicer), and
shall provide to the Master Servicer copies of any additional related Mortgage
Loan information, including correspondence with the related Mortgagor.
(c) Upon request (and to the extent not otherwise already provided
by the Special Servicer pursuant to its reporting obligations hereunder), the
Special Servicer shall deliver to the Master Servicer, the Trustee and each
Rating Agency (or such other Person as may be directed by the Master Servicer) a
statement in writing and in computer readable format (the form of such statement
to be agreed upon by the Master Servicer and the Special Servicer) describing,
on a Mortgage Loan-by-loan and property-by-property basis, (1) insofar as it
relates to Specially Serviced Mortgage Loans and REO Properties, the information
described in clauses (vi) through (xv) of Section 4.02(a) (with respect to
information set forth in such clauses related to prior Distribution Dates and/or
periods, the Special Servicer may conclusively rely on information furnished to
it by the Master Servicer or the Trustee) and, insofar as it relates to the
Special Servicer, the information described in clauses (xxiv) and (xxx) of
Section 4.02(a), (2) the amount of all payments, Insurance Proceeds,
Condemnation Proceeds and Liquidation Proceeds received, and the amount of any
Realized Loss incurred, with respect to each Specially Serviced Mortgage Loan
during the related Collection Period, and the amount of Insurance Proceeds,
Condemnation Proceeds and Liquidation Proceeds received, and the amount of any
Realized Loss incurred, with respect to each REO Property during the related
Collection Period, (3) the amount, purpose and date of all Servicing Advances
made by the Special Servicer with respect to each Specially Serviced Mortgage
Loan and REO Property during the related Collection Period, (4) in writing, a
brief narrative summary of the status of each Specially Serviced Mortgage Loan,
(5) the CMSA Special Servicer Loan File and (6) such additional information
relating to the Specially Serviced Mortgage Loans and REO Properties as the
Master Servicer reasonably requests to enable it to perform its responsibilities
under this Agreement. Notwithstanding the foregoing provisions of this
subsection (c), the Master Servicer shall maintain ongoing payment records with
respect to each of the Specially Serviced Mortgage Loans and REO Properties and
shall provide the Special Servicer with any information reasonably available to
the Master Servicer required by the Special Servicer to perform its duties under
this Agreement.
Section 3.23 Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer may enter into
Sub-Servicing Agreements to provide for the performance by third parties of any
or all of their respective obligations hereunder, provided that in each case,
the Sub-Servicing Agreement:
(i) is consistent with this Agreement in all material respects,
requires the Sub-Servicer to comply with all of the applicable conditions
of this Agreement and, with the exception of Sections 7.01(a)(x), (xi) and
(xii), provides for events of default with respect to the Sub-Servicer
substantially the same as those set forth in Section 7.01 (modified as
necessary to apply to the Sub-Servicer's obligations under the
Sub-Servicing Agreement);
(ii) provides that if the Master Servicer or the Special Servicer,
as the case may be, shall for any reason no longer act in such capacity
hereunder (including by reason of an Event of Default), the Trustee or its
designee may thereupon assume all of the rights and, except to the extent
they arose prior to the date of assumption, obligations of the Master
Servicer or the Special Servicer, as the case may be, under such agreement
or may terminate such Sub-Servicing Agreement without cause and without
payment of any penalty or termination fee (provided, however, that those
Sub-Servicing Agreements in effect as of the Closing Date (or, if being
negotiated as of the Closing Date, in effect within 90 days thereafter)
may only be terminated by the Trustee or its designee as contemplated by
Section 3.23(d) hereof and in such additional manner as is provided in
such Sub-Servicing Agreement);
(iii) provides that the Trustee, for the benefit of the
Certificateholders, shall each be a third party beneficiary under such
agreement, but that (except to the extent the Trustee or its designee
assumes the obligations of the Master Servicer or the Special Servicer, as
the case may be, thereunder as contemplated by the immediately preceding
clause (ii)) none of the Trustee, the Trust, any successor Master Servicer
or the Special Servicer, as the case may be, or any Certificateholder
shall have any duties under such agreement or any liabilities arising
therefrom;
(iv) permits any purchaser of a Mortgage Loan pursuant to this
Agreement to terminate such agreement with respect to such purchased
Mortgage Loan at its option and without penalty;
(v) does not permit the Sub-Servicer to enter into or consent to any
modification, extension, waiver or amendment or otherwise take any action
on behalf of the Master Servicer or the Special Servicer contemplated by
Section 3.08, Section 3.09 and Section 3.21 hereof or to foreclose on any
Mortgage without the consent of the Master Servicer or Special Servicer,
as the case may be;
(vi) does not permit the Sub-Servicer any direct rights of
indemnification that may be satisfied out of assets of the Trust Fund;
(vii) each Sub-Servicing Agreement entered into by the Master
Servicer (including any with an effective date on or before the Closing
Date) provides that such agreement shall, with respect to any Mortgage
Loan serviced thereunder, terminate at the time such Mortgage Loan becomes
a Specially Serviced Mortgage Loan (or, alternatively, be subject to the
Special Servicer's rights to service such Mortgage Loan for so long as
such Mortgage Loan continues to be a Specially Serviced Mortgage Loan);
and
(viii) each Sub-Servicing Agreement entered into by the Special
Servicer provides that it relates only to Specially Serviced Mortgage
Loans and shall terminate with respect to any such Mortgage Loan which
ceases to be a Specially Serviced Mortgage Loan.
The Master Servicer and the Special Servicer each shall deliver to
the Trustee and each other copies of all Sub-Servicing Agreements, as well as
any amendments thereto and modifications thereof, entered into by it promptly
upon its execution and delivery of such documents. References in this Agreement
to actions taken or to be taken by the Master Servicer or the Special Servicer
include actions taken or to be taken by a Sub-Servicer on behalf of the Master
Servicer or the Special Servicer, as the case may be; and, in connection
therewith, all amounts advanced by any Sub-Servicer, to the extent required
under such Sub-Servicing Agreement, to satisfy the obligations of the Master
Servicer or the Special Servicer hereunder to make P&I Advances or Servicing
Advances shall be deemed to have been advanced by the Master Servicer or the
Special Servicer, as the case may be, out of its own funds and, accordingly,
such P&I Advances or Servicing Advances shall be recoverable by such
Sub-Servicer in the same manner and out of the same funds as if such
Sub-Servicer were the Master Servicer or the Special Servicer, as the case may
be. For so long as they are outstanding, Advances shall accrue interest in
accordance with Sections 3.12(b) and 4.03(d), such interest to be allocable
between the Master Servicer or the Special Servicer, as the case may be, and
such Sub-Servicer as they may agree. For purposes of this Agreement, the Master
Servicer and the Special Servicer each shall be deemed to have received any
payment when a Sub-Servicer retained by it receives such payment. The Master
Servicer and the Special Servicer each shall notify the other, the Trustee, the
Depositor and the Controlling Class Certificateholders in writing promptly of
the appointment by it of any Sub-Servicer.
(b) Each Sub-Servicer (i) shall be authorized to transact business
in the state or states in which the related Mortgaged Properties it is to
service are situated, if and to the extent required by applicable law, and (ii)
except for any Sub-Servicer that is servicing any of the Mortgage Loans on the
Closing Date, shall be an approved conventional seller/servicer of mortgage
loans for FHLMC or ▇▇▇▇▇▇ ▇▇▇ or a HUD-Approved Servicer.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders, shall (at no expense to the Trustee, the
Certificateholders or the Trust Fund) monitor the performance and enforce the
obligations of their respective Sub-Servicers under the related Sub-Servicing
Agreements. Such enforcement, including the legal prosecution of claims,
termination of Sub-Servicing Agreements in accordance with their respective
terms and the pursuit of other appropriate remedies, shall be in such form and
carried out to such an extent and at such time as the Master Servicer or the
Special Servicer, as applicable, in its good faith business judgment, would
require were it the owner of the subject Mortgage Loans.
(d) In the event of the resignation, removal or other termination of
the Master Servicer or any successor Master Servicer hereunder for any reason,
the Trustee or other Person succeeding such resigning, removed or terminated
party as Master Servicer, shall elect, with respect to any Sub-Servicing
Agreement in effect as of the Closing Date (or, if being negotiated as of the
Closing Date, in effect within 90 days thereafter) that still exists at the time
of such termination: (i) to assume the rights and obligations of the Master
Servicer under such Sub-Servicing Agreement and continue the sub-servicing
arrangements thereunder on the same terms (including the obligation to pay the
same sub-servicing fee); (ii) to enter into a new Sub-Servicing Agreement with
such Sub-Servicer on such terms as the Trustee or other successor Master
Servicer and such Sub-Servicer shall mutually agree (it being understood that
such Sub-Servicer is under no obligation to accept any such new Sub-Servicing
Agreement or to enter into or continue negotiations with the Trustee or other
successor Master Servicer); or (iii) to terminate the Sub-Servicing Agreement if
(but only if) an Event of Default (as defined in such Sub-Servicing Agreement)
has occurred and is continuing, without paying any sub-servicer termination fee,
and in any additional manner provided for in such Sub-Servicing Agreement.
Notwithstanding any other provisions set forth in this Agreement to
the contrary, (i) the Primary Servicer's rights and obligations under the
Primary Servicing Agreement shall expressly survive a termination of the Master
Servicer's servicing rights under this Agreement; provided that the Primary
Servicing Agreement has not been terminated in accordance with its provisions,
(ii) any successor Master Servicer, including, without limitations, the Trustee
(if it assumes the servicing obligations of the terminated Master Servicer)
shall be deemed to automatically assume and agree to each of the then current
Primary Servicing Agreements without further action upon becoming the successor
Master Servicer and (iii) this Agreement may not be modified in any manner which
would increase the obligations or limit the rights of the Primary Servicer under
the Primary Servicing Agreement, without the prior written consent of the
Primary Servicer (which consent shall not be unreasonably withheld).
The Sub-Servicers as to which Sub-Servicing Agreements are in effect
or being negotiated as of the Closing Date are listed on Exhibit K hereto.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall remain obligated and liable to the Trustee and
the Certificateholders for the performance of their respective obligations and
duties under this Agreement in accordance with the provisions hereof to the same
extent and under the same terms and conditions as if each alone were servicing
and administering the Mortgage Loans and/or REO Properties for which it is
responsible.
Section 3.24 Representations and Warranties of the Master Servicer.
(a) The Master Servicer, in such capacity, hereby represents,
warrants and covenants to the other parties hereto and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Master Servicer is a [_______] validly existing and in good
standing under the laws of [_______], and the Master Servicer is in
compliance with the laws of each state in which any Mortgaged Property is
located to the extent necessary to perform its obligations under this
Agreement.
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not violate the Master Servicer's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument to which it is a party or which is applicable to it or any of
its assets.
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, receivership, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
(including bank creditors') rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Master Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened, against the Master Servicer, the outcome
of which, in the Master Servicer's good faith and reasonable judgment,
could reasonably be expected to prohibit the Master Servicer from entering
into this Agreement or materially and adversely affect the ability of the
Master Servicer to perform its obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required under federal or state law for the
execution, delivery and performance by the Master Servicer of or
compliance by the Master Servicer with this Agreement or the consummation
of the transactions contemplated by this Agreement has been obtained and
is effective except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by the
Master Servicer under this Agreement.
(viii) The Master Servicer possesses all insurance required pursuant
to Section 3.07(c) of this Agreement.
(ix) The Master Servicer has reviewed all Sub-Servicing Agreements
in effect as of the Closing Date and will review all Sub-Servicing
Agreements entered into by it after the Closing Date.
(b) The representations and warranties of the Master Servicer set
forth in Section 3.24(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Master Servicer shall be deemed to have made, as
of the date of its succession, each of the representations and warranties set
forth in Section 3.24(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.24(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
Section 3.25 Representations and Warranties of the Special Servicer.
(a) The Special Servicer, in such capacity, hereby represents,
warrants and covenants to the other parties hereto and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Special Servicer is a [_______]validly existing and in good
standing under the laws of the State of [_______], and the Special
Servicer is in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, will not violate the Special Servicer's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument to which it is a party or which is applicable to it or any of
its assets.
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against the Special Servicer, the
outcome of which, in the Special Servicer's good faith and reasonable
judgment, could reasonably be expected to prohibit the Special Servicer
from entering into this Agreement or materially and adversely affect the
ability of the Special Servicer to perform its obligations under this
Agreement.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required under federal or state law for the
execution, delivery and performance by the Special Servicer of or
compliance by the Special Servicer with this Agreement or the consummation
of the transactions contemplated by this Agreement has been obtained and
is effective except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by the
Special Servicer under this Agreement.
(viii) The Special Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement.
(b) The representations and warranties of the Special Servicer set
forth in Section 3.25(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Special Servicer shall be deemed to have made, as
of the date of its succession, each of the representations and warranties set
forth in Section 3.25(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.25(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
Section 3.26 [Reserved.]
Section 3.27 Application of Default Charges.
(a) Any and all Default Charges that are actually collected with
respect to any Mortgage Loan or REO Mortgage Loan in the Mortgage Pool during
any Collection Period, shall be applied for the following purposes and in the
following order, in each case to the extent of the remaining portion of such
Default Charges:
First, to pay to the Trustee, the Master Servicer or the Special
Servicer, in that order, any interest due and owing to such party on any
outstanding Advances made thereby with respect to the subject Mortgage Loan or
REO Mortgage Loan and reimbursed in the related Collection Period;
Second, to pay any other outstanding expenses (exclusive of Special
Servicing Fees, Liquidation Fees and Workout Fees) incurred with respect to the
subject Mortgage Loan or REO Mortgage Loan and that, if paid from a source other
than Default Charges collected with respect to the subject Mortgage Loan, would
constitute Additional Trust Fund Expenses;
Third, to reimburse the Trust for any interest on Advances paid to
the Trustee, the Master Servicer or the Special Servicer in the preceding twelve
months with respect to the subject Mortgage Loan or REO Mortgage Loan, which
payment was made from a source other than Default Charges and not previously
reimbursed under this clause Third;
Fourth, to reimburse the Trust for any other Additional Trust Fund
Expenses (exclusive of Special Servicing Fees, Liquidation Fees and Workout
Fees) paid in the preceding twelve months with respect to the subject Mortgage
Loan or REO Mortgage Loan, which payment was made from a source other than
Default Charges and not previously reimbursed under this clause Fourth; and
Fifth, to pay any remaining portion of such Default Charges (such
remaining portion, "Net Default Charges") as additional master servicing
compensation to the Master Servicer, to the extent received, if they were
accrued in respect of a Performing Mortgage Loan, or as additional special
servicing compensation to the Special Servicer, to the extent received, if they
were accrued in respect of a Specially Serviced Mortgage Loan or an REO Mortgage
Loan, in each case pursuant to Section 3.11.
(b) Default Charges applied to reimburse the Trust pursuant to
clauses Third and Fourth, of subsection (a), are intended to be part of the
amounts to be delivered by the Master Servicer to the Trustee pursuant to the
first paragraph of Section 3.04(b) on or before the Master Servicer Remittance
Date next following the Collection Period during which they were received, for
deposit in the Distribution Account, subject to application pursuant to Section
3.05(a) for any items payable out of general collections on the Mortgage Loans
and any REO Properties. Default Charges applied to pay outstanding interest on
Advances to any particular party pursuant to clause First of subsection (a)
shall be applied to pay such party such interest on Advances in such manner that
the interest that accrued first and has been outstanding the longest shall be
paid first. Default Charges applied to pay outstanding expenses pursuant to
clause Second of subsection (a) shall be applied to pay such expenses in the
chronological order in which they were incurred. Default Charges applied to
reimburse the Trust pursuant to clauses Third and Fourth, of subsection (a)
shall be deemed to offset either interest paid on Advances or other Additional
Trust Fund Expenses, depending on which clause is applicable, in the
chronological order in which they were made or incurred, as applicable
(whereupon such interest paid on Advances or such other Additional Trust Fund
Expenses, depending on which clause is applicable, shall thereafter be deemed to
have been paid out of Default Charges).
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions.
(a) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Trustee shall be deemed to
transfer the Lower-Tier Distribution Amount from the Lower-Tier Distribution
Account to the Upper-Tier Distribution Account in the amounts and priorities set
forth in Section 4.01(i) with respect to each class of Uncertificated Lower-Tier
Interests, and immediately thereafter, shall make distributions of the Available
Distribution Amount from the Upper-Tier Distribution Account in the following
order of priority, satisfying in full, to the extent required and possible, each
priority before making any distribution with respect to any succeeding priority:
(i) concurrently, to the [Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3 and Class
A-4] Certificates, pro rata (based upon their respective entitlements to
interest for such Distribution Date) up to an amount equal to all
Distributable Certificate Interest for each such Class for such
Distribution Date, and to the extent not previously paid, for all prior
Distribution Dates, and to the Class XP and Class XC Certificates, pro
rata (based upon their respective entitlements to interest for such
Distribution Date) up to an amount equal to all Distributable Certificate
Interest for each such Class for such Distribution Date, and to the extent
not previously paid, for all prior Distribution Dates;
(ii) (A) prior to the Cross-Over Date,
(1) to distributions of principal to the Holders of the Class A-1
Certificates, in an amount (not to exceed the Class Principal
Balance of the Class A-1 Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount;
(2) after the Class Principal Balance of the Class A-1
Certificates has been reduced to zero, to distributions of
principal to the Holders of the Class A-2 Certificates, in an
amount (not to exceed the Class Principal Balance of the Class
A-2 Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution
Amount (net of any portion thereof distributed on such
Distribution Date to the Holders of the Class A-1 Certificates
pursuant to clause (1) above);
(3) after the Class Principal Balances of each of the Class A-1
and Class A-2 Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class A-3
Certificates, in an amount (not to exceed the Class Principal
Balance of the Class A-3 Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount (net of any portion thereof distributed on
such Distribution Date to the Holders of the Class A-1 and
Class A-2 Certificates pursuant to clauses (1) and (2) above);
(4) after the Class Principal Balances of the Class A-1, Class A-2
and Class A-3 Certificates have been reduced to zero, to
distributions of principal to the holders of the Class A-4
Certificates, in an amount (not to exceed the Class Principal
Balance of the Class A-4 Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount (net of any portion thereof distributed on
such Distribution Date to the Holders of the Class A-1, Class
A-2 and Class A-3 Certificates pursuant to clauses (1), (2)
and (3) above; and
(B) on or after the Cross-Over Date, to distributions of
principal to the Holders of the Class A-1, Class A-2, Class A-3 and
Class A-4 Certificates, pro rata, (based upon their respective
outstanding Class Principal Balances) in an amount (not to exceed
the aggregate Class Principal Balances of the Class A-1, Class A-2,
Class A-3 and Class A-4 Certificates outstanding immediately prior
to such Distribution Date) equal to the Adjusted Principal
Distribution Amount for such Distribution Date until their
respective outstanding Class Principal Balances have been reduced to
zero;
(iii) to distributions to the Holders of the Class A-1 Certificates,
the Class A-2 Certificates, the Class A-3 Certificates and the Class A-4
Certificates, pro rata, as among such Classes, in accordance with, in an
amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to each such
Class of Certificates and not previously reimbursed;
(iv) to distributions of interest to the Holders of the Class B
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(v) after the Class Principal Balance of the Class A-1, Class A-2,
Class A-3 and Class A-4 Certificates has been reduced to zero, to
distributions of principal to the Holders of the Class B Certificates, in
an amount (not to exceed the Class Principal Balance of the Class B
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(vi) to make distributions to the Holders of the Class B
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(vii) to make distributions of interest to the Holders of the Class
C Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(viii) after the Class Principal Balance of the Class B Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class C Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(ix) to make distributions to the Holders of the Class C
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(x) to make distributions of interest to the Holders of the Class D
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xi) after the Class Principal Balance of the Class C Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class D Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xii) to make distributions to the Holders of the Class D
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xiii) to make distributions of interest to the Holders of the Class
E Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xiv) after the Class Principal Balance of the Class D Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class E Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xv) to make distributions to the Holders of the Class E
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xvi) to make distributions of interest to the Holders of the Class
F Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xvii) after the Class Principal Balance of the Class E Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class F Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xviii) to make distributions to the Holders of the Class F
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xix) to make distributions of interest to the Holders of the Class
G Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xx) after the Class Principal Balance of the Class F Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class G Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(b));
(xxi) to make distributions to the Holders of the Class G
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxii) to make distributions of interest to the Holders of the Class
H Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xxiii) after the Class Principal Balance of the Class G
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class H Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxiv) to make distributions to the Holders of the Class H
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxv) to make distributions of interest to the Holders of the Class
J Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xxvi) after the Class Principal Balance of the Class H Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class J Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxvii) to make distributions to the Holders of the Class J
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxviii) to make distributions of interest to the Holders of the
Class K Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxix) after the Class Principal Balance of the Class J Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class K Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxx) to make distributions to the Holders of the Class K
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxxi) to make distributions of interest to the Holders of the Class
L Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xxxii) after the Class Principal Balance of the Class K
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class L Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxxiii) to make distributions to the Holders of the Class L
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxxiv) to make distributions of interest to the Holders of the
Class M Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxxv) after the Class Principal Balance of the Class L Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class M Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(b));
(xxxvi) to make distributions to the Holders of the Class M
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxxvii) to make distributions of interest to the Holders of the
Class N Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxxviii) after the Class Principal Balance of the Class M
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class N Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxxix) to make distributions to the Holders of the Class N
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xl) to make distributions of interest to the Holders of the Class O
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xli) after the Class Principal Balance of the Class N Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class O Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xlii) to make distributions to the Holders of the Class O
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xliii) to make distributions of interest to the Holders of the
Class P Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xliv) after the Class Principal Balance of the Class O Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class P Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Principal Balance Certificates pursuant to any prior
clause of this Section 4.01(a));
(xlv) to make distributions to the Holders of the Class P
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xlvi) to the Holders of the Class R-II Certificates, the amount, if
any, of the Available Distribution Amount remaining in the Upper-Tier
Distribution Account with respect to such Distribution Date.
All distributions of interest made in respect of the Class XC and
Class XP Certificates on any Distribution Date pursuant to clause (i) above,
shall be deemed to have been made in respect of all the Components of such
Class, pro rata in accordance with the respective amounts of interest that would
be payable on such Components on such Distribution Date based on the Class XC
Strip Rate and Class XP Strip Rate, as applicable, of such Component multiplied
by its Component Notional Amount, less an allocable portion of any Net Aggregate
Prepayment Interest Shortfall, together with any amounts thereof remaining
unpaid from previous Distribution Dates.
(b) On each Distribution Date, the Trustee shall withdraw any
amounts on deposit in the Upper-Tier Distribution Account that represent Net
Prepayment Consideration actually collected on Mortgage Loans or REO Mortgage
Loans during the related Collection Period and remitted in respect of the
Uncertificated Lower-Tier Interests pursuant to Section 4.01(j), and shall
distribute such amounts to the Holders of each of the Class A-1, Class A-2,
Class A-3, Class A-4, Class B, Class C, Class D, Class E, Class F, Class G and
Class H Certificates entitled to distributions of principal pursuant to Section
4.01(a) on such Distribution Date, up to an amount equal to, and pro rata based
on, the respective Prepayment Consideration Entitlements for such Classes of
Certificates for such Distribution Date.
Any Net Prepayment Consideration not otherwise distributed in
respect of the Principal Balance Certificates pursuant to the foregoing
paragraph of this Section 4.01(b) shall be distributed (x) prior to the
Distribution Date in [_________], [__]% to the Holders of the Class XP
Certificates and [__]% to the Holders of the Class XC Certificates and (y) on or
after the Distribution Date in [___________], [__]% to the Holders of the Class
XC Certificates.
(c) Reserved.
(d) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Except as otherwise provided below, all such distributions with
respect to each Class on each Distribution Date shall be made to the
Certificateholders of the respective Class of record at the close of business on
the related Record Date and shall be made by wire transfer of immediately
available funds to the account of any such Certificateholder at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to (or, in the case of the initial Distribution Date, on) the related
Record Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates), or otherwise by check mailed
to the address of such Certificateholder as it appears in the Certificate
Register. The final distribution on each Certificate (determined, in the case of
a Principal Balance Certificate, without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to such Certificate pursuant to Section 4.04(a)) will be made in a
like manner, but only upon presentation and surrender of such Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution. Prior to any
termination of the Trust Fund pursuant to Section 9.01, any distribution that is
to be made with respect to a Certificate in reimbursement of a Realized Loss or
Additional Trust Fund Expense previously allocated thereto, which reimbursement
is to occur after the date on which such Certificate is surrendered as
contemplated by the preceding sentence, will be made by check mailed to the
address of the Certificateholder that surrendered such Certificate as such
address last appeared in the Certificate Register or to any other address of
which the Trustee was subsequently notified in writing. If such check is
returned to the Trustee, then the Trustee, directly or through an agent, shall
take such reasonable steps to contact the related Holder and deliver such check
as it shall deem appropriate. Any funds in respect of a check returned to the
Trustee shall be set aside by the Trustee and held uninvested in trust and
credited to the account of the appropriate Holder. The costs and expenses of
locating the appropriate Holder and holding such funds shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If the Trustee has not, after having taken such
reasonable steps, located the related Holder by the second anniversary of the
initial sending of a check, the Trustee shall, subject to applicable law,
distribute the unclaimed funds to the Class R-II Certificateholders.
(e) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm for which it acts as agent. Each indirect
participating brokerage firm shall be responsible for disbursing funds to the
related Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor or the Master Servicer shall have any
responsibility therefor except as otherwise provided by this Agreement or
applicable law. The Trustee and the Depositor shall perform their respective
obligations under each Letter of Representations among the Depositor, the
Trustee and the initial Depository dated as of the Closing Date and pertaining
to the Book-Entry Certificates.
(f) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund with respect to the Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates with respect to amounts properly
previously distributed on the Certificates.
(g) Except as otherwise provided in Section 9.01, whenever the
Trustee receives written notification of or expects that the final distribution
with respect to any Class of Certificates (determined, in the case of a Class of
Principal Balance Certificates, without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to such Class of Certificates pursuant to Section 4.04(a)) will be
made on the next Distribution Date, the Trustee shall, no later than the second
Business Day prior to such Distribution Date, mail to each Holder of record of
such Class of Certificates on such date a notice to the effect that:
(i) the Trustee expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but only
upon presentation and surrender of such Certificates at the office of the
Certificate Registrar or at such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after
the end of the Interest Accrual Period for such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, then the Trustee, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such non-tendering
Certificateholders following the first anniversary of the delivery of such
second notice thereto shall be paid out of such funds. No interest shall accrue
or be payable to any former Holder on any amount held in trust pursuant to this
paragraph. If all of the Certificates as to which notice has been given pursuant
to this Section 4.01(g) shall not have been surrendered for cancellation by the
second anniversary of the delivery of the second notice, the Trustee shall,
subject to applicable law, distribute to the Class R-II Certificateholders all
unclaimed funds and other assets which remain subject thereto.
(h) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trustee shall indicate the amount withheld to such
Certificateholders.
(i) During each Interest Accrual Period, each Uncertificated
Lower-Tier Interest shall accrue interest in an amount equal to the product of
the Uncertificated Principal Balance of each such Uncertificated Lower-Tier
Interest and the Weighted Average Net Mortgage Rate. On each Distribution Date,
each Uncertificated Lower-Tier Interest shall be deemed to receive distributions
in respect of interest in an amount equal to the Distributable Certificate
Interest for such Distribution Date (and, to the extent not previously paid, for
all prior Distribution Dates, if any) in respect of its Corresponding
Certificate, in each case allocable among the Corresponding Uncertificated
Lower-Tier Interests, pro rata (except as set forth below), and the portion of
the Distributable Certificate Interest for such Distribution Date (and, to the
extent not previously paid, for all prior Distribution Dates, if any) of the
Class XC and Class XP Certificates that is attributable to the Corresponding
Component of such Uncertificated Lower-Tier Interest, in each case to the extent
actually distributable thereon as provided in Section 4.01(a).
All distributions made in respect of any Class of Principal Balance
Certificates on each Distribution Date pursuant to Section 4.01(a) or Section
9.01 shall be deemed to have first been distributed from the Lower-Tier REMIC to
the Upper-Tier REMIC in respect of its Corresponding Uncertificated Lower-Tier
Interest set forth in the Preliminary Statement hereto; provided, however, that
distributions of principal:
(i) with respect to the Class A-1 Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of the Class LA-1-1 Interest; and second, to the Class
LA-1-2 Interest; in each case, until their respective Uncertificated
Principal Balances are reduced to zero;
(ii) with respect to the Class A-2 Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of the Class LA-2-1 Interest; second, to the Class LA-2-2
Interest; third, to the Class LA-2-3 Interest; fourth, to the Class LA-2-4
Interest; fifth, to the Class LA-2-5 Interest; sixth, to the Class LA-2-6
Interest; and seventh, to the Class LA-2-7 Interest; in each case, until
their respective Uncertificated Principal Balances are reduced to zero;
(iii) with respect to the Class A-3 Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of the Class LA-3-1 Interest; second, to the Class LA-3-2
Interest; third, to the Class LA-3-3 Interest; fourth, to the Class LA-3-4
Interest; and fifth, to the Class LA-3-5 Interest; in each case, until
their respective Uncertificated Principal Balances are reduced to zero;
(iv) with respect to the Class A-4 Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of the Class LA-4-1 Interest; and second, to the Class
LA-4-2 Interest; in each case, until their respective Uncertificated
Principal Balances are reduced to zero;
(v) with respect to the Class D Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of the Class LD-1 Interest; second, to the Class LD-2
Interest; third, to the Class LD-3 Interest; fourth, to the Class LD-4
Interest; and fifth, to the Class LD-5 Interest; in each case, until their
respective Uncertificated Principal Balances are reduced to zero;
(vi) with respect to the Class E Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of the Class LE-1 Interest; and second, to the Class LE-2
Interest; in each case, until their respective Uncertificated Principal
Balances are reduced to zero;
(vii) with respect to the Class F Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of the Class LF-1 Interest; second, to the Class LF-2
Interest; and third, to the Class LF-3 Interest; in each case, until their
respective Uncertificated Principal Balances are reduced to zero;
(viii) with respect to the Class G Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of the Class LG-1 Interest; and second, to the Class LG-2
Interest; in each case, until their respective Uncertificated Principal
Balances are reduced to zero;
(ix) with respect to the Class H Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of the Class LH-1 Interest; and second, to the Class LH-2
Interest; in each case, until their respective Uncertificated Principal
Balances are reduced to zero; and
(x) with respect to the Class K Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of the Class LK-1 Interest; and second, to the Class LK-2
Interest; in each case, until their respective Uncertificated Principal
Balances are reduced to zero.
All distributions made in respect of the Class XC and Class XP
Certificates on each Distribution Date pursuant to Section 4.01(a) or Section
9.01, and allocable to any particular Component of such Class of Certificates in
accordance with the penultimate paragraph of Section 4.01(a), shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in
respect of such Component's Corresponding Uncertificated Lower-Tier Interest.
All distributions of reimbursements of Realized Losses and Additional Trust Fund
Expenses made in respect of any Class of Principal Balance Certificates on each
Distribution Date pursuant to Section 4.01(a) shall be deemed to have first been
distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in respect of its
Corresponding Uncertificated Lower-Tier Interests set forth in the Preliminary
Statement hereto; provided, however, that distributions of reimbursements of
Realized Losses and Additional Trust Fund Expenses shall be made in reverse
sequential order of the priority set forth in this Section 4.01(i) for principal
distributions, up to the amount of Realized Losses and Additional Trust Fund
Expenses previously allocated to a particular Class of Uncertificated Lower-Tier
Interests.
(j) On each Distribution Date, the Trustee shall withdraw from the
Lower-Tier Distribution Account an aggregate amount equal to all Net Prepayment
Consideration actually collected on the Mortgage Loans or any REO Mortgage Loans
during the related Collection Period and shall distribute such amount in respect
of the Class LA-1-1 Interest by depositing such amount in the Upper-Tier
Distribution Account (notwithstanding that all principal and interest
distributable with respect to the Class LA-1-1 Interest has been paid in full).
(k) Any amount that remains in the Lower-Tier Distribution Account
on each Distribution Date after distribution of the Lower-Tier Distribution
Amount and any Net Prepayment Consideration, shall be distributed to the Holders
of the Class R-I Certificates.
Section 4.02 Statements to Certificateholders; CMSA Loan Periodic
Update File.
(a) On each Distribution Date, the Trustee shall provide or make
available electronically to the Depositor, the Underwriters, the Master
Servicer, the Special Servicer, the Controlling Class Representative, each
Rating Agency, the Holders of each Class of Certificates and, upon their written
request to the Trustee, any Certificate Owners of the Book-Entry Certificates as
may be identified to the reasonable satisfaction of the Trustee, a statement,
substantially in the form attached hereto as Exhibit B (a "Distribution Date
Statement"), which shall also include the CMSA Bond Level File and the CMSA
Collateral Summary File, based on information provided to it by the Master
Servicer and/or the Special Servicer, setting forth, without limitation:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of Principal Balance Certificates in reduction of
the Class Principal Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Regular Interest Certificates allocable to
Distributable Certificate Interest;
(iii) the amount of the distribution on such Distribution Date to
the Holders of each Class of Regular Interest Certificates allocable to
Prepayment Premiums and Yield Maintenance Charges, respectively;
(iv) the amount of the distribution on such Distribution Date to the
Holders of each Class of Principal Balance Certificates in reimbursement
of previously allocated Realized Losses and Additional Trust Fund
Expenses;
(v) the Available Distribution Amount for such Distribution Date;
(vi) the aggregate amount of P&I Advances made in respect of the
Mortgage Pool for the prior Distribution Date pursuant to Section 4.03(a);
(vii) (A) the aggregate amount of ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances that had
been outstanding with respect to the Mortgage Pool at the close of
business on the related Determination Date and the aggregate amount of any
interest accrued and payable to the Master Servicer or the Trustee in
respect of such ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances in accordance with Section
4.03(d) as of the close of business on such Determination Date and (B) the
aggregate amount of unreimbursed Servicing Advances that had been
outstanding with respect to the Mortgage Pool as of the close of business
on the related Determination Date and the aggregate amount of interest
accrued and payable to the Master Servicer, the Special Servicer or the
Trustee in respect of such unreimbursed Servicing Advances in accordance
with Section 3.12(b) as of the close of business on such related
Determination Date;
(viii) the aggregate unpaid principal balance of the Mortgage Pool
outstanding as of the close of business on the related Determination Date
and the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution
Date;
(ix) the number, aggregate unpaid principal balance, weighted
average remaining term to maturity and weighted average Mortgage Rate of
the Mortgage Loans (other than REO Loans) as of the close of business on
the related Determination Date;
(x) the number, aggregate unpaid principal balance (as of the close
of business on the related Determination Date and aggregate Stated
Principal Balance (immediately after such Distribution Date) of Mortgage
Loans (A) delinquent 30 to 59 days, (B) delinquent 60 to 89 days, (C)
delinquent 90 or more days, (D) as to which foreclosure proceedings have
been commenced, and (E) as to which, to the knowledge of the Master
Servicer or the Special Servicer, as applicable, bankruptcy proceedings
have commenced in respect of the related Mortgagor;
(xi) as to each Mortgage Loan referred to in the preceding clause
(x) above, (A) the Mortgage Loan number thereof, (B) the Stated Principal
Balance thereof immediately following such Distribution Date and (C)
whether the delinquency is in respect of its Balloon Payment;
(xii) with respect to any Mortgage Loan as to which a Liquidation
Event occurred during the related Collection Period (other than a payment
in full), (A) the Mortgage Loan number thereof, (B) the nature of the
Liquidation Event and, in the case of a Final Recovery Determination, a
brief description of the basis for such Final Recovery Determination, (C)
the aggregate of all Liquidation Proceeds and other amounts received in
connection with such Liquidation Event (separately identifying the portion
thereof allocable to distributions on the Certificates), and (D) the
amount of any Realized Loss in connection with such Liquidation Event;
(xiii) with respect to any REO Property that was included in the
Trust Fund as of the close of business on the related Determination Date,
the Mortgage Loan number of the related Mortgage Loan, the book value of
such REO Property and the amount of REO Revenues and other amounts, if
any, received with respect to such REO Property during the related
Collection Period (separately identifying the portion thereof allocable to
distributions on the Certificates) and, if available, the Appraised Value
of such REO Property as expressed in the most recent appraisal thereof and
the date of such appraisal;
(xiv) with respect to any Mortgage Loan as to which the related
Mortgaged Property became an REO Property during the related Collection
Period, the Mortgage Loan number of such Mortgage Loan and the Stated
Principal Balance of such Mortgage Loan as of the related Acquisition
Date;
(xv) with respect to any REO Property included in the Trust Fund as
to which a Final Recovery Determination was made during the related
Collection Period, (A) the Mortgage Loan number of the related Mortgage
Loan, (B) a brief description of the basis for the Final Recovery
Determination, (C) the aggregate of all Liquidation Proceeds and other
amounts received with respect to such REO Property during the related
Collection Period (separately identifying the portion thereof allocable to
distributions on the Certificates), (D) the amount of any Realized Loss in
respect of the related REO Loan in connection with such Final Recovery
Determination and (E), if available, the Appraised Value of such REO
Property as expressed in the most recent appraisal thereof and the date of
such appraisal;
(xvi) the Distributable Certificate Interest and Accrued Certificate
Interest in respect of each Class of Regular Interest Certificates for
such Distribution Date or the related Interest Accrual Period, as
applicable;
(xvii) any unpaid Distributable Certificate Interest in respect of
each Class of Regular Interest Certificates after giving effect to the
distributions made on such Distribution Date, and if the full amount of
the Principal Distribution Amount was not distributed on such Distribution
Date, the portion of the shortfall affecting each Class of Principal
Balance Certificates;
(xviii) the Pass-Through Rate for each Class of Regular Interest
Certificates for such Distribution Date;
(xix) the Principal Distribution Amount for such Distribution Date
(and, in the case of any Principal Prepayment or other unscheduled
collection of principal received during the related Collection Period, the
Mortgage Loan number for the related Mortgage Loan and the amount of such
prepayment or other collection of principal);
(xx) the aggregate of all Realized Losses incurred during the
related Collection Period and from the Closing Date and all Additional
Trust Fund Expenses (with a description thereof) incurred during the
related Collection Period and from the Closing Date;
(xxi) the aggregate of all Realized Losses and Additional Trust Fund
Expenses that remain unallocated immediately following such Distribution
Date;
(xxii) the Class Principal Balance of each Class of Principal
Balance Certificates and the Notional Amount of each Class of the Class X
Certificates, outstanding immediately before and immediately after such
Distribution Date, separately identifying any reduction therein due to the
allocation of Realized Losses and Additional Trust Fund Expenses on such
Distribution Date;
(xxiii) the Certificate Factor for each Class of Regular Interest
Certificates immediately following such Distribution Date;
(xxiv) the aggregate amount of any interest on Advances in respect
of the Mortgage Pool paid to the Master Servicer, the Special Servicer and
the Trustee during the related Collection Period in accordance with
Section 3.12(b), Section 4.03(d);
(xxv) (A) the Mortgage Loan number for each Required Appraisal Loan
and any related Appraisal Reduction Amount (including an itemized
calculation thereof) as of the related Determination Date and (B) the
aggregate Appraisal Reduction Amount for all Required Appraisal Loans as
of the related Determination Date;
(xxvi) on a cumulative basis from the Cut-off Date, the number,
aggregate Stated Principal Balance immediately after such Distribution
Date (in the case of subclauses (A), (B) and (E)), aggregate Cut-off Date
Balance (in the case of subclauses (C) and (D)), weighted average
extension period (except in the case of subclause (B) and which shall be
zero in the case of subclause (C)), and weighted average anticipated
extension period (in the case of subclause (B)) of Mortgage Loans (A) as
to which the maturity dates have been extended, (B) as to which the
maturity dates are in the process of being extended, (C) that have paid
off and were never extended, (D) as to which the maturity dates had
previously been extended and have paid off and (E) as to which the
maturity dates had been previously extended and are in the process of
being further extended;
(xxvii) the original and then current credit support levels for each
Class of Regular Interest Certificates;
(xxviii) the original and then current ratings, if any, for each
Class of Regular Interest Certificates;
(xxix) the aggregate amount of Prepayment Premiums and Yield
Maintenance Charges collected (A) during the related Collection Period and
(B) since the Closing Date;
(xxx) (A) the aggregate amount of servicing compensation in respect
of the Mortgage Pool (separately identifying the amount of each category
of compensation) paid to the Master Servicer, the Special Servicer and, if
payable directly out of the Trust Fund without a reduction in the
servicing compensation otherwise payable to the Master Servicer or the
Special Servicer, to each Sub-Servicer, during the related Collection
Period, and (B) such other information as the Trustee is required by the
Code or other applicable law to furnish to enable Certificateholders to
prepare their tax returns; and
(xxxi) the amounts, if any, actually distributed with respect to the
Class R-I and Class R-II Certificates on such Distribution Date.
In the case of information to be furnished pursuant to clauses (i)
through (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. In the case of information provided to the Trustee as a basis for
information to be furnished pursuant to clauses (vi) through (xv), (xix), (xx),
(xxiv), (xxv), (xxvi), (xxix) and (xxx) above, insofar as the underlying
information is solely within the control of the Special Servicer or the Master
Servicer, the Trustee may, absent manifest error, conclusively rely on the
reports to be provided by the Special Servicer or the Master Servicer.
The Trustee shall forward electronically a copy of each Distribution
Date Statement to the Depository. The Trustee shall make available each month,
to Certificateholders, Certificate Owners, the Underwriters, the Rating
Agencies, the Controlling Class Representative, any party hereto or any Person
identified by any Certificateholder or Certificate Owner as a prospective
transferee, via the Trustee's internet website, all Certificateholder Reports
and any additional files containing substantially similar information in an
alternative format and, with the consent or at the direction of the Depositor,
such other information regarding the Certificates and/or the Mortgage Loans as
the Trustee may have in its possession. The Trustee will make no representations
or warranties as to the accuracy or completeness of such documents and will
assume no responsibility therefor.
The Trustee's internet website shall initially be located at
"________" or at such other address as shall be specified by the Trustee from
time to time in the Distribution Date Statement and in one or more written
notices delivered to the other parties hereto, the Controlling Class
Representative (if any), the Certificateholders and the Rating Agencies. In
connection with providing access to the Trustee's internet website, the Trustee
may require the acceptance of a disclaimer. The Trustee shall not be liable for
the dissemination of information in accordance with this Agreement.
The Master Servicer may, but is not required to, make available each
month, to Certificateholders, Certificate Owners (that have been confirmed as
such by the Trustee), the Controlling Class Representative, the Underwriters,
the Rating Agencies or any party hereto, the Certificateholder Reports in its
possession, on its internet website. The Master Servicer will make no
representations or warranties as to the accuracy or completeness of any report
not prepared by it and will assume no responsibility for any information for
which it is not the original source.
The Master Servicer's internet website shall initially be located at
"_______" or at such other address as shall be specified by the Master Servicer
from time to time in one or more written notices delivered to the other parties
hereto, the Controlling Class Representative (if any), the Certificateholders
and the Rating Agencies. In connection with providing access to the Master
Servicer's internet website, the Master Servicer may require, without
limitation, the acceptance of a disclaimer, registration and a confidentiality
agreement. The Master Servicer shall not be liable for the dissemination of
information to Certificateholders and Certificate Owners in accordance with this
Agreement.
Absent manifest error of which it has actual knowledge, none of the
Master Servicer, the Special Servicer or the Trustee shall be responsible for
the accuracy or completeness of any information supplied to it by a Mortgagor,
the Depositor (including information in the Prospectus Supplement), any Mortgage
Loan Seller or third party that is included in any reports, statements,
materials or information prepared or provided by the Master Servicer, the
Special Servicer or the Trustee, as applicable, pursuant to this Agreement. None
of the Trustee, the Master Servicer or the Special Servicer shall have any
obligation to verify the accuracy or completeness of any information provided by
a Mortgagor, any Mortgage Loan Seller, a third party or each other.
Within a reasonable period of time after the end of each calendar
year the Trustee shall send to each Person who at any time during the calendar
year was a Certificateholder of record, a report summarizing on an annual basis
(if appropriate) the items relating to distributions of interest (including
Prepayment Premiums and Yield Maintenance Charges) and principal to
Certificateholders during such calendar year set forth in the Distribution Date
Statements and such other information as may be required to enable such
Certificateholders to prepare their federal income tax returns. Such information
shall include the amount of original issue discount accrued on each Class of
Certificates and information regarding the expenses of the Trust Fund. Such
requirement shall be deemed to be satisfied to the extent such information is
provided pursuant to applicable requirements of the Code from time to time in
force.
Upon receipt of notice from the Depositor that the Underwriters have
sold the Non-Registered Certificates to unaffiliated third parties, the Trustee
shall make available electronically or, if so requested, forward by hard copy,
on each Distribution Date, to [(i) the ▇▇▇▇▇ Group (at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or such other address as the ▇▇▇▇▇ Group may
designate), (ii) Intex Solutions, Inc. (at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other address as Intex Solutions, Inc. may
hereafter designate), (iii) Charter Research Corporation (at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other address as Charter Research
Corporation may hereafter designate),] and (iv) any other similar third party
information provider, a copy of the reports made available to the Holders of the
Certificates on such Distribution Date as described above.
Upon written request of the Depositor or any Underwriter, without
payment of any fee, and upon written request of any Certificateholders or any
other Person, together with payment of a reasonable fee specified by the
Trustee, the Trustee shall provide any statements, reports and/or information
contemplated by this Section 4.02(a) electronically to such party (such
electronic distribution and such statements, reports, and/or information thereon
to bear such appropriate disclaimers and qualifications as the Depositor and the
Trustee shall determine in their reasonable discretion).
If any Certificate Owner does not receive through the Depository or
any of its Depository Participants any of the statements, reports and/or other
written information described above in this Section 4.02(a) that it would
otherwise be entitled to receive if it were the Holder of a Definitive
Certificate evidencing its ownership interest in the related Class of Book-Entry
Certificates, then the Trustee shall forward such statements, reports and/or
other written information to such Certificate Owner as provided above, upon the
request of such Certificate Owner made in writing to the Corporate Trust Office
(accompanied by current verification of such Certificate Owner's ownership
interest). Such portion of such information as may be agreed upon by the
Depositor and the Trustee shall be furnished to any such Person via overnight
courier delivery or telecopy from the Trustee; provided that the cost of such
overnight courier delivery or telecopy shall be an expense of the party
requesting such information.
The Trustee shall only be obligated to deliver the statements,
reports and information contemplated by this Section 4.02(a) to the extent it
receives, in the format required by this Agreement, the necessary underlying
information from the Master Servicer or the Special Servicer, as applicable, and
shall not be liable for any failure to deliver any thereof on the prescribed due
dates, to the extent caused by failure to receive timely such underlying
information. Nothing herein shall obligate the Trustee, the Master Servicer or
the Special Servicer to violate any applicable law prohibiting disclosure of
information with respect to any Mortgagor and the failure of the Trustee, Master
Servicer or the Special Servicer to disseminate information for such reason
shall not be a breach hereof.
The information to be furnished by the Trustee to the
Certificateholders pursuant to Sections 4.02(a) and (b) shall not limit the
Trustee in furnishing any such information to other Persons to whom it
determines such disclosure to be appropriate and shall not limit the Trustee in
furnishing to Certificateholders or to any Person any other information with
respect to the Mortgage Loans, the Mortgaged Properties or the Trust Fund as may
be provided to it by the Depositor, the Master Servicer or the Special Servicer
or gathered by it in any investigation or other manner from time to time (such
information, other than as described in Sections 4.02(a) and (b), is referred to
herein as "Additional Information") as it may reasonably deem necessary or
appropriate from time to time, provided that (A) the Trustee shall give the
Depositor three Business Days' advance notice before doing so, (B) any such
Additional Information shall only be furnished with the consent or at the
request of the Depositor (except pursuant to clause (E) below), (C) the Trustee
shall be entitled to indicate the source of all information furnished by it, and
the Trustee may affix thereto any disclaimer it deems appropriate in its
reasonable discretion, (D) the Trustee shall notify Certificateholders of the
availability of any such information in any manner as it, in its sole
discretion, may determine, and (E) this provision shall not prevent the Trustee,
whether with or without the consent of the Depositor, from furnishing
information with respect to the Trust Fund and its administration thereof to any
Person, if it reasonably determines that the furnishing of such information is
required by applicable law. The Trustee shall forward to the Depositor any
requests for Additional Information which, for their fulfillment, require the
consent of the Depositor. Nothing herein shall be construed to impose upon the
Trustee any obligation or duty to furnish or distribute any Additional
Information to any Person in any instance.
(b) Not later than 1:00 p.m. (New York City time) on the second
Business Day prior to each Distribution Date, the Master Servicer shall furnish
to the Trustee, and upon request, the Trustee shall make available on such
Distribution Date to the Depositor, the Underwriters and the Special Servicer,
by electronic transmission (or in such other form to which the Trustee or the
Depositor, as the case may be, and the Master Servicer may agree), an accurate
and complete CMSA Loan Periodic Update File providing the required information
for the Mortgage Loans and any successor REO Mortgage Loans (including, without
limitation, the Available Distribution Amount as of the related Determination
Date.
In the performance of its obligations set forth in Section 4.06 and
its other duties hereunder, the Trustee may conclusively rely on the CMSA Loan
Periodic Update File provided to it by the Master Servicer, and the Trustee
shall not be responsible to recompute, recalculate or verify the information
provided to it by the Master Servicer. In the case of information to be
furnished by the Master Servicer to the Trustee pursuant to this Section
4.02(b), insofar as such information is solely within the control of the Special
Servicer, the Master Servicer shall have no obligation to provide such
information until it has received such information from the Special Servicer,
shall not be in default hereunder due to a delay in providing the CMSA Loan
Periodic Update File caused by the Special Servicer's failure to timely provide
any report required under this Agreement and may, absent actual knowledge of an
error therein, conclusively rely on the reports to be provided by the Special
Servicer. The Master Servicer may conclusively rely on any information provided
by the Depositor or any Mortgagor with respect to the CMSA Loan Periodic Update
File, CMSA Loan Setup File, CMSA Property File and CMSA Financial File.
Section 4.03 P&I Advances.
(a) On or before 2:00 p.m., New York City time, on each Master
Servicer Remittance Date, the Master Servicer shall, subject to Section 4.03(c)
below, satisfy its obligations to make any required P&I Advances with respect to
the related Distribution Date in respect of the Mortgage Pool, first, by
transferring to the Trustee for deposit in the Distribution Account amounts then
held in the Custodial Account for future distribution to Certificateholders in
subsequent months in discharge of such obligations, and second, by remitting its
own funds to the Trustee for deposit in a Distribution Account in an amount
equal to the remaining portion of such required P&I Advances. Any amounts held
in the Custodial Account for future distribution and so used to make P&I
Advances shall be appropriately reflected in the Master Servicer's records and
replaced by the Master Servicer by deposit in the Custodial Account on or before
the next succeeding Determination Date (to the extent not previously replaced
through the deposit of Late Collections of the delinquent principal and interest
in respect of which such P&I Advances were made). If, as of 4:00 p.m., New York
City time, on any Master Servicer Remittance Date, the Master Servicer shall not
have made any P&I Advance required to be made on such date pursuant to this
Section 4.03(a) (and shall not have delivered to the Trustee the requisite
Officer's Certificate and documentation related to a determination of
nonrecoverability of a P&I Advance), then the Trustee shall provide notice of
such failure to a Servicing Officer of the Master Servicer by facsimile
transmission sent to telecopy no. [__________] (or such alternative number
provided by the Master Servicer to the Trustee in writing) and by telephone at
telephone no. [__________] (or such alternative number provided by the Master
Servicer to the Trustee in writing) as soon as possible, but in any event before
5:00 p.m., New York City time, on such Master Servicer Remittance Date. If after
such notice by facsimile, the Trustee does not receive the full amount of such
P&I Advances by 11:00 a.m., New York City time, on the related Distribution
Date, then the Trustee shall make the portion of such P&I Advances that was
required to be, but was not, made by the Master Servicer on such Master Servicer
Remittance Date.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer or the Trustee, as the case may be, pursuant to the first paragraph of
Section 4.03(a) in respect of any Distribution Date shall, subject to Section
4.03(c) below, equal the aggregate of all Monthly Payments (other than Balloon
Payments) and any Assumed Monthly Payments, in each case net of related Master
Servicing Fees and any related Workout Fees, due or deemed due, as the case may
be, in respect of the Mortgage Loans (including Balloon Mortgage Loans
delinquent as to their respective Balloon Payments) and any REO Mortgage Loans
in the Mortgage Pool on their respective Due Dates during the related Collection
Period, in each case to the extent such amount was not paid by or on behalf of
the related Mortgagor or otherwise collected (including as net income from REO
Properties) as of the close of business on the related Determination Date;
provided that if it is determined that an Appraisal Reduction Amount exists with
respect to any such Mortgage Loan or REO Mortgage Loan, then, in the event of
subsequent delinquencies thereon, the amount of each P&I Advance, if any,
required to be made in respect of such Mortgage Loan or REO Mortgage Loan, as
the case may be, during the period that such Appraisal Reduction Amount
continues to exist, shall be reduced to equal the product of (x) the amount of
the subject P&I Advance that would otherwise be required without regard to this
proviso, multiplied by (y) a fraction, the numerator of which is equal to the
Stated Principal Balance of such Mortgage Loan or REO Mortgage Loan, as the case
may be, net of such Appraisal Reduction Amount, and the denominator of which is
equal to the Stated Principal Balance of such Mortgage Loan or REO Mortgage
Loan, as the case may be.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made under this Section 4.03 if such P&I Advance would,
if made, constitute a Nonrecoverable Advance, as determined by the Master
Servicer or the Trustee. The determination by the Master Servicer that a P&I
Advance has become a Nonrecoverable P&I Advance or that any proposed P&I
Advance, if made pursuant to this Section 4.03, would constitute a
Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate
delivered to the Trustee, the Special Servicer and the Depositor on or before
the related Master Servicer Remittance Date, setting forth the basis for such
determination, together with any other information that supports such
determination, including any appraisal (which appraisal shall have been
conducted by an Independent Appraiser within the 12-month period preceding such
determination in accordance with the standards of the Appraisal Institute taking
into account the factors specified in Section 3.19), related Mortgagor operating
statements and financial statements, budgets and rent rolls of the related
Mortgaged Properties (to the extent available and/or in the Master Servicer's
possession), engineers' reports, environmental surveys and any similar reports
that the Master Servicer may have obtained consistent with the Servicing
Standard and at the expense of the Trust Fund, that support such determination
by the Master Servicer. If, in connection with the foregoing, it is necessary
for the Master Servicer to obtain an appraisal, the Master Servicer shall so
notify the Special Servicer and consult with the Special Servicer regarding such
appraisal. The cost of an appraisal shall be paid by the Trust as an Additional
Trust Fund Expense. The Trustee shall be entitled to rely, conclusively, on any
determination by the Master Servicer that a P&I Advance, if made, would be a
Nonrecoverable P&I Advance; provided, however, that if the Master Servicer has
failed to make a P&I Advance for reasons other than a determination by the
Master Servicer that such P&I Advance would be Nonrecoverable P&I Advance, the
Trustee shall make such Advance within the time periods required by Section
4.03(a) unless the Trustee, in its good faith, reasonable discretion, makes a
determination prior to the times specified in Section 4.03(a) that such P&I
Advance would be a Nonrecoverable P&I Advance. In addition, the Master Servicer
shall consider Workout-Delayed Reimbursement Amounts in respect of prior P&I
Advances on the applicable Mortgage Loan that have not been repaid by the
related Mortgagor for the purposes of nonrecoverability determinations as if
such amounts were ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances. [Upon determining that any P&I
Advance previously made with respect to a Specially Serviced Mortgage Loan or
REO Loan is a Nonrecoverable P&I Advance, the Special Servicer shall report to
the Master Servicer the Special Servicer's determination. The Master Servicer
shall be entitled to conclusively rely on such determination.]
(d) The Master Servicer and the Trustee shall each be entitled to
receive interest at the Reimbursement Rate in effect from time to time,
compounded annually, accrued on the amount of each P&I Advance made thereby
under this Section 4.03 (with its own funds) for so long as such P&I Advance is
outstanding; provided that, if the grace period for the delinquent Monthly
Payment as to which a P&I Advance was made under this Section has not elapsed as
of the time such P&I Advance was made, then the total interest so accrued on
such P&I Advance prior to the expiration of such grace period, shall not exceed
the amount of Default Charges, if any, collected in connection with the late
payment of such delinquent Monthly Payment; and provided, further that, in no
event shall interest so accrue on any P&I Advance as to which the corresponding
Late Collection was received by the Master Servicer or a Sub-Servicer on its
behalf as of the related Master Servicer Remittance Date. Interest so accrued on
any P&I Advance made under this Section shall be payable in accordance with the
terms of Section 3.05.
Section 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses.
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01, the Trustee
shall determine the amount, if any, by which (i) the then aggregate of the Class
Principal Balances of all the Classes of Principal Balance Certificates exceeds
(ii) the aggregate Stated Principal Balance of the Mortgage Pool that will be
outstanding immediately following such Distribution Date. If such excess does
exist, then the Class Principal Balances of the [Class P, Class O, Class N,
Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class E, Class D,
Class C and Class B] Certificates shall be reduced sequentially, in that order,
in each case, until such excess or the related Class Principal Balance is
reduced to zero (whichever occurs first). If, after the foregoing reductions,
the amount described in clause (i) of the second preceding sentence still
exceeds the amount described in clause (ii) of such sentence, then the
respective Class Principal Balances of all the outstanding Classes of the Class
A Certificates shall be reduced on a pro rata basis in accordance with the
relative sizes of such Class Principal Balances, until any such remaining excess
is reduced to zero. All such reductions in the Class Principal Balances of the
respective Classes of the Principal Balance Certificates shall constitute
allocations of Realized Losses and Additional Trust Fund Expenses.
(b) On each Distribution Date, following the deemed distributions of
principal or in reimbursement of previously allocated Realized Losses and
Additional Trust Fund Expenses made in respect of the Uncertificated Lower-Tier
Interests pursuant to Section 4.01(i), the Uncertificated Principal Balance (or
aggregate Uncertificated Principal Balance with respect to the Uncertificated
Lower-Tier Interests corresponding to the Class A-1, Class A-2, Class ▇-▇, ▇▇▇▇▇
▇-▇, Class D, Class E, Class F, Class G, Class H and Class K Certificates) of
the Corresponding Uncertificated Lower-Tier Interests (after taking account of
such deemed distributions) shall be reduced as a result of Realized Losses and
Additional Trust Fund Expenses to equal the Class Principal Balance of the Class
of Corresponding Certificates that will be outstanding immediately following
such Distribution Date; provided, that Realized Losses and Additional Trust Fund
Expenses shall be allocated:
(i) with respect to the Class K Certificates, first, in respect of
the Class LK-1 Interest; and second, in respect of the Class LK-2
Interest; in each case until their respective Uncertificated Principal
Balances are reduced to zero;
(ii) with respect to the Class H Certificates, first, in respect of
the Class LH-1 Interest; and second, in respect of the Class LH-2
Interest; in each case until their respective Uncertificated Principal
Balances are reduced to zero;
(iii) with respect to the Class G Certificates, first, in respect of
the Class LG-1 Interest; and second, in respect of the Class LG-2
Interest; in each case until their respective Uncertificated Principal
Balances are reduced to zero;
(iv) with respect to the Class F Certificates, first, in respect of
the Class LF-1 Interest; second, in respect of the Class LF-2 Interest;
and third, in respect of the Class LF-3 Interest; in each case until their
respective Uncertificated Principal Balances are reduced to zero;
(v) with respect to the Class E Certificates, first, in respect of
the Class LE-1 Interest; and second, in respect of the Class LE-2
Interest; in each case until their respective Uncertificated Principal
Balances are reduced to zero;
(vi) with respect to the Class D Certificates, first, in respect of
the Class LD-1 Interest; second, in respect of the Class LD-2 Interest;
third, in respect of the Class LD-3 Interest; fourth, in respect of the
Class LD-4 Interest; and fifth, in respect of the Class LD-5 Interest; in
each case until their respective Uncertificated Principal Balances are
reduced to zero;
(vii) with respect to the Class A-4 Certificates, first, in respect
of the Class LA-4-1 Interest; and second, in respect of the Class LA-4-2
Interest; in each case until their respective Uncertificated Principal
Balances are reduced to zero;
(viii) with respect to the Class A-3 Certificates, first, in respect
of the Class LA-3-1 Interest; second, in respect of the Class LA-3-2
Interest; third, in respect of the Class LA-3-3 Interest; fourth, in
respect of the Class LA-3-4 Interest; and fifth, in respect of the Class
LA-3-5 Interest; in each case, until their respective Uncertificated
Principal Balances are reduced to zero;
(ix) with respect to the Class A-2 Certificates, first, in respect
of the Class LA-2-1 Interest; second, in respect of the Class LA-2-2
Interest; third, in respect of the Class LA-2-3 Interest; fourth, in
respect of the Class LA-2-4 Interest; fifth, in respect of the Class
LA-2-5 Interest; sixth, in respect of the Class LA-2-6 Interest and
seventh, in respect of the Class LA-2-7 Interest, in each case, until
their respective Uncertificated Principal Balances are reduced to zero;
and
(x) with respect to the Class A-1 Certificates, first, in respect of
the Class LA-1-1 Interest; and second, in respect of the Class LA-1-2
Interest; in each case until their respective Uncertificated Principal
Balances are reduced to zero.
Section 4.05 Various Reinstatement Amounts.
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01 or 9.01, as
applicable, the Trustee shall determine the amount, if any, by which (i) the
aggregate Stated Principal Balance of the Mortgage Pool that will be outstanding
immediately following such Distribution Date, exceeds (ii) the then aggregate of
the Class Principal Balances of all the Classes of Principal Balance
Certificates. If such an excess does exist, then the Trustee shall allocate the
Total Principal Reinstatement Amount, if any, for the subject Distribution Date
as follows until it is allocated in full: first, to all of the Classes of Class
A Certificates, up to, and on a pro rata basis in accordance with, the
respective Loss Reimbursement Amounts, if any, for such Classes of Class A
Certificates with respect to the next succeeding Distribution Date; and then to
the remaining Classes of Principal Balance Certificates, sequentially in
alphabetical order based on the respective Class designations thereof, in each
case up to any Loss Reimbursement Amount for such Class of Principal Balance
Certificates immediately prior to such Distribution Date. Any portion of the
Total Principal Reinstatement Amount for any Distribution Date that is allocated
to a particular Class of Principal Balance Certificates shall be: (i) referred
to herein as the "Class Principal Reinstatement Amount" in respect of such Class
of Principal Balance Certificates for such Distribution Date; and (ii) added to
the Class Principal Balance of such Class of Principal Balance Certificates on
such Distribution Date. Notwithstanding anything to the contrary contained
herein, the parties hereby acknowledge that the reinstatement of all or any
portion of the Class Principal Balance of any Class of Principal Balance
Certificates on any Distribution Date shall be a result of the collection of
Recovered Amounts during the related Collection Period and the upward adjustment
of the Adjusted Principal Distribution Amount for such Distribution Date as a
result of such Recovered Amounts.
(b) In addition, in connection with its reinstatement of all or any
portion of the Class Principal Balance of any one or more Classes of Principal
Balance Certificates on any Distribution Date pursuant to Section 4.05(a), the
Trustee shall calculate the amount of lost Distributable Certificate Interest
that would have accrued on the respective Classes of Regular Interest
Certificates through and including the end of the Interest Accrual Period for
such Distribution Date if no Unfunded Principal Balance Reductions had resulted
from the reimbursement out of general collections of principal on the Mortgage
Pool of the particular Advances relating to the Recovered Amounts associated
with such reinstatement of outstanding principal. Once determined, such lost
Distributable Certificate Interest in respect of any particular Class of Regular
Interest Certificates shall be reinstated and become due and payable on future
Distribution Dates as part of the unpaid Distributable Certificate Interest for
such Class of Regular Interest Certificates from prior Distribution Dates. All
such reinstated Distributable Certificate Interest in respect of any particular
Class of Regular Interest Certificates shall be treated the same as any other
unpaid Distributable Certificate Interest in respect of such Class of Regular
Interest Certificates.
(c) If the Class Principal Balance of any Class of Principal Balance
Certificates is increased on any Distribution Date pursuant to Section 4.05(a),
then the Lower-Tier Interest Principal Balance of such Class' Corresponding
Lower-Tier Regular Interest (or, if applicable, the aggregate Lower-Tier
Interest Principal Balance of such Class' Corresponding Lower-Tier Regular
Interests) shall be deemed to have first been increased by the exact same
amount. In circumstances where there are multiple Corresponding Lower-Tier
Regular Interests with respect to a Class of Principal Balance Certificates, the
increases in the respective Lower-Tier Interest Principal Balances of such
Corresponding Lower-Tier Regular Interests as contemplated by the prior sentence
shall be made in the reverse order that reductions are made to such Lower-Tier
Interest Principal Balances pursuant to Section 4.04(b), in each case up to the
amount of the Loss Reimbursement Amount with respect to the subject Lower-Tier
Regular Interest for the next succeeding Distribution Date. The amount of each
such increase in the Lower-Tier Interest Principal Balance of a Lower-Tier
Regular Interest on any Distribution Date shall be referred to herein as the
"Lower-Tier Interest Principal Reinstatement Amount" in respect of such
Lower-Tier Regular Interest for such Distribution Date.
Section 4.06 Calculations.
The Trustee shall, provided it receives the necessary information
from the Master Servicer and the Special Servicer, be responsible for performing
all calculations necessary in connection with the actual and deemed
distributions and allocations to be made pursuant to Section 4.01 and Article IX
and the actual and deemed allocations of Realized Losses and Additional Trust
Fund Expenses to be made pursuant to Section 4.04. The Trustee shall calculate
the Available Distribution Amount for each Distribution Date and shall allocate
such amounts among Certificateholders in accordance with this Agreement, and the
Trustee shall have no obligation to recompute, recalculate or verify any
information provided to it by the Special Servicer or Master Servicer. The
calculations by the Trustee of such amounts shall, in the absence of manifest
error, be presumptively deemed to be correct for all purposes hereunder.
Section 4.07 Use of Agents.
The Master Servicer, the Special Servicer or the Trustee may at its
own expense utilize agents or attorneys-in-fact in performing any of its
obligations under this Article IV (except the obligation to make P&I Advances),
but no such utilization shall relieve the Master Servicer, the Special Servicer
or the Trustee, as applicable, from any of such obligations, and the Master
Servicer, the Special Servicer or the Trustee, as applicable, shall remain
responsible for all acts and omissions of any such agent or attorney-in-fact.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibits ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇ and A-6; provided that any
of the Certificates may be issued with appropriate insertions, omissions,
substitutions and variations, and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
The Certificates will be issuable in registered form only; provided, however,
that in accordance with Section 5.03, beneficial ownership interests in the
Certificates (other than the Class R-I or Class R-II Certificates) shall
initially be held and transferred through the book-entry facilities of the
Depository. The Regular Interest Certificates will be issuable only in
denominations corresponding to initial Certificate Principal Balances or initial
Notional Amount, as the case may be, as of the Closing Date of $[25,000] in the
case of the Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class C, Class
D and Class E Certificates, $[1,000,000] in the case of the Class XP, Class XC
Certificates, and $[100,000] in the case of the remaining Regular Interest
Certificates, and in each such case in integral multiples of $1 in excess
thereof. The Class R-I and Class R-II Certificates will be issuable in
denominations representing Percentage Interests in the related Class of not less
than 5%.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by the Certificate Registrar hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers or signatories of the
Certificate Registrar shall be entitled to all benefits under this Agreement,
subject to the following sentence, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, however, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein executed by the Authenticating Agent by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee is hereby initially appointed (and hereby agrees to act in
accordance with the terms hereof) as Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided. The offices of the Trustee responsible for its duties as initial
Certificate Register shall be located, as of the Closing Date, at [_________],
[_______], [_________], Attention: [__________]--CWCapital Commercial Funding
Corp., Commercial Mortgage Trust Series 200_-___. The Certificate Registrar may
appoint, by a written instrument delivered to the Depositor, the Master
Servicer, the Special Servicer and (if the Trustee is not the Certificate
Registrar) the Trustee, any other bank or trust company to act as Certificate
Registrar under such conditions as the predecessor Certificate Registrar may
prescribe, provided that the predecessor Certificate Registrar shall not be
relieved of any of its duties or responsibilities hereunder by reason of such
appointment. If the Trustee resigns or is removed in accordance with the terms
hereof, the successor trustee shall immediately succeed to its duties as
Certificate Registrar. The Depositor, the Trustee (if it is no longer the
Certificate Registrar), the Master Servicer and the Special Servicer shall have
the right to inspect the Certificate Register or to obtain a copy thereof at all
reasonable times, and to rely conclusively upon a certificate of the Certificate
Registrar as to the information set forth in the Certificate Register.
If three or more Holders make written request to the Trustee, and
such request states that such Holders desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such Holders propose to
transmit, then the Trustee shall, within 30 days after the receipt of such
request, afford (or cause any other Certificate Registrar to afford) the
requesting Holders access during normal business hours to the most recent list
of Certificateholders held by the Certificate Registrar.
(b) No Transfer of any Non-Registered Certificate or interest
therein shall be made unless that Transfer is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of any Definitive Non-Registered Certificate is to be
made without registration under the Securities Act (other than in connection
with a Transfer of a Global Certificate for any Class of Book-Entry
Non-Registered Certificates to a successor Depository or to the applicable
Certificate Owner(s) in accordance with Section 5.03), then the Certificate
Registrar shall refuse to register such Transfer unless it receives (and, upon
receipt, may conclusively rely upon) either: (i) a certificate from the
Certificateholder desiring to effect such Transfer substantially in the form
attached hereto as Exhibit F-1 and a certificate from such Certificateholder's
prospective Transferee substantially in the form attached hereto either as
Exhibit F-2A or, with respect to each Definitive Non-Registered Certificate
other than the Class R-I and Class R-II Certificates, as Exhibit F-2B; or (ii)
an Opinion of Counsel satisfactory to the Trustee to the effect that the
prospective Transferee is an Institutional Accredited Investor or a Qualified
Institutional Buyer (except in the case of the Class R-I and Class R-II
Certificates, where the prospective Transferee must be a Qualified Institutional
Buyer) and such Transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust Fund or of
the Depositor, the Master Servicer, the Special Servicer, the Tax Administrator,
the Trustee or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such Transfer from the Certificateholder desiring to effect such Transfer and/or
such Certificateholder's prospective Transferee on which such Opinion of Counsel
is based.
Except as provided in the following two paragraphs, no interest in
the Rule 144A Global Certificate for any Class of Book-Entry Non-Registered
Certificates shall be transferred to any Person who takes delivery other than in
the form of an interest in such Rule 144A Global Certificate. A Transferee of an
interest in the Rule 144A Global Certificate that takes delivery for a Class of
Book-Entry Non-Registered Certificates shall be deemed to have represented and
warranted that all the certifications set forth in Exhibit F-2C hereto are, with
respect to the subject Transfer, true and correct.
Any interest in the Rule 144A Global Certificate for a Class of
Book-Entry Non-Registered Certificates may be transferred by the Depositor or
any Affiliate of the Depositor to any Person who takes delivery in the form of a
beneficial interest in the Regulation S Global Certificate for such Class of
Certificates upon delivery to the Certificate Registrar of (x) a certificate to
the effect that the Certificate Owner desiring to effect such Transfer is the
Depositor or an Affiliate of the Depositor and (y) such written orders and
instructions as are required under the applicable procedures of the Depository,
Clearstream and Euroclear to direct the Trustee to debit the account of a
Depository Participant by a denomination of interests in such Rule 144A Global
Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Regulation S Global Certificate, that is equal
to the denomination of beneficial interests in the Certificates to be
transferred (such date of transfer, the "Transfer Date"). Upon delivery to the
Certificate Registrar of such certification and orders and instructions, the
Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the Rule 144A Global Certificate in
respect of the applicable Class of Certificates and increase the denomination of
the Regulation S Global Certificate for the applicable Class, by the
denomination of the beneficial interest in such Class specified in such orders
and instructions, provided that no Regulation S Restricted Certificate may be
transferred to a Person acquiring such Certificate in reliance on Regulation S.
Also notwithstanding the foregoing, any interest in a Rule 144A
Global Certificate with respect to any Class of Book-Entry Non-Registered
Certificates may be transferred by any Certificate Owner holding such interest
to any Institutional Accredited Investor (other than a Qualified Institutional
Buyer) that takes delivery in the form of a Definitive Certificate of the same
Class as such Rule 144A Global Certificate upon delivery to the Certificate
Registrar and the Trustee of (i) such certifications and/or opinions as are
contemplated by the second paragraph of this Section 5.02(b) and (ii) such
written orders and instructions as are required under the applicable procedures
of the Depository to direct the Trustee to debit the account of a Depository
Participant by the denomination of the transferred interests in such Rule 144A
Global Certificate. Upon delivery to the Certificate Registrar of the
certifications and/or opinions contemplated by the second paragraph of this
Section 5.02(b), the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the subject Rule
144A Global Certificate by the denomination of the transferred interests in such
Rule 144A Global Certificate, and shall cause a Definitive Certificate of the
same Class as such Rule 144A Global Certificate, and in a denomination equal to
the reduction in the denomination of such Rule 144A Global Certificate, to be
executed, authenticated and delivered in accordance with this Agreement to the
applicable Transferee.
Except as provided in the next paragraph, no beneficial interest in
the Regulation S Global Certificate for any Class of Book-Entry Non-Registered
Certificates shall be transferred to any Person who takes delivery other than in
the form of a beneficial interest in such Regulation S Global Certificate. On
and prior to the date (the "Release Date") which is 40 days after the Transfer
Date, the Certificate Owner desiring to effect any such Transfer shall be
required to obtain from such Certificate Owner's prospective Transferee a
written certification substantially in the form set forth in Exhibit F-2D hereto
certifying that such Transferee is not a United States Securities Person. On or
prior to the Release Date, beneficial interests in the Regulation S Global
Certificate for each Class of Book-Entry Non-Registered Certificates may be held
only through Euroclear or Clearstream. The Regulation S Global Certificate for
each Class of Book-Entry Non-Registered Certificates shall be deposited with the
Trustee as custodian for the Depository and registered in the name of Cede & Co.
as nominee of the Depository, provided that no Regulation S Restricted
Certificate may be transferred to a Person acquiring such Certificate in
reliance on Regulation S.
Notwithstanding the preceding paragraph, after the Release Date, any
interest in the Regulation S Global Certificate for a Class of Book-Entry
Non-Registered Certificates may be transferred by the Depositor or any Affiliate
of the Depositor to any Person who takes delivery in the form of a beneficial
interest in the Rule 144A Global Certificate for such Class of Certificates upon
delivery to the Certificate Registrar of (x) a certificate to the effect that
the Certificate Owner desiring to effect such Transfer is the Depositor or an
Affiliate of the Depositor and (y) such written orders and instructions as are
required under the applicable procedures of the Depository, Clearstream and
Euroclear to direct the Trustee to debit the account of a Depository Participant
by a denomination of interests in such Regulation S Global Certificate, and
credit the account of a Depository Participant by a denomination of interests in
such Rule 144A Global Certificate, that is equal to the denomination of
beneficial interests in the Certificates to be transferred. Upon delivery to the
Certificate Registrar of such certification and orders and instructions, the
Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the Regulation S Global Certificate
in respect of the applicable Class being transferred and increase the
denomination of the Rule 144A Global Certificate for such Class, by the
denomination of the beneficial interest in such Class specified in such orders
and instructions.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Non-Registered Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the Transfer of any
Non-Registered Certificate or interest therein without registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of any Non-Registered Certificate or interest therein shall, and does
hereby agree to, indemnify the Depositor, the Underwriters, the Trustee, the
Master Servicer, the Special Servicer, the Tax Administrator and the Certificate
Registrar against any liability that may result if such Transfer is not exempt
from the registration and/or qualification requirements of the Securities Act
and any applicable state securities laws or is not made in accordance with such
federal and state laws.
(c) No Transfer of a Certificate or any interest therein shall be
made (i) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, ▇▇▇▇▇ plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to Title I of ERISA, Section 4975 of the Code or any materially similar
provision ("Similar Law") of applicable federal, state or local law (each, a
"Plan"), or (ii) to any Person who is directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan, if the purchase and holding of such Certificate or
interest therein by the prospective Transferee would result in a violation of
Section 406 or 407 of ERISA or Section 4975 of the Code or would result in the
imposition of an excise tax under Section 4975 of the Code or any similar
violation of Similar Law. Except in connection with Transfer thereof to a
successor Depository or to the applicable Certificate Owner(s) in accordance
with Section 5.03, the Certificate Registrar shall refuse to register the
Transfer of a Definitive Non-Registered Certificate unless it has received from
the prospective Transferee, either (i) a certification to the effect that such
prospective Transferee is not a Plan and is not directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or (ii) alternatively, but only in
the case of a Certificate other than a Class R-I or Class R-II Certificate, a
certification to the effect that the purchase and holding of such Certificate or
interest therein by such prospective Transferee is exempt from the prohibited
transaction provisions of Sections 406(a) and (b) and 407 of ERISA and the
excise taxes imposed on such prohibited transactions by Sections 4975(a) and (b)
of the Code, by reason of Sections I and III of Prohibited Transaction Class
Exemption 95-60; or (iii) alternatively, but only in the case of a Certificate
other than a Class R-I or Class R-II Certificate, a certification of facts and
an Opinion of Counsel which otherwise establish to the reasonable satisfaction
of the Trustee or such Certificate Owner, as the case may be, that such Transfer
will not result in a violation of Section 406 or 407 of ERISA or Section 4975 of
the Code or result in the imposition of an excise tax under Section 4975 of the
Code. It is hereby acknowledged that the form of certification attached hereto
as Exhibit G (with respect to Definitive Non-Registered Certificates) is
acceptable for purposes of the preceding sentence. If any Transferee of a
Certificate (including a Registered Certificate) or any interest therein does
not, in connection with the subject Transfer, deliver to the Certificate
Registrar (in the case of a Definitive Certificate) any certification and/or
Opinion of Counsel contemplated by the second preceding sentence, then such
Transferee (and in any event any owner of a Book-Entry Certificate that is not
an Investment Grade Certificate) shall be deemed to have represented and
warranted that either: (i) such Transferee is not a Plan and is not directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) the
purchase and holding of such Certificate or interest therein by such Transferee
is exempt from the prohibited transaction provisions of Sections 406(a) and (b)
and 407 of ERISA and the excise taxes imposed on such prohibited transactions by
Sections 4975(a) and (b) of the Code (or similar violation of Similar Law). Any
Transferee of a Book-Entry Certificate that is an Investment Grade Certificate
that is being acquired by or on behalf of a Plan in reliance on the Prohibited
Transaction Exemption shall be deemed to have represented and warranted that
such Plan (X) is an accredited investor as defined in Rule 501(a)(1) of
Regulation D of the Securities Act, and (Y) is not sponsored (within the meaning
of Section 3(16)(B) of ERISA) by the Trustee, the Depositor, any Mortgage Loan
Seller, the Master Servicer, the Special Servicer, any Sub-Servicer, any
Exemption-Favored Party or any Mortgagor with respect to Mortgage Loans
constituting more than 5% of the aggregate unamortized principal balance of all
the Mortgage Loans determined as of the Closing Date, or by any Affiliate of
such Person.
(d) (i) Each Person who has or who acquires any Ownership Interest
in a Residual Interest Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Trustee under clause
(ii)(A) below to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) below to negotiate the
terms of any mandatory disposition and to execute all instruments of Transfer
and to do all other things necessary in connection with any such disposition.
The rights of each Person acquiring any Ownership Interest in a Residual
Interest Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in
a Residual Interest Certificate shall be a Permitted Transferee and
shall promptly notify the Tax Administrator and the Trustee of any
change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Interest Certificate, except in the case of
an initial transfer to an Underwriter or the Initial Purchaser or an
affiliate thereof, the Certificate Registrar shall require delivery
to it, and shall not register the Transfer of any Residual Interest
Certificate until its receipt, of an affidavit and agreement
substantially in the form attached hereto as Exhibit H-1 (a
"Transfer Affidavit and Agreement"), from the proposed Transferee,
representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in the Residual Interest Certificate that is the
subject of the proposed Transfer as a nominee, trustee or agent for
any Person that is not a Permitted Transferee, that for so long as
it retains its Ownership Interest in a Residual Interest Certificate
it will endeavor to remain a Permitted Transferee, and that it has
reviewed the provisions of this Section 5.02(d) and agrees to be
bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if a
Responsible Officer of either the Trustee or the Certificate
Registrar has actual knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership Interest in a
Residual Interest Certificate to such proposed Transferee shall be
effected.
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Interest Certificate shall agree (1) to require a
Transfer Affidavit and Agreement from any prospective Transferee to
whom such Person attempts to Transfer its Ownership Interest in such
Residual Interest Certificate and (2) not to Transfer its Ownership
Interest in such Residual Interest Certificate unless it provides to
the Certificate Registrar a certificate substantially in the form
attached hereto as Exhibit H-2 stating that, among other things, it
has no actual knowledge that such prospective Transferee is not a
Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in
a Residual Interest Certificate, by purchasing such Ownership
Interest, agrees to give the Tax Administrator and the Trustee
written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury Regulations Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest
in a Residual Interest Certificate, if it is, or is holding an
Ownership Interest in a Residual Interest Certificate on behalf of,
a "pass-through interest holder."
(ii) (A) If any purported Transferee shall become a Holder of a
Residual Interest Certificate in violation of the provisions of this
Section 5.02(d), then the last preceding Holder of such Residual Interest
Certificate that was in compliance with the provisions of this Section
5.02(d) shall be restored, to the extent permitted by law, to all rights
as Holder thereof retroactive to the date of registration of such Transfer
of such Residual Interest Certificate. None of the Depositor, the Trustee
or the Certificate Registrar shall be under any liability to any Person
for any registration of Transfer of a Residual Interest Certificate that
is in fact not permitted by this Section 5.02(d) or for making any
payments due on such Certificate to the Holder thereof or for taking any
other action with respect to such Holder under the provisions of this
Agreement.
(B) If any purported Transferee shall become a Holder of a
Residual Interest Certificate in violation of the restrictions in
this Section 5.02(d), then, to the extent that retroactive
restoration of the rights of the preceding Holder of such Residual
Interest Certificate as described in clause (ii)(A) above shall be
invalid, illegal or unenforceable, the Trustee shall have the right
but not the obligation, to cause the Transfer of such Residual
Interest Certificate to a Permitted Transferee selected by the
Trustee on such terms as the Trustee may choose, and the Trustee
shall not be liable to any Person having an Ownership Interest in
such Residual Interest Certificate as a result of the Trustee's
exercise of such discretion. Such purported Transferee shall
promptly endorse and deliver such Residual Interest Certificate in
accordance with the instructions of the Trustee. Such Permitted
Transferee may be the Trustee itself or any Affiliate of the
Trustee.
(iii) The Tax Administrator shall make available to the IRS and to
those Persons specified by the REMIC Provisions all information furnished
to it by the other parties hereto necessary to compute any tax imposed (A)
as a result of the Transfer of an Ownership Interest in a Residual
Interest Certificate to any Person who is a Disqualified Organization,
including the information described in Treasury Regulations Sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions"
of such Residual Interest Certificate and (B) as a result of any regulated
investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of
the Code that holds an Ownership Interest in a Residual Interest
Certificate having as among its record Holders at any time any Person
which is a Disqualified Organization, and each of the other parties hereto
shall furnish to the Tax Administrator all information in its possession
necessary for the Tax Administrator to discharge such obligation. The
Person holding such Ownership Interest shall be responsible for the
reasonable compensation of the Tax Administrator for providing information
thereto pursuant to this subsection (d)(iii) and Section 10.01(h)(i).
(iv) The provisions of this Section 5.02(d) set forth prior to this
clause (iv) may be modified, added to or eliminated, provided that there
shall have been delivered to the Trustee and the Tax Administrator the
following:
(A) written confirmation from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause an Adverse Rating Event; and
(B) an Opinion of Counsel, in form and substance satisfactory
to the Trustee and the Tax Administrator, obtained at the expense of
the party seeking such modification of, addition to or elimination
of such provisions (but in no event at the expense of the Trustee,
the Tax Administrator or the Trust), to the effect that doing so
will not (1) cause either REMIC Pool to cease to qualify as a REMIC
or be subject to an entity-level tax caused by the Transfer of any
Residual Interest Certificate to a Person which is not a Permitted
Transferee or (2) cause a Person other than the prospective
Transferee to be subject to a REMIC-related tax caused by the
Transfer of a Residual Interest Certificate to a Person that is not
a Permitted Transferee.
(e) If a Person is acquiring any Non-Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of an
interest in a Book-Entry Non-Registered Certificate, to the Certificate Owner
that is transferring such interest) a certification to the effect that, and such
other evidence as may be reasonably required by the Trustee (or such Certificate
Owner) to confirm that, it has (i) sole investment discretion with respect to
each such account and (ii) full power to make the applicable foregoing
acknowledgments, representations, warranties, certifications and agreements with
respect to each such account as set forth in Subsections (b), (c) and/or (d), as
appropriate, of this Section 5.02.
(f) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute and the Authenticating Agent shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class evidencing a like aggregate Percentage Interest
in such Class.
(g) At the option of any Holder, its Certificates may be exchanged
for other Certificates of authorized denominations of the same Class evidencing
a like aggregate Percentage Interest in such Class upon surrender of the
Certificates to be exchanged at the offices of the Certificate Registrar
maintained for such purpose. Whenever any Certificates are so surrendered for
exchange, the Certificate Registrar shall execute and the Authenticating Agent
shall authenticate and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(h) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(i) No service charge shall be imposed for any transfer or exchange
of Certificates, but the Trustee or Certificate Registrar may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
(j) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
Section 5.03 Book-Entry Certificates.
(a) The Certificates (other than the Class R-I and Class R-II)
shall, in the case of each such Class, initially be issued as one or more
Certificates registered in the name of the Depository or its nominee and, except
as provided in Section 5.03(c) and in the fifth paragraph of Section 5.02(b), a
Transfer of such Certificates may not be registered by the Certificate Registrar
unless such Transfer is to a successor Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and Transfer their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided in Section 5.03(c) and in
the fifth paragraph of Section 5.02(b), shall not be entitled to definitive,
fully registered Certificates ("Definitive Certificates") in respect of such
Ownership Interests. The Certificates (other than the Class R-I and Class R-II)
initially sold to Qualified Institutional Buyers in reliance on Rule 144A or in
reliance on another exemption from the registration requirements of the
Securities Act shall, in the case of each such Class, be represented by the Rule
144A Global Certificate for such Class, which shall be deposited with the
Trustee as custodian for the Depository and registered in the name of Cede & Co.
as nominee of the Depository. The Certificates (other than the Class R-I and
Class R-II) initially sold in offshore transactions in reliance on Regulation S
shall, in the case of each such Class, be represented by the Regulation S Global
Certificate for such Class, which shall be deposited with the Trustee as
custodian for the Depository and registered in the name of Cede & Co. as nominee
of the Depository, provided that only Investment Grade Certificates shall be
sold in offshore transactions in reliance on Regulation S. All Transfers by
Certificate Owners of their respective Ownership Interests in the Book-Entry
Certificates shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing each such Certificate
Owner. Each Depository Participant shall only transfer the Ownership Interests
in the Book-Entry Certificates of Certificate Owners it represents or of
brokerage firms for which it acts as agent in accordance with the Depository's
normal procedures.
(b) The Trustee, the Master Servicer, the Special Servicer, the
Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to a Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to a Class of Book-Entry
Certificates, the Certificate Registrar shall notify all affected Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same.
Upon surrender to the Certificate Registrar of the Book-Entry
Certificates of any Class thereof by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, the Definitive Certificates in respect of such Class to the Certificate
Owners identified in such instructions. None of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar shall
be liable for any delay in delivery of such instructions, and each of them may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates for purposes of evidencing
ownership of any Class of Registered Certificates, the registered Holders of
such Definitive Certificates shall be recognized as Certificateholders hereunder
and, accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
(d) Notwithstanding any other provisions contained herein, neither
the Trustee nor the Certificate Registrar shall have any responsibility
whatsoever to monitor or restrict the Transfer of ownership interests in any
Certificate which interests are transferable through the book-entry facilities
of the Depository.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be reasonably required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and like Percentage
Interest. Upon the issuance of any new Certificate under this section, the
Trustee and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee and the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the applicable REMIC created hereunder, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.05 Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agent of any of them may treat the Person in whose
name any Certificate is registered as the owner of such Certificate for the
purpose of receiving distributions pursuant to Section 4.01 and for all other
purposes whatsoever and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Certificate Registrar or any agent of any of them
shall be affected by notice to the contrary.
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE
DIRECTING HOLDER
Section 6.01 Liability of Depositor, Master Servicer and Special
Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
Section 6.02 Continued Qualification and Compliance of Master
Servicer; Merger, Consolidation or Conversion of Depositor, Master Servicer or
Special Servicer.
Subject to the following paragraph, the Depositor, the Master
Servicer and the Special Servicer shall each keep in full effect its existence,
rights and franchises as a legal entity under the laws of the jurisdiction of
its organization, and each will obtain and preserve its qualification to do
business as a foreign entity in, and will otherwise remain in compliance with
the laws of, each jurisdiction in which such qualification and compliance is or
shall be necessary to protect the validity and enforceability of this Agreement,
the Certificates or any of the Mortgage Loans and to perform its respective
duties under this Agreement.
Each of the Depositor, the Master Servicer and the Special Servicer
may be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets (which, in the case of the Master Servicer or
the Special Servicer, may be limited to all or substantially all of its assets
related to commercial mortgage loan servicing) to any Person, in which case any
Person resulting from any merger or consolidation to which the Depositor, the
Master Servicer or the Special Servicer shall be a party, or any Person
succeeding to the business (which, in the case of the Master Servicer or the
Special Servicer, may be limited to the commercial mortgage loan servicing
business) of the Depositor, the Master Servicer or the Special Servicer, shall
be the successor of the Depositor, the Master Servicer or the Special Servicer,
as the case may be, hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that no successor or surviving
Person shall succeed to the rights of the Master Servicer or the Special
Servicer unless (i) as confirmed in writing by each of the Rating Agencies, such
succession will not result in an Adverse Rating Event, and (ii) such successor
or surviving Person makes the applicable representations and warranties set
forth in Section 3.24 (in the case of a successor or surviving Person to the
Master Servicer) or Section 3.25 (in the case of a successor or surviving Person
to the Special Servicer), as applicable; provided, further, that for so long as
the Trust is subject to the reporting requirements of the Exchange Act, the
Depositor shall have consented thereto (which consent shall not be unreasonably
withheld).
Section 6.03 Limitation on Liability of Depositor, Master Servicer
and Special Servicer.
None of the Depositor, the Master Servicer or the Special Servicer
shall be under any liability to the Trust Fund, the Trustee or the
Certificateholders for any action taken, or not taken, in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer or the Special
Servicer against any liability to the Trust Fund, the Trustee or the
Certificateholders for the breach of a representation or warranty made herein by
such party, or against any expense or liability specifically required to be
borne by such party without right of reimbursement pursuant to the terms hereof,
or against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in the performance of its obligations or
duties hereunder or negligent disregard of such obligations or duties. The
Depositor, the Master Servicer, the Special Servicer and any director, manager,
member, officer, employee or agent of the Depositor, the Master Servicer or the
Special Servicer may rely in good faith on any document of any kind which, prima
facie, is properly executed and submitted by any Person respecting any matters
arising hereunder. The Depositor, the Master Servicer, the Special Servicer and
any director, manager, member, officer, employee or agent of the Depositor, the
Master Servicer or the Special Servicer shall be indemnified and held harmless
by the Trust Fund out of the Custodial Account against any loss, liability or
reasonable expense (including reasonable legal fees and expenses) incurred in
connection with any legal action or claim relating to this Agreement or the
Certificates (including in connection with the dissemination of information and
reports as contemplated by this Agreement), other than any such loss, liability
or expense: (i) specifically required to be borne by the party seeking
indemnification, without right of reimbursement pursuant to the terms hereof;
(ii) which constitutes a Servicing Advance that is otherwise reimbursable
hereunder; (iii) incurred in connection with any legal action or claim against
the party seeking indemnification, resulting from any breach on the part of that
party of a representation or warranty made herein; or (iv) incurred in
connection with any legal action or claim against the party seeking
indemnification, resulting from any willful misfeasance, bad faith or negligence
on the part of that party in the performance of its obligations or duties
hereunder or negligent disregard of such obligations or duties.
None of the Depositor, the Master Servicer or the Special Servicer
shall be under any obligation to appear in, prosecute or defend any
administrative or legal action, proceeding, hearing or examination unless such
action is related to its respective duties under this Agreement and either (i)
it is specifically required hereunder to bear the costs of such action or (ii)
such action will not, in its reasonable and good faith judgment, involve it in
any ultimate expense or liability for which it would not be reimbursed
hereunder. Notwithstanding the foregoing, the Depositor, the Master Servicer or
the Special Servicer may in its discretion undertake any such action which it
may deem necessary or desirable with respect to the enforcement and/or
protection of the rights and duties of the parties hereto and the interests of
the Certificateholders. In such event, the legal expenses and costs of such
action, and any liability resulting therefrom, shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, the Master Servicer and the
Special Servicer shall be entitled to be reimbursed therefor from the Custodial
Account as provided in Section 3.05. In no event shall the Master Servicer or
the Special Servicer be liable or responsible for any action taken or omitted to
be taken by the other of them (unless they are the same Person or Affiliates) or
for any action taken or omitted to be taken by the Depositor, the Trustee or any
Certificateholder, subject to the provisions of Section 8.05(c).
Section 6.04 Resignation of Master Servicer and the Special
Servicer.
(a) The Master Servicer and, subject to Section 6.09, the Special
Servicer may each resign from the obligations and duties hereby imposed on it,
upon a determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it (the other activities of the Master Servicer
or the Special Servicer, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer or the Special Servicer, as
the case may be, at the date of this Agreement). Any such determination
requiring the resignation of the Master Servicer or the Special Servicer, as
applicable, shall be evidenced by an Opinion of Counsel to such effect which
shall be delivered to the Trustee. Unless applicable law requires the Master
Servicer's or Special Servicer's resignation to be effective immediately, and
the Opinion of Counsel delivered pursuant to the prior sentence so states, no
such resignation shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
in accordance with Section 6.09 or Section 7.02 hereof. The Master Servicer and,
subject to the rights of the Controlling Class under Section 6.09 to appoint a
successor special servicer, the Special Servicer shall each have the right to
resign at any other time, provided that (i) a willing successor thereto
reasonably acceptable to the Depositor has been found (provided that if the
Depositor has not responded to a request for consent to a successor within 15
days, such successor shall be deemed approved thereby), (ii) each of the Rating
Agencies confirms in writing that the successor's appointment will not result in
an Adverse Rating Event, (iii) the resigning party pays all costs and expenses
in connection with such resignation and the resulting transfer of servicing, and
(iv) the successor accepts appointment prior to the effectiveness of such
resignation and agrees in writing to be bound by the terms and conditions of
this Agreement. Neither the Master Servicer nor the Special Servicer shall be
permitted to resign except as contemplated above in this Section 6.04(a).
(b) Consistent with Section 6.04(a), neither the Master Servicer nor
the Special Servicer shall, except as expressly provided herein, assign or
transfer any of its rights, benefits or privileges hereunder to any other Person
or, except as provided in Sections 3.22, 4.07, 7.01(c) and 7.01(d), delegate to
or subcontract with, or authorize or appoint any other Person to perform any of
the duties, covenants or obligations to be performed by it hereunder. If,
pursuant to any provision hereof, the duties of the Master Servicer or the
Special Servicer are transferred to a successor thereto, the Master Servicing
Fee, the Special Servicing Fee, any Workout Fee and/or any Liquidation Fee
(except as expressly contemplated by Section 3.11(b)), as applicable, that
accrues or otherwise becomes payable pursuant hereto from and after the date of
such transfer shall be payable to such successor. Notwithstanding anything to
the contrary herein, the outgoing Special Servicer shall be entitled to 100% of
any Liquidation Fee with respect to any Mortgage Loan as to which a Liquidation
Event has occurred prior to the effective date of transfer to the successor
Special Servicer.
Section 6.05 Rights of Depositor and Trustee in Respect of the
Master Servicer and the Special Servicer.
The Master Servicer and the Special Servicer shall each afford the
Depositor, each Underwriter and the Trustee (including any servicer on their
behalf), upon reasonable notice, during normal business hours access to all
records maintained thereby in respect of its rights and obligations hereunder.
Upon reasonable request, the Master Servicer and the Special Servicer shall each
furnish the Depositor, each Underwriter and the Trustee with its most recent
publicly available financial statements and such other non-proprietary
information as the Master Servicer or the Special Servicer, as the case may be,
shall determine in its sole and absolute discretion as it possesses, which is
relevant to the performance of its duties hereunder and which it is not
prohibited by applicable law or contract from disclosing. The Depositor may, but
is not obligated to, enforce the obligations of the Master Servicer and the
Special Servicer hereunder and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of the Master Servicer or Special
Servicer hereunder or exercise the rights of the Master Servicer and the Special
Servicer hereunder; provided, however, that neither the Master Servicer nor the
Special Servicer shall be relieved of any of its obligations hereunder by virtue
of such performance by the Depositor or its designee and, provided, further,
that the Depositor may not exercise any right pursuant to Section 7.01 to
terminate the Master Servicer or the Special Servicer as a party to this
Agreement. The Depositor shall not have any responsibility or liability for any
action or failure to act by the Master Servicer or the Special Servicer and is
not obligated to supervise the performance of the Master Servicer or the Special
Servicer under this Agreement or otherwise.
Section 6.06 Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee.
The Depositor, the Master Servicer and the Special Servicer shall
each furnish such reports, certifications and information as are reasonably
requested by the Trustee in order to enable it to perform its duties hereunder.
Section 6.07 Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Master Servicer in order to enable it to perform its duties hereunder.
Section 6.08 Depositor, Master Servicer and Trustee to Cooperate
with Special Servicer.
The Depositor, the Master Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Special Servicer in order to enable it to perform its duties hereunder.
Section 6.09 Termination and Designation of Special Servicer by the
Directing Holder.
The Controlling Class Representative, as applicable, shall so
designate a Person to serve as replacement Special Servicer by the delivery to
the Trustee and the Master Servicer, and the existing Special Servicer of a
written notice stating such designation. The Trustee shall, promptly after
receiving any such notice, deliver to the Rating Agencies an executed Notice and
Acknowledgment in the form attached hereto as Exhibit I-1. If the Directing
Holder has not replaced the Special Servicer within 30 days of such Special
Servicer's resignation or the date such Special Servicer has ceased to serve in
such capacity, the Trustee shall designate a successor Special Servicer, subject
to removal by the Directing Holder and appointment of a successor thereto
pursuant to the terms of this Section 6.09. Any designated Person (whether
designated by the Directing Holder or the Trustee) shall become the Special
Servicer on the date as of which the Trustee shall have received all of the
following: (1) written confirmation from all of the Rating Agencies that the
appointment of such Person will not result in an Adverse Rating Event; (2) an
Acknowledgment of Proposed Special Servicer in the form attached hereto as
Exhibit I-2, executed by the designated Person, (3) confirmation that all
out-of-pocket costs and expenses incurred in connection with the removal and
replacement of a Special Servicer have been paid either by the removing party or
the replacement Special Servicer and (4) an Opinion of Counsel (at the expense
of the Person designated to become the Special Servicer) to the effect that,
upon the execution and delivery of the Acknowledgment of Proposed Special
Servicer, the designated Person shall be bound by the terms of this Agreement
and, subject to customary limitations, that this Agreement shall be enforceable
against the designated Person in accordance with its terms. Any existing Special
Servicer shall be deemed to have resigned simultaneously with such designated
Person's becoming the Special Servicer hereunder; provided, however, that (i)
the resigning Special Servicer shall continue to be entitled to receive all
amounts accrued or owing to it under this Agreement on or prior to the effective
date of such resignation, whether in respect of Servicing Advances or otherwise,
(ii) if the resigning Special Servicer was terminated without cause, it shall be
entitled to a portion of certain Workout Fees thereafter payable with respect to
the Corrected Mortgage Loans (but only if and to the extent permitted by Section
3.11(b)) and (iii) the resigning Special Servicer shall continue to be entitled
to the benefits of Section 6.03 notwithstanding any such resignation. Such
resigning Special Servicer shall cooperate with the Trustee and the replacement
Special Servicer in effecting the termination of the resigning Special
Servicer's responsibilities and rights hereunder, including the transfer within
two Business Days to the replacement Special Servicer for administration by it
of all cash amounts that shall at the time be or should have been credited by
the Special Servicer to a Custodial Account, a Servicing Account, a Reserve
Account or an REO Account or should have been delivered to the Master Servicer
or that are thereafter received with respect to Specially Serviced Mortgage
Loans and REO Properties. The Trustee shall notify the other parties hereto and
the Certificateholders of any termination of the Special Servicer and
appointment of a new Special Servicer in accordance with this Section 6.09.
Any out-of-pocket costs and expenses incurred in connection with the
removal of a Special Servicer and its replacement by a Person designated by the
Directing Holder that are not paid by the replacement Special Servicer shall be
paid by the Directing Holder.
Section 6.10 Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer, the Special Servicer or any Affiliate of either
of them may become the Holder of (or, in the case of a Book-Entry Certificate,
Certificate Owner with respect to) any Certificate with (except as otherwise set
forth in the definition of "Certificateholder") the same rights it would have if
it were not the Master Servicer or the Special Servicer or an Affiliate thereof.
If, at any time during which the Master Servicer or the Special Servicer or an
Affiliate of the Master Servicer or the Special Servicer is the Holder of (or,
in the case of a Book-Entry Certificate, Certificate Owner with respect to) any
Certificate, the Master Servicer or the Special Servicer proposes to take action
(including for this purpose, omitting to take action) that is not expressly
prohibited by the terms hereof and would not, in the Master Servicer's or the
Special Servicer's reasonable, good faith judgment, violate the Servicing
Standard, but that, if taken, might nonetheless, in the Master Servicer's or the
Special Servicer's good faith judgment, be considered by other Persons to
violate the Servicing Standard, then the Master Servicer or the Special Servicer
may (but need not) seek the approval of the Certificateholders to such action by
delivering to the Trustee a written notice that (a) states that it is delivered
pursuant to this Section 6.10, (b) identifies the Percentage Interest in each
Class of Certificates beneficially owned by the Master Servicer or an Affiliate
thereof or the Special Servicer or an Affiliate thereof, as appropriate, and (c)
describes in reasonable detail the action that the Master Servicer or the
Special Servicer proposes to take. The Trustee, upon receipt of such notice,
shall forward it to the Certificateholders (other than the Master Servicer and
its Affiliates or the Special Servicer and its Affiliates, as appropriate),
together with such instructions for response as the Trustee shall reasonably
determine. If at any time Certificateholders holding greater than 50% of the
Voting Rights of all Certificateholders (calculated without regard to the
Certificates beneficially owned by the Master Servicer or its Affiliates or the
Special Servicer or its Affiliates, as appropriate) shall have failed to object
in writing to the proposal described in the written notice, and if the Master
Servicer or the Special Servicer shall act as proposed in the written notice
within 30 days, such action shall be deemed to comply with, but not modify, the
Servicing Standard. The Trustee shall be entitled to reimbursement from the
Master Servicer or the Special Servicer, as applicable, for the reasonable
expenses of the Trustee incurred pursuant to this paragraph. It is not the
intent of the foregoing provision that the Master Servicer or the Special
Servicer be permitted to invoke the procedure set forth herein with respect to
routine servicing matters arising hereunder, but rather only in the case of
unusual circumstances.
Section 6.11 Certain Powers of the Controlling Class Representative.
(a) The Controlling Class Representative will be entitled to advise
the Special Servicer with respect to the following actions of the Special
Servicer in connection with any Mortgage Loan. The Special Servicer will not be
permitted to take any of the following actions unless and until it has notified
the Controlling Class Representative in writing in capitalized, bold faced 14
point type containing the following statement at the top of the first page:
"THIS IS A REQUEST FOR CONTROLLING CLASS REPRESENTATIVE ACTION APPROVAL. IF THE
CONTROLLING CLASS REPRESENTATIVE FAILS TO APPROVE OR DISAPPROVE THE ENCLOSED
APPROVAL ACTION WITHIN FIVE (5) BUSINESS DAYS, THE SPECIAL SERVICER, MAY DELIVER
A DEEMED APPROVAL NOTICE," and (b) if the Controlling Class Representative fails
to either approve or reject said approval action within such five Business Day
period after receipt of the first notice, and having been provided with all
reasonably requested information with respect thereto, and the Special Servicer,
delivers the approval action request to the Controlling Class Representative
accompanied by a second notice in capitalized, bold faced 14 point type
containing the following statement at the top of the first page: "THIS IS A
SECOND REQUEST FOR APPROVAL ACTION. IF THE CONTROLLING CLASS REPRESENTATIVE
FAILS TO APPROVE OR DISAPPROVE THE ENCLOSED APPROVAL ACTION WITHIN FIVE BUSINESS
DAYS, SUCH APPROVAL ACTION WILL BE DEEMED APPROVED BY THE CONTROLLING CLASS
REPRESENTATIVE," then, if the Controlling Class Representative fails to approve
or reject such approval action within such second five Business Day period
(approval or rejection by notice by facsimile on the same day being acceptable),
then the Controlling Class Representative's approval will be deemed to have been
given:
(i) any proposed or actual foreclosure upon or comparable conversion
(which may include acquisition as an REO Property) of the ownership of
properties securing such of the Specially Serviced Mortgage Loans as come
into and continue in default or other enforcement action under the
Mortgage Loan documents;
(ii) any modification, extension, amendment or waiver of a monetary
term (including the timing of payments) or any material non-monetary term
of a Mortgage Loan (including any material term relating to insurance or
any prohibition on additional debt);
(iii) any proposed or actual sale of an REO Property (other than in
connection with the termination of the Trust Fund) for less than the
Purchase Price;
(iv) any acceptance of a discounted payoff of a Mortgage Loan;
(v) any determination to bring a Mortgaged Property or an REO
Property into compliance with applicable environmental laws or to
otherwise address Hazardous Materials located at a Mortgaged Property or
an REO Property;
(vi) any release of collateral for a Mortgage Loan or any release of
a Mortgagor or any guarantor under a Mortgage Loan (other than in
accordance with the terms of such Loan (with no material discretion by the
mortgagee), 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 (with no material discretion by the mortgagee));
(viii) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to any Mortgage Loan or consent to a transfer of the
Mortgaged Property or interest in the Mortgagor (to the extent the
mortgagee has the right to consent to such transfer);
(ix) any acceptance of an assumption agreement releasing a Mortgagor
or a guarantor from liability under a Mortgage Loan;
(x) any acceptance of a change in the property management company
(provided that the unpaid principal balance of the related Mortgage Loan
is greater than $5,000,000) or, if applicable, the hotel franchise for any
Mortgaged Property;
(xi) any extension of the maturity date of a Mortgage Loan, which
results in the remaining term of any related ground lease (together with
extensions at the sole option of the lender) being less than 10 years
beyond the amortization term of such Mortgage Loan;
(xii) any determination by the Special Servicer pursuant to clause
(b), (c) or (d) of the definition of "Specially Serviced Mortgage Loan"
that a Mortgage Loan has become a Specially Serviced Mortgage Loan;
(xiii) any extension by the Special Servicer of the maturity date of
a Performing Mortgage Loan pursuant to Section 3.21(d); and
(xiv) taking any action to enforce rights with respect to a
mezzanine lender under the related intercreditor or co-lender Agreement;
provided that, in the event that the Special Servicer determines that immediate
action is necessary to protect the interests of the Certificateholders (as a
collective whole), the Special Servicer may take any such action without waiting
for the applicable Controlling Class Representative's response. As used in
clauses (vi) and (vii) above, the term "material discretion" shall mean that the
relevant decision regarding the release of collateral or the acceptance of
substitute or additional collateral, as applicable, is in the discretion of the
mortgagee, and such decision need not be based upon the satisfaction of
specified objective conditions, the satisfactory delivery of certain factual
evidence or opinions or the satisfaction of any other specified objective
criteria that is set forth in the related Mortgage Loan documents.
In addition, the Controlling Class Representative may direct the
Special Servicer to take, or to refrain from taking, any actions with respect to
the servicing and/or administration of a Specially Serviced Mortgage Loan as the
Controlling Class Representative may deem advisable or as to which provision is
otherwise made herein subject to Section 6.11(b). Upon reasonable request, the
Special Servicer shall provide the Controlling Class Representative with any
information in the Special Servicer's possession with respect to such matters,
including its reasons for determining to take a proposed action; provided that
such information shall also be provided, in a written format, to the Trustee,
who shall make it available for review pursuant to Section 8.14(b).
The Special Servicer shall notify the applicable Controlling Class
Representative of any release or substitution of collateral for a Specially
Serviced Mortgage Loan even if such release or substitution is in accordance
with such Mortgage Loan.
(b) The Controlling Class Representative will have no liability to
the Certificateholders for any action taken, or for refraining from the taking
of any action, or for errors in judgment; provided, however, that the
Controlling Class Representative will not be protected against any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of duties or by reason of negligent disregard of
obligations or duties. Each Certificateholder acknowledges and agrees, by its
acceptance of its Certificates, that: (i) the Controlling Class Representative
may, and is permitted hereunder to, have special relationships and interests
that conflict with those of Holders of one or more Classes of Certificates; (ii)
the Controlling Class Representative may, and is permitted hereunder to, act
solely in the interests of the Holders of the Controlling Class; (iii) the
Controlling Class Representative or its representative do not have any duties to
the Holders of any Class of Certificates other than the Controlling Class; (iv)
the Controlling Class Representative may, and is permitted hereunder to, take
actions that favor interests of the Holders of the Controlling Class over the
interests of the Holders of one or more other Classes of Certificates; (v) the
Controlling Class Representative shall not be deemed to have been negligent or
reckless, or to have acted in bad faith or engaged in willful misconduct, by
reason of its having acted solely in the interests of the Holders of the
Controlling Class; and (vi) the Controlling Class Representative shall have no
liability whatsoever for having so acted, and no Certificateholder may take any
action whatsoever against the Controlling Class Representative, any Holder of
the Controlling Class or any director, officer, employee, agent or principal
thereof for having so acted.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into a Custodial
Account, any amount, including a P&I Advance, required to be so deposited
or remitted by it under this Agreement, which failure continues unremedied
for one Business Day following the date on which a deposit or remittance
was first required to be made; or
(ii) any failure by the Special Servicer to deposit into an REO
Account or to deposit into, or to remit to the Master Servicer for deposit
into, a Custodial Account, any amount required to be so deposited or
remitted under this Agreement, which failure continues unremedied for one
Business Day following the date on which a deposit or remittance was first
required to be made; or
(iii) any failure by the Master Servicer to deposit into, or remit
to the Trustee for deposit into, the Distribution Account, any amount
(including any P&I Advances and any amounts to cover Prepayment Interest
Shortfalls) required to be so deposited or remitted by it under this
Agreement, which failure continues unremedied until 11:00 a.m. (New York
City time) on the applicable Distribution Date; or
(iv) any failure by the Master Servicer or the Special Servicer to
timely make any Servicing Advance required to be made by it hereunder,
which Servicing Advance remains unmade for a period of three Business Days
following the date on which notice of such failure shall have been given
to the Master Servicer or the Special Servicer, as the case may be, by the
Trustee or any other parties hereunder; or
(v) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other
covenants or agreements on the part of the Master Servicer or the Special
Servicer, as the case may be, contained in this Agreement, which continues
unremedied for a period of 30 days (15 days in the case of payment of
insurance premiums) after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Master Servicer or the Special Servicer, as the case may be, by any other
party hereto or to the Master Servicer or the Special Servicer, as the
case may be (with a copy to each other party hereto), by the Holders of
Certificates entitled to at least 25% of the Voting Rights, provided,
however, that with respect to any such failure which is not curable within
such 30-day period, the Master Servicer or the Special Servicer, as the
case may be, shall have an additional cure period of 30 days to effect
such cure so long as the Master Servicer or the Special Servicer, as the
case may be, has commenced to cure such failure within the initial 30-day
period and has provided the Trustee with an Officer's Certificate
certifying that it has diligently pursued, and is diligently continuing to
pursue, a full cure; or
(vi) any breach on the part of the Master Servicer or the Special
Servicer of any of its representations or warranties contained in this
Agreement that materially and adversely affects the interests of any Class
of Certificateholders and which breach continues unremedied for a period
of 30 days after the date on which written notice of such breach,
requiring the same to be remedied, shall have been given to the Master
Servicer or the Special Servicer, as the case may be, by any other party
hereto or to the Master Servicer or the Special Servicer, as the case may
be (with a copy to each other party hereto), or the Holders of
Certificates entitled to at least 25% of the Voting Rights, provided,
however, that with respect to any such breach which is not curable within
such 30-day period, the Master Servicer or the Special Servicer, as the
case may be, shall have an additional cure period of 30 days so long as
the Master Servicer or the Special Servicer, as the case may be, has
commenced to cure such breach within the initial 30-day period and
provided the Trustee with an Officer's Certificate certifying that it has
diligently pursued, and is diligently continuing to pursue, a full cure;
or
(vii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer or the Special Servicer and such decree or order shall
have remained in force undischarged, undismissed or unstayed for a period
of 60 days; or
(viii) the Master Servicer or the Special Servicer shall consent to
the appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to it or
of or relating to all or substantially all of its property; or
(ix) the Master Servicer or the Special Servicer shall admit in
writing its inability to pay its debts generally as they become due, file
a petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations, or take any
corporate action in furtherance of the foregoing; or
(x) one or more ratings assigned by [__] to the Certificates has
been qualified, downgraded or withdrawn, or otherwise made the subject of
a "negative" credit watch (and such "watch status" placement shall not
have been withdrawn within 60 days of the date such servicing officer
obtained actual knowledge), which [__] has determined and given notice in
writing (including through a publication or newsletter) or electronically
(including through an internet website), is solely or in material part a
result of the Master Servicer or Special Servicer, as the case may be,
acting in such capacity;
(xi) the Master Servicer or the Special Servicer is removed from
[__]'s Select Servicer List as a U.S. Commercial Mortgage Master Servicer
or Special Servicer, as the case may be, and is not restored to such
status on such list within 60 days.
(xii) the Special Servicer shall fail to deliver any Exchange Act
reporting items required to be delivered by such servicer under Article X
by the time required under Article X (after any applicable notice, grace
and cure periods) but that with respect to any primary servicer,
sub-servicer or Servicing Function Participant (such entity, the
"Sub-Servicing Entity") retained by the Special Servicer (but excluding
one which the Special Servicer has been directed to retain by a Sponsor or
Mortgage Loan Seller) the Sub-Servicing Entity will be automatically
terminated if it defaults in accordance with the provision of this clause
(ix) and the Special Servicer will be required to provide the reports
required by the Sub-Servicing Entity and if the Special Servicer fails to
do so (beyond the applicable grace period) it shall be an event of default
with respect to the Special Servicer.
When a single entity acts as the Master Servicer and the Special
Servicer, an Event of Default in one capacity shall constitute an Event of
Default in the other capacity.
(b) If any Event of Default described in [clauses (i)-(vii) and
(ix)] of subsection (a) above shall occur with respect to the Master Servicer or
the Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") and shall be continuing, then, and in each and every such
case, so long as such Event of Default shall not have been remedied, the Trustee
may, and at the written direction of the Holders of Certificates entitled to at
least 25% of the Voting Rights, the Trustee shall, by notice in writing to the
Defaulting Party (with a copy of such notice to each other party hereto and the
Rating Agencies) terminate, subject to Section 7.01(d), all of the rights and
obligations (but not the liabilities for actions and omissions occurring prior
thereto) of the Defaulting Party under this Agreement and in and to the Trust
Fund, other than its rights, if any, as a Certificateholder hereunder or any
interest therein.
If any Event of Default described in [clause (viii)] of subsection
(a) above shall occur with respect to the Master Servicer or the Special
Servicer (in either case, under such circumstances, for purposes of this Section
7.01(b), the "Defaulting Party"), the Trustee shall, by notice in writing (to be
sent immediately by facsimile transmission) to the Defaulting Party (with a copy
of such notice to each other party hereto and the Rating Agencies), terminate,
subject to Section 7.01(d), all of the rights and obligations (but not the
liabilities for actions and omissions occurring prior thereto) of the Defaulting
Party under this Agreement and in and to the Trust Fund, other than its rights,
if any, as a Certificateholder hereunder or any interest therein, within 30 days
following the occurrence of such Event of Default.
From and after the receipt by the Defaulting Party of such written
notice of termination, all authority and power of the Defaulting Party under
this Agreement, whether with respect to the Certificates (other than as a Holder
of any Certificate), the Mortgage Loans (other than as a holder thereof or any
interest therein) or otherwise, shall pass to and be vested in the Trustee
pursuant to and under this section, and, without limitation, the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of and at the
expense of the Defaulting Party, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise.
The Master Servicer and the Special Servicer each agree that, if it
is terminated pursuant to this Section 7.01(b), it shall promptly (and in any
event no later than ten Business Days subsequent to its receipt of the notice of
termination) provide the Trustee with all documents and records, including those
in electronic form, requested thereby to enable the Trustee to assume the Master
Servicer's or Special Servicer's, as the case may be, functions hereunder, and
shall cooperate with the Trustee in effecting the termination of the Master
Servicer's or Special Servicer's, as the case may be, responsibilities and
rights hereunder, including (i) if the Master Servicer is the Defaulting Party,
the immediate transfer to the Trustee or a successor Master Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the Master Servicer to a Custodial Account, the
Distribution Account, the Defeasance Deposit Account, a Servicing Account or a
Reserve Account or that are thereafter received by or on behalf of it with
respect to any Mortgage Loan or (ii) if the Special Servicer is the Defaulting
Party, the transfer within two Business Days to the Trustee or a successor
Special Servicer for administration by it of all cash amounts that shall at the
time be or should have been credited by the Special Servicer to an REO Account,
a Custodial Account, a Servicing Account or a Reserve Account or should have
been delivered to the Master Servicer or that are thereafter received by or on
behalf of it with respect to any Mortgage Loan or REO Property; provided,
however, that the Master Servicer and the Special Servicer each shall, if
terminated pursuant to this Section 7.01(b), continue to be entitled to receive
all amounts accrued or owing to it under this Agreement on or prior to the date
of such termination, whether in respect of Advances or otherwise, and it shall
continue to be entitled to the benefits of Section 6.03 notwithstanding any such
termination.
Any cost or expenses in connection with any actions to be taken by
any party hereto pursuant to the prior paragraph shall be borne by the
Defaulting Party and if not paid by the Defaulting Party within 90 days after
the presentation of reasonable documentation of such costs and expenses, such
expense shall be reimbursed by the Trust Fund; provided, however, that the
Defaulting Party shall not thereby be relieved of its liability for such
expenses. For purposes of this Section 7.01 and also for purposes of Section
7.03(b), the Trustee shall not be deemed to have knowledge of an event which
constitutes, or which with the passage of time or notice, or both, would
constitute an Event of Default unless a Responsible Officer of the Trustee
assigned to and working in the Trustee's Corporate Trust Office has actual
knowledge thereof or unless notice of any event which is in fact such an Event
of Default is received by the Trustee and such notice references the
Certificates, the Trust Fund or this Agreement.
(c) In the case of an Event of Default under Section 7.01(a)(viii)
or (ix) of which the Trustee has notice, the Trustee shall provide written
notice thereof to the Master Servicer promptly upon receipt of such notice.
Notwithstanding Section 7.01(b), if the Master Servicer receives a notice of
termination under Section 7.01(b) solely due to an Event of Default under
Section 7.01(a)(viii) or (ix) and if the terminated Master Servicer provides the
Trustee with the appropriate "request for proposal" materials within five
Business Days following such termination, then the Master Servicer shall
continue to serve in such capacity hereunder until a successor thereto is
selected in accordance with this Section 7.01(c) or the expiration of 45 days
from the Master Servicer's receipt of the notice of termination, whichever
occurs first.
Upon receipt of such "request for proposal" materials from the
terminated Master Servicer, the Trustee shall promptly thereafter (using such
"request for proposal" materials) solicit good faith bids for the rights to
master service the Mortgage Loans under this Agreement from at least three (3)
Persons qualified to act as a successor Master Servicer hereunder in accordance
with Section 6.02 and Section 7.02 (any such Person so qualified, a "Qualified
Bidder") or, if three (3) Qualified Bidders cannot be located, then from as many
Persons as the Trustee can determine are Qualified Bidders; provided that at the
Trustee's request, the terminated Master Servicer shall supply the Trustee with
the names of Persons from whom to solicit such bids; and provided, further, that
the Trustee shall not be responsible if less than three (3) or no Qualified
Bidders submit bids for the right to master service the Mortgage Loans under
this Agreement. The bid proposal shall require any Successful Bidder (as defined
below), as a condition of such bid, to enter into this Agreement as successor
Master Servicer, and to agree to be bound by the terms hereof, within 45 days
after the receipt of notice of termination by the terminated Master Servicer.
The Trustee shall solicit bids: (i) on the basis of such successor Master
Servicer retaining all Sub-Servicers to continue the primary servicing of the
Mortgage Loans pursuant to the terms of the respective Sub-Servicing Agreements
and to enter into a Sub-Servicing Agreement with the terminated Master Servicer
to sub-service each of the Mortgage Loans not subject to a Sub-Servicing
Agreement at a sub-servicing fee rate per annum equal to the Master Servicing
Fee Rate minus one (1) basis point per Mortgage Loan serviced (each, a
"Servicing-Retained Bid"); and (ii) on the basis of terminating each
Sub-Servicing Agreement and Sub-Servicer that it is permitted to terminate in
accordance with Section 3.23 (each, a "Servicing-Released Bid"). The Trustee
shall select the Qualified Bidder with the highest cash Servicing-Retained Bid
(or, if none, the highest cash Servicing Released Bid) (the "Successful Bidder")
to act as successor Master Servicer hereunder. The Trustee shall direct the
Successful Bidder to enter into this Agreement as successor Master Servicer
pursuant to the terms hereof (and, if the successful bid was a Servicing
Retained Bid, to enter into a Sub-Servicing Agreement with the terminated Master
Servicer as contemplated above) no later than 45 days after the receipt of
notice of termination by the terminated Master Servicer.
Upon the assignment and acceptance of the master servicing rights
hereunder to and by the Successful Bidder, the Trustee shall remit or cause to
be remitted (i) if the successful bid was a Servicing-Retained Bid, to the
terminated Master Servicer the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
The terminated Master Servicer shall be responsible for all
out-of-pocket expenses incurred in connection with the attempt to sell its
rights to service the Mortgage Loans, which expenses are not reimbursed to the
party that incurred such expenses pursuant to the preceding paragraph.
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within 45 days after the terminated Master Servicer
received written notice of termination or no Successful Bidder was identified
within such 45-day period, the terminated Master Servicer shall reimburse the
Trustee for all reasonable "out-of-pocket" expenses incurred by the Trustee in
connection with such bid process and the Trustee shall have no further
obligations under this Section 7.01(c). The Trustee thereafter may act or may
select a successor to act as Master Servicer hereunder in accordance with
Section 7.02.
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer
resigns pursuant to Section 6.04 or receives a notice of termination pursuant to
Section 7.01, the Trustee shall, unless and until a successor is appointed
pursuant to Section 6.04, Section 6.09 or Section 7.01(c), be the successor in
all respects to the Master Servicer or the Special Servicer, as the case may be,
in its capacity as such under this Agreement and the transactions set forth or
provided for herein and shall have all (and the former Master Servicer or the
Special Servicer, as the case may be, shall cease to have any) of the
responsibilities, duties and liabilities of the Master Servicer or the Special
Servicer, as the case may be, arising thereafter, including, if the Master
Servicer is the resigning or terminated party, the Master Servicer's obligation
to make P&I Advances, including in connection with any termination of the Master
Servicer for an Event of Default described in clause 7.01(a)(iii), the unmade
P&I Advances that gave rise to such Event of Default; provided that any failure
to perform such duties or responsibilities caused by the Master Servicer's or
the Special Servicer's, as the case may be, failure to provide information or
monies required by Section 7.01 shall not be considered a default by the Trustee
hereunder. The Trustee shall not be liable for any of the representations and
warranties of the resigning or terminated party or for any losses incurred by
the resigning or terminated party pursuant to Section 3.06 hereunder nor shall
the Trustee be required to purchase any Mortgage Loan hereunder. As compensation
therefor, the Trustee shall be entitled to all fees and other compensation which
the resigning or terminated party would have been entitled to if the resigning
or terminated party had continued to act hereunder (except as set forth in
Section 3.11(b)). Notwithstanding the above, the Trustee may, if it shall be
unwilling to so act as either Master Servicer or Special Servicer, as the case
may be, or shall, if it is unable to so act as either Master Servicer or Special
Servicer, as the case may be, or if the Trustee is not approved as a master
servicer or a special servicer, as the case may be, by any of the Rating
Agencies, or if the Holders of Certificates entitled to a majority of the Voting
Rights so request in writing to the Trustee, promptly appoint, or petition a
court of competent jurisdiction to appoint, any established mortgage loan
servicing institution as the successor to the resigning or terminated Master
Servicer or the Special Servicer, as the case may be, hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the resigning or terminated Master Servicer or the Special Servicer, as the case
may be, hereunder; provided, however, that no such appointee shall succeed to
the rights and obligations of the Master Servicer or Special Servicer hereunder
unless (i) as confirmed in writing by each of the Rating Agencies, such
succession will not result in an Adverse Rating Event, and (ii) such appointee
makes the applicable representations and warranties set forth in Section 3.24;
and provided, further, that in the case of a resigning or terminated Special
Servicer, such appointment shall be subject to the rights of the Holders of
Certificates evidencing a majority of the Voting Rights allocated to the
Controlling Class to designate a successor pursuant to Section 6.09. No
appointment of a successor to the Master Servicer or the Special Servicer
hereunder shall be effective until the assumption by the successor to such party
of all its responsibilities, duties and liabilities under this Agreement.
Pending appointment of a successor to the Master Servicer or the Special
Servicer hereunder, the Trustee shall act in such capacity as hereinabove
provided. In connection with any such appointment and assumption described
herein, the Trustee may make such arrangements for the compensation of such
successor out of payments on the Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted the resigning or terminated party hereunder. Such successor and the
other parties hereto shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession.
Section 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.09, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register.
(b) Not later than 10 days after a Responsible Officer of the
Trustee has notice of the occurrence of any event which constitutes or, with
notice or lapse of time or both, would constitute an Event of Default, the
Trustee shall transmit by mail to the Depositor, all the Certificateholders and
the Rating Agencies notice of such occurrence, unless such default shall have
been cured.
Section 7.04 Waiver of Events of Default.
The Holders representing at least 66-2/3% of the Voting Rights
allocated to each Class of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided, however, that an Event of
Default under any of clauses (i), (ii), (iii), [(viii) and (ix)] of Section
7.01(a) may be waived only by all of the Certificateholders of the affected
Classes, if any, that is affected by such Event of Default. Upon any such waiver
of an Event of Default, such Event of Default shall cease to exist and shall be
deemed to have been remedied for every purpose hereunder. No such waiver shall
extend to any subsequent or other Event of Default or impair any right
consequent thereon except to the extent expressly so waived. Notwithstanding any
other provisions of this Agreement, for purposes of waiving any Event of Default
pursuant to this Section 7.04, Certificates registered in the name of the
Depositor or any Affiliate of the Depositor shall be entitled to Voting Rights
with respect to the matters described above.
Section 7.05 Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy, and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs; provided that if the Trustee is acting as Master Servicer or
Special Servicer, it shall act in accordance with the Servicing Standard. Any
permissive right of the Trustee contained in this Agreement shall not be
construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall take such action as it deems appropriate to
have the instrument corrected. The Trustee shall not be responsible for the
accuracy or content of any resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Depositor, the Master
Servicer or the Special Servicer, and accepted by the Trustee in good faith,
pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the terms of this Agreement and the direction of any
Directing Holder, Controlling Class or Holders of Certificates entitled to
at least 25% of the Voting Rights, relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement; and
(iv) The protections, immunities and indemnities afforded to the
Trustee hereunder shall also be available to it in its capacity as
Authenticating Agent, Certificate Registrar, Tax Administrator and
Custodian.
Section 8.02 Certain Matters Affecting Trustee.
Except as otherwise provided in Section 8.01 and Article X:
(i) the Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(iii) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or, except as provided in
Section 10.01, to institute, conduct or defend any litigation hereunder or
in relation hereto, at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby; except as provided in Section 10.01,
the Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably
assured to it; nothing contained herein shall, however, relieve the
Trustee of the obligation, upon the occurrence of an Event of Default
which has not been cured, to exercise such of the rights and powers vested
in it by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(iv) the Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(v) prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, and
except as may be provided in Section 10.01, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates entitled to at
least 25% of the Voting Rights; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require reasonable indemnity against such expense or
liability as a condition to taking any such action;
(vi) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys; provided, however, that the Trustee shall remain responsible
for all acts and omissions of such agents or attorneys within the scope of
their employment to the same extent as it is responsible for its own
actions and omissions hereunder; and
(vii) the Trustee shall not be responsible for any act or omission
of the Master Servicer or the Special Servicer (unless the Trustee is
acting as Master Servicer or the Special Servicer) or the Depositor.
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than
the statements attributed to the Trustee in Article II and Section 8.16 and
Section 8.18 and the signature of the Certificate Registrar and the
Authenticating Agent set forth on each outstanding Certificate, shall not be
taken as the statements of the Trustee, and the Trustee shall not assume any
responsibility for their correctness. Except as expressly set forth in Section
8.16 and 8.18 and the Trustee make no representations as to the validity or
sufficiency of this Agreement or of any Certificate (other than as to the
signature of the Trustee set forth thereon) or of any Mortgage Loan or related
document. The Trustee shall not be accountable for the use or application by the
Depositor of any of the Certificates issued to it or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor
in respect of the assignment of the Mortgage Loans to the Trust Fund, or any
funds deposited in or withdrawn from a Custodial Account or any other account by
or on behalf of the Depositor, the Master Servicer or the Special Servicer. The
Trustee shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, the Master Servicer or the Special Servicer, and
accepted by the Trustee in good faith, pursuant to this Agreement.
Section 8.04 Trustee May Own Certificates.
The Trustee or any agent of the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Certificates with (except as
otherwise provided in the definition of "Certificateholder") the same rights it
would have if it were not the Trustee or such agent.
Section 8.05 Fees and Expenses of Trustee; Indemnification of and by
Trustee.
(a) On each Distribution Date, the Trustee shall withdraw from the
general funds on deposit in the Distribution Account, prior to any distributions
to be made therefrom on such date, and pay to itself the Trustee Fee for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, as compensation for all services rendered by the Trustee in
the execution of the trusts hereby created and in the exercise and performance
of any of the powers and duties of the Trustee hereunder. The Trustee Fees
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) shall constitute the Trustee's
sole compensation for such services to be rendered by it.
(b) The Trustee and any director, officer, employee or agent of the
Trustee shall be entitled to be indemnified for and held harmless by the Trust
Fund against any loss, liability or reasonable "out-of-pocket" expense
(including costs and expenses incurred in connection with removal of the Special
Servicer and Master Servicer pursuant to Sections 7.01 and 7.02, costs and
expenses of litigation, and of investigation, counsel fees, damages, judgments
and amounts paid in settlement) arising out of, or incurred in connection with,
this Agreement or the Certificates ("Trustee Liability"); provided that such
loss, liability or expense constitutes an "unanticipated expense" within the
meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii); and provided,
further, that neither the Trustee nor any of the other above specified Persons
shall be entitled to indemnification pursuant to this Section 8.05(b) for (1)
any liability specifically required to be borne thereby pursuant to the terms of
this Agreement, or (2) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of, or the
negligent disregard of, the Trustee's obligations and duties hereunder, or as
may arise from a breach of any representation, warranty or covenant of the
Trustee made herein, or (3) any loss, liability or expense that constitutes
allocable overhead. The provisions of this Section 8.05(b) and of Section
8.05(c) shall survive any resignation or removal of the Trustee and appointment
of a successor trustee.
(c) If the Trustee Liability arises from the issuance or sale of the
Certificates and the indemnification provided for in Section 8.05(b) is invalid
or unenforceable, then the Trust Fund shall contribute to the amount paid or
payable by the Trustee as a result of such Trustee Liability in such proportion
as is appropriate to reflect the relative fault of any of the other parties on
the one hand and the Trustee on the other in connection with the actions or
omissions which resulted in such Trustee Liability, as well as any other
relevant equitable considerations.
(d) The Trustee shall indemnify and hold harmless the Trust Fund
against any losses arising out of any errors made solely by the Trustee in
calculating distributions to be made hereunder and any other calculation or
reporting hereunder (in each case not attributable to information provided to
the Trustee by the Master Servicer or the Special Servicer); provided that such
loss arose by reason of willful misfeasance, bad faith or negligence on the part
of the Trustee. The provisions of this Section 8.05(d) shall survive any
resignation or removal of the Trustee and appointment of a successor trustee.
Section 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a bank, a trust company,
an association or a corporation organized and doing business under the laws of
the United States of America or any state thereof or the District of Columbia,
authorized under such laws to exercise trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination by
federal or state banking authority. If such bank, trust company, association or
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such bank,
trust company, association or corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. The Trustee shall at all times maintain a long-term unsecured debt
rating of at least "[____]" by [___] and "[____]" by [___] (or "[____]" by [___]
if the short-term unsecured debt rating of the Trustee is rated at least
"[____]" by [___]) (or, in the case of either Rating Agency, such other rating
as shall not result in an Adverse Rating Event with respect to the Certificates,
as confirmed in writing by such Rating Agency). The Trustee's acting in such
capacity shall not adversely affect the application of the Prohibited
Transaction Exemption to the Investment Grade Certificates. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 8.07; provided that if the Trustee shall cease to be so
eligible because its combined capital and surplus is no longer at least
$50,000,000 or its long-term unsecured debt rating no longer conforms to the
requirements of the immediately preceding sentence, and if the Trustee proposes
to the other parties hereto to enter into an agreement with (and reasonably
acceptable to) each of them, and if in light of such agreement the Trustee's
continuing to act in such capacity would not (as evidenced in writing by each
Rating Agency) cause an Adverse Rating Event, then upon the execution and
delivery of such agreement the Trustee shall not be required to resign, and may
continue in such capacity, for so long as none of the ratings assigned by the
Rating Agencies to the Certificates is adversely affected thereby. The bank,
trust company, corporation or association serving as Trustee may have normal
banking and trust relationships with the Depositor, the Master Servicer, the
Special Servicer and their respective Affiliates.
Section 8.07 Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer and all Certificateholders. Upon receiving
such notice of resignation, the Depositor shall promptly appoint a successor
trustee acceptable to the Depositor by written instrument, in duplicate, which
instrument shall be delivered to the resigning Trustee and to the successor
trustee. A copy of such instrument shall be delivered to the Master Servicer,
the Special Servicer and the Certificateholders by the Depositor. If no
successor trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or if
the Trustee shall fail (other than by reason of the failure of either the Master
Servicer or the Special Servicer to timely perform its obligations hereunder or
as a result of other circumstances beyond the Trustee's reasonable control), to
timely deliver or otherwise make available in accordance with this Agreement any
current or revised Distribution Date Statement, CMSA Loan Periodic Update File,
CMSA Property File, CMSA Financial File or other report or statement required by
Section 4.02 and such failure shall continue unremedied for a period of five
days after receipt of written notice by the Trustee of such failure, or if a tax
is imposed or threatened with respect to the Trust Fund by any state in which
the Trustee is located or in which it holds any portion of the Trust Fund, then
the Depositor may remove the Trustee and appoint a successor trustee acceptable
to the Depositor and the Master Servicer by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer and the Certificateholders by the successor
trustee so appointed.
(c) The Holders of Certificates entitled to 51% of the Voting Rights
may at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which instruments shall be delivered to the
Master Servicer, one complete set to the Trustee so removed and one complete set
to the successor trustee so appointed. A copy of such instrument shall be
delivered to the Depositor, the Special Servicer and the remaining
Certificateholders by the successor trustee so appointed.
(d) In the event that the Trustee is terminated or removed pursuant
to this Section 8.07, all of its rights and obligations under this Agreement and
in and to the Mortgage Loans shall be terminated, other than any rights or
obligations that accrued prior to the date of such termination or removal
(including the right to receive all fees, expenses and other amounts (including
P&I Advances and any accrued interest thereon) accrued or owing to it under this
Agreement, with respect to periods prior to the date of such termination or
removal, and no termination without cause shall be effective until the payment
of such amounts to the Trustee).
(e) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
(f) Following the Closing Date, for so long as the Trust is subject
to the reporting requirements of the Exchange Act, the Trustee may not appoint
any sub-servicer that is or could become a Reporting Servicer without the prior
written consent of the Depositor, which consent shall not be unreasonably
withheld.
Section 8.08 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Master Servicer,
the Special Servicer and to the predecessor trustee an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The predecessor trustee
shall deliver to the successor trustee (at the expense of the Certificateholders
that effected the removal, if the Trustee has been removed in accordance with
Section 8.07(c) without cause or if such expenses are not paid by such
Certificateholders within ninety (90) days after they are incurred, at the
expense of the Trust, provided that such Certificateholders shall remain liable
to the Trust for such expenses) all Mortgage Files and related documents and
statements held by it hereunder (other than any Mortgage Files at the time held
on its behalf by a third-party Custodian, which Custodian shall become the agent
of the successor trustee), and the Depositor, the Master Servicer, the Special
Servicer and the predecessor trustee shall execute and deliver such instruments
and do such other things as may reasonably be required to more fully and
certainly vest and confirm in the successor trustee all such rights, powers,
duties and obligations, and to enable the successor trustee to perform its
obligations hereunder.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08, unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor, the Master Servicer, the
Special Servicer and the Certificateholders.
Section 8.09 Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted, or
with which the Trustee 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 (i) such entity shall be
eligible under the provisions of Section 8.06 or Section 8.17, as applicable,
and (ii) for so long as the Trust is subject to the reporting requirements of
the Exchange Act, shall have been consented to by the Depositor (which consent
shall not be unreasonably withheld) without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Trustee shall have the power and shall execute and deliver all instruments
to appoint one or more Persons approved by the Trustee to act as co-trustee or
co-trustees, jointly with the Trustee, or separate trustee or separate trustees,
of all or any part of the Trust Fund, and to vest in such Person or Persons, in
such capacity, such title to the Trust Fund, or any part thereof, and, subject
to the other provisions of this Section 8.10, such powers, duties, obligations,
rights and trusts as the Master Servicer and the Trustee may consider necessary
or desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06
hereunder and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 8.08
hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer or the Special Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts vested therein pursuant to
the applicable instrument of appointment and this Section 8.10, shall vest in
and be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
Section 8.11 Appointment of Custodians.
The Trustee may appoint at the Trustee's expense one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking authority, shall have combined capital
and surplus of at least $10,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor,
a Mortgage Loan Seller or any Affiliate of any of them. Neither the Master
Servicer nor the Special Servicer shall have any duty to verify that any such
Custodian is qualified to act as such in accordance with the preceding sentence.
The Trustee may enter into agreements to appoint a Custodian which is not the
Trustee, provided that such agreement: (i) is consistent with this Agreement in
all material respects and requires the Custodian to comply with all of the
applicable conditions of this Agreement; (ii) provides that if the Trustee shall
for any reason no longer act in the capacity of Trustee hereunder, the successor
Trustee or its designee may thereupon assume all of the rights and, except to
the extent they arose prior to the date of assumption, obligations of the
Custodian under such agreement or, alternatively, may terminate such agreement
without cause and without payment of any penalty or termination fee; and (iii)
does not permit the Custodian any rights of indemnification that may be
satisfied out of assets of the Trust Fund. The appointment of one or more
Custodians shall not relieve the Trustee from any of its obligations hereunder,
and the Trustee shall remain responsible for all acts and omissions of any
Custodian. In the absence of any other Person appointed in accordance herewith
acting as Custodian, the Trustee agrees to act in such capacity in accordance
with the terms hereof. Notwithstanding anything herein to the contrary, if the
Trustee is no longer the Custodian, any provision or requirement herein
requiring notice or any information or documentation to be provided to the
Custodian shall be construed to require that such notice, information or
documents also be provided to the Trustee. Any Custodian hereunder shall at all
times maintain a fidelity bond and errors and omissions policy in amounts
customary for custodians performing duties similar to those set forth in this
Agreement and, in any event, satisfying the same requirements (including as to
the insurer) as are applicable to any such bond or policy required to be
maintained by the Master Servicer pursuant to Section 3.07.
Section 8.12 Appointment of Authenticating Agents.
(a) The Trustee may appoint at the Trustee's expense an
Authenticating Agent, which shall be authorized to act on behalf of the Trustee
in authenticating Certificates. The Trustee shall cause any such Authenticating
Agent to execute and deliver to the Trustee an instrument in which such
Authenticating Agent shall agree to act in such capacity, with the obligations
and responsibilities herein. Each Authenticating Agent must be organized and
doing business under the laws of the United States of America or of any State,
authorized under such laws to carry on a trust business, have a combined capital
and surplus of at least $15,000,000, and be subject to supervision or
examination by federal or state authorities. Each Authenticating Agent shall be
subject to the same obligations, standard of care, protection and indemnities as
would be imposed on, or would protect, the Trustee hereunder. The appointment of
an Authenticating Agent shall not relieve the Trustee from any of its
obligations hereunder, and the Trustee shall remain responsible for all acts and
omissions of the Authenticating Agent. In the absence of any other Person
appointed in accordance herewith acting as Authenticating Agent, the Trustee
hereby agrees to act in such capacity in accordance with the terms hereof.
Notwithstanding anything herein to the contrary, if the Trustee is no longer the
Authenticating Agent, any provision or requirement herein requiring notice or
any information or documentation to be provided to the Authenticating Agent
shall be construed to require that such notice, information or documentation
also be provided to the Trustee.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent appointed in accordance with this
Section 8.12 may at any time resign by giving at least 30 days' advance written
notice of resignation to the Trustee, the Master Servicer, the Special Servicer
and the Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent appointed in accordance with this Section 8.12 by giving
written notice of termination to such Authenticating Agent, the Master Servicer
and the Depositor. Upon receiving a notice of such a resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 8.12, the Trustee may
appoint a successor Authenticating Agent, in which case the Trustee shall give
written notice of such appointment to the Master Servicer, the Certificate
Registrar and the Depositor and shall mail notice of such appointment to all
Holders of Certificates; provided, however, that no successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section
8.12. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Authenticating Agent.
Section 8.13 Appointment of Tax Administrators.
(a) The Trustee may appoint at the Trustee's expense any Person with
appropriate tax-related experience to act as Tax Administrator hereunder;
provided that, in the absence of any other Person appointed in accordance
herewith acting as Tax Administrator, the Trustee agrees to act in such capacity
in accordance with the terms hereof. The appointment of a Tax Administrator
shall not relieve the Trustee from any of its obligations hereunder, and the
Trustee shall remain responsible for all acts and omissions of the Tax
Administrator. The Trustee shall cause any such Tax Administrator appointed by
it to execute and deliver to the Trustee an instrument in which such Tax
Administrator shall agree to act in such capacity, with the obligations and
responsibilities herein.
(b) Any Person into which any Tax Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Tax Administrator shall be a
party, or any Person succeeding to the corporate agency business of any Tax
Administrator, shall continue to be the Tax Administrator without the execution
or filing of any paper or any further act on the part of the Trustee or the Tax
Administrator.
(c) Any Tax Administrator appointed in accordance with this Section
8.13 may at any time resign by giving at least 30 days' advance written notice
of resignation to the Trustee, the Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any Tax
Administrator appointed in accordance with this Section 8.13 by giving written
notice of termination to such Tax Administrator, the Master Servicer, and the
Depositor. Upon receiving a notice of such a resignation or upon such a
termination, or in case at any time any Tax Administrator shall cease to be
eligible in accordance with the provisions of this Section 8.13, the Trustee may
appoint a successor Tax Administrator, in which case the Trustee shall give
written notice of such appointment to the Master Servicer, the Special Servicer
and the Depositor and shall mail notice of such appointment to all Holders of
Certificates; provided, however, that no successor Tax Administrator shall be
appointed unless eligible under the provisions of this Section 8.13. Any
successor Tax Administrator upon acceptance of its appointment hereunder shall
become vested with all the rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Tax
Administrator.
Section 8.14 Access to Certain Information.
(a) The Trustee shall afford to the Master Servicer, the Special
Servicer and the Depositor, and to the OTS, the FDIC and any other banking or
insurance regulatory authority that may exercise authority over any
Certificateholder, access to any documentation regarding the Mortgage Loans
within its control that may be required to be provided by this Agreement or by
applicable law. Such access shall be afforded without charge but only upon
reasonable prior written request and during normal business hours at the offices
of the Trustee designated by it.
(b) The Trustee shall maintain in its possession and, upon
reasonable prior written request and during normal business hours, shall make
available at its offices for review by the Depositor, the Rating Agencies, the
Controlling Class Representative and, subject to the succeeding paragraph, any
Certificateholder, Certificate Owner or Person identified to the Trustee as a
prospective Transferee of a Certificate or an interest therein, originals and/or
copies of the following items: (i) the Prospectus, any private placement
memorandum and any other disclosure document relating to the Certificates, in
the form most recently provided to the Trustee by the Depositor or by any Person
designated by the Depositor; (ii) this Agreement, each Sub-Servicing Agreement
delivered to the Trustee since the Closing Date; (iii) all Certificateholder
Reports made available to Certificateholders pursuant to Section 4.02(a) since
the Closing Date; (iv) all Annual Performance Certifications delivered by the
Master Servicer and the Special Servicer, respectively, to the Trustee since the
Closing Date; (v) all Annual Accountants' Reports caused to be delivered by or
on behalf of the Master Servicer and the Special Servicer, respectively, to the
Trustee since the Closing Date; (vi) any and all notices and reports delivered
to the Trustee with respect to any Mortgaged Property as to which the
environmental testing contemplated by Section 3.09(c) revealed that either of
the conditions set forth in clauses (i) and (ii) of the first sentence thereof
was not satisfied; (vii) each of the Mortgage Files, including any and all
modifications, extensions, waivers and amendments of the terms of a Mortgage
Loan entered into or consented to by the Special Servicer and delivered to the
Trustee pursuant to Section 3.21; (viii) the most recent appraisal for each
Mortgaged Property and REO Property that has been delivered to the Trustee (each
appraisal obtained hereunder with respect to any Mortgaged Property or REO
Property to be delivered to the Trustee by the Master Servicer or Special
Servicer, as applicable, promptly following its having been obtained); (ix) any
and all Officer's Certificates and other evidence delivered to or by the Trustee
to support its, the Master Servicer's or the Special Servicer's, as the case may
be, determination that any Advance was (or, if made, would be) a Nonrecoverable
Advance; (x) any and all information provided to the Trustee pursuant to Section
6.11(a); (xi) the Schedule of Exceptions to Mortgage File Delivery prepared by
the Trustee pursuant to Section 2.02(a) and any exception report prepared by the
Trustee pursuant to Section 2.02(b); (xii) all notices of a breach of
representation and warranty given by or received by the Trustee with respect to
any party hereto; (xiii) any Officer's Certificate delivered to the Trustee by
the Special Servicer in connection with a Final Recovery Determination pursuant
to Section 3.09(h). The Trustee shall provide copies of any and all of the
foregoing items upon written request of any of the parties set forth in the
previous sentence; however, except in the case of the Rating Agencies, the
Trustee shall be permitted to require payment of a sum sufficient to cover the
reasonable costs and expenses of providing such copies. Upon the reasonable
request of any Certificateholder, or any Certificate Owner identified to the
Trustee to the Trustee's reasonable satisfaction, the Trustee shall request from
the Master Servicer copies (at the expense of such Certificateholder or
Certificate Owner if the Master Servicer or Special Servicer charges a fee to
cover the reasonable cost of making such copies available) of any inspection
reports prepared by the Master Servicer or the Special Servicer, copies of any
operating statements, rent rolls and financial statements obtained by the Master
Servicer or the Special Servicer; and, upon receipt, the Trustee shall make such
items available to the requesting Certificateholder or Certificate Owner.
(c) The Trustee shall not be liable for providing or disseminating
information in accordance with Section 8.14(a) or (b).
Section 8.15 [Reserved.]
Section 8.16 Representations and Warranties of Trustee.
(a) The Trustee hereby represents and warrants to the Master
Servicer, the Special Servicer and the Depositor and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States
of America.
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) Except to the extent that the laws of certain jurisdictions in
which any part of the Trust Fund may be located require that a co-trustee
or separate trustee be appointed to act with respect to such property as
contemplated by Section 8.10, the Trustee has the full power and authority
to enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement, including, but not limited to, its responsibility
to make P&I Advances if the Master Servicer fails to make a P&I Advance,
will not constitute a violation of, any law, any order or decree of any
court or arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation, in the
Trustee's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Trustee to perform its
obligations under this Agreement or the financial condition of the
Trustee.
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that, if determined adversely to
the Trustee, would prohibit the Trustee from entering into this Agreement
or, in the Trustee's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Trustee to
perform its obligations under this Agreement or the financial condition of
the Trustee.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Trustee of or compliance by the Trustee with this
Agreement, or the consummation of the transactions contemplated by this
Agreement, has been obtained and is effective, except where the lack of
consent, approval, authorization or order would not have a material
adverse effect on the performance by the Trustee under this Agreement.
(viii) The Trustee is eligible to act as trustee hereunder in
accordance with Section 8.06.
(b) The representations and warranties of the Trustee set forth in
Section 8.16(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations, warranties and
covenants, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Trustee shall be deemed to have made, as of the
date of its succession, each of the representations and warranties set forth in
Section 8.16(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 8.16(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
(d) [Reserved.]
(e) [Reserved.]
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer and the Trustee (other than the
obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment): (i) to the Certificateholders of all amounts held by or
on behalf of the Trustee and required hereunder to be so paid on the
Distribution Date following the earlier to occur of (A) the purchase by the
Depositor, any Mortgage Loan Seller, the Special Servicer, any Controlling Class
Certificateholder or the Master Servicer of all Mortgage Loans and each REO
Property remaining in the Lower-Tier REMIC at a price equal to (1) the sum (x)
of the aggregate Purchase Price of all the Mortgage Loans and (y) the aggregate
Appraised Values of any REO Properties then included in the Lower-Tier REMIC,
minus (2) if the purchaser is the Master Servicer or the Special Servicer, the
aggregate amount of unreimbursed Advances made by such Person, together with any
interest accrued and payable to such Person in respect of unreimbursed Advances
in accordance with Section 3.12(b) and, in the case of the Master Servicer,
Section 4.03(d), and any unpaid servicing compensation remaining outstanding
(which items shall be deemed to have been paid or reimbursed to the Master
Servicer or the Special Servicer, as the case may be, in connection with such
purchase), and (B) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Lower-Tier REMIC; and (ii) to the Trustee, the Master Servicer, the Special
Servicer and the members, managers, officers, directors, employees and/or agents
of each of them of all amounts which may have become due and owing to any of
them hereunder; provided, however, that in no event shall the trust created
hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the
United States to the Court of St. ▇▇▇▇▇, living on the date hereof.
Each of the Depositor, CWCapital LLC., the Special Servicer, any
Controlling Class Certificateholder (with priority among such Holders being
given to the Holder of Certificates representing the greatest Percentage
Interest in the Controlling Class) or the Master Servicer, in that order of
priority (with the Depositor having the most senior priority), may at its option
elect to purchase all of the Mortgage Loans and each REO Property remaining in
the Lower-Tier REMIC as contemplated by clause (i) of the preceding paragraph by
giving written notice to the other parties hereto no later than 60 days prior to
the anticipated date of purchase; provided, however, that (i) the aggregate
Stated Principal Balance of the Mortgage Loans at the time of such election is
less than 1% of the Initial Trust Balance set forth in the Preliminary
Statement, and (ii) no such Person shall have the right to effect such a
purchase if, within 30 days following its delivery of a notice of election
pursuant to this paragraph, any other such Person with a higher priority shall
give notice of its election to purchase all of the Mortgage Loans and each REO
Property remaining in the Lower-Tier REMIC and shall thereafter effect such
purchase in accordance with the terms hereof. If the Trust Fund is to be
terminated in connection with the Master Servicer's, the Special Servicer's, a
Controlling Class Certificateholder's or the Depositor's purchase of all of the
Mortgage Loans and each REO Property remaining in the Lower-Tier REMIC, the
Master Servicer, the Special Servicer, such Controlling Class Certificateholder
or the Depositor, as applicable, shall deliver to the Trustee not later than the
fifth Business Day preceding the Distribution Date on which the final
distribution on the Certificates is to occur: (x) for deposit in the Custodial
Account, an amount in immediately available funds equal to the above-described
purchase price; and (y) an Opinion of Counsel, at the expense of the party
effecting the purchase, stating that the termination of the Trust satisfies the
requirements of a qualified liquidation under Section 860F of the Code and any
regulations thereunder. Upon confirmation that such final deposits have been
made, subject to Section 3.26, the Trustee shall release or cause to be released
to the Master Servicer, the Special Servicer, the purchasing Controlling Class
Certificateholder or the Depositor, as applicable, the Mortgage Files and the
Servicing Files for the remaining Mortgage Loans and shall execute all
assignments, endorsements and other instruments furnished to it by the Master
Servicer, the Special Servicer, the purchasing Controlling Class
Certificateholder or the Depositor, as applicable, as shall be necessary to
effectuate transfer of the Mortgage Loans and REO Properties to the Master
Servicer, the Special Servicer, the purchasing Controlling Class
Certificateholder or the Depositor (or their respective designees), as
applicable. Any transfer of Mortgage Loans pursuant to this paragraph shall be
on a servicing-released basis.
Following the date on which the aggregate Certificate Principal
Balance of the Registered Certificates is reduced to zero and the then
outstanding Certificates (excluding the Residual Interest Certificates) are held
by a single Certificateholder, such sole remaining Certificateholder (the "Sole
Certificateholder") shall have the right, with the consent of the Master
Servicer (acting in its sole discretion), to exchange all of its Certificates
for all of the Mortgage Loans and each REO Property remaining in the Trust Fund
as contemplated by clause (ii)(B) of the first paragraph of this Section
9.01(a), by giving written notice to all the parties hereto no later than 60
days prior to the anticipated date of exchange. Such Sole Certificateholder, not
later than the fifth Business Day preceding the Distribution Date on which the
final distribution on the Certificates is to occur, shall (i) deposit in the
applicable Custodial Account an amount in immediately available funds equal to
all amounts then due and owing to the Depositor, the Master Servicer, the
Special Servicer and the Trustee pursuant to Section 3.05(a) or that may be
withdrawn from the Distribution Account pursuant to Section 3.05(b), but only to
the extent that such amounts are not already on deposit in such Custodial
Account and (ii) pay to the Trustee for its benefit an amount, in immediately
available funds, equal to $5,000 (five thousand dollars). In addition, the
Master Servicer shall transfer to the Distribution Account all amounts required
to be transferred thereto on the related Master Servicer Remittance Date from
the Custodial Account pursuant to the first paragraph of Section 3.04(b). Upon
confirmation that such final deposits have been made and following the surrender
of all the Certificates on the final Distribution Date, the Trustee shall
release or cause to be released to such Sole Certificateholder or any designee
thereof, the Mortgage Files for the remaining Mortgage Loans and REO Properties
and shall execute all assignments, endorsements and other instruments furnished
to it by such Certificateholder as shall be necessary to effectuate transfer of
the Mortgage Loans and REO Properties remaining in the Trust Fund. Thereafter,
the Trust Fund and the respective obligations and responsibilities under this
Agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee (other than maintenance of books and records and the preparation and
filing of final tax returns) shall terminate. Any transfer of the Mortgage Loans
pursuant to this paragraph shall be on a servicing released basis; and the
release, endorsement or assignment of the documents constituting the related
Mortgage File and Servicing File shall be in the manner contemplated by Section
3.26. For federal income tax purposes, the Sole Certificateholder shall be
deemed to have purchased the assets of the Trust Fund for an amount equal to the
unpaid principal balance, plus accrued unpaid interest of the Mortgage Loans and
the fair market value of any defaulted Mortgage Loans or REO Property, without
duplication of amounts deposited pursuant to the fourth preceding sentence of
this paragraph, and such amounts shall be deemed to have been paid or
distributed in accordance with Section 4.01.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders mailed (a) if such notice is given in connection
with the Depositor's, the Master Servicer's, the Special Servicer's or a
Controlling Class Certificateholder's purchase of the Mortgage Loans and each
REO Property remaining in the Lower-Tier REMIC, not earlier than the 15th day
and not later than the 25th day of the month next preceding the month of the
final distribution on the Certificates or (b) otherwise during the month of such
final distribution on or before the eighth day of such month, in each case
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment of the Certificates will be made, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the offices of the Certificate Registrar or
such other location therein designated. The Trustee shall give such notice to
the Master Servicer, the Special Servicer and the Depositor at the time such
notice is given to Certificateholders.
Upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts then on
deposit in the Distribution Account that are allocable to payments on the Class
of Certificates so presented and surrendered. Amounts on deposit in the
Distribution Account as of the final Distribution Date, exclusive of any portion
thereof that would be payable to any Person in accordance with clauses (ii)
through (viii) of Section 3.05(b), and further exclusive of any portion thereof
that represents Prepayment Premiums and/or Yield Maintenance Charges, shall be
allocated in the order of priority set forth in Section 4.01(a), in each case to
the extent of remaining available funds.
Any Prepayment Premiums and Yield Maintenance Charges on deposit in
the Distribution Account as of the final Distribution Date (net of any Workout
Fees and/or Liquidation Fees payable therefrom) shall be distributed among the
Holders of the [Class XP, Class XC, Class A-1, Class A-2, Class A-3, Class A-4,
Class B, Class C, Class D, Class E, Class F, Class G and Class H] Certificates
in accordance with Section 4.01(b).
Any funds not distributed to any Holder or Holders of Certificates
of such Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 9.01 shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate. The
costs and expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If by the second anniversary of the delivery of such
second notice, all of the Certificates shall not have been surrendered for
cancellation, then, subject to applicable law, the Trustee shall distribute to
the Class R-II Certificateholders all unclaimed funds and other assets which
remain subject hereto.
All actual distributions on the respective Classes of Certificates
on the final Distribution Date in accordance with foregoing provisions of this
Section 9.01 shall be deemed to have been distributed first from the Lower-Tier
REMIC to the Upper-Tier REMIC in accordance with Section 4.01(i).
Section 9.02 Additional Termination Requirements.
(a) If the Depositor, any Controlling Class Certificateholder, the
Special Servicer or the Master Servicer purchases all of the Mortgage Loans and
each REO Property remaining in the Lower-Tier REMIC as provided in Section 9.01,
the Trust Fund (and, accordingly, each REMIC Pool) shall be terminated in
accordance with the following additional requirements, unless the Person
effecting such purchase obtains at its own expense and delivers to the Trustee
and the Tax Administrator, an Opinion of Counsel, addressed to the Trustee and
the Tax Administrator, to the effect that the failure of the Trust Fund to
comply with the requirements of this Section 9.02 will not result in an Adverse
REMIC Event:
(i) the Tax Administrator shall specify the first day in the 90-day
liquidation period in a statement attached to the final Tax Return for
each REMIC Pool pursuant to Treasury Regulations Section 1.860F-1 and
shall satisfy all requirements of a qualified liquidation under Section
860F of the Code and any regulations thereunder as set forth in the
Opinion of Counsel obtained pursuant to Section 9.01 from the party
effecting the purchase of all the Mortgage Loans and REO Property
remaining in the Lower-Tier REMIC;
(ii) during such 90-day liquidation period and at or prior to the
time of making of the final payment on the Certificates, the Trustee shall
sell all of the assets of the Lower-Tier REMIC to the Master Servicer, the
purchasing Controlling Class Certificateholder, the Special Servicer or
the Depositor, as applicable, for cash; and
(iii) at the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Certificateholders in accordance with
Section 9.01 all cash on hand (other than cash retained to meet claims),
and each REMIC Pool shall terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the Tax Administrator to specify the 90-day liquidation
period for each REMIC Pool, which authorization shall be binding upon all
successor Certificateholders.
ARTICLE X
ADDITIONAL TAX PROVISIONS
Section 10.01 REMIC Administration.
(a) The Tax Administrator shall elect to treat each REMIC Pool as a
REMIC under the Code and, if necessary, under applicable state law. Such
election will be made on Form 1066 or other appropriate federal or state Tax
Returns for the taxable year ending on the last day of the calendar year in
which the Certificates are issued.
(b) The Uncertificated Lower-Tier Interests and the Regular Interest
Certificates are hereby designated as "regular interests" (within the meaning of
Section 860G(a)(1) of the Code) in the Lower-Tier REMIC and the Upper-Tier
REMIC, respectively. The Class R-I Certificates and the Class R-II Certificates
are hereby designated as the single class of "residual interests" (within the
meaning of Section 860G(a)(2) of the Code) in the Lower-Tier REMIC and the
Upper-Tier REMIC, respectively. None of the Master Servicer, the Special
Servicer or the Trustee shall (to the extent within its control) permit the
creation of any other "interests" in the Lower-Tier REMIC or the Upper-Tier
REMIC (within the meaning of Treasury regulation Section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of
each REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(d) The related Plurality Residual Interest Certificateholder as to
the applicable taxable year is hereby designated as the Tax Matters Person of
each REMIC Pool, and shall act on behalf of the related REMIC in relation to any
tax matter or controversy and shall represent the related REMIC in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority; provided that the Tax Administrator is hereby
irrevocably appointed to act and shall act (in consultation with the Tax Matters
Person for each REMIC Pool) as agent and attorney-in-fact for the Tax Matters
Person for each REMIC Pool in the performance of its duties as such.
(e) For purposes of Treasury Regulations Section
1.860G-1(a)(4)(iii), the Rated Final Distribution Date is hereby designated the
"latest possible maturity date" of each Class of Regular Interest Certificates
and its Corresponding Uncertificated Lower-Tier Interest or Interests.
(f) Except as otherwise provided in Section 3.18(a) and subsections
(i) and (j) below, the Tax Administrator shall pay out of its own funds any and
all routine tax administration expenses of the Trust Fund incurred with respect
to each REMIC Pool (but not including any professional fees or expenses related
to audits or any administrative or judicial proceedings with respect to the
Trust Fund that involve the IRS or state tax authorities which extraordinary
expenses shall be payable or reimbursable to the Tax Administrator from the
Trust Fund, unless otherwise provided in Section 10.01(i) or 10.01(j)).
(g) Within 30 days after the Closing Date, the Tax Administrator
shall obtain a taxpayer identification number on Form SS-4 for each REMIC Pool
and prepare and file with the IRS Form 8811, "Information Return for Real Estate
Mortgage Investment Conduits (REMIC) and Issuers of Collateralized Debt
Obligations" for the Trust Fund. In addition, the Tax Administrator shall
prepare, sign and file all of the other Tax Returns in respect of each REMIC
Pool. The expenses of preparing and filing such returns shall be borne by the
Tax Administrator without any right of reimbursement therefor. The other parties
hereto shall provide on a timely basis to the Tax Administrator or its designee
such information with respect to each REMIC Pool as is in its possession and
reasonably requested by the Tax Administrator to enable it to perform its
obligations under this Section 10.01. Without limiting the generality of the
foregoing, the Depositor, within ten days following the Tax Administrator's
request therefor, shall provide in writing to the Tax Administrator such
information as is reasonably requested by the Tax Administrator for tax
purposes, as to the valuations and issue prices of the Certificates, and the Tax
Administrator's duty to perform its reporting and other tax compliance
obligations under this Section 10.01 shall be subject to the condition that it
receives from the Depositor such information possessed by the Depositor that is
necessary to permit the Tax Administrator to perform such obligations.
(h) The Tax Administrator shall perform on behalf of each REMIC Pool
all reporting and other tax compliance duties that are the responsibility of
each such REMIC Pool under the Code, the REMIC Provisions or other compliance
guidance issued by the IRS or any state or local taxing authority. Included
among such duties, the Tax Administrator shall provide to: (i) any Transferor of
a Residual Interest Certificate, such information as is necessary for the
application of any tax relating to the transfer of a Residual Interest
Certificate to any Person who is not a Permitted Transferee; (ii) the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions, including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption as
required hereunder); and (iii) the IRS, the name, title, address and telephone
number of the Person who will serve as the representative of each REMIC Pool.
(i) The Tax Administrator shall perform its duties hereunder so as
to maintain the status of each REMIC Pool as a REMIC under the REMIC Provisions
(and the Trustee, the Master Servicer and the Special Servicer shall assist the
Tax Administrator to the extent reasonably requested by the Tax Administrator
and to the extent of information within the Trustee's, the Master Servicer's or
the Special Servicer's possession or control). None of the Tax Administrator,
the Master Servicer, the Special Servicer, or the Trustee shall knowingly take
(or cause either REMIC Pool to take) any action or fail to take (or fail to
cause to be taken) any action that, under the REMIC Provisions, if taken or not
taken, as the case may be, could (i) endanger the status of either REMIC Pool as
a REMIC, or (ii) except as provided in Section 3.18(a), result in the imposition
of a tax upon either REMIC Pool (including, but not limited to, the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code and the tax
on contributions to a REMIC set forth in Section 860G(d) of the Code) or result
in the imposition of a tax on "net income from foreclosure property" as defined
in Section 860G(c) of the Code (any such endangerment of REMIC status or, except
as provided in Section 3.18(a), imposition of a tax, an "Adverse REMIC Event"),
unless the Tax Administrator has obtained or received an Opinion of Counsel (at
the expense of the party requesting such action or at the expense of the Trust
Fund if the Tax Administrator seeks to take such action or to refrain from
acting for the benefit of the Certificateholders) to the effect that the
contemplated action will not result in an Adverse REMIC Event. None of the other
parties hereto shall take any action or fail to take any action (whether or not
authorized hereunder) as to which the Tax Administrator has advised it in
writing that the Tax Administrator has received or obtained an Opinion of
Counsel to the effect that an Adverse REMIC Event could result from such action
or failure to act. In addition, prior to taking any action with respect to
either REMIC Pool, or causing either REMIC Pool to take any action, that is not
expressly permitted under the terms of this Agreement, the Master Servicer and
the Special Servicer shall consult with the Tax Administrator or its designee,
in writing, with respect to whether such action could cause an Adverse REMIC
Event. The Tax Administrator may consult with counsel to make such written
advice, and the cost of same shall be borne by the party seeking to take the
action not permitted by this Agreement, but in no event at the cost or expense
of the Trust Fund or the Trustee. At all times as may be required by the Code,
the Tax Administrator shall make reasonable efforts to ensure that substantially
all of the assets of each REMIC Pool will consist of "qualified mortgages" as
defined in Section 860G(a)(3) of the Code and "permitted investments" as defined
in Section 860G(a)(5) of the Code.
(j) If any tax is imposed on either REMIC Pool, including
"prohibited transactions" taxes as defined in Section 860F(a)(2) of the Code,
any tax on "net income from foreclosure property" as defined in Section 860G(c)
of the Code, any taxes on contributions to either REMIC Pool after the Startup
Day pursuant to Section 860G(d) of the Code, and any other tax imposed by the
Code or any applicable provisions of State or Local Tax laws (other than any tax
permitted to be incurred by the Special Servicer pursuant to Section 3.18(a)),
such tax, together with all incidental costs and expenses (including penalties
and reasonable attorneys' fees), shall be charged to and paid by: (i) the Tax
Administrator, if such tax arises out of or results from a breach by the Tax
Administrator of any of its obligations under this Section 10.01; (ii) the
Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its obligations under Article III or this Section
10.01; (iii) the Master Servicer, if such tax arises out of or results from a
breach by the Master Servicer of any of its obligations under Article III or
this Section 10.01; (iv) the Trustee, if such tax arises out of or results from
a breach by the Trustee of any of its obligations under Article IV, Article VIII
or this Section 10.01; or (v) the Trust Fund in all other instances. Any tax
permitted to be incurred by the Special Servicer pursuant to Section 3.18(a)
shall be charged to and paid by the Trust Fund. Any such amounts payable by the
Trust Fund shall be paid by the Trustee upon the written direction of the Tax
Administrator out of amounts on deposit in the Distribution Account in reduction
of the Available Distribution Amount pursuant to Section 3.05(b).
(k) The Tax Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC Pool on a calendar year
and on an accrual basis.
(l) Following the Startup Day, none of the Trustee, the Master
Servicer and the Special Servicer shall accept any contributions of assets to
either REMIC Pool unless it shall have received an Opinion of Counsel (at the
expense of the party seeking to cause such contribution and in no event at the
expense of the Trust Fund or the Trustee) to the effect that the inclusion of
such assets in such REMIC Pool will not cause: (i) such REMIC Pool to fail to
qualify as a REMIC at any time that any Certificates are outstanding; or (ii)
the imposition of any tax on such REMIC Pool under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(m) None of the Trustee, the Master Servicer and the Special
Servicer shall consent to or, to the extent it is within the control of such
Person, permit: (i) the sale or disposition of any of the Mortgage Loans (except
in connection with (A) the default or reasonably foreseeable material default of
a Mortgage Loan, including, but not limited to, the sale or other disposition of
a Mortgaged Property acquired by deed in lieu of foreclosure, (B) the bankruptcy
of either REMIC Pool, (C) the termination of either REMIC Pool pursuant to
Article IX of this Agreement, or (D) a purchase of Mortgage Loans pursuant to or
as contemplated by Article II or III of this Agreement); (ii) the sale or
disposition of any investments in the Custodial Account or the REO Account for
gain; or (iii) the acquisition of any assets for either REMIC Pool (other than a
Mortgaged Property acquired through foreclosure, deed in lieu of foreclosure or
otherwise in respect of a defaulted Mortgage Loan and other than Permitted
Investments acquired in connection with the investment of funds in the Custodial
Account or the REO Account); in any event unless it has received an Opinion of
Counsel (at the expense of the party seeking to cause such sale, disposition, or
acquisition but in no event at the expense of the Trust Fund or the Trustee) to
the effect that such sale, disposition, or acquisition will not cause: (x)
either REMIC Pool to fail to qualify as a REMIC at any time that any
Certificates are outstanding; or (y) the imposition of any tax on either REMIC
Pool under the REMIC Provisions or other applicable provisions of federal, state
and local law or ordinances.
(n) Except as permitted by Section 3.18(a), none of the Trustee, the
Master Servicer and the Special Servicer shall enter into any arrangement by
which either REMIC Pool will receive a fee or other compensation for services
nor permit either REMIC Pool to receive any income from assets other than
"qualified mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code.
ARTICLE XI
EXCHANGE ACT REPORTING
Section 11.01 Intent of the Parties; Reasonableness.
The parties hereto acknowledge and agree that the purpose of Article
XI of this Agreement is to facilitate compliance by the Depositor with the
provisions of Regulation AB and the related rules and regulations of the
Commission; provided, however, that the reports (or substantially similar
reports) required to be delivered pursuant to Section 11.09 and Section 11.11
will continue to be required regardless of any repeal of Regulation AB. The
Depositor shall not exercise its rights to request delivery of information or
other performance under these provisions other than in good faith, or for
purposes other than compliance with the Securities Act, the Exchange Act and the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The parties hereto acknowledge that interpretations of the
requirements of Regulation AB may change over time due to interpretive guidance
provided by the Commission or its staff, and agree to comply with requests made
by the Depositor in good faith for delivery of information under these
provisions on the basis of such evolving interpretations of Regulation AB. In
connection with the Commercial Mortgage Trust 20[__]-[_], Commercial Mortgage
Pass-Through Certificates, Series 20[__]-[_], each of the Master Servicer, the
Special Servicer and the Trustee shall cooperate fully with the Depositor and
the Trustee, as applicable, to deliver to the Depositor (including any of its
assignees or designees), any and all statements, reports, certifications,
records and any other information in its possession or reasonably available to
it and necessary in the reasonable good faith determination of the Depositor or
the Trustee, as applicable, to permit the Depositor to comply with the
provisions of Regulation AB, together with such disclosures relating to the
Master Servicer, the Special Servicer and the Trustee, as applicable, and any
Sub-Servicer, or the servicing of the Mortgage Loans, reasonably believed by the
Depositor to be necessary in order to effect such compliance.
Section 11.02 Succession; Subcontractors.(a) (a) For so long as the
Trust is subject to the reporting requirements of the Exchange Act (in
additional to any requirements contained in Section 10.07) in connection with
the succession to the Master Servicer and Special Servicer or any Sub-Servicer
as servicer or sub-servicer (to the extent such sub-servicer is a Servicer as
contemplated by Item 1108(a)(2) of Regulation AB) under this Agreement by any
Person (i) into which the Master Servicer and Special Servicer or such
Sub-Servicer may be merged or consolidated, or (ii) which may be appointed as a
successor to the Master Servicer and Special Servicer or any such Sub-Servicer,
the Master Servicer and Special Servicer shall provide to the Depositor, at
least 5 calendar days prior to the effective date of such succession or
appointment as long as such disclosure prior to such effective date would not be
violative of any applicable law or confidentiality agreement, otherwise no later
than one (1) Business Day after such effective date of succession, (x) written
notice to the Depositor of such succession or appointment and (y) in writing and
in form and substance reasonably satisfactory to the Depositor, all information
relating to such successor servicer reasonably requested by the Depositor in
order to comply with its reporting obligation under Item 6.02 of Form 8-K
pursuant to the Exchange Act (if such reports under the Exchange Act are
required to be filed under the Exchange Act).
(b) Each of the Master Servicer, the Special Servicer, the
Sub-Servicer and the Trustee (each of the Master Servicer, the Special Servicer
and the Trustee and each Sub-Servicer, for purposes of this paragraph and the
following paragraph, a "Servicer") is permitted to utilize one or more
Subcontractors to perform certain of its obligations hereunder. Such Servicer
shall promptly upon request provide to the Depositor a written description (in
form and substance satisfactory to the Depositor) of the role and function of
each Subcontractor that is a Servicing Function Participant utilized by such
Servicer, specifying (i) the identity of each Subcontractor and (ii) which
elements of the Servicing Criteria will be addressed in assessments of
compliance provided by each Subcontractor. Each Servicer shall use commercially
reasonable efforts to cause any Subcontractor determined to be a Servicing
Function Participant used by such Servicer for the benefit of the Depositor to
comply with the provisions of Section 10.10 and Section 10.11 of this Agreement
to the same extent as if such Subcontractor were such Servicer. Such Servicer
shall use commercially reasonable efforts to (other than as to Sub-Servicers on
Exhibit T that the Master Servicer must retain) obtain from each such
Subcontractor and delivering to the applicable Persons any assessment of
compliance report and related accountant's attestation required to be delivered
by such Subcontractor under Section 10.10 and Section 10.11, in each case, as
and when required to be delivered.
(c) For so long as the Trust is subject to the reporting
requirements of the Exchange Act, notwithstanding the foregoing, if a Servicer
engages a Subcontractor in connection with the performance of any of its duties
under this Agreement, such Servicer shall be responsible for determining whether
such Subcontractor is a "servicer" within the meaning of Item 1101 of Regulation
AB and whether such Subcontractor meets the criteria in Item 1108(a)(2)(i), (ii)
or (iii) of Regulation AB. If a Servicer determines, pursuant to the preceding
sentence, that such Subcontractor is a "servicer" within the meaning of Item
1101 of Regulation AB and meets the criteria in Item 1108(a)(2)(i), (ii) or
(iii) of Regulation AB, then such Subcontractor shall be deemed to be a
Sub-Servicer for purposes of this Agreement, and the engagement of such
Sub-Servicer shall not be effective unless and until notice is given to the
Depositor and the Trustee of any such Sub-Servicer and Subservicing Agreement.
No Subservicing Agreement (other than such agreements set forth on Exhibit T
hereto) shall be effective until 10 Business Days after such written notice is
received by the Depositor and the Trustee. Such notice shall contain all
information reasonably necessary to enable the Trustee to accurately and timely
report the event under Item 6.02 of Form 8-K pursuant to Section 10.07 (if such
reports under the Exchange Act are required to be filed under the Exchange Act).
(d) In connection with the succession to the Trustee under this
Agreement by any Person (i) into which the Trustee may be merged or
consolidated, or (ii) which may be appointed as a successor to the Trustee, the
Trustee shall notify the Depositor, at least 10 Business Days prior to the
effective date of such succession or appointment (or if such prior notice would
be violative of applicable law or any applicable confidentiality agreement, no
later than one (1) Business Day after such effective date of succession) and
shall furnish pursuant to Section 11.07 to the Depositor in writing and in form
and substance reasonably satisfactory to the Depositor, all information
reasonably necessary for the Trustee to accurately and timely report, the event
under Item 6.02 of Form 8-K pursuant to Section 10.07 (if such reports under the
Exchange Act are required to be filed under the Exchange Act).
Section 11.03 Filing Obligations. (a) The Master Servicer, the
Special Servicer and the Trustee shall reasonably cooperate with the Depositor
in connection with the satisfaction of the Trust's reporting requirements under
the Exchange Act. Pursuant to Sections 11.04, 11.05 and 11.07, the Trustee shall
prepare for execution by the Depositor any Forms 10-D, 10-K and 8-K required by
the Exchange Act, in order to permit the timely filing thereof, and the Trustee
shall file (via the Commission's Electronic Data Gathering and Retrieval System)
such Forms executed by the Depositor.
(b) In the event that the Trustee is unable to timely file with the
Commission all or any required portion of any Form 8-K, 10-D or 10-K required to
be filed by this Agreement because required disclosure information was either
not delivered to it or delivered to it after the delivery deadlines set forth in
this Agreement, the Trustee will promptly as soon as practicable or maybe
twenty-four (24) hours after determination notify the Depositor. In the case of
Forms 10-D and 10-K, the Depositor and the Trustee will thereupon cooperate to
prepare and file a Form 12b-25 and a Form 10-D/A or Form 10-K/A, as applicable,
pursuant to Rule 12b-25 of the Exchange Act. In the case of Form 8-K, the
Trustee will, upon receipt of all required Form 8-K Disclosure Information,
include such disclosure information on the next succeeding Form 10-D to be filed
for the Trust. In the event that any previously filed Form 8-K or Form 10-K
needs to be amended, the Trustee will notify the Depositor, and such other
parties as needed and the parties hereto will cooperate with the Trustee to
prepare any necessary Form 8-K/A or Form 10-K/A. In the event that any
previously filed Form 10-D needs to be amended, the Trustee shall notify the
Depositor, and such other parties as needed, and the parties hereto shall
cooperate to prepare any necessary Form 10-D/A. Any Form 15, Form 12b-25 or any
amendment to Form 8-K, Form 10-D or Form 10-K shall be signed by an officer of
the Depositor. The parties to this Agreement acknowledge that the performance by
the Trustee of its duties under this Section 11.03 related to the timely
preparation and filing of Form 15, a Form 12b-25 or any amendment to Form 8-K,
Form 10-D or Form 10-K is contingent upon such parties observing all applicable
deadlines in the performance of their duties under Sections 11.03, 11.04, 11.05,
11.06, 11.07, 11.08, 11.09, 11.10 and 11.11. The Trustee shall have no liability
for any loss, expense, damage, claim arising out of or with respect to any
failure to properly prepare, arrange for execution and/or timely file any such
Form 15, Form 12b-25 or any amendments to Form 8-K, Form 10-D or Form 10-K,
where such failure results from the Trustee's inability or failure to receive,
on a timely basis, any information from any other party hereto needed to
prepare, arrange for execution or file such Form 15, Form 12b-25 or any
amendments to Forms 8-K, Form 10-D or Form 10-K, not resulting from its own
negligence, bad faith or willful misconduct.
Section 11.04 Form 10-D Filings. (a) Within 15 days after each
Distribution Date (subject to permitted extensions under the Exchange Act), the
Trustee shall prepare and file on behalf of the Trust any Form 10-D required by
the Exchange Act, in form and substance as required by the Exchange Act. The
Trustee shall file each Form 10-D with a copy of the related Statement to
Certificateholders attached thereto. Any disclosure in addition to the Statement
to Certificateholders that is required to be included on Form 10-D ("Additional
Form 10-D Disclosure") shall, pursuant to the following paragraph, be reported
by the parties set forth on Exhibit P to the Depositor and the Trustee and
approved by the Depositor, and the Trustee will have no duty or liability for
any failure hereunder to determine or prepare any Additional Form 10-D
Disclosure absent such reporting, direction and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, within 5 calendar days after the related Distribution Date,
(i) certain parties to this Agreement, as set forth on Exhibit P hereto, shall
be required to provide to the Trustee and the Depositor, to the extent a
Servicing Officer or responsible officer thereof has knowledge thereof, in
▇▇▇▇▇-compatible format (to the extent available to such party in such format),
or in such other format as otherwise agreed upon by the Trustee and the
Depositor and such parties, the form and substance of the Additional Form 10-D
Disclosure, if applicable, (ii) the parties listed on Exhibit P hereto shall
include with such Additional Form 10-D Disclosure as set forth on Exhibit P, an
Additional Disclosure Notification in the form attached hereto as Exhibit S and
(iii) the Depositor shall approve, as to form and substance, or disapprove, as
the case may be, the inclusion of the Additional Form 10-D Disclosure on Form
10-D. The Trustee has no duty under this Agreement to monitor or enforce the
performance by the parties listed on Exhibit P of their duties under this
paragraph or proactively solicit or procure from such parties any Additional
Form 10-D Disclosure information. The Depositor will be responsible for any
reasonable fees assessed or expenses incurred by the Trustee in connection with
including any Additional Form 10-D Disclosure on Form 10-D pursuant to this
paragraph.
(b) After preparing the Form 10-D, the Trustee shall forward
electronically a copy of the Form 10-D to the Depositor for review. Within two
Business Days after receipt of such copy, but no later than the [9th] calendar
day after the related Distribution Date or, if the [9th] calendar day after the
related Distribution Date is not a Business Day, the immediately preceding
Business Day, the Depositor shall notify the Trustee in writing (which may be
furnished electronically) of any changes to or approval of such Form 10-D.
Within two Business Days after receipt of such copy, but no later than 2
Business Days prior to the 15th calendar day after the related Distribution
Date, an officer of the Depositor shall sign the Form 10-D and return an
electronic or fax copy of such signed Form 10-D (with an original executed hard
copy to follow by overnight mail) to the Trustee. If a Form 10-D cannot be filed
on time or if a previously filed Form 10-D needs to be amended, the Trustee will
follow the procedures set forth in Section 11.03(b). Promptly after filing with
the Commission, the Trustee will make available on its internet website a final
executed copy of each Form 10-D. The signing party at the Depositor can be
contacted at [__________], telecopy number: [_________], with a copy to
[__________], telecopy number: [________]. The parties to this Agreement
acknowledge that the performance by the Trustee of its duties under this Section
11.04 related to the timely preparation and filing of Form 10-D is contingent
upon such parties observing all applicable deadlines in the performance of their
duties under this Section 11.04. The Trustee shall have no liability for any
loss, expense, damage, or claim arising out of or with respect to any failure to
properly prepare, arrange for execution and/or timely file such Form 10-D, where
such failure results from the Trustee's inability or failure to receive, on a
timely basis, any information from any party to this Agreement needed to
prepare, arrange for execution or file such Form 10-D, not resulting from its
own negligence, bad faith or willful misconduct.
Section 11.05 Form 10-K Filings. (a) Within 90 days after the end of
each fiscal year of the Trust or such earlier date as may be required by the
Exchange Act (the "10-K Filing Deadline"), commencing in March [____], the
Trustee shall prepare and file on behalf of the Trust a Form 10-K, in form and
substance as required by the Exchange Act. Each such Form 10-K shall include the
following items, in each case to the extent they have been delivered to the
Trustee within the applicable time frames set forth in this Agreement:
(i) an annual compliance statement for each Certifying Servicer and
each Additional Servicer engaged by the Master Servicer or the Special
Servicer, as described under Section 11.09,
(ii) (A) the annual reports on assessment of compliance with
Servicing Criteria for each Reporting Servicer, as described under Section
11.10, and
(B) if any such report on assessment of compliance with
Servicing Criteria described under Section 11.10 identifies any
material instance of noncompliance, disclosure identifying such
instance of noncompliance, or if such report on assessment of
compliance with Servicing Criteria described under Section 11.10 is
not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation why such report is not
included,
(iii) (A) the registered public accounting firm attestation report
for each Reporting Servicer, as described under Section 11.11, and
(B) if any registered public accounting firm attestation
report described under Section 11.11 identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm
attestation report is not included as an exhibit to such Form 10-K,
disclosure that such report is not included and an explanation why
such report is not included, and
(iv) a certification in the form attached hereto as Exhibit M, with
such changes as may be necessary or appropriate as a result of changes
promulgated by the Commission (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification"), which
shall, except as described below, be signed by the senior officer of the
Depositor in charge of securitization.
Any disclosure or information in addition to (i) through (iv) above
that is required to be included on Form 10-K ("Additional Form 10-K Disclosure")
shall, pursuant to the following paragraph, be reported by the parties set forth
on Exhibit Q to the Depositor and the Trustee and approved by the Depositor, and
the Trustee will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-K Disclosure, absent such reporting,
direction and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, no later than March 1, commencing in March [____], (i) the
parties listed on Exhibit V hereto shall be required to provide to the Trustee
and the Depositor, to the extent a servicing officer or, in the case of the
Trustee, a responsible officer, as the case may be, such applicable parties has
actual knowledge, in ▇▇▇▇▇-compatible format (to the extent available to such
party in such format) or in such other format as otherwise agreed upon by the
Trustee and the Depositor and such providing parties, the form and substance of
any Additional Form 10-K Disclosure described on Exhibit Q applicable to such
party, (ii) the parties listed on Exhibit Q hereto shall include with such
Additional Form 10-K Disclosure, an Additional Disclosure Notification in the
form attached hereto as Exhibit S, and (iii) the Depositor will approve, as to
form and substance, or disapprove, as the case may be, the inclusion of the
Additional Form 10-K Disclosure on Form 10-K. The Trustee has no duty under this
Agreement to monitor or enforce the performance by the parties listed on Exhibit
Q of their duties under this paragraph or proactively solicit or procure from
such parties any Additional Form 10-K Disclosure information. The Depositor will
be responsible for any reasonable fees assessed and expenses incurred by the
Trustee in connection with including any Additional Form 10-K Disclosure on Form
10-K pursuant to this paragraph.
After preparing the Form 10-K, the Trustee shall forward
electronically a copy of the Form 10-K to the Depositor for review no later than
6 Business Days prior to the 10-K Filing Deadline. Within three Business Days
after receipt of such copy, but no later than March 25th, the Depositor shall
notify the Trustee in writing (which may be furnished electronically) of any
changes or approval to such Form 10-K. No later than 5:00 EST on the fourth
Business Day prior to the 10-K Filing Deadline, an officer of the Depositor
shall sign the Form 10-K and return an electronic or fax copy of such signed
Form 10-K (with an original executed hard copy to follow by overnight mail) to
the Trustee. If a Form 10-K cannot be filed on time or if a previously filed
Form 10-K needs to be amended, the Trustee will follow the procedures set forth
in Section 11.03(b). Promptly after filing with the Commission, the Trustee will
make available on its internet website a final executed copy of each Form 10-K.
The signing party at the Depositor can be contacted at [__________], telecopy
number: [_________], with a copy to [__________], telecopy number: [________].
The parties to this Agreement acknowledge that the performance by the Trustee of
its duties under this Section 11.05 related to the timely preparation and filing
of Form 10-K is contingent upon the parties to this Agreement (and any
Additional Servicer or Servicing Function Participant engaged or utilized, as
applicable, by any such parties) observing all applicable deadlines in the
performance of their duties under this Section 11.05. The Trustee shall have no
liability for any loss, expense, damage, claim arising out of or with respect to
any failure to properly prepare, arrange for execution and/or timely file such
Form 10-K, where such failure results from the Trustee's inability or failure or
receive, on a timely basis, any information from the parties to this Agreement
(or any Sub-Servicer or Servicing Function Participant engaged by any such
parties) needed to prepare, arrange for execution or file such Form 10-K, not
resulting from its own negligence, bad faith or willful misconduct.
Section 11.06 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification. Each Form 10-K shall
include a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification in the form attached as Exhibit M
required to be included therewith pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The
Trustee, the Master Servicer and the Special Servicer shall, and each such party
shall use commercially reasonable efforts to cause each Servicing Function
Participant with which it has entered into a servicing relationship with respect
to the Mortgage Loans to, provide to the Person who signs the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification (the "Certifying Person") a certification in the form attached
hereto as Exhibit N-1, N-2 or N-3, as applicable (the "Performance
Certification"), on which the Certifying Person, the entity for which the
Certifying Person acts as an officer, and such entity's officers, directors and
Affiliates (collectively with the Certifying Person, "Certification Parties")
can reasonably rely. The senior officer in charge of securitization for the
Depositor shall serve as the Certifying Person on behalf of the Trust and may be
contacted at [ ]. In the event any Reporting Servicer is terminated or resigns
pursuant to the terms of this Agreement, or any applicable sub-servicing
agreement or primary servicing agreement, as the case may be, such Reporting
Servicer shall provide a certification to the Certifying Person pursuant to this
Section 11.06 with respect to the period of time it was subject to this
Agreement or the applicable sub-servicing or primary servicing agreement, as the
case may be.
Section 11.07 Form 8-K Filings. Within four (4) Business Days after
the occurrence of an event requiring disclosure on Form 8-K (each such event, a
"Reportable Event"), and if requested by the Depositor, the Trustee shall
prepare and file on behalf of the Trust any Form 8-K, as required by the
Exchange Act, provided that the Depositor shall file the initial Form 8-K in
connection with the issuance of the Certificates. Any disclosure or information
related to a Reportable Event or that is otherwise required to be included on
Form 8-K ("Form 8-K Disclosure Information") shall, pursuant to the following
paragraph be reported by the parties set forth on Exhibit R to the Depositor and
the Trustee and approved by the Depositor, and the Trustee will have no duty or
liability for any failure hereunder to determine or prepare any Form 8-K
Disclosure Information or any Form 8-K, absent such reporting, direction and
approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act reporting requirements, to the extent a servicing officer
thereof has actual knowledge of such event, no later than Noon (New York City
time) on the 2nd Business Day after the occurrence of a Reportable Event (i) the
parties set forth on Exhibit R hereto shall be required to provide to the
Depositor and the Trustee, to the extent known by such applicable parties, in
▇▇▇▇▇-compatible format (to the extent available to such party in such format)
or in such other format as otherwise agreed upon by the Depositor, the Trustee
and such providing parties any Form 8-K Disclosure Information described on
Exhibit R as applicable to such party, if applicable (ii) the parties listed on
Exhibit R hereto shall include with such Additional Form 8-K Disclosure, an
Additional Disclosure Notification in the form attached hereto as Exhibit S, and
(iii) the Depositor will approve, as to form and substance, or disapprove, as
the case may be, the inclusion of the Form 8-K Disclosure Information on Form
8-K. The Trustee has no duty under this Agreement to monitor or enforce the
performance by the parties listed on Exhibit R of their duties under this
paragraph or proactively solicit or procure from such parties any Form 8-K
Disclosure Information. The Depositor will be responsible for any reasonable
fees assessed or expenses incurred by the Trustee in connection with including
any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph.
After preparing the Form 8-K, the Trustee shall forward
electronically a copy of the Form 8-K to the Depositor for review no later than
12:00 P.M. (New York City time) on the 3rd Business Day after the Reportable
Event (but in no event earlier than 24 hours after having received approved Form
8-K Disclosure Information pursuant to the immediately preceding paragraph).
Promptly, but no later than the close of business on the third Business Day
after the Reportable Event, the Depositor shall notify the Trustee in writing
(which may be furnished electronically) of any changes to or approval of such
Form 8-K. No later than noon on the 4th Business Day after the Reportable Event,
a duly authorized representative of the Depositor shall sign the Form 8-K and
return an electronic or fax copy of such signed Form 8-K (with an original
executed hard copy to follow by overnight mail) to the Trustee. If a Form 8-K
cannot be filed on time or if a previously filed Form 8-K needs to be amended,
the Trustee will follow the procedures set forth in Section 11.03(b). Promptly
after filing with the Commission, the Trustee will, make available on its
internet website a final executed copy of each Form 8-K, to the extent such Form
8-K has been prepared and filed by the Trustee. The signing party at the
Depositor can be contacted at [__________], telecopy number: [_________], with a
copy to [__________], telecopy number: [________]. The parties to this Agreement
acknowledge that the performance by the Trustee of its duties under this Section
11.07 related to the timely preparation and filing of Form 8-K is contingent
upon such parties observing all applicable deadlines in the performance of their
duties under this Section 11.07. The Trustee shall have no liability for any
loss, expense, damage, claim arising out of or with respect to any failure to
properly prepare and/or timely file such Form 8-K, where such failure results
from the Trustee's inability or failure or receive, on a timely basis, any
information from the parties to this Agreement needed to prepare, arrange for
execution or file such Form 8-K, not resulting from its own negligence, bad
faith or willful misconduct.
Section 11.08 Form 15 Filing. On or before January 30 of the first
year in which the Trustee is able to do so under applicable law, the Trustee
shall prepare and file a Form 15 Suspension and Notification relating to the
automatic suspension of reporting in respect of the Trust under the Exchange
Act. If at the beginning of any fiscal year for the Trust occurring after the
filing of a Form 15 Suspension Notification, if the number of Certificateholders
of record exceeds the number set forth in Section 15(d) of the Exchange Act or
the regulations promulgated pursuant thereto which would cause the Trust to
again become subject to the reporting requirements of the Exchange Act, the
Trustee shall recommence preparing and filing reports on Forms 10-K, 10-D and
8-K as required pursuant to Section 11.04, Section 11.05 and Section 11.07;
provided that if the Trustee recommences the preparing and filing of Exchange
Act reports, it may, as soon as permitted by the Exchange Act, file another Form
15 Suspension Notification.
Section 11.09 Annual Compliance Statements. The Master Servicer, the
Special Servicer and the Trustee shall, and the Master Servicer or Special
Servicer shall use commercially reasonable efforts to cause each Additional
Servicer with which it has entered into a servicing relationship with respect to
the Mortgage Loans to (each a "Certifying Servicer"), deliver to the Depositor
and the Trustee on or before March 15 of each year, commencing in March [____],
an Officer's Certificate stating, as to the signer thereof, that (A) a review of
such Certifying Servicer's activities during the preceding calendar year or
portion thereof and of such Certifying Servicer's performance under this
Agreement, or the applicable sub-servicing agreement or primary servicing
agreement in the case of an Additional Servicer, has been made under such
officer's supervision and (B) to the best of such officer's knowledge, based on
such review, such Certifying Servicer has fulfilled all its obligations under
this Agreement, or the applicable sub-servicing agreement or primary servicing
agreement in the case of an Additional Servicer, in all material respects
throughout such year or portion thereof, or, if there has been a failure to
fulfill any such obligation in any material respect, specifying each such
failure known to such officer and the nature and status thereof. The Master
Servicer and the Special Servicer shall, and the Master Servicer and the Special
Servicer shall use commercially reasonable efforts to cause each Additional
Servicer with which it has entered into a servicing relationship with respect to
the Mortgage Loans to, forward a copy of each such statement to the Rating
Agencies and the Directing Certificateholder. Promptly after receipt of each
such Officer's Certificate, the Depositor may review each such Officer's
Certificate and, if applicable, consult with the Certifying Servicer, as
applicable, as to the nature of any failures by such Certifying Servicer,
respectively, or any related Additional Servicer with which the Master Servicer,
the Special Servicer or the Trustee, as applicable, has entered into a servicing
relationship with respect to the Mortgage Loans in the fulfillment of any
Certifying Servicer's obligations hereunder or under the applicable
sub-servicing or primary servicing agreement. The obligations of each Certifying
Servicer under this Section apply to each Certifying Servicer that serviced a
Mortgage Loan during the applicable period, whether or not the Certifying
Servicer is acting in such capacity at the time such Officer's Certificate is
required to be delivered. None of the Certifying Servicers or any Additional
Servicer or any Servicing Function Participant shall be required to deliver, or
to endeavor to cause the delivery of, any such Officer's Certificate until April
15, in any given year so long as it has received written confirmation from the
Depositor that a Form 10-K is not required to be filed in respect of the Trust
from the preceding calendar year. No Reporting Servicer shall be required to
cause the delivery of any such assessments until April 15 in any given year so
long as it has received written confirmation from the Depositor that a report on
Form 10-K is not required to be filed in respect of the Trust for the preceding
calendar year.
Section 11.10 Annual Reports on Assessment of Compliance with
Servicing Criteria. (a) On or before March 1 of each year (subject to a grace
period through March 15), commencing in March [____], the Master Servicer, the
Special Servicer and the Trustee, each at its own expense, shall furnish, and
the Master Servicer and Special Servicer shall use commercially reasonable
efforts to cause each Servicing Function Participant with which it has entered
into a servicing relationship with respect to the Mortgage Loans to furnish
(each Master Servicer, the Special Servicer, the Trustee and any Servicing
Function Participant, as the case may be, a "Reporting Servicer"), to the
Trustee and the Depositor, a report on an assessment of compliance with the
Relevant Servicing Criteria that contains (A) a statement by such Reporting
Servicer of its responsibility for assessing compliance with the Relevant
Servicing Criteria, (B) a statement that such Reporting Servicer used the
Servicing Criteria to assess compliance with the Relevant Servicing Criteria,
(C) such Reporting Servicer's assessment of compliance with the Relevant
Servicing Criteria as of and for the period ending the end of the fiscal year
covered by the Form 10-K required to be filed pursuant to Section 11.05,
including, if there has been any material instance of noncompliance with the
Relevant Servicing Criteria, a discussion of each such failure and the nature
and status thereof, and (D) a statement that a registered public accounting firm
has issued an attestation report on such Reporting Servicer's assessment of
compliance with the Relevant Servicing Criteria as of and for such period.
Each such report shall be addressed to the Depositor and signed by
an authorized officer of the applicable company, and shall address each of the
Relevant Servicing Criteria specified on a certification substantially in the
form of Exhibit O hereto delivered to the Depositor on the Closing Date.
Promptly after receipt of each such report, (i) the Depositor may review each
such report and, if applicable, consult with the each Reporting Servicer as to
the nature of any material instance of noncompliance with the Relevant Servicing
Criteria, and (ii) the Trustee shall confirm that the assessments, taken
individually address the Relevant Servicing Criteria for each party as set forth
on Exhibit O and notify the Depositor of any exceptions.
(b) No later than the end of each fiscal year for the Trust, the
Master Servicer and the Special Servicer shall notify the Trustee and the
Depositor as to the name of each Servicing Function Participant utilized by it,
and the Trustee shall notify the Depositor as to the name of each Servicing
Function Participant utilized by it, and each such notice will specify what
specific Servicing Criteria will be addressed in the report on assessment of
compliance prepared by such Servicing Function Participant. When the Master
Servicer, the Special Servicer and the Trustee submit their assessments pursuant
to Section 11.10(a), the Master Servicer, the Special Servicer and the Trustee,
as applicable, will also at such time include the assessment (and related
attestation pursuant to Section 11.11) of each Servicing Function Participant
engaged by it.
Section 11.11 Annual Independent Public Accountants' Servicing
Report. On or before March 1 (subject to a grace period through March 15) of
each year, commencing in March [____], the Master Servicer, the Special Servicer
and the Trustee, each at its own expense, shall use commercially reasonable
efforts to cause and the Master Servicer, the Special Servicer and the Trustee
shall cause each Servicing Function Participant with which it has entered into a
servicing relationship with respect to the Mortgage Loans to cause, a registered
public accounting firm (which may also render other services to the Master
Servicer, the Special Servicer, the Trustee or the applicable Servicing Function
Participant, as the case may be) and that is a member of the American Institute
of Certified Public Accountants to furnish a report to the Trustee and the
Depositor, with a copy to the Rating Agencies and the Directing
Certificateholder (in the case of the Master Servicer and the Special Servicer),
to the effect that (i) it has obtained a representation regarding certain
matters from the management of such Reporting Servicer, which includes an
assertion that such Reporting Servicer has complied with the Relevant Servicing
Criteria and (ii) on the basis of an examination conducted by such firm in
accordance with standards for attestation engagements issued or adopted by the
PCAOB, it is expressing an opinion as to whether such Reporting Servicer's
compliance with the Relevant Servicing Criteria was fairly stated in all
material respects, or it is not expressing an overall opinion regarding such
Reporting Servicer's assessment of compliance with the Relevant Servicing
Criteria. In the event that an overall opinion cannot be expressed, such
registered public accounting firm shall state in such report why it was unable
to express such an opinion. Each such related accountant's attestation report
shall be made in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X
under the Securities Act and the Exchange Act. Such report must be available for
general use and not contain restricted use language.
Promptly after receipt of such report from the Master Servicer, the
Special Servicer, the Trustee or any Servicing Function Participant, (i) the
Depositor may review the report and, if applicable, consult with the Master
Servicer, the Special Servicer or the Trustee as to the nature of any defaults
by the Master Servicer, the Special Servicer, the Trustee or any Servicing
Function Participant with which it has entered into a servicing relationship
with respect to the Mortgage Loans, as the case may be, in the fulfillment of
any of the Master Servicer's, the Special Servicer's, the Trustee's or the
applicable Servicing Function Participants' obligations hereunder or under the
applicable sub-servicing or primary servicing agreement, and (ii) the Trustee
shall confirm that each accountants' attestation report submitted pursuant to
this Section relates to an assessment of compliance meeting the requirements of
Section 11.10 and notify the Depositor of any exceptions.
Section 11.12 Indemnification. Each of the Master Servicer, the
Special Servicer and the Trustee shall indemnify and hold harmless each
Certification Party from and against any claims, losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments and
other costs and expenses incurred by such Certification Party arising out of (i)
an actual breach by the Master Servicer, the Special Servicer or the Trustee, as
the case may be, of its obligations under this Article XI or (ii) negligence,
bad faith or willful misconduct on the part of the Master Servicer, the Special
Servicer or the Trustee in the performance of such obligations.
The Master Servicer and the Special Servicer shall use commercially
reasonable efforts to cause each Additional Servicer and each Servicing Function
Participant with which, in each case, it has entered into a servicing
relationship with respect to the Mortgage Loans to indemnify and hold harmless
each Certification Party from and against any and all claims, losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments and any other costs, fees and expenses incurred by such Certification
Party arising out of (i) a breach of its obligations to provide any of the
annual compliance statements or annual servicing criteria compliance reports or
attestation reports pursuant to the applicable sub-servicing or primary
servicing agreement or (ii) negligence, bad faith or willful misconduct its part
in the performance of such obligations or (iii) any failure by a Servicer (as
defined in Section 11.02(b)) to identify a Servicing Function Participant
pursuant to Section 11.02(c).
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Party, then the Master Servicer,
the Special Servicer, the Trustee, the Additional Servicer or other Servicing
Function Participant (the "Performing Party") shall contribute to the amount
paid or payable to the Certification Party as a result of the losses, claims,
damages or liabilities of the Certification Party in such proportion as is
appropriate to reflect the relative fault of the Certification Party on the one
hand and the Performing Party on the other in connection with a breach of the
Performing Party's obligations pursuant to Sections 11.06, 11.09, 11.10 or 11.11
(or breach of its obligations under the applicable sub-servicing or primary
servicing agreement to provide any of the annual compliance statements or annual
servicing criteria compliance reports or attestation reports) or the Performing
party's negligence, bad faith or willful misconduct in connection therewith. The
Master Servicer and Special Servicer shall use commercially reasonable efforts
to cause each Additional Servicer or Servicing Function Participant, in each
case, with which it has entered into a servicing relationship with respect to
the Mortgage Loans to agree to the foregoing indemnification and contribution
obligations. This Section 11.12 shall survive the termination of this Agreement
or the earlier resignation or removal of the Master Servicer or the Special
Servicer.
Section 11.13 Amendments. This Article XI may be amended by the
parties hereto pursuant to Section 12.07 for purposes of complying with
Regulation AB and/or to conform to standards developed within the commercial
mortgage-backed securities market and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act or for purposes of
designating the Certifying Person without any Opinions of Counsel, Officer's
Certificates, Rating Agency Confirmations or the consent of any
Certificateholder, notwithstanding anything to the contrary contained in this
Agreement.
Section 11.14 Regulation AB Notices. With respect to any notice
required to be delivered by the Trustee to the Depositor pursuant to this
Article XI, the Trustee may deliver such notice, notwithstanding any contrary
provision in Section 11.04, via facsimile to [ ]-[ ]-[ ], via email to [ ]
and/or telephonically by calling [ ] at [ ]-[ ]-[ ].
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct, modify or
supplement any provision herein which may be inconsistent with any other
provision herein or with the description thereof in the Prospectus or the
Prospectus Supplement, (iii) to add any other provisions with respect to matters
or questions arising hereunder which shall not be inconsistent with the existing
provisions hereof, (iv) to relax or eliminate any requirement hereunder imposed
by the REMIC Provisions if the REMIC Provisions are amended or clarified such
that any such requirement may be relaxed or eliminated, (v) to relax or
eliminate any requirement imposed by the Securities Act or the rules thereunder
if the Securities Act or those rules are amended or clarified so as to allow for
the relaxation or elimination of that requirement; (vi) as evidenced by an
Opinion of Counsel delivered to the Master Servicer, the Special Servicer and
the Trustee, either (A) to comply with any requirements imposed by the Code or
any successor or amendatory statute or any temporary or final regulation,
revenue ruling, revenue procedure or other written official announcement or
interpretation relating to federal income tax laws or any such proposed action
which, if made effective, would apply retroactively to either of the REMIC Pools
at least from the effective date of such amendment, or (B) to avoid the
occurrence of a prohibited transaction or to reduce the incidence of any tax
that would arise from any actions taken with respect to the operation of either
REMIC Pool; or (vii) as provided in Section 5.02(d)(iv) to modify, add to or
eliminate any of the provisions of Section 5.02(d)(i), (ii) or (iii); (viii), to
otherwise modify or delete existing provisions of this Agreement; provided that
such amendment (other than any amendment for any of the specific purposes
described in clauses (i), (ii), (iv), (v), (vi) and (vii) above) shall not
adversely affect in any material respect the interests of any Certificateholder,
as evidenced by either an Opinion of Counsel delivered to the Trustee and each
other party hereto to such effect or, in the case of a Class of Certificates,
written confirmation from each applicable Rating Agency to the effect that such
amendment shall not result in an Adverse Rating Event with respect to such Class
of Certificates; and provided, further, that such amendment shall not
significantly change the activities of the Trust; and provided, further, that no
amendment may be made that changes in any manner the obligations or rights of
any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement without the
consent of the affected Mortgage Loan Seller.
(b) This Agreement may also be amended from time to time by the
agreement of the parties hereto with the consent of the Holders of Certificates
entitled to at least 66-2/3% of the Voting Rights allocated to the affected
Classes for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received or advanced on Mortgage Loans which are required to be
distributed on any Certificate, without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in the
immediately preceding clause (i) without the consent of the Holders of all
Certificates of such Class , (iii) significantly change the activities of the
Trust without the consent of the Holders of Certificates entitled to 51% of all
the Voting Rights (without regard to Certificates held by the Depositor or any
of the Depositor's Affiliates and/or agents), (iv) modify the provisions of this
Section 12.01, without the consent of the Holders of all Certificates then
outstanding, (v) modify the provisions of Section 3.21 or the Servicing
Standard, without the consent of the Holders of all Regular Interest
Certificates then outstanding, or (vi) modify the specified percentage of Voting
Rights which are required to be held by Certificateholders to consent or not to
object to any particular action pursuant to any provision of this Agreement
without the consent of the Holders of all Certificates then outstanding.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 12.01(b),
Certificates registered in the name of any party hereto or any Affiliate thereof
shall be entitled to the same Voting Rights with respect to matters described
above as they would if any other Person held such Certificates, so long as the
subject amendment does not relate to increasing its rights or reducing or
limiting its obligations hereunder as a party to this Agreement.
(c) Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
first have obtained or been furnished with an Opinion of Counsel (at the expense
of the party seeking such amendment) addressed to the Trustee and each other
party hereto, to the effect that (i) such amendment or the exercise of any power
granted to the Trustee, the Master Servicer or the Special Servicer in
accordance with such amendment will not result in the imposition of a tax on
either REMIC Pool pursuant to the REMIC Provisions, cause either REMIC Pool to
fail to qualify as a REMIC and (ii) such amendment complies in all material
respects with the provisions of this Section 12.01.
(d) Promptly after the execution of any such amendment, the Trustee
shall send electronically (and make available on its website) a copy thereof to
each Certificateholder.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 12.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
(f) Each of the Master Servicer, the Special Servicer and the
Trustee may but shall not be obligated to enter into any amendment pursuant to
this Section that affects its rights, duties and immunities under this Agreement
or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 12.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer, the Special Servicer or the
Trustee requests any amendment of this Agreement that protects or is in
furtherance of the rights and interests of Certificateholders, the cost of any
Opinion of Counsel required in connection therewith pursuant to Section 12.01(a)
or (c) shall be payable out of the Custodial Account, in the case of the Master
Servicer and the Special Servicer, pursuant to Section 3.05(a), or out of the
Distribution Account, in the case of the Trustee, pursuant to Section 3.05(b).
Section 12.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust Fund, but only upon
direction accompanied by an Opinion of Counsel (the cost of which may be paid
out of the Custodial Account pursuant to Section 3.05(a) to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders; provided, however, that the Trustee shall have no obligation
or responsibility to determine whether any such recordation of this Agreement is
required.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 12.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) The Certificateholders (except as expressly provided for herein)
shall not have any right to vote or in any manner otherwise control the
operation and management of the Trust Fund, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) 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 Person previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates entitled to at least 25% of the Voting
Rights shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
which priority or preference is not otherwise provided for herein, or to enforce
any right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all Certificateholders. For the protection
and enforcement of the provisions of this section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 12.04 Governing Law; Consent to Jurisdiction.
This Agreement will be governed by and construed in accordance with
the laws of the State of New York, applicable to agreements negotiated, made and
to be performed entirely in said state. To the fullest extent permitted under
applicable law, the Depositor, the Master Servicer, the Special Servicer and the
Trustee each hereby irrevocably (i) submits to the jurisdiction of any New York
State and federal courts sitting in New York City with respect to matters
arising out of or relating to this Agreement; (ii) agrees that all claims with
respect to such action or proceeding may be heard and determined in such New
York State or federal courts; (iii) waives the defense of an inconvenient forum;
and (iv) agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law.
Section 12.05 Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given when delivered to: (i) in the case of the Depositor, CWCapital
Commercial Funding Corp., One ▇▇▇▇▇▇▇ River Place, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: [_____], Telecopy No.: [__________] with a copy
to [__________], Telecopy No.: [__________]; (ii) in the case of the Master
Servicer, [______] [__________], Attention: CWCapital Commercial Funding Corp.,
Commercial Mortgage Trust Series 200_-___; facsimile number: [__________]; (iii)
in the case of the Special Servicer, [______],[__________], Attention:
[__________], facsimile number: [__________], with a copy to [__________],
facsimile number: [__________]; (iv) in the case of the Trustee,
[______],[__________], Attention: [__________]--CWCapital Commercial Funding
Corp., Commercial Mortgage Trust Series 200_-___, facsimile number:
[__________]; (v) in the case of the Underwriters, (A)
[__________],[__________], Attention: [__________], Telecopy No.: [__________]
with a copy to [__________], Telecopy No.: [__________]; and (B)
[__________].,[__________], Attention: [__________], Telecopy No.: [__________],
with a copy to: [__________], Telecopy No.: [__________]; (vi) in the case of
the Rating Agencies, (A) [__________],[__________], Attention: [__________],
Telecopy No.: [__________]; and (B) [__________],[__________], Attention:
[__________], Telecopy No.: [__________]; (viii) in the case of the initial
Controlling Class Representative, [______________],
[_______________________________], Attention: [__________], with a copy to
[______________], [_______________________________], Attention: [__________] and
[______________], [_______________________________], Attention: [__________],
(with a copy to be sent by email); and (ix) in the case of the Mortgage Loan
Sellers, (A) CWCapital LLC, One ▇▇▇▇▇▇▇ River Place, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: [__________], Telecopy No.:
[__________], with a copy to [__________], Telecopy No.: [__________]; (B)
[__________],[__________], Attention: [__________], Telecopy No.: [__________],
with a copy to [__________], Telecopy No.: [__________]; or, as to each such
Person, such other address as may hereafter be furnished by such Person to the
parties hereto in writing. Any communication required or permitted to be
delivered to a Certificateholder shall be deemed to have been duly given when
mailed first class, postage prepaid, to the address of such Holder as shown in
the Certificate Register.
Section 12.06 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 12.07 Grant of a Security Interest.
The Depositor and the Trustee agree that it is their intent that the
conveyance of the Depositor's right, title and interest in and to the Mortgage
Loans pursuant to this Agreement shall constitute a sale and not a pledge of
security for a loan. If such conveyance is deemed to be a pledge of security for
a loan, however, the Depositor and the Trustee agree that it is their intent
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor and the Trustee also
intend and agree that, in such event, (i) in order to secure performance of the
Depositor's obligations hereunder and payment of the Certificates, the Depositor
shall be deemed to have granted, and does hereby grant, to the Trustee (in such
capacity) a first priority security interest in the Depositor's entire right,
title and interest in and to the assets constituting the Trust Fund, including
the Mortgage Loans, all principal and interest received or receivable with
respect to the Mortgage Loans (other than principal and interest payments due
and payable prior to the Cut-off Date and any Principal Prepayments received on
or prior to the Cut-off Date), all amounts held from time to time in the
Custodial Account, the Distribution Account, the Interest Reserve Account, the
Excess Liquidation Proceeds Account and, if established, the REO Account and any
and all reinvestment earnings on such amounts, and all of the Depositor's right,
title and interest in and to the proceeds of any title, hazard or other
Insurance Policies related to such Mortgage Loans, and (ii) this Agreement shall
constitute a security agreement under applicable law.
Section 12.08 ▇▇▇▇▇▇ Act.
Any provisions required to be contained in this Agreement by Section
126 of Article 4-A of the New York Real Property Law are hereby incorporated
herein, and such provisions shall be in addition to those conferred or imposed
by this Agreement; provided, however, that to the extent that such Section 126
shall not have any effect, and if said Section 126 should at any time be
repealed or cease to apply to this Agreement or be construed by judicial
decision to be inapplicable, said Section 126 shall cease to have any further
effect upon the provisions of this Agreement. In case of a conflict between the
provisions of this Agreement and any mandatory provisions of Article 4-A of the
New York Real Property Law, such mandatory provisions of said Article 4-A shall
prevail, provided that if said Article 4-A shall not apply to this Agreement,
should at any time be repealed, or cease to apply to this Agreement or be
construed by judicial decision to be inapplicable, such mandatory provisions of
such Article 4-A shall cease to have any further effect upon the provisions of
this Agreement.
Section 12.09 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders.
Each Underwriter shall be a third party beneficiary to this
Agreement solely with respect to its right to receive the reports, statements
and other information to which it is entitled hereunder, to preserve such
Underwriter's rights under Sub-Servicing Agreements as contemplated by Section
3.23(d) and, in the case of a Mortgage Loan Seller, to terminate the Trust Fund
pursuant to Section 9.01.
Each of the Sub-Servicers that is a party to a Sub-Servicing
Agreement in effect on the Closing Date (or being negotiated as of the Closing
Date and in effect within 90 days thereafter) shall be a third party beneficiary
to obligations of a successor Master Servicer under Section 3.23, provided that
the sole remedy for any claim by a Sub-Servicer as a third party beneficiary
pursuant to this Section 12.09 shall be against a successor Master Servicer
solely in its corporate capacity and no Sub-Servicer shall have any rights or
claims against the Trust Fund or any party hereto (other than a successor Master
Servicer in its corporate capacity as set forth in this Section 12.09) as a
result of any rights conferred on such Sub-Servicer as a third party beneficiary
pursuant to this Section 12.09.
This Agreement may not be amended in any manner that would adversely
affect the rights of any such third party beneficiary without its consent. No
other Person, including any Mortgagor, shall be entitled to any benefit or
equitable right, remedy or claim under this Agreement.
Section 12.10 Article and Section Headings.
The Article and Section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 12.11 Notices to Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating Agency
with respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Master Servicer or the
Special Servicer;
(iv) the repurchase of Mortgage Loans by the applicable Mortgage
Loan Seller pursuant to Section 2.03;
(v) any change in the location of the Distribution Account, the
Interest Reserve Account or the Excess Liquidation Proceeds Account;
(vi) the final payment to any Class of Certificateholders; and
(vii) any sale or disposition of any Mortgage Loan or REO Property.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee; and
(ii) any change in the location of any Custodial Account.
(c) The Special Servicer shall furnish each Rating Agency with
respect to a Specially Serviced Mortgage Loan such information as the Rating
Agency shall reasonably request and which the Special Servicer can reasonably
provide in accordance with applicable law, with copies to the Trustee.
(i) To the extent applicable, each of the Master Servicer and the
Special Servicer shall promptly furnish to each Rating Agency copies of
any Officer's Certificate delivered by it to the Trustee pursuant to
Section 3.12(d) or 4.03(c).
(d) The Trustee shall (i) make available to each Rating Agency, upon
reasonable notice, the items described in Section 8.14(b) and (ii) promptly
deliver to each Rating Agency a copy of any notices given pursuant to Section
7.03(a) or Section 7.03(b).
(e) The Trustee shall promptly deliver to each Rating Agency a copy
of each of the statements and reports described in Section 4.02(a) that is
prepared by it.
(f) Each of the Trustee, the Master Servicer and the Special
Servicer shall provide to each Rating Agency such other information with respect
to the Mortgage Loans and the Certificates, to the extent such party possesses
such information, as such Rating Agency shall reasonably request.
Section 12.12 Global Opinions.
Notwithstanding anything herein to the contrary, where any party
hereto is required or permitted to rely upon an Opinion of Counsel with respect
to any particular matter, such Opinion of Counsel need not specifically
reference such particular matter, but rather such Opinion of Counsel may address
general matters of law in respect of nonspecific circumstances which clearly
encompass the facts of such particular matter (any such Opinion of Counsel, a
"Global Opinion"); provided that no Global Opinion may be relied upon if it is
more than 12 months old or if the subject party has reason to believe that such
Global Opinion no longer expresses a correct legal opinion.
Section 12.13 Complete Agreement.
This Agreement embodies the complete agreement among the parties and
may not be varied or terminated except by a written agreement conforming to the
provisions of Section 12.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
CWCAPITAL COMMERCIAL FUNDING CORP.,
Depositor
By:____________________________________
Name:_______________________________
Title:______________________________
[______]
Master Servicer
By:____________________________________
Name:_______________________________
Title:______________________________
[______],
Special Servicer
By:____________________________________
Name:_______________________________
Title:______________________________
[______],
Trustee
By:____________________________________
Name:_______________________________
Title:______________________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of _____________, 200_, before me, a notary public
in and for said State, personally appeared _______________________________,
known to me to be a _________________________________ of CWCapital Commercial
Funding Corp., one of the entities that executed the within instrument, and also
known to me to be the person who executed it on behalf of such entity, and
acknowledged to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
---------------------------------------
Notary Public
STATE OF ___________________ )
) ss.:
COUNTY OF _________________ )
On the ______ day of _____________, 200_, before me, a notary public
in and for said State, personally appeared _________________________________,
known to me to be a ___________________________________ of [______] one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
---------------------------------------
Notary Public
STATE OF ___________________ )
) ss.:
COUNTY OF _________________ )
On the ______ day of _____________, 200_, before me, a notary public
in and for said State, personally appeared _________________________________,
known to me to be a ___________________________________ of [______], one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
---------------------------------------
Notary Public
[Notarial Seal]
STATE OF ___________________ )
) ss.:
COUNTY OF _________________ )
On the ______ day of _____________, 200_, before me, a notary public
in and for said State, personally appeared_____________________________________,
known to me to be a_______________________________ of [______], one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
---------------------------------------
Notary Public
STATE OF ___________________ )
) ss.:
COUNTY OF _________________ )
On the ______ day of _____________, 200_, before me, a notary public
in and for said State, personally appeared ______________________________ and
___________________________, known to me to be a _____________________________
and _______________________, respectively, of ABN AMRO Bank N.V., one of the
entities that executed the within instrument, and also known to me to be the
persons who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
---------------------------------------
Notary Public
SCHEDULE I
MORTGAGE LOAN SCHEDULE
SCHEDULE II
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
SCHEDULE III
SCHEDULE OF ENVIRONMENTALLY INSURED MORTGAGE LOANS
SCHEDULE IV
CLASS XP REFERENCE RATE SCHEDULE
Interest Accrual Class XP Reference
Period Payment Date Rate (%)
----------------------- -------------------- --------------------------
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SCHEDULE V
[RESERVED]
SCHEDULE VI
SUPPLEMENTAL SERVICER SCHEDULE
SCHEDULE VII
PRIMARY SERVICED LOANS
SCHEDULE VIII
[RESERVED]
EXHIBIT A-1
FORM OF CLASS [A-1] [A-2] [A-3] CERTIFICATE
COMMERCIAL MORTGAGE TRUST 200[_]-[___]
CLASS [A-1] [A-2] [A-3] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 200[_]-[___]
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
CWCAPITAL COMMERCIAL FUNDING CORP.
Pass-Through Rate: [___]% Initial Certificate Principal Balance
of this Certificate as of the Closing
Date:
$____________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
[____________] Class [A-1] [A-2] [A-3] Certificates
as of the Closing Date:
$____________
Cut-off Date: (i) With respect to each Aggregate unpaid principal balance of
Mortgage Loan included in the Trust that the Mortgage Pool as of the Cut-off
pays on a Due Date in [____________], its Date, after deducting payments of
Due Date in [____________] and (ii) with principal due on or before such date:
respect to any other Mortgage Loan, $[_________]
[____________].
Closing Date: [____________]
First Distribution Date: [____________]
Master Servicer: [____________] Trustee: [____________]
Special Servicer: [____________]
Certificate ▇▇. [▇-▇] [▇-▇] [▇-▇] -___ CUSIP No.: _____________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CWCAPITAL
COMMERCIAL FUNDING CORP., [_____________________], [_____________________],
[_____________________], OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among CWCapital
Commercial Funding Corp., as depositor (the "Depositor," which term includes any
successor entity under the Agreement), [______________], as master servicer (the
"Master Servicer," which term includes any successor entity under the
Agreement), [______________], as special servicer (the "Special Servicer," which
term includes any successor entity under the Agreement) and [______________], 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 respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. In the event of any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
monthly, commencing in [___________]. During any given month, the payment date
will be the 10th day of the month, or if such 10th day is not a Business Day,
then the Business Day immediately following such 10th day, provided that the
payment date will be at least 4 Business Days following the Determination Date
(each, a "Distribution Date"), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (or, in the case of the first
Distribution Date, at the close of business on the Closing Date specified above)
( in any event, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs. All
distributions made under the Agreement in respect of this Certificate will be
made by the Trustee by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five (5) Business Days
prior to (or, in the case of the first such distribution, on) the Record Date
for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice. Also notwithstanding the foregoing, any distribution that may be made
with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust and (iii) the
exchange by the sole remaining Certificateholder of all of its Certificates for
all of the Mortgage Loans and REO Properties remaining in the Trust. The
Agreement permits, but does not require, the Depositor, the Master Servicer, the
Special Servicer or any Controlling Class Certificateholder to purchase from the
Trust all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Trust
Balance specified on the face hereof. The Agreement also permits, but does not
require, the sole remaining Certificateholder to acquire all of the Mortgage
Loans and any REO Properties remaining in the Trust in exchange for all of the
Certificates held by such Certificateholder following the date on which the
aggregate principal balance of the Class A-1, Class A-2, Class A-3, Class A-4,
Class B, Class C, Class D and Class E Certificates are reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66 2/3% of the Voting Rights allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of either REMIC Pool as
a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
[______________________],
as Trustee
By: __________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1] [A-2] [A-3] Certificates referred to
in the within-mentioned Agreement.
Dated: _____________
[______________________],
as Certificate Registrar
By: __________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code
of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, ____________________________________
___________________________________________________________to for the account of
________________________________________________________________________________
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
EXHIBIT A-2
FORM OF CLASS [XP] [XC]CERTIFICATE
COMMERCIAL MORTGAGE TRUST 200[_]-[___]
CLASS [XP] [XC] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 200[_]-[___]
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
CWCAPITAL COMMERCIAL FUNDING CORP.
Pass-Through Rate: [____]% Variable Initial Certificate Notional Amount of
this Certificate as of the Closing Date:
$_____________
Date of Pooling and Servicing Class Notional Amount of all the Class
Agreement: [XP] [XC] Certificates as of the Closing
[______________] Date:
$_____________
Cut-off Date: (i) With respect to Aggregate unpaid principal balance of the
each Mortgage Loan included in the Mortgage Pool as of the Cut-off Date,
Trust that pays on a Due Date in after deducting payments of principal due
[______________], its Due Date in on or before such date:
[______________] and (ii) with $[__________]
respect to any other Mortgage Loan,
[______________].
Closing Date: [______________]
First Distribution Date:
[______________]
Master Servicer: [______________] Trustee: [______________]
Special Servicer: [______________]
Certificate No. [XP] [XC]-___ CUSIP No.: _____________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CWCAPITAL
COMMERCIAL FUNDING CORP., [_____________], [_____________], [_____________], OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF
THIS CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
[FOR A REGULATION S GLOBAL CERTIFICATE: PRIOR TO THE DATE (THE "RELEASE DATE")
THAT IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING TO
PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S UNDER THE SECURITIES
ACT, AND (B) THE DATE OF CLOSING OF THE OFFERING, THIS CERTIFICATE MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENTS HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT
TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Closing Date by the aggregate notional principal amount of
all the Certificates of the same Class as this Certificate (their "Class
Notional Amount") as of the Closing Date) in that certain beneficial ownership
interest in the Trust evidenced by all the Certificates of the same Class as
this Certificate. The Trust was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among CWCapital Commercial Funding Corp., as depositor (the
"Depositor," which term includes any successor entity under the Agreement),
[____________], as master servicer (the "Master Servicer," which term includes
any successor entity under the Agreement), [____________], as special servicer
(the "Special Servicer," which term includes any successor entity under the
Agreement) and [____________], 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 respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. In the event of any conflict between any provision of this
Certificate and any provision of the Agreement, such provision of this
Certificate shall be superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
monthly, commencing in [______________]. During any given month, the payment
date will be the 10th day of the month, or if such 10th day is not a Business
Day, then the Business Day immediately following such 10th day, provided that
the payment date will be at least 4 Business Days following the Determination
Date (each, a "Distribution Date"), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (or, in the case of the first
Distribution Date, at the close of business on the Closing Date specified above)
(in any event, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs. All
distributions made under the Agreement in respect of this Certificate will be
made by the Trustee by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five (5) Business Days
prior to (or, in the case of the first such distribution, on) the Record Date
for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with a Transfer of a Global Certificate for any Class
of Book-Entry Non Registered Certificates to a successor Depository or to the
applicable Certificate Owner in accordance with Section 5.03 of the Agreement),
then the Certificate Registrar shall refuse to register such Transfer unless it
receives (and, upon receipt, may conclusively rely upon) either: (i) a
certificate from the Certificateholder desiring to effect such Transfer
substantially in the form attached as Exhibit F-1 to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A to the Agreement or as Exhibit F-2B
to the Agreement; or (ii) an Opinion of Counsel satisfactory to the Trustee to
the effect that such Transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Tax
Administrator, the Trustee, the Fiscal Agent or the Certificate Registrar in
their respective capacities as such), together with the written certification(s)
as to the facts surrounding such Transfer from the Certificateholder desiring to
effect such Transfer and/or such Certificateholder's prospective Transferee on
which such Opinion of Counsel is based.
Except as discussed below, an interest in a Rule 144A Global
Certificate for any Class of Book-Entry Non-Registered Certificates may not be
transferred to any Person who takes delivery other than in the form of an
interest in such Rule 144A Global Certificate. If this Certificate constitutes a
Rule 144A Global Certificate, a Transferee of an interest herein that takes
delivery for a Class of Book-Entry Non-Registered Certificates shall be deemed
to have represented and warranted that all the certifications set forth in
Exhibit F-2C attached to the Agreement are, with respect to the subject
Transfer, true and correct.
Any interest in a Rule 144A Global Certificate for a Class of
Book-Entry Non-Registered Certificates may be transferred by the Depositor or
any Affiliate of the Depositor to any Person who takes delivery in the form of a
beneficial interest in the Regulation S Global Certificate for such Class of
Certificates upon delivery to the Certificate Registrar of (x) a certificate to
the effect that the Certificate Owner desiring to effect such Transfer is the
Depositor or an Affiliate of the Depositor and (y) such written orders and
instructions as are required under the applicable procedures of the Depository,
Clearstream and Euroclear to direct the Trustee to debit the account of a
Depository Participant by a denomination of interests in such Rule 144A Global
Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Regulation S Global Certificate, that is equal
to the denomination of beneficial interests in the subject Class of Certificates
to be transferred. Upon delivery to the Certificate Registrar of such
certification and such orders and instructions, the Trustee, subject to and in
accordance with the applicable procedures of the Depository, shall reduce the
denomination of the Rule 144A Global Certificate in respect of the subject Class
of Certificates and increase the denomination of the Regulation S Global
Certificate for such Class, by the denomination of the beneficial interest in
such Class specified in such orders and instructions, provided that no
Regulation S Restricted Certificate may be transferred to a Person who wishes to
take delivery under Regulation S. A Regulation S Restricted Certificate is any
Certificate that is not rated in one of the four highest generic ratings
categories by a Rating Agency.
Also notwithstanding the second preceding paragraph, any interest in
a Rule 144A Global Certificate with respect to any Class of Book-Entry
Non-Registered Certificates may be transferred by any Certificate Owner holding
such interest to any Institutional Accredited Investor (other than a Qualified
Institutional Buyer) that takes delivery in the form of a Definitive Certificate
of the same Class as such Rule 144A Global Certificate upon delivery to the
Certificate Registrar and the Trustee of (i) such certifications and/or opinions
as are contemplated by the second paragraph of Section 5.02(b) of the Agreement
and (ii) such written orders and instructions as are required under the
applicable procedures of the Depository to direct the Trustee to debit the
account of a Depository Participant by the denomination of the transferred
interests in such Rule 144A Global Certificate. Upon delivery to the Certificate
Registrar of such certifications and/or opinions and such orders and
instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the subject Rule
144A Global Certificate by the denomination of the transferred interests in such
Rule 144A Global Certificate, and shall cause a Definitive Certificate of the
same Class as such Rule 144A Global Certificate, and in a denomination equal to
the reduction in the denomination of such Rule 144A Global Certificate, to be
executed, authenticated and delivered in accordance with the Agreement to the
applicable Transferee.
Except as provided in the next paragraph no beneficial interest in a
Regulation S Global Certificate for any Class of Book-Entry Non-Registered
Certificates shall be transferred to any Person who takes delivery other than in
the form of a beneficial interest in such Regulation S Global Certificate. On
and prior to the Release Date, the Certificate Owner desiring to effect any such
Transfer shall be required to obtain from such Certificate Owner's prospective
Transferee a written certification substantially in the form set forth in
Exhibit F-2D to the Agreement certifying that such Transferee is not a United
States Securities Person. On or prior to the Release Date, beneficial interests
in the Regulation S Global Certificate for each Class of Book-Entry
Non-Registered Certificates may be held only through Euroclear or Clearstream.
The Regulation S Global Certificate for each Class of Book-Entry Non-Registered
Certificates shall be deposited with the Trustee as custodian for the Depository
and registered in the name of Cede & Co. as nominee of the Depository, provided
that no Regulation S Restricted Certificate may be transferred to a Person who
wishes to take delivery under Regulation S.
Notwithstanding the preceding paragraph, after the Release Date, any
interest in a Regulation S Global Certificate for a Class of Book-Entry
Non-Registered Certificates may be transferred by the Depositor or any Affiliate
of the Depositor to any Person who takes delivery in the form of a beneficial
interest in the Rule 144A Global Certificate for such Class of Certificates upon
delivery to the Certificate Registrar of (x) a certificate to the effect that
the Certificate Owner desiring to effect such Transfer is the Depositor or an
Affiliate of the Depositor and (y) such written orders and instructions as are
required under the applicable procedures of the Depository, Clearstream and
Euroclear to direct the Trustee to debit the account of a Depository Participant
by a denomination of interests in such Regulation S Global Certificate, and
credit the account of a Depository Participant by a denomination of interests in
such Rule 144A Global Certificate, that is equal to the denomination of
beneficial interests in the subject Class of Certificates to be transferred.
Upon delivery to the Certificate Registrar of such certification and such orders
and instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the Regulation S
Global Certificate in respect of the subject Class of Certificates being
transferred and increase the denomination of the Rule 144A Global Certificate
for such Class, by the denomination of the beneficial interest in such Class
specified in such orders and instructions.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, [LIST UNDERWRITERS], the Trustee, the Master
Servicer, the Special Servicer, the Fiscal Agent, the Tax Administrator, the
Certificate Registrar and their respective Affiliates against any liability that
may result if such Transfer is not exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, ▇▇▇▇▇ plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to Title I ERISA, Section 4975 of the Code or any materially similar
provision ("Similar Law") of applicable federal, state or local law (each, a
"Plan"), or (B) any Person who is directly or indirectly purchasing this
Certificate or such interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan, if the purchase and holding of this
Certificate or such interest herein by the prospective Transferee would result
in a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or
would result in the imposition of an excise tax under Section 4975 of the Code
or any similar violation of Similar Law. Except in connection with Transfer of
this Certificate to a successor Depository or to the applicable Certificate
Owner in accordance with Section 5.03 of the Agreement, the Certificate
Registrar shall refuse to register the Transfer of a Definitive Non-Registered
Certificate unless it has received from the prospective Transferee, one of the
following: (i) a certification to the effect that such prospective Transferee is
not a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) a certification to the effect that the purchase and
holding of this Certificate or such interest herein by such prospective
Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code, by reason of Sections I
and III of Prohibited Transaction Class Exemption [___]; or (iii) a
certification of facts and an Opinion of Counsel which otherwise establish to
the reasonable satisfaction of the Trustee or such Certificate Owner, as the
case may be, that such Transfer will not result in a violation of Section 406 or
407 of ERISA or Section 4975 of the Code or result in the imposition of an
excise tax under Section 4975 of the Code. If any Transferee of this Certificate
or any interest herein does not, in connection with the subject Transfer,
deliver to the Certificate Registrar (if this Certificate constitutes a
Definitive Certificate) a certification and/or Opinion of Counsel as required by
the preceding sentence, then such Transferee (and in any event any owner of a
Book-Entry Certificate that is not an Investment Grade Certificate) shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate or any
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of this Certificate or such
interest herein by such Transferee is exempt from the prohibited transaction
provisions of Sections 406(a) and (b) and 407 of ERISA and the excise taxes
imposed on such prohibited transactions by Sections 4975(a) and (b) of the Code
(or similar violation of Similar Law). Any Transferee of a Book-Entry
Certificate that is an Investment Grade Certificate that is being acquired by or
on behalf of a Plan in reliance on the Prohibited Transaction Exemption shall be
deemed to have represented and warranted that such Plan (X) is an accredited
investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act, and
(Y) is not sponsored (within the meaning of Section 3(16)(B) of ERISA) by the
Trustee, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, any Sub-Servicer, any Exemption-Favored Party or any Mortgagor
with respect to Mortgage Loans constituting more than 5% of the aggregate
unamortized principal balance of all the Mortgage Loans determined as of the
Closing Date, or by any Affiliate of such Person.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust and (iii) the
exchange by the sole remaining Certificateholder of all of its Certificates for
all of the Mortgage Loans and REO Properties remaining in the Trust. The
Agreement permits, but does not require, the Depositor, the Master Servicer, the
Special Servicer or any Controlling Class Certificateholder to purchase from the
Trust all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Trust
Balance specified on the face hereof. The Agreement also permits, but does not
require, the sole remaining Certificateholder to acquire all of the Mortgage
Loans and any REO Properties remaining in the Trust in exchange for all of the
Certificates held by such Certificateholder following the date on which the
aggregate principal balance of the Class A-1, Class A-2, Class A-3, Class A-4,
Class B, Class C, Class D and Class E Certificates are reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66 2/3% of the Voting Rights allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of either REMIC Pool as
a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
[______________________],
as Trustee
By: __________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [XP] [XC} Certificates referred to in the
within-mentioned Agreement.
Dated: _____________
[______________________],
as Certificate Registrar
By: __________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code
of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, ____________________________________
___________________________________________________________to for the account of
________________________________________________________________________________
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
EXHIBIT A-3
FORM OF CLASS [A-4] [B] [C] [D] [E] CERTIFICATE
COMMERCIAL MORTGAGE TRUST 200[_]-[___]
CLASS [A-4] [B] [C] [D] [E] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 200[_]-[___]
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
CWCAPITAL COMMERCIAL FUNDING CORP.
Pass-Through Rate: [____]%, Subject Initial Certificate Principal Balance of
to the Weighted Average Net Mortgage this Certificate as of the Closing Date:
Rate $_______________
Date of Pooling and Servicing Class Principal Balance of all the Class
Agreement: [A-4] [B] [C] [D] [E] Certificates as of
[_____________] the Closing Date:
$_______________
Cut-off Date: (i) With respect to Aggregate unpaid principal balance of the
each Mortgage Loan included in the Mortgage Pool as of the Cut-off Date,
Trust that pays on a Due Date in after deducting payments of principal due
[______________], its Due Date in on or before such date:
[______________] and (ii) with $[__________]
respect to any other Mortgage Loan,
[______________].
Closing Date: [______________]
First Distribution Date:
[______________]
Master Servicer: [______________] Trustee: [______________]
Special Servicer: [______________]
Certificate No. [A-4] [B] [C] [D] CUSIP No.: _____________
[E]-___
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CWCAPITAL
COMMERCIAL FUNDING CORP., [_______________], [_______________],
[_______________], OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among CWCapital
Commercial Funding Corp., as depositor (the "Depositor," which term includes any
successor entity under the Agreement), [_____________], as master servicer (the
"Master Servicer," which term includes any successor entity under the
Agreement), [_____________], as special servicer (the "Special Servicer," which
term includes any successor entity under the Agreement) and [_____________], 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 respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. In the event of any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
monthly, commencing in [______________]. During any given month, the payment
date will be the 10th day of the month, or if such 10th day is not a Business
Day, then the Business Day immediately following such 10th day, provided that
the payment date will be at least 4 Business Days following the Determination
Date (each, a "Distribution Date"), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (or, in the case of the first
Distribution Date, at the close of business on the Closing Date specified above)
(in any event, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs. All
distributions made under the Agreement in respect of this Certificate will be
made by the Trustee by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five (5) Business Days
prior to (or, in the case of the first such distribution, on) the Record Date
for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice. Also notwithstanding the foregoing, any distribution that may be made
with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust and (iii) the
exchange by the sole remaining Certificateholder of all of its Certificates for
all of the Mortgage Loans and REO Properties remaining in the Trust. The
Agreement permits, but does not require, the Depositor, the Master Servicer, the
Special Servicer or any Controlling Class Certificateholder to purchase from the
Trust all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Trust
Balance specified on the face hereof. The Agreement also permits, but does not
require, the sole remaining Certificateholder to acquire all of the Mortgage
Loans and any REO Properties remaining in the Trust in exchange for all of the
Certificates held by such Certificateholder following the date on which the
aggregate principal balance of the Class A-1, Class A-2, Class A-3, Class A-4,
Class B, Class C, Class D and Class E Certificates are reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66 2/3% of the Voting Rights allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of either REMIC Pool as
a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
[______________________],
as Trustee
By: __________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-4] [B] [C] [D] [E] Certificates referred
to in the within-mentioned Agreement.
Dated: _____________
[______________________],
as Certificate Registrar
By: __________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code
of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, ____________________________________
___________________________________________________________to for the account of
________________________________________________________________________________
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
EXHIBIT A-4
FORM OF CLASS [F] [G] [H] CERTIFICATE
COMMERCIAL MORTGAGE TRUST 200[_]-[___]
CLASS [F] [G] [H] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 200[_]-[___]
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
CWCAPITAL COMMERCIAL FUNDING CORP.
Pass-Through Rate: Weighted Average Initial Certificate Principal Balance of
Net Mortgage Rate minus [___]% this Certificate as of the Closing Date:
$_______________
Date of Pooling and Servicing Class Principal Balance of all the Class
Agreement: [F] [G] [H] Certificates as of the
[______________] Closing Date:
$_______________
Cut-off Date: (i) With respect to Aggregate unpaid principal balance of the
each Mortgage Loan included in the Mortgage Pool as of the Cut-off Date,
Trust that pays on a Due Date in after deducting payments of principal due
[______________], its Due Date in on or before such date:
[______________] and (ii) with $[__________]
respect to any other Mortgage Loan,
[______________].
Closing Date: [______________]
First Distribution Date:
[______________]
Master Servicer: [______________] Trustee: [______________]
Special Servicer: [______________]
Certificate No. [F] [G] [H] -___ CUSIP No.: _____________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CWCAPITAL
COMMERCIAL FUNDING CORP., [________________], [________________],
[________________], OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among CWCapital
Commercial Funding Corp., as depositor (the "Depositor," which term includes any
successor entity under the Agreement), [______________], as master servicer (the
"Master Servicer," which term includes any successor entity under the
Agreement), [______________], as special servicer (the "Special Servicer," which
term includes any successor entity under the Agreement) and [______________], 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 respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. In the event of any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
monthly, commencing in [______________]. During any given month, the payment
date will be the 10th day of the month, or if such 10th day is not a Business
Day, then the Business Day immediately following such 10th day, provided that
the payment date will be at least 4 Business Days following the Determination
Date (each, a "Distribution Date"), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (or, in the case of the first
Distribution Date, at the close of business on the Closing Date specified above)
(in any event, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs. All
distributions made under the Agreement in respect of this Certificate will be
made by the Trustee by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five (5) Business Days
prior to (or, in the case of the first such distribution, on) the Record Date
for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice. Also notwithstanding the foregoing, any distribution that may be made
with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust and (iii) the
exchange by the sole remaining Certificateholder of all of its Certificates for
all of the Mortgage Loans and REO Properties remaining in the Trust. The
Agreement permits, but does not require, the Depositor, the Master Servicer, the
Special Servicer or any Controlling Class Certificateholder to purchase from the
Trust all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Trust
Balance specified on the face hereof. The Agreement also permits, but does not
require, the sole remaining Certificateholder to acquire all of the Mortgage
Loans and any REO Properties remaining in the Trust in exchange for all of the
Certificates held by such Certificateholder following the date on which the
aggregate principal balance of the Class A-1, Class A-2, Class A-3, Class A-4,
Class B, Class C, Class D and Class E Certificates are reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66 2/3% of the Voting Rights allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of either REMIC Pool as
a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
[______________________],
as Trustee
By: __________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [F] [G] [H] Certificates referred to in the
within-mentioned Agreement.
Dated: _____________
[______________________],
as Certificate Registrar
By: __________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code
of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, ____________________________________
___________________________________________________________to for the account of
________________________________________________________________________________
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
EXHIBIT A-5
[Reserved]
EXHIBIT A-6
FORM OF CLASS [J] [K] [L] [M] [N] [O] [P] CERTIFICATE
COMMERCIAL MORTGAGE TRUST 200[_]-[___]
CLASS [J] [K] [L] [M] [N] [O] [P] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 200[_]-[___]
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
CWCAPITAL COMMERCIAL FUNDING CORP.
Pass-Through Rate: [____]%, Subject Initial Certificate Principal Balance of
to the Weighted Average Net Mortgage this Certificate as of the Closing Date:
Rate $_______________
Date of Pooling and Servicing Class Principal Balance of all the Class
Agreement: [J] [K] [L] [M] [N] [O] [P] Certificates
[_____________] as of the Closing Date:
$_______________
Cut-off Date: (i) With respect to Aggregate unpaid principal balance of
each Mortgage Loan included in the the Mortgage Pool as of the Cut-off
Trust that pays on a Due Date in Date, after deducting payments of
[_____________], its Due Date in principal due on or before such date:
[_____________] and (ii) with respect $[________]
to any other Mortgage Loan,
[_____________].
Closing Date: [_____________]
First Distribution Date:
[_____________]
Master Servicer: [_____________] Trustee: [_____________]
Special Servicer: [_____________]
Certificate No. [J] [K] [L] [M] [N] CUSIP No.: _____________
[O] [P]-___
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CWCAPITAL
COMMERCIAL FUNDING CORP., [_______________], [_______________],
[_______________], OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among CWCapital
Commercial Funding Corp., as depositor (the "Depositor," which term includes any
successor entity under the Agreement), [_____________], as master servicer (the
"Master Servicer," which term includes any successor entity under the
Agreement), [_____________], as special servicer (the "Special Servicer," which
term includes any successor entity under the Agreement) and [_____________], 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 respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. In the event of any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
monthly, commencing in [_____________]. During any given month, the payment date
will be the 10th day of the month, or if such 10th day is not a Business Day,
then the Business Day immediately following such 10th day, provided that the
payment date will be at least 4 Business Days following the Determination Date
(each, a "Distribution Date"), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (or, in the case of the first
Distribution Date, at the close of business on the Closing Date specified above)
(in any event, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs. All
distributions made under the Agreement in respect of this Certificate will be
made by the Trustee by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five (5) Business Days
prior to (or, in the case of the first such distribution, on) the Record Date
for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice. Also notwithstanding the foregoing, any distribution that may be made
with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with a Transfer of a Global Certificate for any Class
of Book-Entry Non-Registered Certificates to a successor Depository or to the
applicable Certificate Owner in accordance with Section 5.03 of the Agreement),
then the Certificate Registrar shall refuse to register such Transfer unless it
receives (and, upon receipt, may conclusively rely upon) either: (i) a
certificate from the Certificateholder desiring to effect such Transfer
substantially in the form attached as Exhibit F-1 to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A to the Agreement or as Exhibit F-2B
to the Agreement; or (ii) an Opinion of Counsel satisfactory to the Trustee to
the effect that such Transferee is an Institutional Accredited Investor or a
Qualified Institutional Buyer and such Transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust Fund or of the Depositor, the Master Servicer, the Special Servicer,
the Tax Administrator, the Trustee, the Fiscal Agent or the Certificate
Registrar in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such Transfer from the
Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
Except as discussed below, an interest in a Rule 144A Global
Certificate for any Class of Book-Entry Non-Registered Certificates may not be
transferred to any Person who takes delivery other than in the form of an
interest in such Rule 144A Global Certificate. If this Certificate constitutes a
Rule 144A Global Certificate, a Transferee of an interest herein that takes
delivery for a Class of Book-Entry Non-Registered Certificates shall be deemed
to have represented and warranted that all the certifications set forth in
Exhibit F-2C attached to the Agreement are, with respect to the subject
Transfer, true and correct.
Also notwithstanding the second preceding paragraph, any interest in
a Rule 144A Global Certificate with respect to any Class of Book-Entry
Non-Registered Certificates may be transferred by any Certificate Owner holding
such interest to any Institutional Accredited Investor (other than a Qualified
Institutional Buyer) that takes delivery in the form of a Definitive Certificate
of the same Class as such Rule 144A Global Certificate upon delivery to the
Certificate Registrar and the Trustee of (i) such certifications and/or opinions
as are contemplated by the second paragraph of Section 5.02(b) of the Agreement
and (ii) such written orders and instructions as are required under the
applicable procedures of the Depository to direct the Trustee to debit the
account of a Depository Participant by the denomination of the transferred
interests in such Rule 144A Global Certificate. Upon delivery to the Certificate
Registrar of such certifications and/or opinions and such orders and
instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the subject Rule
144A Global Certificate by the denomination of the transferred interests in such
Rule 144A Global Certificate, and shall cause a Definitive Certificate of the
same Class as such Rule 144A Global Certificate, and in a denomination equal to
the reduction in the denomination of such Rule 144A Global Certificate, to be
executed, authenticated and delivered in accordance with the Agreement to the
applicable Transferee.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, [LIST UNDERWRITERS], the Trustee, the Master
Servicer, the Special Servicer, the Fiscal Agent, the Tax Administrator, the
Certificate Registrar and their respective Affiliates against any liability that
may result if such Transfer is not exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, ▇▇▇▇▇ plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to Title I ERISA, Section 4975 of the Code or any materially similar
provision ("Similar Law") of applicable federal, state or local law (each, a
"Plan"), or (B) any Person who is directly or indirectly purchasing this
Certificate or such interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan, if the purchase and holding of this
Certificate or such interest herein by the prospective Transferee would result
in a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or
would result in the imposition of an excise tax under Section 4975 of the Code
or any similar violation of Similar Law. Except in connection with Transfer of
this Certificate to a successor Depository or to the applicable Certificate
Owner in accordance with Section 5.03 of the Agreement, the Certificate
Registrar shall refuse to register the Transfer of a Definitive Non-Registered
Certificate unless it has received from the prospective Transferee one of the
following: (i) a certification to the effect that such prospective Transferee is
not a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) a certification to the effect that the purchase and
holding of this Certificate or such interest herein by such prospective
Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code, by reason of Sections I
and III of Prohibited Transaction Class Exemption [__]; or (iii) a certification
of facts and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Trustee or such Certificate Owner, as the case may be, that
such Transfer will not result in a violation of Section 406 or 407 of ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code. If any Transferee of this Certificate or any interest
herein does not, in connection with the subject Transfer, deliver to the
Certificate Registrar (if this Certificate constitutes a Definitive Certificate)
a certification and/or Opinion of Counsel as required by the preceding sentence,
then such Transferee (and in any event any owner of a Book-Entry Certificate
that is not an Investment Grade Certificate) shall be deemed to have represented
and warranted that either: (i) such Transferee is not a Plan and is not directly
or indirectly purchasing this Certificate or any interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan; or (ii) the
purchase and holding of this Certificate or such interest herein by such
Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code (or similar violation of
Similar Law). Any Transferee of a Book-Entry Certificate that is an Investment
Grade Certificate that is being acquired by or on behalf of a Plan in reliance
on the Prohibited Transaction Exemption shall be deemed to have represented and
warranted that such Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, and (Y) is not sponsored
(within the meaning of Section 3(16)(B) of ERISA) by the Trustee, the Depositor,
the Mortgage Loan Seller, the Master Servicer, the Special Servicer, any
Sub-Servicer, any Exemption-Favored Party or any Mortgagor with respect to
Mortgage Loans constituting more than 5% of the aggregate unamortized principal
balance of all the Mortgage Loans determined as of the Closing Date, or by any
Affiliate of such Person.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust and (iii) the
exchange by the sole remaining Certificateholder of all of its Certificates for
all of the Mortgage Loans and REO Properties remaining in the Trust. The
Agreement permits, but does not require, the Depositor, the Master Servicer, the
Special Servicer or any Controlling Class Certificateholder to purchase from the
Trust all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Trust
Balance specified on the face hereof. The Agreement also permits, but does not
require, the sole remaining Certificateholder to acquire all of the Mortgage
Loans and any REO Properties remaining in the Trust in exchange for all of the
Certificates held by such Certificateholder following the date on which the
aggregate principal balance of the Class A-1, Class A-2, Class A-3, Class A-4,
Class B, Class C, Class D and Class E Certificates are reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66 2/3% of the Voting Rights allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of either REMIC Pool as
a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
CERTIFICATE OF AUTHENTICATION
This is one of the Class [J] [K] [L] [M] [N] [O] [P] Certificates
referred to in the within-mentioned Agreement.
Dated: _____________
[______________________],
as Certificate Registrar
By: __________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code
of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, ____________________________________
___________________________________________________________to for the account of
________________________________________________________________________________
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
EXHIBIT A-7
FORM OF CLASS [R-I] [R-II] CERTIFICATES
COMMERCIAL MORTGAGE TRUST 200[_]-[___]
CLASS [R-I] [R-II] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 200[_]-[___]
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
CWCAPITAL COMMERCIAL FUNDING CORP.
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: Certificate in the related Class: ___%
[_____________]
Cut-off Date: (i) With respect to Aggregate unpaid principal balance of the
each Mortgage Loan included in the Mortgage Pool as of the Cut-off Date,
Trust that pays on a Due Date in after deducting payments of principal due
[_____________], its Due Date in on or before such date: $[_________]
[_____________] and (ii) with respect
to any other Mortgage Loan,
[_____________].
Closing Date: [_____________]
First Distribution Date:
[_____________]
Master Servicer: [_____________] Trustee: [_____________]
Special Servicer: [_____________]
Certificate No. [R-I] [R-II]-___ CUSIP No.: _____________
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CWCAPITAL
COMMERCIAL FUNDING CORP., [__________________], [__________________],
[__________________], OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC")
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"). CONSEQUENTLY, THE TRANSFER OF THIS
CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX RELATED TRANSFER RESTRICTIONS
DESCRIBED HEREIN. IF ANY PERSON BECOMES THE REGISTERED HOLDER OF THIS
CERTIFICATE IN VIOLATION OF SUCH TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL
BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT
BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, INCLUDING, BUT NOT LIMITED
TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that _______________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate (as
specified above) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among CWCapital
Commercial Funding Corp., as depositor (the "Depositor," which term includes any
successor entity under the Agreement), [_____________], as master servicer (the
"Master Servicer," which term includes any successor entity under the
Agreement), [_____________], as special servicer (the "Special Servicer," which
term includes any successor entity under the Agreement) and [_____________], 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 respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. In the event of any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
monthly, commencing in [_____________]. During any given month, the payment date
will be the 10th day of the month, or if such 10th day is not a Business Day,
then the Business Day immediately following such 10th day, provided that the
payment date will be at least 4 Business Days following the Determination Date
(each, a "Distribution Date"), commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (or, in the case of the first
Distribution Date, at the close of business on the Closing Date specified above)
(in any event, the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed pursuant to the Agreement on the applicable Distribution Date in
respect of the Class of Certificates to which this Certificate belongs. All
distributions made under the Agreement in respect of this Certificate will be
made by the Trustee by wire transfer in immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five (5) Business Days
prior to (or, in the case of the first such distribution, on) the Record Date
for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of this Certificate is to be made without registration
under the Securities Act, then the Certificate Registrar shall refuse to
register such Transfer unless it receives (and, upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder desiring to
effect such Transfer substantially in the form attached as Exhibit F-1 to the
Agreement and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached as Exhibit F-2A to the Agreement; or (ii) an
Opinion of Counsel satisfactory to the Trustee to the effect that such
Transferee is a Qualified Institutional Buyer and such Transfer may be made
without registration under the Securities Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Tax Administrator, the Trustee, the Fiscal Agent or
the Certificate Registrar in their respective capacities as such), together with
the written certification(s) as to the facts surrounding such Transfer from the
Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder desiring to effect a Transfer of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, [LIST UNDERWRITERS], the Trustee, the Master Servicer, the
Special Servicer, the Fiscal Agent, the Tax Administrator, the Certificate
Registrar and their respective Affiliates against any liability that may result
if such Transfer is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, ▇▇▇▇▇ plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to Title I ERISA, Section 4975 of the Code or any materially similar
provision ("Similar Law") of applicable federal, state or local law (each, a
"Plan"), or (B) any Person who is directly or indirectly purchasing this
Certificate or such interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan, if the purchase and holding of this
Certificate or such interest herein by the prospective Transferee would result
in a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or
would result in the imposition of an excise tax under Section 4975 of the Code
or any similar violation of Similar Law. The Certificate Registrar shall refuse
to register the Transfer of a Definitive Non-Registered Certificate unless it
has received from the prospective Transferee a certification to the effect that
such prospective Transferee is not a Plan and is not directly or indirectly
purchasing this Certificate on behalf of, as named fiduciary of, as trustee of,
or with assets of a Plan.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Trustee
and the Tax Administrator of any change or impending change in its status as a
Permitted Transferee. In connection with any proposed Transfer of any Ownership
Interest in this Certificate, the Certificate Registrar shall require delivery
to it, and shall not register the transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit H-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its Ownership
Interest in this Certificate as a nominee, trustee or agent for any Person that
is not a Permitted Transferee, that for so long as it retains its Ownership
Interest in this Certificate, it will endeavor to remain a Permitted Transferee,
and that it has reviewed the provisions of Section 5.02(d) of the Agreement and
agrees to be bound by them. Notwithstanding the delivery of a Transfer Affidavit
and Agreement by a proposed Transferee, if the Certificate Registrar has actual
knowledge that the proposed Transferee is not a Permitted Transferee, the
Certificate Registrar shall not register the Transfer of an Ownership Interest
in this Certificate to such proposed Transferee. In addition, the Certificate
Registrar shall not register the transfer of an Ownership Interest in this
Certificate to any entity classified as a partnership under the Code unless at
the time of transfer, all of its beneficial owners are United States Persons.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to Transfer its Ownership Interest
herein and (y) not to Transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Trustee and the Tax
Administrator written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Trustee and the Tax Administrator the following: (a) written confirmation from
each Rating Agency to the effect that the modification of, addition to or
elimination of such provisions will not cause such Rating Agency to withdraw,
qualify or downgrade its then-current rating of any Class of Certificates; and
(b) an opinion of counsel, in form and substance satisfactory to the Trustee and
the Tax Administrator, to the effect that such modification of, addition to or
elimination of such provisions will not (i) cause either REMIC Pool to (A) cease
to qualify as a REMIC or (B) be subject to an entity-level tax caused by the
Transfer of a Residual Interest Certificate to a Person which is not a Permitted
Transferee, or (ii) cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a Residual Interest
Certificate to a Person that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not (i) a
Disqualified Organization, (ii) any Person as to whom the transfer of this
Certificate may cause either REMIC Pool to fail to qualify as a REMIC, (iii) a
Disqualified Non-United States Tax Person, (iv) a Disqualified Partnership or
(v) a United States Tax Person with respect to whom income is attributable to a
foreign permanent establishment or fixed base (within the meaning of any
applicable income tax treaty between the United States and any foreign
jurisdiction) of a United States Tax Person.
A "Disqualified Organization" is (i) the United States, any State or
political subdivision thereof, a foreign government, an international
organization, or any agency or instrumentality of any of the foregoing, (ii) any
organization (other than certain farmers' cooperatives described in Section 521
of the Code) that is exempt from the tax imposed by Chapter 1 of the Code
(unless such organization is subject to the tax imposed by Section 511 of the
Code on unrelated business taxable income), (iii) rural electric and telephone
cooperatives described in Section 1381 of the Code and (iv) any other Person so
designated by the Trustee or Tax Administrator based upon an opinion of counsel
that the holding of an Ownership Interest in a Residual Interest Certificate by
such Person may cause the Trust Fund or any Person having an Ownership Interest
in any Class of Certificates (other than such Person) to incur a liability for
any federal tax imposed under the Code that would not otherwise be imposed but
for the Transfer of an Ownership Interest in a Residual Interest Certificate to
such Person. The terms "United States", "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
A "Disqualified Non-United States Tax Person" is, with respect to
any Residual Interest Certificate, any Non-United States Tax Person or agent
thereof other than: (1) a Non-United States Tax Person that (a) holds such
Residual Interest Certificate and, for purposes of Treasury regulation section
1.860G-3(a)(3), is subject to tax under Section 882 of the Code, (b) certifies
that it understands that, for purposes of Treasury regulation section
1.860E-1(c)(4)(ii), as a Holder of such Residual Interest Certificate for United
States federal income tax purposes, it may incur tax liabilities in excess of
any cash flows generated by such Residual Interest Certificate and intends to
pay taxes associated with holding such Residual Interest Certificate, and (c)
has furnished the Transferor and the Trustee with an effective IRS Form W-8ECI
or successor form and has agreed to update such form as required under the
applicable Treasury regulations; or (2) a Non-United States Tax Person that has
delivered to the Transferor, the Trustee and the Certificate Registrar an
opinion of nationally recognized tax counsel to the effect that (x) the Transfer
of such Residual Interest Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and (y) such
Transfer of such Residual Interest Certificate will not be disregarded for
United States federal income tax purposes.
A "Disqualified Partnership" is any domestic entity classified as a
partnership under the Code, if any of its beneficial owners are Disqualified
Non-United States Tax Persons.
A "Non-United States Tax Person" is any Person other than a United
States Tax Person. A "United States Tax Person" is a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any political subdivision
thereof, or an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States persons have the authority to control all substantial
decisions of the trust (or to the extent provided in the Treasury regulations,
if the trust was in existence on August 20, 1996 and elected to be treated as a
United States Person), all within the meaning of Section 7701(a)(30) of the
Code.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust and (iii) the
exchange by the sole remaining Certificateholder of all of its Certificates for
all of the Mortgage Loans and REO Properties remaining in the Trust. The
Agreement permits, but does not require, the Depositor, the Master Servicer, the
Special Servicer or any Controlling Class Certificateholder to purchase from the
Trust all Mortgage Loans and any REO Properties remaining therein. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the Initial Trust
Balance specified on the face hereof. The Agreement also permits, but does not
require, the sole remaining Certificateholder to acquire all of the Mortgage
Loans and any REO Properties remaining in the Trust in exchange for all of the
Certificates held by such Certificateholder following the date on which the
aggregate principal balance of the Class A-1, Class A-2, Class A-3, Class A-4,
Class B, Class C, Class D and Class E Certificates are reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66 2/3% of the Voting Rights allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of either REMIC Pool as
a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
This is one of the Class [R-I] [R-II] Certificates referred to in
the within-mentioned Agreement.
[______________________],
as Trustee
By: __________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R-I] [R-II] Certificates referred to in
the within-mentioned Agreement.
Dated: _____________
[______________________],
as Certificate Registrar
By: __________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code
of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, ____________________________________
___________________________________________________________to for the account of
________________________________________________________________________________
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices should be
mailed to ______________________________________________________________________
_______________________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
EXHIBIT B
FORM OF DISTRIBUTION DATE STATEMENT
EXHIBIT C
FORM OF CUSTODIAL CERTIFICATION
To the parties listed on the attached Schedule A
Re: CWCapital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 200[_]-[___], Commercial Mortgage Pass Through
Certificates, Series 200[_]-[___] (the "Certificates")
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement
dated as of [_____________], relating to the above-referenced Certificates (the
"Agreement"), [__________], in its capacity as trustee (the "Trustee"), hereby
certifies as to each Mortgage Loan subject as of the date hereof to the
Agreement (except as identified in the exception report attached hereto) that:
(i) all documents specified in clauses (a)(i) through (a)(v), (a)(vii) and
(a)(viii) (without regard to the second parenthetical in such clause (a)(viii))
of the definition of "Mortgage File", are in its possession or the possession of
a Custodian on its behalf; (ii) the recordation/filing contemplated by Section
2.01(c) of the Agreement has been completed (based solely on receipt by the
Trustee of the particular recorded/filed documents); (iii) all documents
received by it or any Custodian with respect to such Mortgage Loan have been
reviewed by it or by such Custodian on its behalf and (A) appear regular on
their face (handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Mortgagor), (B) appear to have been executed
(where appropriate) and (C) purport to relate to such Mortgage Loan; and (iv)
based on the examinations referred to in Section 2.02(a) of the Agreement and in
this Certification and only as to the foregoing documents, the information set
forth in the Mortgage Loan Schedule with respect to the items specified in
clauses (v) and (vi)(B) of the definition of "Mortgage Loan Schedule" accurately
reflects the information set forth in the Mortgage File.
Neither the Trustee nor any Custodian is under any duty or
obligation to inspect, review or examine any of the documents, instruments,
certificates or other papers relating to the Loans delivered to it to determine
that the same are valid, legal, effective, genuine, binding, enforceable,
sufficient or appropriate for the represented purpose or that they are other
than what they purport to be on their face. Furthermore, neither the Trustee nor
any Custodian shall have any responsibility for determining whether the text of
any assignment or endorsement is in proper or recordable form, whether the
requisite recording of any document is in accordance with the requirements of
any applicable jurisdiction, or whether a blanket assignment is permitted in any
applicable jurisdiction. In performing the review contemplated herein, the
Trustee or any Custodian may rely on the Depositor as to the purported
genuineness of any such document and any signature thereon.
Capitalized terms used herein and not otherwise defined shall have
the respective meanings assigned to them in the Agreement.
Respectfully,
[_______________],
as Trustee
By: __________________________________
Name:
Title:
Schedule A
CWCapital Commercial Funding Corp.
[___________]
[___________]
[LIST UNDERWRITERS, RATING AGENCIES AND OTHER PARTIES]
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
[TRUSTEE]
Attention: [__________________]--CWCapital Commercial Funding Corp., as
depositor, Commercial Mortgage Trust 200[_]-[___]
Re: CWCapital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 200[_]-[___], Commercial Mortgage
Pass-Through Certificates, Series 200[_]-[___]
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under that certain Pooling and Servicing
Agreement dated as of [_____________] (the "Pooling and Servicing Agreement"),
by and among CWCapital Commercial Funding Corp. as depositor, the undersigned as
master servicer (the "Master Servicer"), [_____________] as special servicer
(the "Special Servicer") and you as trustee (the "Trustee"), the undersigned
hereby requests a release of the Mortgage File (or the portion thereof specified
below) held by or on behalf of you as Trustee with respect to the following
described Mortgage Loan for the reason indicated below.
Property Name: _____________________________________________________
Address: ___________________________________________________________
Control No.: _______________________________________________________
If only particular documents in the Mortgage File are requested,
please specify which: ______________________________________________
____________________________________________________________________
____________________________________________________________________
Reason for requesting file (or portion thereof):
______ 1. Mortgage Loan paid in full. The undersigned hereby
certifies that all amounts received in connection with
the Mortgage Loan that are required to be credited to
the Custodial Account pursuant to the Pooling and
Servicing Agreement, have been or will be so credited.
______ 2. Other. (Describe) ______________________________________
________________________________________________________
________________________________________________________
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[MASTER SERVICER]
By: _____________________________________
Name:
Title:
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
_______________
[TRUSTEE]
Attention: [_________________]--
CWCapital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 200[_]-[___]
Re: CWCapital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 200[_]-[___], Commercial Mortgage
Pass-Through Certificates, Series 200[_]-[___]
In connection with the administration of the Mortgage Files held by or on
behalf of you as Trustee under that certain Pooling and Servicing Agreement
dated as of [______________] (the "Pooling and Servicing Agreement"), by and
among CWCapital Commercial Funding Corp. as depositor, [______________] as
master servicer (the "Master Servicer"), the undersigned as special servicer
(the "Special Servicer") and you as trustee (the "Trustee"), the undersigned
hereby requests a release of the Mortgage File (or the portion thereof specified
below) held by or on behalf of you as Trustee with respect to the following
described Mortgage Loan for the reason indicated below.
Property Name: _____________________________________________________
Address: ___________________________________________________________
Control No.: _______________________________________________________
If only particular documents in the Mortgage File are requested,
please specify which: ______________________________________________
____________________________________________________________________
____________________________________________________________________
Reason for requesting file (or portion thereof):
______ 1. Mortgage Loan paid in full. The undersigned hereby
certifies that all amounts received in connection with
the Mortgage Loan that are required to be credited to
the Custodial Account pursuant to the Pooling and
Servicing Agreement, have been or will be so credited.
______ 2. Other. (Describe) ______________________________________
________________________________________________________
________________________________________________________
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof (or within such
longer period as we have indicated as part of our reason for the request),
unless the Mortgage Loan has been paid in full or otherwise liquidated, in which
case the Mortgage File (or such portion thereof) will be retained by us
permanently.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[SPECIAL SERVICER]
By: __________________________________
Name:
Title:
EXHIBIT E
FORM OF LOAN PAYOFF NOTIFICATION REPORT
LOAN PAYMENT NOTIFICATION REPORT
as of _____________________
▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇
---------------------------------------------------------------------------------------------------------------------------
Preceding
Short Name Scheduled Paid Current Fiscal Yr.
(When Property Loan Thru Interest Maturity DSCR Most Recent
Prospectus ID Appropriate) Type State Balance Date Rate Date NCR DSCR NCF
---------------------------------------------------------------------------------------------------------------------------
Scheduled Payments
Unscheduled Payment
Total: $
S4 Servicer Estimated Information
Expected Expected
Yield Payment Distribution
Prospectus ID Maintenance Date Date
-------------------------------------------------------
Scheduled Payments
Unscheduled Payment
Total:
The Borrower has only requested the information to pay-off. This does not
indicate a definite payment.
EXHIBIT F-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
[Date]
[TRUSTEE]
Attention: [_____________________]--
CWCapital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 200[_]-[___]
Re: CWCapital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 200[_]-[___], Commercial Mortgage Pass-Through
Certificates, Series 200[_]-[___], Class _____, [having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of [_____________] (the "Closing Date") of
$__________] [representing a ____% Percentage Interest in the
subject Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of [_____________], between CWCapital
Commercial Funding Corp., as Depositor, [____________], as Master Servicer,
[____________], as Special Servicer and [______________], as Trustee. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, and for the benefit of the Trustee and the Depositor, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any offer
to buy or accept a transfer, pledge or other disposition of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security with any person in
any manner, (d) made any general solicitation with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security by means of general advertising or in any other
manner, or (e) taken any other action with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security, which (in the case of any of the acts described in clauses (a)
through (e) hereof) would constitute a distribution of the Transferred
Certificates under the Securities Act of 1933, as amended (the "Securities
Act"), would render the disposition of the Transferred Certificates a
violation of Section 5 of the Securities Act or any state securities laws,
or would require registration or qualification of the Transferred
Certificates pursuant to the Securities Act or any state securities laws.
Very truly yours,
______________________________________
(Transferor)
By:___________________________________
Name:
Title:
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
[Date]
[TRUSTEE]
Attention: Global Securities Trust Services Group--
CWCapital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 200[_]- [___]
Re: CWCapital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 200[_]-[___], Commercial Mortgage
Pass-Through Certificates, Series 200[_]-[___], Class ___,
[having an initial aggregate [Certificate Principal
Balance] [Certificate Notional Amount] as of [___________]
(the "Closing Date") of $__________] [representing a ____%
Percentage Interest in the subject Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________________ (the "Transferor") to
________________________________ (the "Transferee") of the captioned
Certificates (the "Transferred Certificates"), pursuant to Section 5.02 of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of [___________] among CWCapital Commercial Funding Corp., as Depositor,
[___________], as Master Servicer, [___________], as Special Servicer and
[___________], as Trustee. All capitalized terms used herein and not otherwise
defined shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
you, as Certificate Registrar, and for the benefit of the Trustee and the
Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to it
is being made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of another
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases
for its own account or for the account of another Qualified Institutional
Buyer and to whom notice is given that the resale, pledge or transfer is
being made in reliance on Rule 144A, or (b) pursuant to another exemption
from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust Fund created
pursuant thereto, and (e) all related matters, that it has requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgement below.
4. Check one of the following:
The Transferee is a "U.S. Person" and it has
attached hereto an Internal Revenue Service
("IRS") Form W-9 (or successor form).
The Transferee is not a "U.S. Person" and under
applicable law in effect on the date hereof, no
taxes will be required to be withheld by the
Certificate Registrar (or its agent) with respect
to Distributions to be made on the Transferred
Certificate. The Transferee has attached hereto
(i) a duly executed IRS Form W-8BEN (or successor
form), which identifies such Purchaser as the
beneficial owner of the Transferred Certificate
and states that such Transferee is not a U.S.
Person, (ii) two duly executed copies of IRS Form
W-8IMY (and all appropriate attachment) or (iii)
two duly executed copies of IRS Form W-8ECI (or
successor form), which identify such Transferee as
the beneficial owner of the Transferred
Certificate and state that interest and original
issue discount on the Transferred Certificate is,
or is expected to be, effectively connected with a
U.S. trade or business. The Transferee agrees to
provide to the Certificate Registrar updated IRS
Form W-8BEN, IRS Form W-8IMY or IRS Form W-8ECI,
as the case may be, any applicable successor IRS
forms, or such other certifications as the
Certificate Registrar may reasonably request, on
or before the date that any such IRS form or
certification expires or becomes obsolete, or
promptly after the occurrence of any event
requiring a change in the most recent IRS form of
certification furnished by it to the Certificate
Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the
United States for U.S. federal income tax purposes, a corporation,
partnership (except to the extent provided in applicable Treasury
regulations) or other entity created or organized in or under the laws of
the United States or any State thereof or the District of Columbia, or an
estate the income of which is subject to U.S. federal income taxation
regardless of its source or a trust if a court within the United States is
able to exercise privacy supervision over the administration of the trust
and one or more such U.S. Persons have the authority to control all
substantial decisions of the trust (or, to the extent provided in
applicable Treasury regulations, certain trusts in existence on August 20,
1996 which are eligible to elect to be treated as U.S. Persons).
Very truly yours,
______________________________________
(Transferee)
By: __________________________________
Name:
Title:
Nominee Acknowledgement
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
______________________________________
(Nominee)
By: _____________________________________
Name:
Title:
ANNEX 1 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates (the
"Transferred Certificates") described in the Transferee certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificates (the
"Transferee").
2. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended, because (i) [the Transferee] [each of the Transferee's equity
owners] owned and/or invested on a discretionary basis
$______________________((1)) in securities (other than the excluded
securities referred to below) as of the end of such entity's most recent
fiscal year (such amount being calculated in accordance with Rule 144A)
and (ii) the Transferee satisfies the criteria in the category marked
below.
_____ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
_____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
state or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. bank, and not more than 18 months preceding
such date of sale in the case of a foreign bank or equivalent
institution.
_____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a state or federal authority having
supervision over any such institutions, or is a foreign
savings and loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy
of which is attached hereto, as of a date not more than 16
months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date
of sale in the case of a foreign savings and loan association
or equivalent institution.
_____ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
---------------------
((1)) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee
or any such equity owner, as the case may be, is a dealer, and, in that
case, Transferee or such equity owner, as the case may be, must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
_____ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
state, U.S. territory or the District of Columbia.
_____ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any
agency or instrumentality of the state or its political
subdivisions, for the benefit of its employees.
_____ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
_____ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
_____ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule
144A.
_____ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1) ____________________________
______________________________________________________________
_____________________________________________________________.
3. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee did not include (i) securities of issuers that are affiliated
with such Person, (ii) securities that are part of an unsold allotment to
or subscription by such Person, if such Person is a dealer, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee used the cost of such securities to such Person, unless such
Person reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to
the cost of those securities has been published, in which case the
securities were valued at market. Further, in determining such aggregate
amount, the Transferee may have included securities owned by subsidiaries
of such Person, but only if such subsidiaries are consolidated with such
Person in its financial statements prepared in accordance with generally
accepted accounting principles and if the investments of such subsidiaries
are managed under such Person's direction. However, such securities were
not included if such Person is a majority-owned, consolidated subsidiary
of another enterprise and such Person is not itself a reporting company
under the Securities Exchange Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands that
the Transferor and other parties related to the Transferred Certificates
are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule
144A.
___ ___ Will the Transferee be purchasing the Transferred
Certificates only for the Transferee's own
Yes No account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the "qualified
institutional buyer" status of such third party has been established by
the Transferee through one or more of the appropriate methods contemplated
by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the
Transferred Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the
Transferee is a bank or savings and loan as provided above, the Transferee
agrees that it will furnish to such parties any updated annual financial
statements that become available on or before the date of such purchase,
promptly after they become available.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant
to which the Transferred Certificates were issued.
______________________________________
Print Name of Transferee
By: _____________________________________
Name:
Title:
Date:
ANNEX 2 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates (the
"Transferred Certificates") described in the Transferee Certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional buyer"
as that term is defined in Rule 144A ("Rule 144A") under the Securities
Act of 1933, as amended, because the Transferee is part of a Family of
Investment Companies (as defined below), is an executive officer of the
investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000
in securities (other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year. For purposes of
determining the amount of securities owned by the Transferee or the
Transferee's Family of Investment Companies, the cost of such securities
was used, unless the Transferee or any member of the Transferee's Family
of Investment Companies, as the case may be, reports its securities
holdings in its financial statements on the basis of their market value,
and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were
valued at market.
______ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
______ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part
of the Transferee's Family of Investment Companies, (ii) bank deposit
notes and certificates of deposit, (iii) loan participations, (iv)
repurchase agreements, (v) securities owned but subject to a repurchase
agreement and (vi) currency, interest rate and commodity swaps. For
purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, or owned by the
Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the Transferor and other parties related to the Transferred Certificates
are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee will be in reliance on Rule
144A.
_____ _____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own
account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the "qualified
institutional buyer" status of such third party has been established by
the Transferee through one or more of the appropriate methods contemplated
by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant
to which the Transferred Certificates were issued.
______________________________________
Print Name of Transferee or Adviser
By: __________________________________
Name:
Title:
Date:
IF AN ADVISER:
______________________________________
Print Name of Transferee
Date:
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
[Date]
[TRUSTEE]
Attention: Global Securities Trust Services Group--
CWCapital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 200[_]-[___]
Re: CWCapital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 200[_]-[___], Commercial Mortgage
Pass-Through Certificates, Series 200[_]-[___], Class
_____, [having an initial aggregate [Certificate Principal
Balance] [Certificate Notional Amount] as of [___________]
(the "Closing Date") of $__________] [representing a ____%
Percentage Interest in the subject Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of [___________], between CWCapital
Commercial Funding Corp., as Depositor, [___________], as Master Servicer,
[___________], as Special Servicer and [___________], as Trustee. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, and for the benefit of the Trustee and the Depositor, that:
1. The Transferee is acquiring the Transferred Certificates for its
own account for investment and not with a view to or for sale or transfer
in connection with any distribution thereof, in whole or in part, in any
manner which would violate the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or
registered or qualified under any applicable state securities laws, (b)
none of the Depositor, the Trustee or the Certificate Registrar is
obligated so to register or qualify the Class of Certificates to which the
Transferred Certificates belong, and (c) neither a Transferred Certificate
nor any security issued in exchange therefor or in lieu thereof may be
resold or transferred unless it is (i) registered pursuant to the
Securities Act and registered or qualified pursuant to any applicable
state securities laws or (ii) sold or transferred in transactions which
are exempt from such registration and qualification and the Certificate
Registrar has received: (A) a certification from the Certificateholder
desiring to effect such transfer substantially in the form attached as
Exhibit F-1 to the Pooling and Servicing Agreement and a certification
from such Certificateholder's prospective transferee substantially in the
form attached either as Exhibit F-2A to the Pooling and Servicing
Agreement or as Exhibit F-2B to the Pooling and Servicing Agreement; or
(B) an opinion of counsel satisfactory to the Trustee with respect to,
among other things, the availability of such exemption from registration
under the Securities Act, together with copies of the written
certification(s) from the transferor and/or transferee setting forth the
facts surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate or interest therein, except in
compliance with the provisions of Section 5.02 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed, and that
each Transferred Certificate will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE
TO (A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security to any person in any manner, (b) solicited any
offer to buy or accept a pledge, disposition or other transfer of any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security with
any person in any manner, (d) made any general solicitation with respect
to any Transferred Certificate, any interest in any Transferred
Certificate or any other similar security by means of general advertising
or in any other manner, or (e) taken any other action with respect to any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security, which (in the case of any of the acts
described in clauses (a) through (e) above) would constitute a
distribution of the Transferred Certificates under the Securities Act,
would render the disposition of the Transferred Certificates a violation
of Section 5 of the Securities Act or any state securities law or would
require registration or qualification of the Transferred Certificates
pursuant thereto. The Transferee will not act, nor has it authorized or
will it authorize any person to act, in any manner set forth in the
foregoing sentence with respect to any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security.
5. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the Pooling and Servicing Agreement and the Trust Fund
created pursuant thereto, (d) the nature, performance and servicing of the
Mortgage Loans, and (e) all related matters, that it has requested.
6. The Transferee is an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act
or an entity in which all of the equity owners come within such
paragraphs. The Transferee has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks
of an investment in the Transferred Certificates; the Transferee has
sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision; and the Transferee is
able to bear the economic risks of such investment and can afford a
complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgement below.
8. Check one of the following:
______ The Transferee is a "U.S. Person" and it has
attached hereto an Internal Revenue Service
("IRS") Form W-9 (or successor form).
______ The Transferee is not a "U.S. Person" and under
applicable law in effect on the date hereof, no
taxes will be required to be withheld by the
Certificate Registrar (or its agent) with respect
to Distributions to be made on the Transferred
Certificate. The Transferee has attached hereto
(i) a duly executed IRS Form W-8BEN (or successor
form), which identifies such Purchaser as the
beneficial owner of the Transferred Certificate
and states that such Transferee is not a U.S.
Person, (ii) two duly executed copies of IRS Form
W-8IMY (and all appropriate attachment) or (iii)
two duly executed copies of IRS Form W-8ECI (or
successor form), which identify such Transferee as
the beneficial owner of the Transferred
Certificate and state that interest and original
issue discount on the Transferred Certificate is,
or is expected to be, effectively connected with a
U.S. trade or business. The Transferee agrees to
provide to the Certificate Registrar updated IRS
Form W-8BEN, IRS Form W-8IMY or IRS Form W-8ECI,
as the case may be, any applicable successor IRS
forms, or such other certifications as the
Certificate Registrar may reasonably request, on
or before the date that any such IRS form or
certification expires or becomes obsolete, or
promptly after the occurrence of any event
requiring a change in the most recent IRS form of
certification furnished by it to the Certificate
Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the
United States for U.S. federal income tax purposes, a corporation,
partnership (except to the extent provided in applicable Treasury
regulations) or other entity created or organized in or under the laws of
the United States or any State thereof or the District of Columbia, or an
estate the income of which is subject to U.S. federal income taxation
regardless of its source or a trust if a court within the United States is
able to exercise privacy supervision over the administration of the trust
and one or more such U.S. Persons have the authority to control all
substantial decisions of the trust (or, to the extent provided in
applicable Treasury regulations, certain trusts in existence on August 20,
1996 which are eligible to elect to be treated as U.S. Persons).
Very truly yours,
______________________________________
(Transferee)
By: _____________________________________
Name:
Title:
Nominee Acknowledgement
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
______________________________________
(Nominee)
By: _____________________________________
Name:
Title:
EXHIBIT F-2C
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN RULE 144A GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: CWCapital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 200[_]-[___], Commercial Mortgage
Pass-Through Certificates, Series 200[_]-[___], Class
_____, having an initial aggregate [Certificate Principal
Balance] [Certificate Notional Amount] as of [___________]
(the "Closing Date") of $__________
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Company ("DTC") and the Depository Participants) in the
captioned Certificates (the "Transferred Certificates"), pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of [___________], between CWCapital Commercial Funding
Corp., as Depositor, [___________], as Master Servicer, [___________], as
Special Servicer and [___________], as Trustee. All capitalized terms used but
not otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to and agrees with you, and for the benefit of the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the Transfer
to it of the Transferor's interest in the Transferred Certificates is
being made in reliance on Rule 144A. The Transferee is acquiring such
interest in the Transferred Certificates for its own account or for the
account of another Qualified Institutional Buyer.
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or
registered or qualified under any applicable state securities laws, (b)
none of the Depositor, the Trustee or the Certificate Registrar is
obligated so to register or qualify the Transferred Certificates and (c)
no interest in the Transferred Certificates may be resold or transferred
unless (i) such Certificates are registered pursuant to the Securities Act
and registered or qualified pursuant any applicable state securities laws,
or (ii) such interest is sold or transferred in a transaction which is
exempt from such registration and qualification and the Transferor
desiring to effect such transfer has received (A) a certificate from such
Certificate Owner's prospective transferee substantially in the form
attached as Exhibit F-2C to the Pooling and Servicing Agreement or (B) an
opinion of counsel to the effect that, among other things, such
prospective transferee is a Qualified Institutional Buyer and such
transfer may be made without registration under the Securities Act.
3. The Transferee understands that it may not sell or otherwise
transfer the Transferred Certificates or any interest therein except in
compliance with the provisions of Section 5.02 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed, and that
the Transferred Certificates will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE
TO (A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986 (THE "CODE"), OR ANY MATERIALLY SIMILAR PROVISION OF
APPLICABLE FEDERAL, STATE OR LOCAL LAW OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust Fund created
pursuant thereto, (e) any credit enhancement mechanism associated with the
Transferred Certificates, and (f) all related matters, that it has
requested.
Very truly yours,
______________________________________
(Transferee)
By: _____________________________________
Name:
Title:
ANNEX 1 TO EXHIBIT F-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and for the benefit of CWCapital Commercial Funding Corp.
with respect to the mortgage pass-through certificates being transferred in
book-entry form (the "Transferred Certificates") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity acquiring interests in the Transferred Certificates
(the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A under the Securities Act of 1933, as amended
("Rule 144A"), because (i) [the Transferee] [each of the Transferee's
equity owners] owned and/or invested on a discretionary basis
$____________((1)) in securities (other than the excluded securities
referred to below) as of the end of such entity's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
_____ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
_____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
state or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. bank, and not more than 18 months preceding
such date of sale in the case of a foreign bank or equivalent
institution.
_____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a state or federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. savings and loan association, and not more
than 18 months preceding such date of sale in the case of a
foreign savings and loan association or equivalent
institution.
((1)) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee
or any such equity owner, as the case may be, is a dealer, and, in that
case, Transferee or such equity owner, as the case may be, must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
___ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
state, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any
agency or instrumentality of the state or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as
amended.
___ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule
144A.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
3. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee did not include (i) securities of issuers that are affiliated
with such Person, (ii) securities that are part of an unsold allotment to
or subscription by such Person, if such Person is a dealer, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee used the cost of such securities to such Person, unless such
Person reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to
the cost of those securities has been published, in which case the
securities were valued at market. Further, in determining such aggregate
amount, the Transferee may have included securities owned by subsidiaries
of such Person, but only if such subsidiaries are consolidated with such
Person in its financial statements prepared in accordance with generally
accepted accounting principles and if the investments of such subsidiaries
are managed under such Person's direction. However, such securities were
not included if such Person is a majority-owned, consolidated subsidiary
of another enterprise and such Person is not itself a reporting company
under the Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the
Transferred Certificates are relying and will continue to rely on the
statements made herein because one or more Transfers to the Transferee may
be in reliance on Rule 144A.
___ ___ Will the Transferee be acquiring interests in the
Yes No Transferred Certificates only for the Transferee's
own account?
6. If the answer to the foregoing question is "no," then in each
case where the Transferee is acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to a
third party that is itself a "qualified institutional buyer" within the
meaning of Rule 144A, and the "qualified institutional buyer" status of
such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's acquisition of any
interest in of the Transferred Certificates will constitute a
reaffirmation of this certification as of the date of such acquisition. In
addition, if the Transferee is a bank or savings and loan as provided
above, the Transferee agrees that it will furnish to such parties any
updated annual financial statements that become available on or before the
date of such acquisition, promptly after they become available.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which
the Transferred Certificates were issued.
______________________________________
(Transferee)
By: _____________________________________
Name:
Title:
Date:
ANNEX 2 TO EXHIBIT F-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and for the benefit of CWCapital Commercial Funding Corp.
with respect to the mortgage pass-through certificates being transferred in
book-entry form (the "Transferred Certificates") as described in the Transferee
certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity acquired interests the Transferred Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional buyer"
as that term is defined in Rule 144A under the Securities Act of 1933, as
amended ("Rule 144A"), because the Transferee is part of a Family of
Investment Companies (as defined below), is an executive officer of the
investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, as amended, and (ii) as marked
below, the Transferee alone owned and/or invested on a discretionary
basis, or the Transferee's Family of Investment Companies owned, at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year. For
purposes of determining the amount of securities owned by the Transferee
or the Transferee's Family of Investment Companies, the cost of such
securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports
its securities holdings in its financial statements on the basis of their
market value, and no current information with respect to the cost of those
securities has been published, in which case the securities of such entity
were valued at market.
____ The Transferee owned and/or invested on a discretionary
basis $___________________ in securities (other than the
excluded securities referred to below) as of the end of
the Transferee's most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment
Companies which owned in the aggregate $______________
in securities (other than the excluded securities
referred to below) as of the end of the Transferee's
most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part
of the Transferee's Family of Investment Companies, (ii) bank deposit
notes and certificates of deposit, (iii) loan participations, (iv)
repurchase agreements, (v) securities owned but subject to a repurchase
agreement and (vi) currency, interest rate and commodity swaps. For
purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, or owned by the
Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the Transferor and other parties related to the Transferred Certificates
are relying and will continue to rely on the statements made herein
because one or more Transfers to the Transferee will be in reliance on
Rule 144A.
___ ___ Will the Transferee be acquiring interests in the
Yes No Transferred Certificates only for the Transferee's
own account?
6. If the answer to the foregoing question is "no," then in each
case where the Transferee is acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to a
third party that is itself a "qualified institutional buyer" within the
meaning of Rule 144A, and the "qualified institutional buyer" status of
such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Transferee's acquisition of any interest in
the Transferred Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such acquisition.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which
the Transferred Certificates were issued.
______________________________________
(Transferee or Adviser)
By: __________________________________
Name:
Title:
Date:
IF AN ADVISER:
______________________________________
Print Name of Transferee
Date:
EXHIBIT F-2D
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: CWCapital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 200[_]-[___], Commercial Mortgage
Pass-Through Certificates, Series 200[_]-[___], Class
_____, having an initial aggregate [Certificate Principal
Balance] [Certificate Notional Amount] as of [___________]
(the "Closing Date") of $__________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Company ("DTC") and the Depository Participants) in the
captioned Certificates (the "Transferred Certificates"), pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of [___________], between CWCapital Commercial Funding
Corp., as Depositor, [___________], as Master Servicer, [___________], as
Special Servicer and [___________], as Trustee. All capitalized terms used but
not otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to and agrees with you, and for the benefit of the Depositor, that the
Transferee is not a United States Securities Person.
For purposes of this certification, "United States Securities
Person" means (i) any natural person resident in the United States, (ii) any
partnership or corporation organized or incorporated under the laws of the
United States; (iii) any estate of which any executor or administrator is a
United States Securities Person, other than any estate of which any professional
fiduciary acting as executor or administrator is a United States Securities
Person if an executor or administrator of the estate who is not a United States
Securities Person has sole or shared investment discretion with respect to the
assets of the estate and the estate is governed by foreign law, (iv) any trust
of which any trustee is a United States Securities Person, other than a trust of
which any professional fiduciary acting as trustee is a United States Securities
Person if a trustee who is not a United States Securities Person has sole or
shared investment discretion with respect to the trust assets and no beneficiary
of the trust (and no settlor if the trust is revocable) is a United States
Securities Person, (v) any agency or branch of a foreign entity located in the
United States, unless the agency or branch operates for valid business reasons
and is engaged in the business of insurance or banking and is subject to
substantive insurance or banking regulation, respectively, in the jurisdiction
where located, (vi) any non-discretionary account or similar account (other than
an estate or trust) held by a dealer or other fiduciary for the benefit or
account of a United States Securities Person, (vii) any discretionary account or
similar account (other than an estate or trust) held by a dealer or other
fiduciary organized, incorporated or (if an individual) resident in the United
States, other than one held for the benefit or account of a non-United States
Securities Person by a dealer or other professional fiduciary organized,
incorporated or (if any individual) resident in the United States, (viii) any
partnership or corporation if (a) organized or incorporated under the laws of
any foreign jurisdiction and (b) formed by a United States Securities Person
principally for the purpose of investing in securities not registered under the
Securities Act, unless it is organized or incorporated, and owned, by
"accredited investors" (as defined in Rule 501(a)) under the United States
Securities Act of 1933, as amended (the "Securities Act"), who are not natural
persons, estates or trusts; provided, however, that the International Monetary
Fund, the International Bank for Reconstruction and Development, the
Inter-American Development Bank, the Asian Development Bank, the African
Development Bank, the United Nations and their agencies, affiliates and pension
plans, any other similar international organizations, their agencies, affiliates
and pension plans shall not constitute United States Securities Persons.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Additionally, the Transferee hereby certifies, represents and
warrants to and agrees with you that:
[Check one of the following:]
______ The Transferee is a "U.S. Person" and it has
attached hereto an Internal Revenue Service
("IRS") Form W-9 (or successor form).
______ The Transferee is not a "U.S. Person" and under
applicable law in effect on the date hereof, no
taxes will be required to be withheld by the
Certificate Registrar (or its agent) with respect
to Distributions to be made on the Transferred
Certificate. The Transferee has attached hereto
(i) a duly executed IRS Form W-8BEN (or successor
form), which identifies such Purchaser as the
beneficial owner of the Transferred Certificate
and states that such Transferee is not a U.S.
Person, (ii) two duly executed copies of IRS Form
W-8IMY (and all appropriate attachment) or (iii)
two duly executed copies of IRS Form W-8ECI (or
successor form), which identify such Transferee as
the beneficial owner of the Transferred
Certificate and state that interest and original
issue discount on the Transferred Certificate is,
or is expected to be, effectively connected with a
U.S. trade or business. The Transferee agrees to
provide to the Certificate Registrar updated IRS
Form W-8BEN, IRS Form W-8IMY or IRS Form W-8ECI,
as the case may be, any applicable successor IRS
forms, or such other certifications as the
Certificate Registrar may reasonably request, on
or before the date that any such IRS form or
certification expires or becomes obsolete, or
promptly after the occurrence of any event
requiring a change in the most recent IRS form of
certification furnished by it to the Certificate
Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the
United States for U.S. federal income tax purposes, a corporation, partnership
(except to the extent provided in applicable Treasury regulations) or other
entity created or organized in or under the laws of the United States or any
State thereof or the District of Columbia, or an estate the income of which is
subject to U.S. federal income taxation regardless of its source or a trust if a
court within the United States is able to exercise privacy supervision over the
administration of the trust and one or more such U.S. Persons have the authority
to control all substantial decisions of the trust (or, to the extent provided in
applicable Treasury regulations, certain trusts in existence on August 20, 1996
which are eligible to elect to be treated as U.S. Persons).
Dated: __________, _____
By: _____________________________________
As, or agent for, the beneficial
owner(s) of the Certificates to which
this certificate relates.
EXHIBIT G
FORM I OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA (DEFINITIVE NON-REGISTERED CERTIFICATES)
[Date]
[TRUSTEE]
Attention: Global Securities Trust Services Group--
CWCapital Commercial Funding Corp., Series 200[_]-[___]
Re: CWCapital Commercial Funding Corp., Commercial Mortgage Trust
200[_]-[___], Commercial Mortgage Pass-Through Certificates, Series
200[_]-[___], Class _____, having an initial aggregate [Certificate
Principal Balance] [Certificate Notional Amount] [Percentage
Interest] as of [___________] (the "Issue Date") of [$__________]
[__________%]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of [____________], between CWCapital
Commercial Funding Corp., as Depositor, [____________], as Master Servicer,
[____________], as Special Servicer and [___________], as Trustee. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, and for the benefit of the Trustee and the Depositor, that:
The Transferee is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a governmental plan (as defined in Section
3(32) of ERISA) subject to any federal, state or local law ("Similar Law") which
is, to a material extent, similar to the foregoing provisions of ERISA or the
Code (each a "Plan") or (b) a person acting on behalf of or using the assets of
any such Plan (including an entity whose underlying assets include Plan assets
by reason of investment in the entity by such a Plan or Plans and the
application of Department of Labor Regulation ss. 2510.3-101), other than,
except in the case of a Class XK Certificate or a Residual Interest Certificate,
an insurance company using the assets of its general account under circumstances
whereby the purchase and holding of Privately Offered Certificates by such
insurance company would be exempt from the prohibited transaction provisions of
ERISA and the Code under Sections I and III of Prohibited Transaction Class
Exemption [___].
Except in the case of the Residual Interest Certificates, which may not be
transferred to a Plan or any person acting on behalf of or using the assets of a
Plan, the Transferee understands that if the Transferee is a Person referred to
in 1(a) or (b) above, such Transferee is required to provide to the Certificate
Registrar an opinion of counsel in form and substance satisfactory to the
Certificate Registrar and the Depositor to the effect that the acquisition and
holding of such Certificate by such Transferee or transferee will not constitute
or result in a non-exempt "prohibited transaction" within the meaning of ERISA,
Section 4975 of the Code or any Similar Law, and will not subject the Trustee,
the Certificate Registrar, the Master Servicer, the Special Servicer, the
Initial Purchasers or the Depositor to any obligation or liability (including
obligations or liabilities under ERISA, Section 4975 of the Code or any such
Similar Law) in addition to those set forth in the Pooling and Servicing
Agreement, which Opinion of Counsel shall not be at the expense of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Initial
Purchasers, the Certificate Registrar or the Trust Fund.
IN WITNESS WHEREOF, the Transferee hereby executes this ERISA representation
letter on the ___ day of [______________], 20[__].
Very truly yours,
_________________________________________
[The Transferee]
By: _____________________________________
Name: _______________________________
Title: ______________________________
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
REGARDING RESIDUAL INTEREST CERTIFICATES
TRANSFER AFFIDAVIT PURSUANT TO
SECTIONS 860D(a)(6)(A) and 860E(e)(4) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
Re: CWCapital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 200[_]-[___], Commercial Mortgage
Pass-Through Certificates, Series 200[_]-[___] (the
"Certificates"), issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of [___________], among CWCapital
Commercial Funding Corp. as Depositor, [___________] as
Master Servicer, [___________] as Special Servicer and
[___________] as Trustee
STATE OF )
) ss.: ____________________
COUNTY OF )
I, _________________________, under penalties of perjury, declare
that, to the best of my knowledge and belief, the following representations are
true, correct and complete, and being first sworn, depose and say that:
1. I am a __________________________ of
______________________________ (the "Purchaser"), on behalf of which I have the
authority to make this affidavit.
2. The Purchaser is acquiring [Class R-I] [Class R-II] Certificates
representing ________% of the residual interest in each of two real estate
mortgage investment conduits (a "REMIC") designated as ["REMIC I"] ["REMIC II"],
[respectively], relating to the Certificates for which an election is to be made
under Section 860D of the Internal Revenue Code of 1986 (the "Code").
3. The Purchaser is not a "Disqualified Organization" (as defined
below), and that the Purchaser is not acquiring the [Class R-I] [Class R-II]
Certificates for the account of, or as agent or nominee of, or with a view to
the transfer of direct or indirect record or beneficial ownership thereof, to a
Disqualified Organization. For the purposes hereof, a Disqualified Organization
is any of the following: (i) the United States, (ii) any state or political
subdivision thereof, (iii) any foreign government, (iv) any international
organization, (v) any agency or instrumentality of any of the foregoing, (vi)
any tax-exempt organization (other than a cooperative described in Section 521
of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
unless such organization is subject to the tax imposed by Section 511 of the
Code, (vii) any organization described in Section 1381(a)(2)(C) of the Code, or
(viii) any other entity designated as a "disqualified organization" by relevant
legislation amending the REMIC Provisions and in effect at or proposed to be
effective as of the time of determination. In addition, a corporation will not
be treated as an instrumentality of the United States or of any state or
political subdivision thereof if all of its activities are subject to tax
(except for the Federal Home Loan Mortgage Corporation) and a majority of its
board of directors is not selected by such governmental unit. The terms "United
States" and "international organization" shall have the meanings set forth in
Section 7701 of the Code.
4. The Purchaser is not a foreign permanent establishment or a fixed
base (within the meaning of any applicable income tax treaty between the United
States and any foreign jurisdiction) of a United States Tax Person.
5. The Purchaser will not cause the income from the [Class R-I]
[Class R-II] Certificates to be attributable to a foreign permanent
establishment or fixed base (within the meaning of any applicable income tax
treaty between the United States and any foreign jurisdiction) of a United
States Tax Person.
6. The Purchaser acknowledges that Section 860E(e) of the Code would
impose a substantial tax on the transferor or, in certain circumstances, on an
agent for the transferee, with respect to any transfer of any interest in any
[Class R-I] [Class R-II] Certificates to a Disqualified Organization.
7. No purpose of the acquisition of the [Class R-I] [Class R-II]
Certificates is to impede the assessment or collection of tax.
8. Check one of the following:
[ ] The present value of the anticipated tax liabilities associated with holding
the [Class R-I] [Class R-II] Certificate does not exceed the sum of:
(i) the present value of any consideration given to the Purchaser
to acquire such [Class R-I] [Class R-II] Certificate;
(ii) the present value of the expected future distributions on such
[Class R-I] [Class R-II] Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such [Class R-I] [Class R-II] Certificate as the
related REMIC generates losses.
For purposes of this calculation, (i) the Purchaser is assumed to pay tax at the
highest rate currently specified in Section 11(b) of the Code (but the tax rate
in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b) of the Code if the Purchaser has been subject to the
alternative minimum tax under Section 55 of the Code in the preceding two years
and will compute its taxable income in the current taxable year using the
alternative minimum tax rate) and (ii) present values are computed using a
discount rate equal to the short-term Federal rate prescribed by Section 1274(d)
of the Code for the month of the transfer and the compounding period used by the
Purchaser.
[ ] The transfer of the [Class R-I] [Class R-II] Certificates comply with U.S.
Treasury Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Purchaser is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which
income from the [Class R-I] [Class R-II] Certificates will
only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Purchaser's two fiscal years preceding the year of the
transfer, the Purchaser had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Purchaser within the meaning of U.S. Treasury
Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Purchaser will transfer the [Class R-I] [Class R-II]
Certificates only to another "eligible corporation," as
defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the
requirements of Sections 1.860E-1(c)(4)(i), (ii) and (iii) and
Section 1.860E-1(c)(5) of the U.S. Treasury Regulations; and
(iv) the Purchaser determined the consideration paid to it to
acquire the [Class R-I] [Class R-II] Certificates based on
reasonable market assumptions (including, but not limited to,
borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates
and other factors specific to the Purchaser) that it has
determined in good faith.
[ ] None of the above.
9. [Check the statement that applies]
[ ] The Purchaser is a "United States person" as defined in Section 7701(a) of
the Code and the regulations promulgated thereunder (the Purchaser's U.S.
taxpayer identification number is __________). The Purchaser is not classified
as a partnership under the Code (or, if so classified, all of its beneficial
owners are United States persons);
or
[ ] The Purchaser is not a United States person. However, the Purchaser:
(a) conducts a trade or business within the United States and,
for purposes of Treasury regulation section 1.860G-3(a)(3), is subject to
tax under Section 882 of the Code;
(b) understands that, for purposes of Treasury regulation
section 1.860E-1(c)(4)(ii), as a holder of a [Class R-I] [Class R-II]
Certificate for United States federal income tax purposes, it may incur
tax liabilities in excess of any cash flows generated by such [Class R-I]
[Class R-II] Certificate;
(c) intends to pay the taxes associated with holding a [Class
R-I] [Class R-II] Certificate;
(d) is not classified as a partnership under the Code (or, if
so classified, all of its beneficial owners either satisfy clauses (a),
(b) and (c) of this sentence or are United States persons); and
(e) has furnished the Transferor and the Trustee with an
effective IRS Form W-8ECI or successor form and will update such form as
may be required under the applicable Treasury regulations.
9. The Purchaser historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future and
the Purchaser intends to pay taxes associated with holding the [Class R-I]
[Class R-II] Certificates as they become due.
10. The Purchaser understands that it may incur tax
liabilities with respect to the [Class R-I] [Class R-II] Certificates in
excess of any cash flows generated by such Certificates.
11. The Purchaser will not transfer the [Class R-I] [Class
R-II] Certificates to any person or entity as to which the Purchaser has
not received an affidavit substantially in the form of this affidavit or
to any person or entity as to which the Purchaser has actual knowledge
that the requirements set forth in paragraphs 3, 4, 5, 7 or 9 hereof are
not satisfied, or to any person or entity with respect to which the
Purchaser has not (at the time of such transfer) satisfied the
requirements under the Code to conduct a reasonable investigation of the
financial condition of such person or entity (or its current beneficial
owners if such person or entity is classified as a partnership under the
Code).
12. The Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the
prohibition against transferring the [Class R-I] [Class R-II] Certificates
to a Disqualified Organization, an agent thereof or a person that does not
satisfy the requirements of paragraphs 4, 5, 7 and 9.
13. The Purchaser consents to the designation of the Trustee
as the agent of the Tax Matters Person of [REMIC I] [REMIC II] pursuant to
Section 10.01(d) of the Pooling and Servicing Agreement.
Capitalized terms used but not defined herein have the meanings
assigned thereto in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
duly executed on its behalf by its duly authorized officer this ___ day of
__________________.
By: _____________________________________
Name:
Title:
Personally appeared before me ___________________________, known or
proved to me to be the same person who executed the foregoing instrument and to
be a_______________________ of the Purchaser, and acknowledged to me that he/she
executed the same as his/her free act and deed and as the free act and deed of
the Purchaser.
Subscribed and sworn before me this
____ day of _______________.
______________________________________
Notary Public
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE
REGARDING RESIDUAL INTEREST CERTIFICATES
[Date]
[TRUSTEE]
Attention: Global Securities Trust Services Group--
CWCapital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 200[_]-[___]
Re: CWCapital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 200[_]-[___], Commercial Mortgage
Pass-Through Certificates, Series 200[_]-[___] (the
"Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
[Class R-I] [Class R-II] Certificates evidencing a ____% Percentage Interest in
such Class (the "Residual Interest Certificates"). The Certificates, including
the Residual Interest Certificates, were issued pursuant to the Pooling and
Servicing Agreement, dated as of [___________] (the "Pooling and Servicing
Agreement"), among CWCapital Commercial Funding Corp., as depositor,
[___________], as master servicer, [___________], as special servicer and
[___________], as trustee. All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of
the Residual Interest Certificates by the Transferor to the Transferee is
or will be to impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has
delivered to you a Transfer Affidavit and Agreement in the form attached
to the Pooling and Servicing Agreement as Exhibit H-1. The Transferor does
not know or believe that any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee (or
the beneficial owners of the Transferee if it is classified as a
partnership under the Code) as contemplated by Treasury regulation section
1.860E-1(c)(4)(i) and, as a result of that investigation, the Transferor
has determined that the Transferee has historically paid its debts as they
became due and has found no significant evidence to indicate that the
Transferee will not continue to pay its debts as they become due in the
future. The Transferor understands that the transfer of the Residual
Interest Certificates may not be respected for United States income tax
purposes (and the Transferor may continue to be liable for United States
income taxes associated therewith) unless the Transferor has conducted
such an investigation.
Very truly yours,
______________________________________
(Transferor)
By: __________________________________
Name:
Title:
EXHIBIT I-1
FORM OF NOTICE AND ACKNOWLEDGEMENT
[Date]
[RATING AGENCIES]
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the
Pooling and Servicing Agreement, dated as of [___________] and relating to
CWCapital Commercial Funding Corp., Commercial Mortgage Trust 200[_]-[___],
Commercial Mortgage Pass-Through Certificates, Series 200[_]-[___] (the
"Agreement"). Capitalized terms used but not otherwise defined herein shall have
respective meanings assigned to them in the Agreement.
Notice is hereby given that the Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class have designated
________________ to serve as the Special Servicer under the Agreement.
The designation of __________________ as Special Servicer will
become final if certain conditions are met and you deliver to _________________,
the trustee under the Agreement (the "Trustee"), written confirmation that if
the person designated to become the Special Servicer were to serve as such, such
event would not result in the qualification, downgrade or withdrawal of the
rating or ratings assigned by you to one or more Classes of the Certificates.
Accordingly, such confirmation is hereby requested as soon as possible.
Please acknowledge receipt of this notice by signing the enclosed
copy of this notice where indicated below and returning it to the Trustee, in
the enclosed stamped self-addressed envelope.
Very truly yours,
[_____________],
as Trustee
By: __________________________________
Name:
Title:
Receipt acknowledged:
[RATING AGENCY]
By: ________________________________
Name:
Title:
Date:
[RATING AGENCY]
By: ________________________________
Name:
Title:
Date:
EXHIBIT I-2
FORM OF ACKNOWLEDGEMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[MASTER SERVICER]
[DEPOSITOR]
[FISCAL AGENT]
Re: CWCapital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 200[_]-[___], Commercial Mortgage
Pass-Through Certificates, Series 200[_]-[___]
Ladies and Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement,
dated as of [___________], relating to CWCapital Commercial Funding Corp.,
Commercial Mortgage Trust 200[_]-[___], Commercial Mortgage Pass-Through
Certificates, Series 200[_]-[___] (the "Agreement"), the undersigned hereby
agrees with all the other parties to the Agreement that the undersigned shall
serve as Special Servicer under, and as defined in, the Agreement. The
undersigned hereby acknowledges that, as of the date hereof, it is and shall be
a party to the Agreement and bound thereby to the full extent indicated therein
in the capacity of Special Servicer. The undersigned hereby makes, as of the
date hereof, the representations and warranties set forth in Section 3.24 of the
Agreement, with the following corrections with respect to type of entity and
jurisdiction of organization: --------------------.
By: _____________________________________
Name:
Title:
EXHIBIT J
RESERVED
EXHIBIT K
SUB-SERVICERS IN RESPECT OF WHICH SUB-SERVICING AGREEMENTS ARE IN
EFFECT OR BEING NEGOTIATED AS OF THE CLOSING DATE
EXHIBIT L
FORM OF DEFEASANCE CERTIFICATION
FORM OF NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
For loans (a) having a balance of $20,000,000 or less or a balance of less
than 5% of outstanding pool balance, whichever is less) or (b) that are
not then one of the ten largest (measured by unpaid principal balance)
in the mortgage pool
To: Standard & Poor's Ratings Services
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Commercial Mortgage Surveillance
From: [_____________________________________], in its capacity as master
servicer (the "Master Servicer") under the Pooling and Servicing
Agreement dated as of [___________] (the "Pooling and Servicing
Agreement"), among CWCapital Commercial Funding Corp. as Depositor, the
Master Servicer, [___________] as special servicer and [___________] as
trustee (the "Trustee").
Date: _________, 20___
Re: CWCapital Commercial Funding Corp., Commercial Mortgage
Trust 200[_]-[___], Commercial Mortgage Pass-Through
Certificates Series 200[_]-[___]
Mortgage loan (the "Mortgage Loan") identified by loan number _____
on the Mortgage Loan Schedule attached to the Pooling and Servicing Agreement
and heretofore secured by the Mortgaged [Property] [Properties] identified on
the Mortgage Loan Schedule by the following name[s]:
Reference is made to the Pooling and Servicing Agreement described above.
Capitalized terms used but not defined herein have the meanings assigned to such
terms in the Pooling and Servicing Agreement.
As Master Servicer under the Pooling and Servicing Agreement, we hereby:
1. Notify you that the Mortgagor has consummated a defeasance of the
Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type checked
below:
____ a full defeasance of the payments scheduled to be due in
respect of the entire unpaid principal balance of the
Mortgage Loan; or
____ a partial defeasance of the payments scheduled to be due in
respect of a portion of the unpaid principal balance of the
Mortgage Loan that represents ___% of the entire unpaid
principal balance of the Mortgage Loan and, under the
Mortgage, has an allocated loan amount of $____________ or
_______% of the entire unpaid principal balance;
2. Certify as to each of the following, and any additional
explanatory notes set forth on Exhibit A hereto:
a. The Mortgage Loan documents permit the defeasance, and the
terms and conditions for defeasance specified therein were satisfied in
all material respects in completing the defeasance.
b. The defeasance was consummated on __________, 20__.
c. The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section 2(a)(16) of the
Investment Company Act of 1940 as amended (15 U.S.C. 80a-1), (ii) are
listed as "Qualified Investments for `AAA' Financings" under Paragraphs 1,
2 or 3 of "Cash Flow Approach" in Standard & Poor's Public Finance
Criteria 2000, as amended to the date of the defeasance, (iii) are rated
`AAA' by Standard & Poor's, (iv) if they include a principal obligation,
provide for a predetermined fixed dollar amount of principal due at
maturity that cannot vary or change, and (v) are not subject to
prepayment, call or early redemption. Such securities have the
characteristics set forth below:
CUSIP RATE MAT PAY DATES ISSUED
----- ---- --- --------- ------
d. The Master Servicer received an opinion of counsel (from
counsel approved by Master Servicer in accordance with the Servicing
Standard) that the defeasance will not result in an Adverse REMIC Event.
e. The Master Servicer determined that the defeasance
collateral will be owned by an entity (the "Defeasance Obligor") as to
which one of the statements checked below is true:
____ the related Mortgagor was a Single-Purpose Entity (as
defined in Standard & Poor's Structured Finance Ratings Real
Estate Finance Criteria, as amended to the date of the
defeasance (the "S&P Criteria")) as of the date of the
defeasance, and after the defeasance owns no assets other
than the defeasance collateral and real property securing
Mortgage Loan included in the pool.
____ the related Mortgagor designated a Single-Purpose Entity (as
defined in the S&P Criteria) to own the defeasance
collateral; or
____ the Master Servicer designated a Single-Purpose Entity (as
defined in the S&P Criteria) established for the benefit of
the Trust to own the defeasance collateral.
f. The Master Servicer received a broker or similar
confirmation of the credit, or the accountant's letter described below
contained statements that it reviewed a broker or similar confirmation of
the credit, of the defeasance collateral to an Eligible Account (as
defined in the S&P Criteria) in the name of the Defeasance Obligor, which
account is maintained as a securities account by the Trustee acting as a
securities intermediary.
g. As securities intermediary, the Trustee is obligated to
make the scheduled payments on the Mortgage Loan from the proceeds of the
defeasance collateral directly to the Master Servicer's collection account
in the amounts and on the dates specified in the Mortgage Loan documents
or, in a partial defeasance, the portion of such scheduled payments
attributed to the allocated loan amount for the real property defeased,
increased by any defeasance premium specified in the Mortgage Loan
documents (the "Scheduled Payments").
h. The Master Servicer received from the Mortgagor written
confirmation from a firm of independent certified public accountants, who
were approved by the Master Servicer in accordance with the Servicing
Standard, stating that (i) revenues from principal and interest payments
made on the defeasance collateral (without taking into account any
earnings on reinvestment of such revenues) will be sufficient to timely
pay each of the Scheduled Payments after the defeasance including the
payment in full of the Mortgage Loan (or the allocated portion thereof in
connection with a partial defeasance) on its Maturity Date (or, in the
case of an ARD Loan, on its Anticipated Repayment Date or on the date when
any open prepayment period set forth in the related Mortgage Loan
documents commences), (ii) the revenues received in any month from the
defeasance collateral will be applied to make Scheduled Payments within
four (4) months after the date of receipt, and (iii) interest income from
the defeasance collateral to the Defeasance Obligor in any calendar or
fiscal year will not exceed such Defeasance Obligor's interest expense for
the Mortgage Loan (or the allocated portion thereof in a partial
defeasance) for such year.
i. The Master Servicer received opinions from counsel, who
were approved by the Master Servicer in accordance with the Servicing
Standard, that (i) the agreements executed by the Mortgagor and/or the
Defeasance Obligor in connection with the defeasance are enforceable
against them in accordance with their terms, and (ii) the Trustee will
have a perfected, first priority security interest in the defeasance
collateral described above.
j. The agreements executed in connection with the defeasance
(i) permit reinvestment of proceeds of the defeasance collateral only in
Permitted Investments (as defined in the S&P Criteria), (ii) permit
release of surplus defeasance collateral and earnings on reinvestment to
the Defeasance Obligor or the Mortgagor only after the Mortgage Loan has
been paid in full, if any such release is permitted, (iii) prohibit any
subordinate liens against the defeasance collateral, and (iv) provide for
payment from sources other than the defeasance collateral or other assets
of the Defeasance Obligor of all fees and expenses of the securities
intermediary for administering the defeasance and the securities account
and all fees and expenses of maintaining the existence of the Defeasance
Obligor.
k. The entire unpaid principal balance of the Mortgage Loan as
of the date of defeasance was $___________. Such Mortgage Loan (a) has a
balance of $20,000,000 or less or a balance of less than 5% of outstanding
pool balance or (b) is not then one of the ten largest (measured by unpaid
principal balance) in the mortgage pool, in each such case, as of the date
of the most recent Distribution Date Statement received by us (the
"Current Report").
3. The defeasance described herein, together with all prior and
simultaneous defeasances of Mortgage Loans, brings the total of all fully and
partially defeased Mortgage Loans to $__________________, which is _____% of the
aggregate unpaid principal balance of the Mortgage Pool as of the date of the
Current Report.
4. Certify that Exhibit B hereto is a list of the material
agreements, instruments, organizational documents for the Defeasance Obligor,
and opinions of counsel and independent accountants executed and delivered in
connection with the defeasance described above and that originals or copies of
such agreements, instruments and opinions have been transmitted to the Trustee
for placement in the related Mortgage File or, to the extent not required to be
part of the related Mortgage File, are in the possession of the Master Servicer
as part of the Master Servicer's servicing file.
5. Certify and confirm that the determinations and certifications
described above were rendered in accordance with the Servicing Standard set
forth in, and the other applicable terms and conditions of, the Pooling and
Servicing Agreement; and
6. Certify that the individual under whose hand the Master Servicer
has caused this Notice and Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance described above.
7. Agree to provide copies of all items listed in Exhibit B to you
upon request.
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
[MASTER SERVICER]
By: __________________________________
Name:
Title:
EXHIBIT M
Form of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification
CERTIFICATION
Re: CWCapital Commercial Funding Corp., Commercial Mortgage Pass-Through
Certificates, Series 20__-___, issued pursuant to the Pooling and
Servicing Agreement dated as of _____, 20__ (the "Pooling and
Servicing Agreement") between CWCapital Commercial Funding Corp., as
depositor, [Name of Master Servicer], as master servicer (the
"Master Servicer"), [Name of Special Servicer], as special servicer
and [Name of Trustee], as trustee (the "Trustee").
Capitalized terms used but not defined herein have the meanings set forth
in the Pooling and Servicing Agreement.
__________________________________________
I, [identity of certifying individual], the senior officer in charge of
securitization of the Depositor, hereby certify that:
1. I have reviewed this report on Form 10-K and all reports on Form 10-D
required to be filed in respect of the period covered by this report on Form
10-K of [CWCapital Commercial Funding Corp. Trust] 20__-___ (the "Exchange Act
Periodic Reports");
2. Based on my knowledge, the Exchange Act Periodic Reports, taken as a
whole do not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by this report;
3. Based on my knowledge, all distribution, servicing and other
information required to be provided under Form 10-D for the period covered by
this report is included in the Exchange Act Periodic Reports;
4. Based on my knowledge and the servicer compliance statement(s) required
in this report under Item 1123 of Regulation AB, and except as disclosed in the
Exchange Act Periodic Reports, the servicer(s) [has/have] fulfilled [its/their]
obligations under the Pooling and Servicing Agreement or the applicable
sub-servicing agreement or primary servicing agreement; and
5. All of the reports on assessment of compliance with servicing criteria
for asset-backed securities and their related attestation reports on assessment
of compliance with servicing criteria for asset-backed securities required to be
included in this report in accordance with Item 1122 of Regulation AB and
Exchange Act Rules 13a-18 and 15d-18 have been included as an exhibit to this
report, except as otherwise disclosed in this report. Any material instances of
noncompliance described in such reports have been disclosed in this report on
Form 10-K.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties;
o [Name of Master Servicer];
o [Name of Special Servicer];
o [Name of Trustee]; and
o [names of sub-servicers]
Date: [___]
By _________________________________
Name:
Title:
EXHIBIT N-1
FORM OF CERTIFICATION TO BE PROVIDED
TO DEPOSITOR BY THE TRUSTEE
Re: Commercial Mortgage Trust 20[__]-[__], Commercial Mortgage
Pass-Through Certificates, Series 20[__]-[__] (the "Trust"), issued
pursuant to the Pooling and Servicing Agreement, dated as of
[__________] (the "Pooling and Servicing Agreement"), among
CWCapital Commercial Funding Corp., as Depositor, [__________], as
Master Servicer, [__________], as Special Servicer, and
[__________], as Trustee
I, [identifying the certifying individual], a [title] of [TRUSTEE],
certify to CWCapital Commercial Funding Corp. and its officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal
year 20__, and all reports on Form 10-D required to be filed in respect of
periods covered by that annual report on Form 10-K, of the Trust (the "Exchange
Act Periodic Reports");
2. Based on my knowledge, the Exchange Act Periodic Reports, taken
as a whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by that report on Form 10-K;
3. Based on my knowledge, all of the distribution, servicing and
other information required to be provided to the paying agent by the master
servicer and the special servicer under the pooling and servicing agreement for
inclusion in the Exchange Act Periodic Reports is included in such reports; and
4. The report on assessment of compliance with servicing criteria
and the related attestation report on assessment of compliance with servicing
criteria required to be delivered in accordance with Section 11.10 and Section
11.11 of the pooling and servicing agreement discloses all material instances of
noncompliance with the Relevant Servicing Criteria and such assessment of
compliance with servicing criteria is fairly stated in all material respects.
Date:_____________________________________
[TRUSTEE]
By:_______________________________________
[Name]
EXHIBIT N-2
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
BY THE MASTER SERVICER
Re: Commercial Mortgage Trust 20[__]-[__], Commercial Mortgage
Pass-Through Certificates, Series 20[__]-[__] (the "Trust"), issued
pursuant to the Pooling and Servicing Agreement, dated as of
[__________] (the "Pooling and Servicing Agreement"), by and among
CWCapital Commercial Funding Corp., as Depositor, [__________], as
Master Servicer, [__________], as Special Servicer, and ▇▇▇▇▇ Fargo
Bank, N.A., as Trustee
I, [identify the certifying individual], a [title] of [MASTER
SERVICER], certify to CWCapital Commercial Funding Corp. and their officers,
directors and affiliates, and with the knowledge and intent that they will rely
upon this certification in delivering the Certification required by the pooling
and servicing agreement relating to the Certificates (capitalized terms used
herein without definition shall have the meanings assigned to such terms in the
pooling and servicing agreement), that:
1. I have reviewed the servicing reports relating to the trust fund
delivered by the Master Servicer to the Trustee covering the fiscal year 20__;
2. Based on my knowledge, the servicing information in these
reports, taken as a whole, does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not misleading
with respect to the period covered by these servicing reports;
3. Based on my knowledge, the servicing information required to be
provided to the Trustee by the Master Servicer under the pooling and servicing
agreement for inclusion in the reports to be filed by the Trustee is included in
the servicing reports delivered by the Master Servicer to the Trustee;
4. I am responsible for reviewing the activities performed by the
Master Servicer under the pooling and servicing agreement and based upon my
knowledge and the compliance review conducted in preparing the servicer
compliance statement required under Section 11.09 of the pooling and servicing
agreement with respect to the Master Servicer, and except as disclosed in such
compliance statement delivered by the Master Servicer under Section 11.09 of the
pooling and servicing agreement, the Master Servicer has fulfilled its
obligations under the pooling and servicing agreement in all material respects
in the year to which such review applies; and
5. The report on assessment of compliance with servicing criteria
and the related attestation report on assessment of compliance with servicing
criteria required to be delivered in accordance with Section 11.10 and Section
11.11 of the pooling and servicing agreement discloses all material instances of
noncompliance with the Relevant Servicing Criteria and such assessment of
compliance with servicing criteria is fairly stated in all material respects.
Date:_____________________________________
[MASTER SERVICER]
By:_______________________________________
[Name]
EXHIBIT N-3
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
BY THE SPECIAL SERVICER
Re: Commercial Mortgage Trust 20[__]-[__], Commercial Mortgage
Pass-Through Certificates, Series 20[__]-[__] (the "Trust"), issued
pursuant to the Pooling and Servicing Agreement, dated as of
[__________] (the "Pooling and Servicing Agreement"), among
CWCapital Commercial Funding Corp., as depositor (the "Depositor"),
[__________], as trustee (the "Trustee"), [__________], as master
servicer (the "Master Servicer") and [__________], as special
servicer
I, [identify the certifying individual], a [title] of [SPECIAL
SERVICER], certify to CWCapital Commercial Funding Corp. and their officers,
directors and affiliates, and with the knowledge and intent that they will rely
upon this certification in delivering the Certification required by the pooling
and servicing agreement relating to the Certificates (capitalized terms used
herein without definition shall have the meanings assigned to such terms in the
pooling and servicing agreement), that:
1. Based on my knowledge, the servicing information in the servicing
reports or information relating to the trust fund delivered by the Special
Servicer to the Master Servicer covering the fiscal year 20__, taken as a whole,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by these servicing reports;
2. Based on my knowledge, the servicing information required to be
provided to the Master Servicer by the Special Servicer under the pooling and
servicing agreement for inclusion in the reports to be filed by the Trustee is
included in the servicing reports delivered by the Special Servicer to the
Master Servicer;
3. I am responsible for reviewing the activities performed by the
Special Servicer under the pooling and servicing agreement and based upon my
knowledge and the compliance review conducted in preparing the servicer
compliance statement required under Section 11.09 of the pooling and servicing
agreement with respect to the Special Servicer, and except as disclosed in such
compliance statement delivered by the Special Servicer under Section 11.09 of
the pooling and servicing agreement, the Special Servicer has fulfilled its
obligations under the pooling and servicing agreement in all material respects
in the year to which such review applies; and
4. The report on assessment of compliance with servicing criteria
and the related attestation report on assessment of compliance with servicing
criteria required to be delivered in accordance with Section 11.10 and Section
11.11 of the pooling and servicing agreement discloses all material instances of
noncompliance with the Relevant Servicing Criteria and such assessment of
compliance with servicing criteria is fairly stated in all material respects.
Date:_____________________________________
[SPECIAL SERVICER]
By:_______________________________________
[Name]
[Title]
RELEVANT
SERVICING
SERVICING CRITERIA CRITERIA
Reference Criteria
General Servicing Considerations
--------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any Trustee
performance or other triggers and events of default in Master Servicer
accordance with the transaction agreements. Special Servicer
1122(d)(1)(ii) If any material servicing activities are outsourced to Trustee
third parties, policies and procedures are instituted Master Servicer
to monitor the third party's performance and Special Servicer
compliance with such servicing activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to N/A
maintain a back-up servicer for the mortgage loans are
maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in Trustee
effect on the party participating in the servicing Master Servicer
function throughout the reporting period in the amount Special Servicer
of coverage required by and otherwise in accordance
with the terms of the transaction agreements.
Cash Collection and Administration
1122(d)(2)(i) Payments on mortgage loans are deposited into the Trustee
appropriate custodial bank accounts and related bank Master Servicer
clearing accounts no more than two business days Special Servicer
following receipt, or such other number of days
specified in the transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an Trustee
obligor or to an investor are made only by authorized
personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, Master Servicer
cash flows or distributions, and any interest or other Special Servicer
fees charged for such advances, are made, reviewed and Trustee
approved as specified in the transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash Trustee
reserve accounts or accounts established as a form of Master Servicer
overcollateralization, are separately maintained Special Servicer
(e.g., with respect to commingling of cash) as set
forth in the transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally Trustee
insured depository institution as set forth in the Master Servicer
transaction agreements. For purposes of this Special Servicer
criterion, "federally insured depository institution"
with respect to a foreign financial institution means
a foreign financial institution that meets the
requirements of Rule 13k-1(b)(1) of the Securities
Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent Trustee
unauthorized access. Master Servicer
Special Servicer
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for Trustee
all asset-backed securities related bank accounts, Master Servicer
including custodial accounts and related bank clearing Special Servicer
accounts. These reconciliations are (A) mathematically
accurate; (B) prepared within 30 calendar days after
the bank statement cutoff date, or such other number
of days specified in the transaction agreements; (C)
reviewed and approved by someone other than the person
who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling
items are resolved within 90 calendar days of their
original identification, or such other number of days
specified in the transaction agreements.
Investor Remittances and Reporting
1122(d)(3)(i) Reports to investors, including those to be filed with Trustee
the Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are
prepared in accordance with timeframes and other terms
set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed
with the Commission as required by its rules and
regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Reporting Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in Trustee
accordance with timeframes, distribution priority and
other terms set forth in the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within Trustee
two business days to the Servicer's investor records,
or such other number of days specified in the
transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports Trustee
agree with cancelled checks, or other form of payment,
or custodial bank statements.
Pool Asset Administration
1122(d)(4)(i) Collateral or security on mortgage loans is maintained Trustee
as required by the transaction agreements or related Master Servicer
mortgage loan documents. Special Servicer
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as Trustee
required by the transaction agreements
1122(d)(4)(iii) Any additions, removals or substitutions to the asset Trustee
pool are made, reviewed and approved in accordance Master Servicer
with any conditions or requirements in the transaction Special Servicer
agreements.
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, Master Servicer
made in accordance with the related mortgage loan Special Servicer
documents are posted to the Servicer's obligor records
maintained no more than two business days after
receipt, or such other number of days specified in the
transaction agreements, and allocated to principal,
interest or other items (e.g., escrow) in accordance
with the related mortgage loan documents.
1122(d)(4)(v) The Reporting Servicer's records regarding the Master Servicer
mortgage loans agree with the Reporting Servicer's
records with respect to an obligor's unpaid principal
balance.
1122(d)(4)(vi) Changes with respect to the terms or status of an Master Servicer
obligor's mortgage loans (e.g., loan modifications or Special Servicer
re-agings) are made, reviewed and approved by
authorized personnel in accordance with the
transaction agreements and related pool asset
documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance Special Servicer
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with
the timeframes or other requirements established by
the transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained Master Servicer
during the period a mortgage loan is delinquent in Special Servicer
accordance with the transaction agreements. Such
records are maintained on at least a monthly basis, or
such other period specified in the transaction
agreements, and describe the entity's activities in
monitoring delinquent mortgage loans including, for
example, phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed temporary
(e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for Master Servicer
mortgage loans with variable rates are computed based
on the related mortgage loan documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such Master Servicer
as escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's mortgage loan documents,
on at least an annual basis, or such other period
specified in the transaction agreements; (B) interest
on such funds is paid, or credited, to obligors in
accordance with applicable mortgage loan documents and
state laws; and (C) such funds are returned to the
obligor within 30 calendar days of full repayment of
the related mortgage loans, or such other number of
days specified in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or Master Servicer
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments,
provided that such support has been received by the
servicer at least 30 calendar days prior to these
dates, or such other number of days specified in the
transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any Master Servicer
payment to be made on behalf of an obligor are paid
from the servicer's funds and not charged to the
obligor, unless the late payment was due to the
obligor's error or omission.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted Master Servicer
within two business days to the obligor's records
maintained by the servicer, or such other number of
days specified in the transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts Master Servicer
are recognized and recorded in accordance with the
transaction agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified N/A
in Item 1114(a)(1) through (3) or Item 1115 of
Regulation AB, is maintained as set forth in the
transaction agreements.
[NAME OF REPORTING SERVICER]
Date:
-------------------------------------
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
EXHIBIT P
ADDITIONAL FORM 10-D DISCLOSURE
Item on Form 10-D Party Responsible
------------------------------------------------ ---------------------------------------------
Item 1: Distribution and Pool Performance Trustee
Information Depositor
Master Servicer
Any information required by Item 1121 of Special Servicer
Regulation AB which is NOT included on the
Monthly Statement
Item 2: Legal Proceedings (i) All parties to the Pooling and
Servicing Agreement (as to themselves),
per Item 1117 of Regulation AB (ii) the Trustee, the Master Servicer and
the Special Servicer as to the issuing
entity, (iii) the Depositor as to the
sponsors, any 1110(b) originator, and any
1100(d)(1) party
Item 3: Sale of Securities and Use of Proceeds Depositor
Item 4: Defaults Upon Senior Securities Trustee
Item 5: Submission of Matters to a Vote of Trustee
Security Holders
Item 6: Significant Obligors of Pool Assets Depositor
Item 7: Significant Enhancement Provider Depositor
Information
Item 8: Other Information Any party responsible for disclosure items
on Form 8-K
Item 9: Exhibits Trustee
Depositor
EXHIBIT Q
ADDITIONAL FORM 10-K DISCLOSURE
Item on Form 10-K Party Responsible
------------------------------------------------ ---------------------------------------------
Item 1B: Unresolved Staff Comments Depositor
Item 9B: Other Information Any party responsible for disclosure items
on Form 8-K
Item 15: Exhibits, Financial Statement Trustee
Schedules Depositor
Additional Item: (i) All parties to the Pooling and
Servicing Agreement (as to themselves),
Disclosure per Item 1117 of Regulation AB (ii) the Trustee, the Master Servicer and
the Special Servicer as to the issuing
entity, (iii) the Depositor as to the
sponsor, any 1110(b) originator and any
1100(d)(1) party
Additional Item: (i) All parties to the Pooling and
Disclosure per Item 1119 of Regulation AB Servicing Agreement as to themselves, (ii)
the Depositor as to the sponsor,
originator, significant obligor,
enhancement or support provider
Additional Item: Depositor
Disclosure per Item 1112(b) of Regulation AB
Additional Item: Depositor
Disclosure per Items 1114(b)(2) and 1115(b) of Trustee
Regulation AB
EXHIBIT R
FORM 8-K DISCLOSURE INFORMATION
Item on Form 8-K Party Responsible
------------------------------------------------ ---------------------------------------------
Item 1.01- Entry into a Material Definitive All parties
Agreement
Item 1.02- Termination of a Material All parties
Definitive Agreement
Item 1.03- Bankruptcy or Receivership Depositor
Item 2.04- Triggering Events that Accelerate Depositor
or Increase a Direct Financial Obligation or
an Obligation under an Off-Balance Sheet
Arrangement
Item 3.03- Material Modification to Rights of Trustee
Security Holders
Item 5.03- Amendments of Articles of Depositor
Incorporation or Bylaws; Change of Fiscal Year
Item 6.01- ABS Informational and Computational Depositor
Material
Item 6.02- Change of Master Servicer, Special Master Servicer
Servicer or Trustee Special Servicer
Trustee
Depositor
Item 6.03- Change in Credit Enhancement or Depositor
External Support Trustee
Item 6.04- Failure to Make a Required Trustee
Distribution
Item 6.05- Securities Act Updating Disclosure Depositor
Item 7.01- Regulation FD Disclosure Depositor
Item 8.01 Depositor
Item 9.01 Depositor
EXHIBIT S
ADDITIONAL DISCLOSURE NOTIFICATION
**SEND VIA FAX TO [ ] AND VIA EMAIL TO
[ ] AND VIA OVERNIGHT MAIL TO THE ADDRESS IMMEDIATELY
BELOW**
[TRUSTEE]
Attn: Global Securities and Trust Services Group - Commercial Mortgage Trust
20[__]-[__], Commercial Mortgage Pass-Through Certificates, Series
20[__]-[__]--SEC REPORT PROCESSING
RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [__] of the Pooling and Servicing Agreement, dated as
of [__________], among [__________], as master servicer, [__________], as
special servicer and [__________], as trustee, the undersigned, as [__________],
hereby notifies you that certain events have come to our attention that [will]
[may] need to be disclosed on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to
[_______________________], phone number: [_________]; email address:
[_____________________].
[NAME OF PARTY],
as [role]
By: _____________________________________
Name:
Title:
EXHIBIT T
SERVICING AND SUBSERVICING AGREEMENTS
The Mortgage Loans shall be serviced by the Master Servicer. Certain of
the Mortgage Loans are subject to subservicing agreements as set forth below.
Property Name Subservicer Name