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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
as Depositor,
KEYCORP REAL ESTATE CAPITAL MARKETS, INC. d/b/a KEY COMMERCIAL MORTGAGE,
as General Master Servicer and General Special Servicer,
NATIONAL CONSUMER COOPERATIVE BANK,
as Co-op Master Servicer and Co-op Special Servicer,
and
XXXXX FARGO BANK MINNESOTA, N.A.,
as Trustee,
POOLING AND SERVICING AGREEMENT
Dated as of November 12, 2001
$1,072,782,114
Commercial Mortgage Pass-Through Certificates
Series 2001-CKN5
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TABLE OF CONTENTS
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SECTION PAGE
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES; CERTAIN CALCULATIONS IN
RESPECT OF THE MORTGAGE POOL
SECTION 1.01. Defined Terms....................................................................................3
SECTION 1.02. General Interpretive Principles.................................................................66
SECTION 1.03. Certain Calculations in Respect of the Mortgage Pool............................................67
SECTION 1.04. Cross-Collateralized Mortgage Loans.............................................................68
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL ISSUANCE
OF REMIC I REGULAR INTERESTS, REMIC II REGULAR INTERESTS, GROUP A-X REMIC III
REGULAR INTERESTS, GROUP A-CP REMIC III REGULAR INTERESTS, REMIC I RESIDUAL
INTEREST, REMIC IIRESIDUAL INTEREST, REMIC III RESIDUAL
INTEREST AND CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans....................................................................70
SECTION 2.02. Acceptance of Mortgage Assets by Trustee........................................................74
SECTION 2.03. Certain Repurchases and Substitutions of Mortgage Loans by the Mortgage Loan Sellers, the
Column Performance Guarantor and the NCBCC Performance Guarantor; the Purchase Price
Security Deposit Account and the Special Reserve Account......................................76
SECTION 2.04. Representations and Warranties of the Depositor.................................................85
SECTION 2.05. Representations and Warranties of the General Master Servicer...................................87
SECTION 2.06. Representations and Warranties of the General Special Servicer..................................88
SECTION 2.07. Representations and Warranties of the Co-op Master Servicer.....................................90
SECTION 2.08. Representations and Warranties of the Co-op Special Servicer....................................91
SECTION 2.09. Representations, Warranties and Covenants of the Trustee........................................93
SECTION 2.10. Creation of REMIC I; Issuance of the REMIC I Regular Interests and the REMIC I Residual
Interest; Certain Matters Involving REMIC I...................................................94
SECTION 2.11. Conveyance of the REMIC I Regular Interests; Acceptance of the REMIC I Regular Interests by
Trustee.......................................................................................98
SECTION 2.12. Creation of REMIC II; Issuance of the REMIC II Regular Interests and the REMIC II Residual
Interest; Certain Matters Involving REMIC II..................................................98
SECTION 2.13. Conveyance of the REMIC II Regular Interests; Acceptance of the REMIC II Regular Interests by
Trustee......................................................................................101
SECTION 2.14. Creation of REMIC III; Issuance of the REMIC III Regular Interest Certificates, the Group A-X
REMIC III Regular Interests, the Group A-CP REMIC III Regular Interests and the REMIC III
Residual Interest; Certain Matters Involving REMIC III.......................................101
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SECTION 2.15. Acceptance of Grantor Trusts by Trustee; Issuance of the Class V and Class R Certificates......107
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. General Provisions.............................................................................108
SECTION 3.02. Collection of Mortgage Loan Payments...........................................................109
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts; Reserve Accounts.......109
SECTION 3.04. Collection Accounts, Distribution Account, Interest Reserve Account and Excess Liquidation
Proceeds Account.............................................................................113
SECTION 3.05. Permitted Withdrawals From the Collection Accounts, the Distribution Account, the Interest
Reserve Account and the Excess Liquidation Proceeds Account..................................116
SECTION 3.06. Investment of Funds in the Collection Accounts, Servicing Accounts, Reserve Accounts, Purchase
Price Security Deposit Accounts, Special Reserve Accounts and the REO Accounts...............121
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage..................123
SECTION 3.08. Enforcement of Alienation Clauses..............................................................126
SECTION 3.09. Realization Upon Defaulted Mortgage Loans......................................................128
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files................................................131
SECTION 3.11. Master Servicing and Special Servicing Compensation; Interest on and Reimbursement of
Servicing Advances; Payment of Certain Expenses; Obligations of the Trustee and any Fiscal
Agent Regarding Back-up Servicing Advances...................................................132
SECTION 3.12. Property Inspections; Collection of Financial Statements; Delivery of Certain Reports..........137
SECTION 3.13. Annual Statement as to Compliance..............................................................141
SECTION 3.14. Reports by Independent Public Accountants......................................................142
SECTION 3.15. Access to Certain Information..................................................................142
SECTION 3.16. Title to REO Property; REO Account.............................................................143
SECTION 3.17. Management of REO Property.....................................................................144
SECTION 3.18. Fair Value Option; Sale of REO Properties......................................................147
SECTION 3.19. Additional Obligations of Master Servicers.....................................................152
SECTION 3.20. Modifications, Waivers, Amendments and Consents................................................156
SECTION 3.21. Transfer of Servicing Between Applicable Master Servicer and Applicable Special Servicer;
Record Keeping...............................................................................161
SECTION 3.22. Sub-Servicing Agreements.......................................................................162
SECTION 3.23. Controlling Class Representative...............................................................165
SECTION 3.24. Certain Rights and Powers of the Controlling Class Representative..............................166
SECTION 3.25. Replacement of Special Servicers...............................................................168
SECTION 3.26. Application of Default Charges.................................................................169
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions..................................................................................171
SECTION 4.02. Statements to Certificateholders; Certain Other Reports........................................179
SECTION 4.03. P&I Advances...................................................................................182
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund Expenses...............................184
SECTION 4.05. Calculations...................................................................................185
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates...............................................................................186
SECTION 5.02. Registration of Transfer and Exchange of Certificates..........................................187
SECTION 5.03. Book-Entry Certificates........................................................................194
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates..............................................195
SECTION 5.05. Persons Deemed Owners..........................................................................196
SECTION 5.06. Certification by Certificateholders and Certificate Owners.....................................196
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS AND THE SPECIAL SERVICERS
SECTION 6.01. Liability of the Depositor, the Master Servicers and the Special Servicers.....................197
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor, a Master Servicer or a Special Servicer..197
SECTION 6.03. Limitation on Liability of the Depositor, the Master Servicers and the Special Servicers.......197
SECTION 6.04. Resignation of Master Servicers and Special Servicers..........................................198
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the Master Servicers and the Special
Servicers....................................................................................199
SECTION 6.06. Master Servicers and Special Servicers May Own Certificates....................................200
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default..............................................................................201
SECTION 7.02. Trustee to Act; Appointment of Successor.......................................................204
SECTION 7.03. Notification to Certificateholders.............................................................205
SECTION 7.04. Waiver of Events of Default....................................................................205
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default...........................................205
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SECTION PAGE
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ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Duties of Trustee..............................................................................206
SECTION 8.02. Certain Matters Affecting the Trustee..........................................................207
SECTION 8.03. Trustee and Fiscal Agent not Liable for Validity or Sufficiency of Certificates or Mortgage
Loans........................................................................................209
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates..................................................209
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and by Trustee and Fiscal Agent...............209
SECTION 8.06. Eligibility Requirements for Trustee...........................................................211
SECTION 8.07. Resignation and Removal of Trustee.............................................................211
SECTION 8.08. Successor Trustee..............................................................................212
SECTION 8.09. Merger or Consolidation of Trustee.............................................................213
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee..................................................213
SECTION 8.11. Appointment of Custodians......................................................................214
SECTION 8.12. Access to Certain Information..................................................................214
SECTION 8.13. Appointment of Fiscal Agent....................................................................216
SECTION 8.14. Filings with the Securities and Exchange Commission............................................217
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage Loans...............................220
SECTION 9.02. Additional Termination Requirements............................................................222
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. Tax Administration.............................................................................224
SECTION 10.02. Depositor, Master Servicers, Special Servicers and Fiscal Agent to Cooperate with Trustee......227
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment......................................................................................228
SECTION 11.02. Recordation of Agreement; Counterparts.........................................................229
SECTION 11.03. Limitation on Rights of Certificateholders.....................................................230
SECTION 11.04. Governing Law..................................................................................230
SECTION 11.05. Notices........................................................................................230
SECTION 11.06. Severability of Provisions.....................................................................231
SECTION 11.07. Successors and Assigns; Beneficiaries..........................................................231
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SECTION PAGE
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SECTION 11.08. Article and Section Headings...................................................................231
SECTION 11.09. Notices to and from the Rating Agencies and the Depositor......................................232
SECTION 11.10. Notices to Controlling Class Representative....................................................233
SECTION 11.11. Complete Agreement.............................................................................233
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EXHIBITS
EXHIBIT A-1 Form of Class A-CP, Class A-X and Class A-Y Certificates
EXHIBIT A-2 Form of Class X-0, Xxxxx X-0, Class A-3, Class A-4, Class B, Class C, Class D and Class E
Certificates
EXHIBIT A-3 Form of Class F, Class G, Class H, Class J, Class K and Class L Certificates
EXHIBIT A-4 Form of Class M, Class N, Class O and Class P Certificates
EXHIBIT A-5 Form of Class V Certificates
EXHIBIT A-6 Form of Class R Certificates
EXHIBIT B-1A Schedule of Column Mortgage Loans
EXHIBIT B-1B Schedule of KeyBank Mortgage Loans
EXHIBIT B-1C Schedule of NCB Mortgage Loans
EXHIBIT B-1D Schedule of NCBCC Mortgage Loans
EXHIBIT B-2 Schedule of Exceptions to Mortgage File Delivery
EXHIBIT B-3 Form of Custodial Certification
EXHIBIT B-4 Schedule of Mortgage Loans Covered by Environmental Insurance
EXHIBIT B-5 Schedule of Initial LTV Co-op Basis
EXHIBIT C Letters of Representations Among Depositor, Trustee and Initial Depositary
EXHIBIT D-1 Form of Master Servicer Request for Release
EXHIBIT D-2 Form of Special Servicer Request for Release
EXHIBIT E-1 Form of Trustee Report
EXHIBIT E-2A CMSA Servicer Watch List for Non-Co-op Mortgage Loans
EXHIBIT E-2B CMSA Servicer Watch List for Co-op Mortgage Loans
EXHIBIT F-1A Form I of Transferor Certificate for Transfers of Non-Registered Certificates
EXHIBIT F-1B Form II of Transferor Certificate for Transfers of Non-Registered Certificates
EXHIBIT F-1C Form I of Transferor Certificate for Transfers of Interests in Global Certificates for Classes of
Non-Registered Certificates
EXHIBIT F-1D Form II of Transferor Certificate for Transfers of Interests in Global Certificates for Classes of
Non-Registered Certificates
EXHIBIT F-2A Form I of Transferee Certificate for Transfers of Non-Registered Certificates Held in Physical Form
EXHIBIT F-2B Form II of Transferee Certificate for Transfers of Non-Registered Certificates Held in Physical Form
EXHIBIT F-2C Form I of Transferee Certificate for Transfers of Interests in Global Certificates for Classes of
Non-Registered Certificates
EXHIBIT F-2D Form II of Transferee Certificate for Transfers of Interests in Global Certificates for Classes of
Non-Registered Certificates
EXHIBIT G-1 Form of Transferee Certificate in Connection with ERISA
(Non-Registered Certificates and Non-Investment Grade Certificates Held in Fully-Registered,
Certificated Form)
EXHIBIT G-2 Form of Transferee Certificate in Connection with ERISA
(Non-Registered Certificates Held in Book-Entry Form)
EXHIBIT H-1 Form of Transfer Affidavit and Agreement for Transfers of Class R Certificates
EXHIBIT H-2 Form of Transferor Certificate for Transfers of Class R Certificates
EXHIBIT I-1 Form of Notice and Acknowledgment Concerning Replacement of a Special Servicer
EXHIBIT I-2 Form of Acknowledgment of a Proposed Special Servicer
EXHIBIT J Form of UCC-1 Financing Statement
EXHIBIT K-1 Information Request from Certificateholder or Certificate Owner
EXHIBIT K-2 Information Request from Prospective Investor
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EXHIBIT L Schedule of Designated Sub-Servicers
EXHIBIT M Form of Subordination Agreement for NCB Subordinate Debt
EXHIBIT N Form of S&P Defeasance Certification
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This Pooling and Servicing Agreement is dated and effective as of
November 12, 2001, among CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP. as
Depositor, KEYCORP REAL ESTATE CAPITAL MARKETS, INC. d/b/a KEY COMMERCIAL
MORTGAGE as General Master Servicer and General Special Servicer, NATIONAL
CONSUMER COOPERATIVE BANK as Co-op Master Servicer and Co-op Special Servicer
and XXXXX FARGO BANK MINNESOTA, N.A. as Trustee.
PRELIMINARY STATEMENT:
Column Financial, Inc. (together with its successors in interest,
"Column") has sold to Credit Suisse First Boston Mortgage Securities Corp.
(together with its successors in interest, the "Depositor"), pursuant to the
Mortgage Loan Purchase Agreement dated as of November 1, 2001 (as such may from
time to time hereafter be amended, modified, supplemented and/or restated, the
"Column Mortgage Loan Purchase Agreement"), between Column as seller and the
Depositor as purchaser, those mortgage loans initially identified on the
schedule attached hereto as Exhibit B-1A (such mortgage loans, the "Original
Column Mortgage Loans").
KeyBank National Association (together with its successors in interest,
"KeyBank") has sold to the Depositor, pursuant to the Mortgage Loan Purchase
Agreement dated as of November 1, 2001 (as such may from time to time hereafter
be amended, modified, supplemented and/or restated, the "KeyBank Mortgage Loan
Purchase Agreement"), between KeyBank as seller and the Depositor as purchaser,
those mortgage loans initially identified on the schedule attached hereto as
Exhibit B-1B (such mortgage loans, the "Original KeyBank Mortgage Loans").
National Consumer Cooperative Bank (together with its successors in
interest, "NCB") has sold to the Depositor, pursuant to the Mortgage Loan
Purchase Agreement dated as of November 1, 2001 (as such may from time to time
hereafter be amended, modified, supplemented and/or restated, the "NCB Mortgage
Loan Purchase Agreement"), between NCB as seller and the Depositor as purchaser,
those mortgage loans initially identified on the schedule attached hereto as
Exhibit B-1C (such mortgage loans, the "Original NCB Mortgage Loans").
NCB Capital Corporation (together with its successors in interest,
"NCBCC") has sold to the Depositor, pursuant to the Mortgage Loan Purchase
Agreement dated as of November 1, 2001 (as such may from time to time hereafter
be amended, modified, supplemented and/or restated, the "NCBCC Mortgage Loan
Purchase Agreement"), between NCBCC as seller and the Depositor as purchaser,
those mortgage loans initially identified on the schedule attached hereto as
Exhibit B-1D (such mortgage loans, the "Original NCBCC Mortgage Loans").
The Depositor desires, among other things, to: (i) establish a trust
fund, consisting primarily of the Original Column Mortgage Loans, the Original
KeyBank Mortgage Loans, the Original NCB Mortgage Loans and the Original NCBCC
Mortgage Loans (collectively, the "Original Mortgage Loans") and certain related
rights, funds and property; (ii) cause the issuance of mortgage pass-through
certificates in multiple classes, which certificates will, in the aggregate,
evidence the entire beneficial ownership interest in such trust fund; and (iii)
provide for the servicing and administration of the mortgage loans, including
the Original Mortgage Loans, and the other assets that from time to time
constitute part of such trust fund.
Xxxxx Fargo Bank Minnesota, N.A. (together with its successors in
interest, "Xxxxx Fargo") desires to act as "Trustee" hereunder; KeyCorp Real
Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage (together with its
successors in interest, "KRECM") desires to act as "General
Master Servicer" and "General Special Servicer" hereunder; and NCB desires to
act as "Co-op Master Servicer" and "Co-op Special Servicer" hereunder.
In consideration of the mutual agreements herein contained, the parties
hereto agree as follows:
2
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT
OF THE MORTGAGE POOL
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the meanings specified in this
Section 1.01, subject to modification in accordance with Section 1.04.
"30/360 Basis" shall mean the accrual of interest calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"30/360 Mortgage Loan" shall mean a Mortgage Loan that accrues interest
on a 30/360 Basis.
"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
within the meaning of Treasury regulation section 1.856-6(b)(1), which is the
first day on which the Trust 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 calendar month (or other
applicable recurring accrual period) in a year assumed to consist of 360 days.
"Actual/360 Mortgage Loan" shall mean a Mortgage Loan that accrues
interest on an Actual/360 Basis.
"Additional Collateral" shall mean any non-real property collateral
(including any Letter of Credit) pledged and/or delivered by or on behalf of the
related Borrower and held by the related Mortgagee to secure payment on any
Mortgage Loan.
"Additional Master Servicing Compensation" shall have the meaning
assigned thereto in Section 3.11(b).
"Additional Special Servicing Compensation" shall have the meaning
assigned thereto in Section 3.11(d).
"Additional Trust Fund Expense" shall mean any expense experienced with
respect to the Trust Fund and not otherwise included in the calculation of a
Realized Loss that would result in the Holders of any Class of REMIC III Regular
Interest Certificates receiving less than the total of their Current Interest
Distribution Amount, Carryforward Interest Distribution Amount and Principal
Distribution Amount for any Distribution Date.
"Additional Yield Amount" shall have the meaning assigned thereto in
Section 4.01(d).
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"Adjusted REMIC II Remittance Rate" shall mean:
(a) with respect to REMIC II Regular Interest A-1, for any Interest
Accrual Period, 3.801% per annum;
(b) with respect to REMIC II Regular Interest A-2, for any Interest
Accrual Period, 4.890% per annum;
(c) with respect to REMIC II Regular Interest A-3, for any Interest
Accrual Period, 5.107% per annum;
(d) with respect to each of REMIC II Regular Interest A-4-1 and REMIC
II Regular Interest A-4-2, for any Interest Accrual Period, 5.435% per annum;
(e) with respect to REMIC II Regular Interest B, for any Interest
Accrual Period, 5.692% per annum;
(f) with respect to REMIC II Regular Interest C, for any Interest
Accrual Period, 5.781% per annum;
(g) with respect to REMIC II Regular Interest D, for any Interest
Accrual Period, 5.961% per annum;
(h) with respect to REMIC II Regular Interest E, for any Interest
Accrual Period, 6.083% per annum;
(i) with respect to REMIC II Regular Interest F, for any Interest
Accrual Period, 6.350% per annum;
(j) with respect to REMIC II Regular Interest G, for any Interest
Accrual Period, the lesser of (i) 6.448% per annum and (ii) the REMIC II
Remittance Rate in effect with respect to REMIC II Regular Interest G for such
Interest Accrual Period;
(k) with respect to REMIC II Regular Interest H, for any Interest
Accrual Period, the lesser of (i) 6.315% per annum and (ii) the REMIC II
Remittance Rate in effect with respect to REMIC II Regular Interest H for such
Interest Accrual Period;
(l) with respect to REMIC II Regular Interest J, for any Interest
Accrual Period, 5.196% per annum;
(m) with respect to REMIC II Regular Interest K, for any Interest
Accrual Period, 5.196% per annum;
(n) with respect to REMIC II Regular Interest L, for any Interest
Accrual Period, 5.196% per annum;
(o) with respect to REMIC II Regular Interest M, for any Interest
Accrual Period, 5.196% per annum;
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(p) with respect to REMIC II Regular Interest N, for any Interest
Accrual Period, 5.196% per annum;
(q) with respect to REMIC II Regular Interest O, for any Interest
Accrual Period, 5.196% per annum; and
(r) with respect to REMIC II Regular Interest P, for any Interest
Accrual Period, 5.196% per annum.
"Administrative Fee Rate" shall mean, with respect to each Mortgage
Loan (and any successor REO Mortgage Loan), the sum of the related Master
Servicing Fee Rate, plus the Trustee Fee Rate.
"Advance" shall mean any P&I Advance or Servicing Advance.
"Advance Interest" shall mean the interest accrued on any Advance at
the Reimbursement Rate, which is payable to the party hereto that made that
Advance, all in accordance with Section 3.11(g) or Section 4.03(d), as
applicable.
"Adverse Grantor Trust Event" shall mean either: (i) any impairment of
the status of either Grantor Trust Pool as a Grantor Trust; or (ii) the
imposition of a tax upon either Grantor Trust Pool or any of its assets or
transactions.
"Adverse Rating Event" shall mean, with respect to any Class of Rated
Certificates and each Rating Agency that has assigned a rating thereto, as of
any date of determination, the qualification, downgrade or withdrawal of the
rating then assigned to such Class of Rated Certificates by such Rating Agency
(or the placing of such Class of Rated Certificates on "negative credit watch"
status in contemplation of any such action with respect thereto).
"Adverse REMIC Event" shall mean either: (i) any impairment of the
status of any REMIC Pool as a REMIC; or (ii) except as permitted by Section
3.17(a), the imposition of a tax upon any REMIC Pool or any of its assets or
transactions (including the tax on prohibited transactions as defined in Section
860F(a)(2) of the Code and the tax on contributions set forth in Section 860G(d)
of the Code).
"Affiliate" shall mean, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" shall mean this Pooling and Servicing Agreement, as it may
be amended, modified, supplemented or restated following the Closing Date.
"A.M. Best" shall mean A.M. Best Company or its successor in interest
"Annual Accountants' Report" shall have the meaning assigned thereto in
Section 3.14.
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"Annual Performance Certification" shall have the meaning assigned
thereto in Section 3.13.
"Anticipated Repayment Date" shall mean, with respect to any ARD
Mortgage Loan, the date specified in the related Mortgage Note, as of which
Post-ARD Additional Interest shall begin to accrue on such Mortgage Loan, which
date is prior to the Stated Maturity Date for such Mortgage Loan.
"Appraisal" shall mean, with respect to any Mortgaged Property or REO
Property as to which an appraisal is required to be performed pursuant to the
terms of this Agreement, a narrative appraisal complying with USPAP (or, in the
case of a Mortgage Loan or an REO Mortgage Loan with a Stated Principal Balance
as of the date of such appraisal of $2,000,000 or less, unless the Controlling
Class Representative permits a narrative appraisal complying with USPAP, either
a limited appraisal and a summary report or an internal valuation prepared by
the applicable Special Servicer) that (i) indicates the "market value" of the
subject property (within the meaning of 12 CFR ss. 225.62(g)) and (ii) is
conducted by a Qualified Appraiser (except that, in the case of a Mortgage Loan
or an REO Mortgage Loan with a Stated Principal Balance as of the date of such
appraisal of $2,000,000 or less, unless the Controlling Class Representative
permits the use of an Independent Qualified Appraiser, the appraiser shall be an
employee of the applicable Special Servicer, which employee need not be a
Qualified Appraiser but shall have experience in assessing the value of
commercial and/or multifamily properties, as the case may be).
"Appraisal Reduction Amount" shall mean, with respect to any Required
Appraisal Loan, an amount (calculated as of the Determination Date immediately
following the later of the date on which the most recent relevant Appraisal
acceptable for purposes of Section 3.19(c) hereof was obtained by the applicable
Special Servicer pursuant to this Agreement and the date of the most recent
Appraisal Trigger Event with respect to such Required Appraisal Loan) equal to
the excess, if any, of:
(1) the sum of (a) the Stated Principal Balance of such Required
Appraisal Loan as of such Determination Date, (b) to the extent not
previously advanced by or on behalf of the applicable Master Servicer, the
Trustee or any Fiscal Agent, all unpaid interest (net of Default Interest
and, in the case of an ARD Mortgage Loan after its Anticipated Repayment
Date, Post-ARD Additional Interest) accrued on such Required Appraisal Loan
through the most recent Due Date prior to such Determination Date, (c) all
unpaid Special Servicing Fees accrued with respect to such Required
Appraisal Loan, (d) all related unreimbursed Advances made by or on behalf
of the applicable Master Servicer, the applicable Special Servicer, the
Trustee or any Fiscal Agent with respect to such Required Appraisal Loan,
together with all unpaid Advance Interest accrued on such Advances, and (e)
all currently due but unpaid real estate taxes and assessments, insurance
premiums and, if applicable, ground rents in respect of the related
Mortgaged Property or REO Property, as applicable; over
(2) the sum of (x) the excess, if any, of (i) 90% of the Appraised
Value of the related Mortgaged Property or REO Property, as applicable, as
determined by the most recent relevant Appraisal acceptable for purposes of
Section 3.19(c) hereof, over (ii) the amount of any obligation(s) secured
by any liens on such Mortgaged Property or REO Property, as applicable,
that are prior to the lien of such Required Appraisal Loan, and (y) any
Escrow Payments, Reserve Funds and/or Letters of Credit held by the
applicable Master Servicer or the applicable Special Servicer with respect
to such Required Appraisal Loan, the related Mortgaged Property or any
related REO Property (exclusive of any such Escrow Payments and Reserve
Funds, the
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application of which was assumed in determining the Appraised Value of the
related Mortgaged Property or REO Property, as applicable, referred to in
clause (2)(x)(i) of this definition).
Notwithstanding the foregoing, if (i) an Appraisal Trigger Event occurs
with respect to any Mortgage Loan, (ii) either (A) no Appraisal has been
obtained or conducted, as applicable in accordance with Section 3.19(c), with
respect to the related Mortgaged Property during the 12-month period prior to
the date of such Appraisal Trigger Event or (B) there shall have occurred since
the date of the most recent Appraisal a material change in the circumstances
surrounding the related Mortgaged Property that would, in the applicable Special
Servicer's judgment, materially affect the value of the property, and (iii) no
new Appraisal is obtained or conducted, as applicable in accordance with Section
3.19(c), by the earlier of the 60th day after such Appraisal Trigger Event and
the date on which such Mortgage Loan first becomes 120 days delinquent as to any
Monthly Payment, then (x) until such new Appraisal is obtained or conducted, as
applicable in accordance with Section 3.19(c), 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
3.19(c), of such new Appraisal by the applicable Special Servicer, the Appraisal
Reduction Amount for such Required Appraisal Loan will be recalculated in
accordance with the preceding sentence of this definition.
"Appraisal Trigger Event" shall mean, with respect to any Mortgage
Loan, any of the following events:
(i) such Mortgage Loan becomes a Modified Mortgage Loan;
(ii) any Monthly Payment (other than any Balloon Payment) with respect
to such Mortgage Loan remains unpaid for 60 days, in the case of a Mortgage
Loan that is not a Co-op Mortgage Loan, and 90 days, in the case of a Co-op
Mortgage Loan;
(iii) any Balloon Payment with respect to such Mortgage Loan remains
unpaid for 90 days past the Due Date for such payment (or, if the related
Borrower has delivered to the applicable Master Servicer a refinancing
commitment reasonably acceptable to the applicable Special Servicer, for
such longer period, not to exceed 150 days beyond the related maturity
date, during which the refinancing would occur);
(iv) the passage of 60 days after the applicable Special Servicer
receives notice that the Borrower under such Mortgage Loan has become the
subject of bankruptcy, insolvency or similar proceedings, which proceedings
remain undischarged and undismissed at the end of such 60 days;
(v) the passage of 60 days after the applicable Special Servicer
receives notice that a receiver or similar official is appointed with
respect to the related Mortgaged Property, provided that such receiver or
similar official continues in that capacity at the end of such 60 days; and
(vi) the related Mortgaged Property becomes an REO Property.
"Appraised Value" shall mean: (a) with respect to each Mortgaged
Property or REO Property (other than a residential cooperative property), the
appraised value thereof (as is) based upon the most recent Appraisal obtained or
conducted, as appropriate, pursuant to this Agreement; and (b) with respect to
each Mortgaged Property or REO Property that is a residential cooperative
property, the value of such property as shown in the applicable Appraisal and
determined as if such property were
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operated as a cooperatively-owned multifamily residential building (rather than
a multifamily rental apartment building).
"ARD Mortgage Loan" shall mean a Mortgage Loan that provides for the
accrual of Post-ARD Additional Interest thereon if such Mortgage Loan is not
paid in full on or prior to its Anticipated Repayment Date.
"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 related Borrower in connection with the origination
of the related Mortgage Loan, as such assignment may be amended, modified,
renewed or extended through the date hereof and from time to time hereafter.
"Assumed Monthly Payment" shall mean:
-----------------------
(a) with respect to any Balloon Mortgage Loan delinquent in respect of
its Balloon Payment beyond the Determination Date immediately following its
scheduled maturity date (as such date may be extended in connection with a
bankruptcy, insolvency or similar proceeding involving the related Borrower
or by reason of a modification, waiver or amendment granted or agreed to by
the applicable Master Servicer or Special Servicer pursuant to Section
3.20), for that scheduled maturity date and for each subsequent Due Date as
of which such Mortgage Loan remains outstanding and part of the Trust Fund,
the scheduled monthly payment of principal and/or interest deemed to be due
with respect to such Mortgage Loan on such Due Date equal to the amount
that would have been due in respect thereof on such Due Date (other than
any Default Interest) if such Mortgage Loan had been required to continue
to accrue 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, such maturity date; and
(b) with respect to any REO Mortgage Loan, for any Due Date as of which
the related REO Property remains part of the Trust Fund, the scheduled
monthly payment of principal and/or interest deemed to be due in respect
thereof on such Due Date equal to the Monthly Payment (or, in the case of a
Balloon Mortgage Loan described in clause (a) of this definition, the
Assumed Monthly Payment) that was due (or deemed due) with respect to the
related Mortgage Loan on the last Due Date prior to its becoming an REO
Mortgage Loan.
"Balloon Mortgage Loan" shall mean any Mortgage Loan that by its
original terms or by virtue of any modification entered into as of the Closing
Date (or, in the case of a Replacement Mortgage Loan, as of the related date of
substitution) provides for an amortization schedule extending beyond its Stated
Maturity Date and as to which, in accordance with such terms, a Balloon Payment
is due on its Stated Maturity Date.
"Balloon Payment" shall mean any Monthly Payment payable on a Mortgage
Loan at scheduled maturity that is at least six times as large as the normal
Monthly Payment due on such Mortgage Loan.
"Bankruptcy Code" shall mean the federal Bankruptcy Code, as amended
from time to time (Title 11 of the United States Code).
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"Base Prospectus" shall mean that certain prospectus dated October 22,
2001, relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Book-Entry Certificate" shall mean any Certificate registered in the
name of the Depositary or its nominee.
"Book-Entry Non-Registered Certificate" shall mean any Non-Registered
Certificate that constitutes a Book-Entry Certificate.
"Borrower" 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.
"Breach" shall mean, with respect to any Mortgage Loan, any breach of
representation or warranty made by a Mortgage Loan Seller pursuant to Section
4(b) or 4(d) of the related Mortgage Loan Purchase Agreement.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which banking institutions in New York, New York, Minneapolis, Minnesota,
the city in which the Primary Servicing Offices of any Master Servicer or
Special Servicer are located or the city in which the Corporate Trust Office of
the Trustee is located, are authorized or obligated by law or executive order to
remain closed.
"Carryforward Interest Distribution Amount" shall have:
(a) with respect to any REMIC I Regular Interest for any Distribution
Date, the meaning assigned thereto in Section 2.10(g);
(b) with respect to any REMIC II Regular Interest for any Distribution
Date, the meaning assigned thereto in Section 2.12(g);
(c) with respect to any Group A-CP REMIC III Regular Interest or Group
A-X REMIC III Regular Interest for any Distribution Date, the meaning
assigned thereto in Section 2.14(g); and
(d) with respect to any Class of REMIC III Regular Interest
Certificates for any Distribution Date, the meaning assigned thereto in
Section 2.14(g);
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate" shall mean any one of the Depositor's Series 0000-XXX0
Xxxxxxxxxx Mortgage Pass-Through Certificates, as executed by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Factor" shall mean, with respect to any Class of REMIC III
Regular Interest Certificates, as of any date of determination, a fraction,
expressed as a decimal carried to eight places,
-9-
the numerator of which is the related Class Principal Balance or Class Notional
Amount, as the case may be, then outstanding, and the denominator of which is
the related Class Principal Balance or Class Notional Amount, as the case may
be, outstanding as of the Closing Date.
"Certificateholder" or "Holder" shall mean the Person in whose name a
Certificate is registered in the Certificate Register, provided, however, that:
(i) neither a Disqualified Organization nor a Non-United States Tax Person shall
be a "Holder" of, or a "Certificateholder" with respect to, a Class R
Certificate for any purpose hereof; and (ii) solely for purposes of giving any
consent, approval, direction or waiver pursuant to this Agreement that
specifically relates to the rights, duties and/or obligations hereunder of the
Depositor, a Master Servicer, a Special Servicer, the Trustee or any Fiscal
Agent in its respective capacity as such (other than any consent, approval or
waiver contemplated by any of Sections 3.23, 3.24 and 3.25), any Certificate
registered in the name of such party or in the name of any Affiliate thereof
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 specifically relates to such party has been obtained. The
Certificate Registrar shall be entitled to request and conclusively rely upon a
certificate of the Depositor, a Master Servicer or a Special Servicer in
determining whether a Certificate is registered in the name of an Affiliate of
such Person. All references herein to "Certificateholders" or "Holders" shall
reflect the rights of Certificate Owners only insofar as they may indirectly
exercise such rights through the Depositary and the Depositary Participants
(except as otherwise specified herein), it being herein acknowledged and agreed
that the parties hereto shall be required to recognize as a "Certificateholder"
or "Holder" only the Person in whose name a Certificate is registered in the
Certificate Register.
"Certificateholder Reports" shall mean, collectively, the Trustee
Report and the CMSA Investor Reporting Package.
"Certificate Notional Amount" shall mean, with respect to any Interest
Only Certificate, as of any date of determination, the then notional principal
amount on which such Certificate accrues interest, equal to the product of (a)
the then Certificate Factor for the Class of Interest Only Certificates to which
such Certificate belongs, multiplied by (b) the amount specified on the face of
such Certificate as the initial Certificate Notional Amount thereof.
"Certificate Owner" shall mean, with respect to any Book-Entry
Certificate, the Person who is the beneficial owner of such Certificate as
reflected on the books of the Depositary or on the books of a Depositary
Participant or on the books of an indirect participating brokerage firm for
which a Depositary 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 amount 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" and "Certificate Registrar" shall mean the
register maintained and the registrar appointed pursuant to Section 5.02.
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"Class" shall mean, collectively, all of the Certificates bearing the
same alphabetic and, if applicable, numeric class designation and having the
same payment terms. The respective Classes of Certificates are designated in
Section 5.01(a).
"Class A-P&I Certificate" shall mean any of the Class A-1, Class A-2,
Class A-3 and Class A-4 Certificates designated as such in Section 2.08(b).
"Class A-1" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class A-1 Certificates.
"Class A-1 Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation
"A-1".
"Class A-2" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class A-2 Certificates.
"Class A-2 Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation
"A-2".
"Class A-3" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class A-3 Certificates.
"Class A-3 Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation
"A-3".
"Class A-4" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class A-4 Certificates.
"Class A-4 Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation
"A-4".
"Class A-CP" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class A-CP Certificates.
"Class A-CP Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation
"A-CP".
"Class A-X" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class A-X Certificates.
"Class A-X Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation
"A-X".
"Class A-Y" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class A-Y Certificates.
"Class A-Y Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation
"A-Y".
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"Class A-Y Strip Rate" shall mean: (a) in the case of the Ocean Towers
Mortgage Loan (or any successor REO Mortgage Loan), an annual rate equal to the
excess, if any, of (i) the Net Mortgage Rate in effect for such Mortgage Loan as
of the Closing Date, over (ii) 7.30% per annum; and (b) in the case of each
other Co-op Mortgage Loan (or any successor REO Mortgage Loan), an annual rate
equal to the excess, if any, of (i) the Net Mortgage Rate in effect for such
Mortgage Loan as of the Closing Date, over (ii) 6.25% per annum.
"Class B" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class B Certificates.
"Class B Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "B".
"Class C" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class C Certificates.
"Class C Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "C".
"Class D" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class D Certificates.
"Class D Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "D".
"Class E" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class E Certificates.
"Class E Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "E".
"Class F" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class F Certificates.
"Class F Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "F".
"Class G" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class G Certificates.
"Class G Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "G".
"Class H" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class H Certificates.
"Class H Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "H".
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"Class J" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class J Certificates.
"Class J Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "J".
"Class K" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class K Certificates.
"Class K Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "K".
"Class L" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class L Certificates.
"Class L Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "L".
"Class M" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class M Certificates.
"Class M Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "M".
"Class N" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class N Certificates.
"Class N Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "N".
"Class Notional Amount" shall mean the aggregate hypothetical or
notional amount on which any Class of Interest Only Certificates accrues or is
deemed to accrue interest from time to time, as calculated in accordance with
Section 2.14(e).
"Class O" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class O Certificates.
"Class O Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "O".
"Class P" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class P Certificates.
"Class P Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "P".
"Class Principal Balance" shall mean the aggregate principal balance
outstanding from time to time of any Class of Principal Balance Certificates, as
calculated in accordance with Section 2.14(e).
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"Class R" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class R Certificates.
"Class R Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "R".
"Class V" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class V Certificates.
"Class V Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "V".
"Class V Sub-Account" shall mean a sub-account of the Distribution
Account established pursuant to Section 3.04(b), which sub-account shall
constitute an asset of the Trust Fund and Grantor Trust V, but not an asset of
any REMIC Pool.
"Clearstream" shall mean Clearstream International or any successor.
"Closing Date" shall mean November 13, 2001.
"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 General Master Servicer and reasonably acceptable to the Trustee, the
Co-op Master Servicer, the Special Servicers and the Controlling Class
Representative.
"CMSA Bond Level File" shall mean, subject to Section 1.03(f), the
monthly report substantially in the form of, and containing the information
called for in, the downloadable form of the "Bond Level File" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Bond Level File" available as of
the Closing Date on the CMSA Website, is reasonably acceptable to the Trustee.
"CMSA Collateral Summary File" shall mean, subject to Section 1.03(f),
the report substantially in the form of, and containing the information called
for in, the downloadable form of the "Collateral Summary File" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage securities transactions
generally and,
-14-
insofar as it requires the presentation of information in addition to that
called for by the form of the "Collateral Summary File" available as of the
Closing Date on the CMSA Website, is reasonably acceptable to the Trustee.
"CMSA Comparative Financial Status Report" shall mean, subject to
Section 1.03(f), report substantially in the form of, and containing the
information called for in, the downloadable form of the "Comparative Financial
Status Report" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information as may from time to time be
recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Comparative Financial Status
Report" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicers or the Special Servicers, as applicable, and
in any event, setting forth, among other things, (a) the occupancy and debt
service coverage ratio for each Mortgage Loan or Mortgaged Property, as
applicable, to be covered thereby, as of the date of the latest financial
information (covering no less than twelve (12) consecutive months) available
immediately preceding the preparation of such report; and (b) the revenue,
expense and net operating income or net cash flow for each Mortgaged Property to
be covered thereby, for each of the following periods (to the extent such
information is in the applicable Master Servicer's or the applicable Special
Servicer's possession or under its control): (i) the most current available
year-to-date, (ii) each of the previous two (2) full fiscal years stated
separately; and (iii) the "base year" (representing, in the case of any Original
Mortgage Loan, the original analysis of information used as of the Due Date for
such Mortgage Loan in November 2001). For the purposes of the production by the
applicable Master Servicer or the applicable Special Servicer of any such report
that is required to state information with respect to any Original Mortgage Loan
for any period prior to the related Due Date in November 2001, the applicable
Master Servicer or the applicable Special Servicer, as the case may be, may
conclusively rely (without independent verification), absent manifest error, on
information provided to it by the related Mortgage Loan Seller, by the related
Borrower or (x) in the case of such a report produced by a Master Servicer, by
the applicable Special Servicer (if other than such Master Servicer or an
Affiliate thereof) and (y) in the case of such a report produced by a Special
Servicer, by the applicable Master Servicer (if other than such Special Servicer
or an Affiliate thereof).
"CMSA Delinquent Loan Status Report" shall mean, subject to Section
1.03(f), a report substantially in the form of, and containing the information
called for in, the downloadable form of the "Delinquent Loan Status Report"
available as of the Closing Date on the CMSA Website, or such other form for the
presentation of such information and containing such additional information as
may from time to time be recommended by the CMSA for commercial mortgage
securities transactions generally and, insofar as it requires the presentation
of information in addition to that called for by the form of the "Delinquent
Loan Status Report" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Master Servicers or the Special Servicers, as
applicable.
"CSMA Financial File" shall mean, subject to Section 1.03(f), a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Financial File" available as of the Closing Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be
recommended by the CMSA for commercial mortgage securities transactions
generally and, in so far as it requires the presentation of information in
addition to that called for by the form of the "Financial File" available as of
the Closing Date on the CMSA Website, is reasonably acceptable to the Master
Servicers or the Special Servicers, as applicable.
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"CMSA Historical Liquidation Report" shall mean, subject to Section
1.03(f), a report substantially in the form of, and containing the information
called for in, the downloadable form of the "Historical Liquidation Report"
available as of the Closing Date on the CMSA Website, or such other form for the
presentation of such information and containing such additional information as
may from time to time be recommended by the CMSA for commercial mortgage
securities transactions generally and, insofar as it requires the presentation
of information in addition to that called for by the form of the "Historical
Liquidation Report" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Master Servicers or the Special Servicers, as
applicable.
"CMSA Historical Loan Modification Report" shall mean, subject to
Section 1.03(f), a report substantially in the form of, and containing the
information called for in, the downloadable form of the "Historical Loan
Modification Report" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Historical Loan Modification Report" available as of the Closing
Date on the CMSA Website, is reasonably acceptable to the Master Servicers or
the Special Servicers, as applicable.
"CMSA Investor Reporting Package" shall mean, collectively:
(a) the following six electronic files: (i) CMSA Loan Setup File, (ii)
CMSA Loan Periodic Update File, (iii) CMSA Property File, (iv) CMSA Bond
Level File, (v) CMSA Financial File and (vi) CMSA Collateral Summary File;
and
(b) the following eight supplemental reports: (i) CMSA Delinquent Loan
Status Report, (ii) CMSA Historical Loan Modification Report, (iii) CMSA
Historical Liquidation Report, (iv) CMSA REO Status Report, (v) CMSA
Operating Statement Analysis Report, (vi) CMSA Comparative Financial Status
Report, (vii) CMSA Servicer Watch List and (viii) CMSA NOI Adjustment
Worksheet.
"CMSA Loan Periodic Update File" shall mean, subject to Section
1.03(f), the monthly report substantially in the form of, and containing the
information called for in, the downloadable form of the "Loan Periodic Update
File" available as of the Closing Date on the CMSA Website, or such other form
for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"Loan Periodic Update File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicers or the Special
Servicers, as applicable, and the Trustee.
"CMSA Loan Setup File" shall mean, subject to Section 1.03(f), the
report substantially in the form of, and containing the information called for
in, the downloadable form of the "Loan Setup File" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Loan Setup File" available as of
the Closing Date on the CMSA Website, is reasonably acceptable to the Master
Servicers or the Special Servicers, as applicable, and the Trustee.
-16-
"CMSA NOI Adjustment Worksheet" shall mean, subject to Section 1.03(f),
a report substantially in the form of, and containing the information called for
in, the downloadable form of the "NOI Adjustment Worksheet" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "NOI Adjustment Worksheet"
available as of the Closing Date on the CMSA Website, is acceptable to the
Master Servicers or the Special Servicers, as applicable, and in any event,
shall present the computations made in accordance with the methodology described
in such form to "normalize" the full year net operating income or net cash flow,
as applicable, and debt service coverage numbers used in the other reports
required by this Agreement.
"CMSA Operating Statement Analysis Report" shall mean, subject to
Section 1.03(f), a report substantially in the form of, and containing the
information called for in, the downloadable form of the "Operating Statement
Analysis Report" available as of the Closing Date on the CMSA Website or in such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Operating Statement Analysis Report" available as of the Closing
Date on the CMSA Website, is reasonably acceptable to the Master Servicers.
"CMSA Property File" shall mean, subject to Section 1.03(f), a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Property File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and,
insofar as it requires the presentation of information in addition to that
called for by the form of the "Property File" available as of the Closing Date
on the CMSA Website, is reasonably acceptable to the Master Servicers or the
Special Servicers, as applicable.
"CMSA REO Status Report" shall mean, subject to Section 1.03(f), a
report substantially in the form of, and containing the information called for
in, the downloadable form of the "REO Status Report" available as of the Closing
Date on the CMSA Website, or in such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "REO Status Report" available as
of the Closing Date on the CMSA Website, is reasonably acceptable to the Master
Servicers or the Special Servicers, as applicable.
"CMSA Servicer Watch List" shall mean, for any Determination Date, a
report substantially in the form of, and containing the information called for
in, the downloadable form of the "Servicer Watch List" available as of the
Closing Date on the CMSA Website, or in such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Servicer Watch List" available
as of the Closing Date on the CMSA Website, is reasonably acceptable to the
Master Servicers or the Special Servicers, as applicable, and in any event,
which report shall identify all Performing Mortgage Loans that are required by
the criteria set forth on Exhibit E-2A
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hereto, in the case of Mortgage Loans other than Co-op Mortgage Loans, or on
Exhibit E-2B hereto, in the case of Co-op Mortgage Loans; provided that, upon
adoption by the CMSA of a standard format, whether in respect of commercial
mortgage loans generally or in respect of residential cooperative mortgage
loans, such format shall be used for this report instead of Exhibit E-2A or
Exhibit E-2B, as applicable.
"CMSA Website" shall mean the CMSA's Website located at
"xxx.xxxxxxxx.xxx" or such other primary website as the CMSA may establish for
dissemination of its report forms.
"Code" shall mean the Internal Revenue Code of 1986 and regulations
promulgated thereunder, including 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 Trust or the Certificates.
"Collection Account" shall mean the segregated account or accounts
created and maintained by each Master Servicer, pursuant to Section 3.04(a), in
trust for the Certificateholders, which shall be entitled "[name of subject
Master Servicer], as a Master Servicer, in trust for the registered holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2001-CKN5, Collection Account".
"Collection Period" shall mean, with respect to any Distribution Date,
the period commencing immediately following the Determination Date in the
calendar month preceding the month in which such Distribution Date occurs (or,
in the case of the initial Distribution Date, commencing as of the Closing Date)
and ending on and including the Determination Date in the calendar month in
which such Distribution Date occurs.
"Column" shall have the meaning assigned thereto in the Preliminary
Statement to this Agreement.
"Column Mortgage Loan" shall mean any Mortgage Loan that is either an
Original Column Mortgage Loan or a Replacement Mortgage Loan that was delivered
under the Column Mortgage Loan Purchase Agreement or the Column Performance
Guarantee in substitution for an Original Column Mortgage Loan.
"Column Mortgage Loan Purchase Agreement" shall have the meaning
assigned thereto in the Preliminary Statement to this Agreement.
"Column Performance Guarantee" shall mean the Guarantee dated as of
November 1, 2001, from the Column Performance Guarantor in favor of the Trustee,
relating to the obligations of Column under Section 5 of the Column Mortgage
Loan Purchase Agreement.
"Column Performance Guarantor" shall mean Credit Suisse First Boston
acting through the Cayman Branch, its successor in interest or any successor
guarantor under the Column Performance Guarantee.
"Column Trust Assets" shall mean the Column Mortgage Loans, any REO
Properties acquired by the Trust with respect to the Column Mortgage Loans and
any and all other related Trust Assets.
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"Commission" shall mean the Securities and Exchange Commission or any
successor thereto.
"Compensating Interest Payment" shall mean, with respect to any
Distribution Date, any payment made by a Master Servicer pursuant to Section
3.19(a) to cover Prepayment Interest Shortfalls incurred during the related
Collection Period.
"Component" shall mean any of the components of the Class A-X or Class
A-CP Certificates, which components are: (a) in the case of the Class A-X
Certificates, the respective Group A-X REMIC III Regular Interests; and (b) in
the case of the Class A-CP Certificates, the respective Group A-CP REMIC III
Regular Interests.
"Component Notional Amount" shall mean the hypothetical or notional
amount on which any Group A-X REMIC III Regular Interest or Group A-CP REMIC III
Regular Interest accrues interest from time to time, as calculated in accordance
with Section 2.14(e).
"Condemnation Proceeds" shall mean all cash amounts actually received
by the Trust or by a Master Servicer or Special Servicer on its behalf in
connection with the taking of all or a part of a Mortgaged Property by exercise
of the power of eminent domain or condemnation, exclusive of any portion thereof
required to be released to the related Borrower or any other third-party in
accordance with applicable law and/or the terms and conditions of the related
Mortgage Loan Documents or any other applicable document.
"Confidential Offering Circular" shall mean the final Confidential
Offering Circular dated November 1, 2001, relating to certain classes of the
Non-Registered Certificates delivered by the Depositor to CSFB Corporation as of
the Closing Date.
"Controlling Class" shall mean, as of any date of determination, the
Class of Principal Balance Certificates with the lowest payment priority
pursuant to Sections 4.01(a) and 4.01(b), that has a then outstanding Class
Principal Balance that is not less than 25% of its initial Class Principal
Balance; provided that, if no Class of Principal Balance Certificates has a
Class Principal Balance that satisfies the foregoing requirement, then the
Controlling Class shall be the Class of Principal Balance Certificates with the
lowest payment priority pursuant to Sections 4.01(a) and 4.01(b), that has a
then outstanding Class Principal Balance greater than zero. For purposes of this
definition, all of the Class A-P&I Certificates shall be treated as a single
Class and, if appropriate under the terms of this definition, shall collectively
constitute the Controlling Class.
"Controlling Class Certificateholder" shall mean any Holder of
Certificates of the Controlling Class.
"Controlling Class Representative" shall have the meaning assigned
thereto in Section 3.23(a).
"Co-op Master Servicer" shall mean NCB, in its capacity as master
servicer with respect to the Co-op Mortgage Loans and any related REO Properties
hereunder, or any successor master servicer with respect to the Co-op Mortgage
Loans and any related REO Properties appointed as provided herein.
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"Co-op Mortgage Loan" shall mean any Mortgage Loan that, as of the date
it is first included in the Trust Fund, is secured by a Mortgage that encumbers
a residential cooperative property.
"Co-op Special Servicer" shall mean NCB, in its capacity as special
servicer with respect to the Co-op Mortgage Loans and any related REO Properties
hereunder, or any successor special servicer with respect to the Co-op Mortgage
Loans and any related REO Properties appointed as provided herein.
"Co-op Trust Assets" shall mean the Co-op Mortgage Loans, any REO
Properties acquired by the Trust with respect to the Co-op Mortgage Loans and
any and all other related Trust Assets.
"Corporate Trust Office" shall mean the principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business with respect to this Agreement shall be administered, which office at
the date of the execution of this Agreement is located at 00000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Administration/Credit Suisse First Boston Mortgage Securities Corp., Series
2001-CKN5.
"Corrected Mortgage Loan" shall mean any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but as to which all Servicing Transfer Events
have ceased to exist.
"Corresponding Class of Principal Balance Certificates" shall mean,
with respect to any REMIC II Regular Interest, the Class of Principal Balance
Certificates that has an alphabetic or alphanumeric class designation that is
the same as the alphabetic or alphanumeric, as applicable, designation for such
REMIC II Regular Interest; provided that the Class A-4 Certificates shall be the
Corresponding Class of Principal Balance Certificates with respect to each of
REMIC II Regular Interest A-4-1 and REMIC II Regular Interest A-4-2.
"Corresponding Group A-CP REMIC III Regular Interest" shall mean, with
respect to any REMIC II Regular Interest, the Group A-CP REMIC III Regular
Interest that has an alphabetic or alphanumeric designation that, with the
deletion of "A-CP-", is the same as the alphabetic or alphanumeric, as
applicable, designation for such REMIC II Regular Interest.
"Corresponding Group A-X REMIC III Regular Interest" shall mean, with
respect to any REMIC II Regular Interest, the Group A-X REMIC III Regular
Interest that has an alphabetic or alphanumeric designation that, with the
deletion of "A-X-", is the same as the alphabetic or alphanumeric, as
applicable, designation for such REMIC II Regular Interest.
"Corresponding REMIC II Regular Interest" shall mean: (a) with respect
to any Class of Principal Balance Certificates, the REMIC II Regular Interest
that has an alphabetic or alphanumeric designation that is the same as the
alphabetic or alphanumeric, as applicable, Class designation for such Class of
Principal Balance Certificates (provided that each of REMIC II Regular Interest
A-4-1 and REMIC II Regular Interest A-4-2 shall be a Corresponding REMIC II
Regular Interest with respect to the Class A-4 Certificates); (b) with respect
to any Group A-CP REMIC III Regular Interest, the REMIC II Regular Interest that
has an alphabetic or alphanumeric designation that, when preceded by "A-CP-", is
the same as the alphabetic or alphanumeric, as applicable, designation for such
Group A-CP REMIC III Regular Interest; and (c) with respect to any Group A-X
REMIC III Regular Interest, the REMIC II Regular Interest that has an alphabetic
or alphanumeric designation that, when preceded by "A-X-", is
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the same as the
alphabetic or alphanumeric, as applicable, designation for such Group A-X REMIC
III Regular Interest.
"Cross-Collateralized Group" shall mean any group of Mortgage Loans
that is cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage Loan, that
is, by its terms, cross-defaulted and cross-collateralized with any other
Mortgage Loan.
"Cross-Over Class Principal Balance" shall mean, with respect to the
Class A-2 Certificates, a principal amount equal to: (a) the Class Principal
Balance of the Class A-2 Certificates outstanding as of the Closing Date; minus
(b) the product of (i) the Class Principal Balance of the Class A-1 Certificates
outstanding as of the closing Date, multiplied by (ii) a fraction, the numerator
of which is 0.1851570254916, and the denominator of which is 0.8148429745084.
"CSFB Corporation" shall mean Credit Suisse First Boston Corporation or
its successor in interest.
"Current Interest Distribution Amount" shall have:
(a) with respect to any REMIC I Regular Interest for any Distribution
Date, the meaning assigned thereto in Section 2.10(g);
(b) with respect to any REMIC II Regular Interest for any Distribution
Date, the meaning assigned thereto in Section 2.12(g);
(c) with respect to any Group A-CP REMIC III Regular Interest or Group
A-X REMIC III Regular Interest for any Distribution Date, the meaning
assigned thereto in Section 2.14(g); and
(d) with respect to any Class of REMIC III Regular Interest
Certificates for any Distribution Date, the meaning assigned thereto in
Section 2.14(g).
"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.
"Cut-off Date" shall mean, individually and collectively, the
respective Due Dates for the Original Mortgage Loans in November 2001.
"Cut-off Date Principal Balance" shall mean, with respect to any
Original Mortgage Loan, the outstanding principal balance of such Mortgage Loan
as of its Due Date in November 2001, after application of all payments of
principal due on or before such date, whether or not received.
"Default Charges" shall mean Default Interest and/or late payment
charges that are paid or payable, as the context may require, in respect of any
Mortgage Loan or REO Mortgage Loan.
"Default Interest" shall mean, with respect to any Mortgage Loan (or
successor REO Mortgage Loan), any amounts collected thereon, other than late
payment charges, Prepayment Premiums or Yield Maintenance Charges, that
represent interest (exclusive, if applicable, of Post-ARD
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Additional Interest) in excess of interest accrued on the principal balance of
such Mortgage Loan (or REO Mortgage Loan) at the related Mortgage Rate, such
excess interest arising out of a default under such Mortgage Loan.
"Defaulting Party" shall have the meaning assigned thereto in Section
7.01(b).
"Defective Mortgage Loan" shall mean any Mortgage Loan as to which
there exists a Material Breach or a Material Document Defect that has not been
cured in all material respects.
"Definitive Certificate" shall have the meaning assigned thereto in
Section 5.03(a).
"Deleted Mortgage Loan" shall mean a Defective Mortgage Loan that is
repurchased from the Trust or replaced with one or more Replacement Mortgage
Loans, in either case as contemplated by Section 2.03.
"Depositor" shall have the meaning assigned thereto in the Preliminary
Statement to this Agreement.
"Depositary" shall mean The Depository Trust Company, or any successor
depositary hereafter named as contemplated by Section 5.03(c). The nominee of
the initial Depositary for purposes of registering those Certificates that are
to be Book-Entry Certificates, is Cede & Co. The Depositary 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.
"Depositary Participant" shall mean a broker, dealer, bank or other
financial institution or other Person for whom from time to time the Depositary
effects book-entry transfers and pledges of securities deposited with the
Depositary.
"Designated Sub-Servicer" shall mean NCB, any Sub-Servicer set forth on
Exhibit L hereto and any successor to NCB or any such other Sub-Servicer set
forth on Exhibit L under the related Sub-Servicing Agreement.
"Designated Sub-Servicer Agreement" shall mean any Sub-Servicing
Agreement between a Designated Sub-Servicer and a Master Servicer.
"Determination Date" shall mean, with respect to any calendar month,
commencing in December 2001, the 11th day of such month (or, if such 11th day is
not a Business Day, the next succeeding Business Day). Each Determination Date
will relate to the Distribution Date in the same calendar month.
"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 to customers (other than the sale of REO Property pursuant to Section
3.18), the performance of any construction work thereon or any use of such REO
Property in a trade or business conducted by the Trust other than through an
Independent Contractor; provided, however, that the applicable Special Servicer
(or any Sub-Servicer on behalf of the applicable Special Servicer) shall not be
considered to Directly Operate an REO Property solely because the applicable
Special Servicer (or any Sub-Servicer on behalf of the applicable Special
Servicer)
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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 have the meaning assigned thereto in Section
4.01(d).
"Disqualified Organization" shall mean any of the following: (i) the
United States or a possession thereof, any State or any political subdivision
thereof, or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for Xxxxxxx Mac, a majority of its board of directors is not
selected by any such governmental unit), (ii) a foreign government,
international organization, or any agency or instrumentality of either of the
foregoing, (iii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code or (v)
any other Person so designated by the Trustee, based upon an Opinion of Counsel
delivered to the Trustee to the effect that the holding of an Ownership Interest
in a Class R Certificate by such Person may cause the Trust or any Person having
an Ownership Interest in any Class of Certificates, other than such Person, to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Class R
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.
"Distribution Account" shall mean the segregated account or accounts
created and maintained by the Trustee, pursuant to Section 3.04(b), in trust for
the Certificateholders, which shall be entitled "[name of Trustee], as Trustee,
in trust for the registered holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2001-CKN5, Distribution Account".
"Distribution Date" shall mean, with respect to any calendar month,
commencing in December 2001, the fourth Business Day following the Determination
Date in such month.
"Document Defect" shall mean, with respect to any Mortgage Loan, that
any document required to be part of the related 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 (and the terms of such document have not been modified by written
instrument contained in the related Mortgage File), or does not appear to be
regular on its face.
"Due Date" shall mean with respect to any Mortgage Loan (and any
successor REO Mortgage Loan), the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on such Mortgage Loan is first
scheduled to be due (without regard to any applicable grace period).
"Earn-Out Reserve Funds" shall mean Reserve Funds as to which any
release thereof to the related Borrower is tied to conditions relating to the
economic performance, value and/or occupancy of the subject Mortgaged Property.
"XXXXX" shall mean the Electronic Data Gathering, Analysis, and
Retrieval System of the Commission, which is the computer system for the
receipt, acceptance, review and dissemination of documents submitted to the
Commission in electronic format.
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"Eligible Account" shall mean any of (i) an account maintained with a
federal or state chartered depositary institution or trust company, the
long-term deposit or long-term unsecured debt obligations of which are rated no
less than "Aa3" by Xxxxx'x and "AA" by S&P (if the deposits are to be held in
the account for more than 30 days), or the short-term deposit or short-term
unsecured debt obligations of which are rated no less than "P-1" by Xxxxx'x and
"A-1+" by S&P (if the deposits are to be held in the account for 30 days or
less), in any event at any time funds are on deposit therein, or (ii) a
segregated trust account maintained with a federal or state chartered depositary
institution or trust company acting in its fiduciary capacity, which, in the
case of a state chartered depositary institution or trust company is subject to
regulations regarding fiduciary funds on deposit therein substantially similar
to 12 CFR ss. 9.10(b), and which, in either case, has a combined capital and
surplus of at least $50,000,000 and is subject to supervision or examination by
federal or state authority, (iii) an account or accounts maintained with KeyBank
so long as KeyBank's long-term unsecured debt rating shall be at xxxxx "X0" from
Xxxxx'x and "A" from S&P and KeyBank's short-term deposit or short-term
unsecured debt rating shall be at least "P-1" from Xxxxx'x and "A-1" from S&P,
(iv) in the case of Reserve Accounts and Servicing Accounts with respect to NCB
Mortgage Loans and NCBCC Mortgage Loans, any account maintained with NCB, FSB
(provided that NCB, FSB has a combined capital and surplus of at least
$40,000,000 and, with respect to any Reserve Account or Servicing Account that
has a balance in excess of $500,000, has obtained and maintains in favor of the
affected Borrower(s) a standby letter of credit from the Federal Home Loan Bank
in an amount equal to the portion of such balance that is not covered by FDIC
insurance), and (v) any other account that is acceptable to the Rating Agencies
(as evidenced by written confirmation to the Trustee from each Rating Agency
that the use of such account would not, in and of itself, result in an Adverse
Rating Event with respect to any Class of Rated Certificates).
"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.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"Escrow Payment" shall mean any payment received by a Master Servicer
or Special Servicer for the account of any Borrower for application toward the
payment of real estate taxes, assessments, insurance premiums (including with
respect to any Environmental Insurance Policy), ground rents (if applicable) and
similar items in respect of the related Mortgaged Property.
"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, over (b) the sum of (i) the amount needed to pay
off the Mortgage Loan or related REO Mortgage Loan in full, (ii) all unpaid
Advance Interest on any related Advances and (iii) any related Liquidation Fee.
"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 "[name of Trustee], as Trustee,
in trust for the registered holders of Credit Suisse First Boston
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Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2001-CKN5, Excess Liquidation Proceeds Account".
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exemption-Favored Party" shall mean any of (i) CSFB Corporation, (ii)
any Person directly or indirectly, through one or more intermediaries,
controlling, controlled by or under common control with CSFB Corporation, and
(iii) any member of any underwriting syndicate or selling group of which any
Person described in clauses (i) and (ii) is a manager or co-manager with respect
to a Class of Certificates (other than the Class A-Y and Class R Certificates)
that is investment grade rated by at least one Rating Agency.
"Fair Value" shall mean, with respect to any Specially Designated
Defaulted Mortgage Loan, the amount that, in the applicable Special Servicer's
reasonable judgment, would be realized in connection with a sale of such
Mortgage Loan if it were offered in a commercially reasonable manner and an open
bid auction were conducted.
"Xxxxxx Mae" shall mean the Federal National Mortgage Association or
any successor.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor.
"Final Distribution Date" shall mean the final Distribution Date on
which any distributions are to be made on the Certificates as contemplated by
Section 9.01.
"Final Recovery Determination" shall mean a determination made by the
applicable Special Servicer, in its reasonable judgment, with respect to any
Specially Serviced Mortgage Loan or REO Property (other than a Mortgage Loan
that is paid in full and other than a Mortgage Loan or REO Property, as the case
may be, that is repurchased or replaced by a Mortgage Loan Seller pursuant to
the related Mortgage Loan Purchase Agreement, purchased or replaced by the
Column Performance Guarantor pursuant to the Column Performance Guarantee or the
NCBCC Performance Guarantor pursuant to the NCBCC Performance Guarantee or
purchased by a Master Servicer, a Special Servicer or any Controlling Class
Certificateholder(s) pursuant to Section 9.01 or otherwise acquired by the Sole
Certificateholder(s) in exchange for all the Certificates pursuant to Section
9.01), that there has been a recovery of all related Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and other payments or recoveries
that will ultimately be recoverable.
"Fiscal Agent" shall mean a Person who is at any time appointed by the
Trustee pursuant to Section 8.13 to act as fiscal agent hereunder.
"Fiscal Agent Agreement" shall have the meaning assigned thereto in
Section 8.13.
"Xxxxxxx Mac" shall mean the Federal Home Loan Mortgage Corporation or
any successor.
"GAAP" shall mean generally accepted accounting principles in the
United States.
"General Master Servicer" shall mean KRECM, in its capacity as master
servicer with respect to the Mortgage Pool (exclusive of the Co-op Mortgage
Loans) and any related REO Properties
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hereunder, or any successor master servicer with respect to the Mortgage Pool
(exclusive of the Co-op Mortgage Loans) and any related REO Properties appointed
as provided herein.
"General Special Servicer" shall mean KRECM, in its capacity as special
servicer with respect to the Mortgage Pool (exclusive of the Co-op Mortgage
Loans) and any related REO Properties hereunder, or any successor special
servicer with respect to the Mortgage Pool (exclusive of the Co-op Mortgage
Loans) and any related REO Properties appointed as provided herein.
"Grantor Trust" shall mean a grantor trust as defined under Subpart E
of Part 1 of Subchapter J of the Code.
"Grantor Trust Pool" shall mean either of Grantor Trust V or Grantor
Trust R.
"Grantor Trust R" shall mean the Grantor Trust designated as such in
Section 2.15(b).
"Grantor Trust V" shall mean the Grantor Trust designated as such in
Section 2.15(a).
"Ground Lease" shall mean the ground lease pursuant to which any
Borrower holds a leasehold interest in the related Mortgaged Property, together
with any estoppels or other agreements executed and delivered by the ground
lessor in favor of the lender under the related Mortgage Loans.
"Group A-CP REMIC III Regular Interests" shall mean, collectively,
REMIC III Regular Interest A-CP-A-4-2, REMIC III Regular Interest A-CP-B, REMIC
III Regular Interest A-CP-C, REMIC III Regular Interest A-CP-D and REMIC III
Regular Interest A-CP-E.
"Group A-X REMIC III Regular Interests" shall mean, collectively, REMIC
III Regular Interest A-X-A-1, REMIC III Regular Interest A-X-A-2, REMIC III
Regular Interest A-X-A-3, REMIC III Regular Interest A-X-A-4-1, REMIC III
Regular Interest A-X-A-4-2, REMIC III Regular Interest A-X-B, REMIC III Regular
Interest A-X-C, REMIC III Regular Interest A-X-D, REMIC III Regular Interest
A-X-E, REMIC III Regular Interest A-X-F, REMIC III Regular Interest A-X-G, REMIC
III Regular Interest A-X-H, REMIC III Regular Interest A-X-J, REMIC III Regular
Interest A-X-K, REMIC III Regular Interest A-X-L, REMIC III Regular Interest
A-X-M, REMIC III Regular Interest A-X-N, REMIC III Regular Interest A-X-O and
REMIC III Regular Interest A-X-P.
"Group A-Y REMIC I Regular Interests" shall mean, collectively, all of
the REMIC I Regular Interests so designated in Section 2.10(d), which are the
REMIC I Regular Interests without principal balances (but that have notional
amounts for purposes of accruing interest).
"Group Environmental Insurance Policy" shall mean an Environmental
Insurance Policy that is maintained from time to time in respect of more than
one Mortgaged Property or REO Property.
"Group PB REMIC I Regular Interests" shall mean, collectively, all of
the REMIC I Regular Interests so designated in Section 2.10(d), which are the
REMIC I Regular Interests with principal balances.
"Group XX XXXXX XX Regular Interests" shall mean, collectively, all of
the REMIC II Regular Interests other REMIC II Regular Interest A-Y.
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"Hazardous Materials" shall mean any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including those so identified
pursuant to CERCLA or any other federal, state or local environmental related
laws and regulations now existing or hereafter enacted, and specifically
including asbestos and asbestos-containing materials, polychlorinated biphenyls
("PCBs"), radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Independent" shall mean, when used with respect to any specified
Person, any such Person who (i) is in fact independent of the Depositor, each
Mortgage Loan Seller, each Master Servicer, each Special Servicer, the Trustee,
any Fiscal Agent, the Controlling Class Representative 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, any Mortgage Loan
Seller, either Master Servicer, either Special Servicer, the Trustee, any Fiscal
Agent, the Controlling Class Representative or any Affiliate thereof, and (iii)
is not connected with the Depositor, any Mortgage Loan Seller, either Master
Servicer, either Special Servicer, the Trustee, any Fiscal Agent, the
Controlling Class Representative 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, any Mortgage Loan Seller, either Master Servicer,
either Special Servicer, the Trustee, any Fiscal Agent, the Controlling Class
Representative 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, such Mortgage Loan Seller, such Master Servicer, such Special
Servicer, the Trustee, such Fiscal Agent, the Controlling Class Representative
or any such Affiliate thereof, as the case may be.
"Independent Contractor" shall mean: (a) any Person that would be an
"independent contractor" with respect to REMIC I within the meaning of Section
856(d)(3) of the Code if REMIC I were a real estate investment trust (except
that the ownership test set forth in that section shall be considered to be met
by any Person that owns, directly or indirectly, 35% 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 Trustee or
the Trust, delivered to the Trustee), provided that (i) the Trust does not
receive or derive any income from such Person and (ii) the relationship between
such Person and the Trust is at arm's length, all within the meaning of Treasury
regulation 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 Trustee or
the Trust, to the effect that the taking of any action in respect of any REO
Property by such Person, subject to any conditions therein specified, that is
otherwise herein contemplated to be taken by an Independent Contractor will not
cause such REO Property to cease to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code, or cause any income realized in
respect of such REO Property to fail to qualify as Rents from Real Property.
"Initial LTV Co-op Basis" shall mean, with respect to any Co-op
Mortgage Loan, the related loan-to-value ratio specified on Exhibit B-5 hereto.
"Initial Pool Balance" shall mean the aggregate Cut-off Date Principal
Balance of all the Original Mortgage Loans.
"Initial Resolution Period" shall have the meaning assigned thereto in
Section 2.03(b).
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"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 or REO
Property, any hazard insurance policy, flood insurance policy, title insurance
policy, earthquake insurance policy, Environmental Insurance Policy, business
interruption insurance policy or other insurance policy that is maintained from
time to time in respect of such Mortgage Loan (or the related Mortgaged
Property) or such REO Property, as the case may be.
"Insurance Proceeds" shall mean proceeds paid under any Insurance
Policy, to the extent such proceeds actually received by the Trust or a Master
Servicer or Special Servicer on its behalf are not applied to the restoration of
the related Mortgaged Property or REO Property or released to the related
Borrower or any other third-party in accordance with applicable law and/or the
terms and conditions of the related Mortgage Loan Documents or any other
applicable document.
"Insured Environmental Event" shall have the meaning assigned thereto
in Section 3.07(c).
"Interest Accrual Amount" shall:
(a) with respect to any REMIC I Regular Interest, for any Interest
Accrual Period, have the meaning assigned thereto in Section 2.10(g);
(b) with respect to any REMIC II Regular Interest, for any Interest
Accrual Period, have the meaning assigned thereto in Section 2.12(g);
(c) with respect to any Group A-CP REMIC III Regular Interest or Group
A-X REMIC III Regular Interest for any Distribution Date, have the meaning
assigned thereto in Section 2.14(g); and
(d) with respect to any Class of REMIC III Regular Interest
Certificates, for any Interest Accrual Period, have the meaning assigned
thereto in Section 2.14(g).
"Interest Accrual Basis" shall mean the basis on which interest accrues
in respect of any Mortgage Loan, any REMIC I Regular Interest, any REMIC II
Regular Interest, any Group A-CP REMIC III Regular Interest, any Group A-X REMIC
III Regular Interest or any Class of REMIC III Regular Interest Certificates,
consisting of one of the following: (i) a 30/360 Basis; or (ii) an Actual/360
Basis.
"Interest Accrual Period" shall mean, with respect to any REMIC I
Regular Interest, any REMIC II Regular Interest, any Group A-CP REMIC III
Regular Interest, any Group A-X REMIC III Regular Interest or any Class of REMIC
III Regular Interest Certificates, for any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs.
"Interest Only Certificates" shall mean, collectively, the Class A-X,
Class A-Y and Class A-CP Certificates.
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"Interest Reserve Account" shall mean the segregated account created
and maintained by the Trustee, pursuant to Section 3.04(c), in trust for the
Certificateholders, which shall be entitled "[name of Trustee], as Trustee, in
trust for the registered holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
0000-XXX0, Xxxxxxxx Xxxxxxx Account".
"Interest Reserve Amount" shall mean, with respect to each Interest
Reserve Loan and each Distribution Date that occurs during the month of February
of 2002 and each year thereafter and during the month of January of 2002 and
each year thereafter that is not a leap year, an amount equal to one-day's
interest at the related Net Mortgage Rate (or, in the case of an Interest
Reserve Loan that is or relates to a Co-op Mortgage Loan, at an annual rate
equal to the related Net Mortgage Rate minus the related Class A-Y Strip Rate)
on the Stated Principal Balance of such Interest Reserve Loan 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 on or before the
related Master Servicer Remittance Date or a P&I Advance is made in respect
thereof for such Due Date on the related P&I Advance Date.
"Interest Reserve Loan" shall mean any Actual/360 Mortgage Loan (or
successor REO Mortgage Loan).
"Interested Person" shall mean any party hereto, any Mortgage Loan
Seller, any Certificateholder, or any Affiliate of any such Person.
"Investment Account" shall have the meaning assigned thereto in Section
3.06(a).
"Investment Company Act" shall mean the Investment Company Act of 1940,
as amended.
"IRS" shall mean the Internal Revenue Service or any successor.
"Issue Price" shall mean, with respect to each Class of Certificates,
the "issue price" as defined in the Code and Treasury regulations promulgated
thereunder.
"KeyBank" shall have the meaning assigned thereto in the Preliminary
Statement to this Agreement.
"KeyBank Mortgage Loan" shall mean any Mortgage Loan that is either an
Original KeyBank Mortgage Loan or a Replacement Mortgage Loan that was delivered
under the KeyBank Mortgage Loan Purchase Agreement in substitution for an
Original KeyBank Mortgage Loan.
"KeyBank Mortgage Loan Purchase Agreement" shall have the meaning
assigned thereto in the Preliminary Statement to this Agreement.
"KeyBank Trust Assets" shall mean the KeyBank Mortgage Loans, any REO
Properties acquired by the Trust with respect to the KeyBank Mortgage Loans and
any and all other related Trust Assets.
"KRECM" shall have the meaning assigned thereto in the Preliminary
Statement to this Agreement.
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"Late Collections" shall mean: (a) with respect to any Mortgage Loan,
all amounts received by or on behalf of the Trust thereon 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 during
or prior to November 2001, and not previously recovered; and (b) with respect to
any REO Mortgage Loan, all amounts received by or on behalf of the Trust 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 late collections
of the principal and/or interest portions of an Assumed Monthly Payment in
respect of such REO Mortgage Loan due or deemed due on a Due Date in a previous
Collection Period, and not previously recovered. Late Collections do not include
Default Charges.
"Latest Possible Maturity Date" shall mean, with respect to any REMIC I
Regular Interest, any REMIC II Regular Interest, any Group A-CP REMIC III
Regular Interest, any Group A-X REMIC III Regular Interest or any Class of REMIC
III Regular Interest Certificates, the date designated as the "latest possible
maturity date" thereof solely for purposes of satisfying Treasury regulation
section 1.860G-1(a)(4)(iii).
"Xxxxxx" shall mean Xxxxxx Brothers Inc. or its successor in interest.
"Letter of Credit" shall mean, with respect to any Mortgage Loan, any
third-party letter of credit delivered by or at the direction of the Borrower
pursuant to the terms of such Mortgage Loan in lieu of the establishment of, or
deposit otherwise required to be made into, a Reserve Fund.
"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 or replaced by a Mortgage Loan Seller pursuant
to the related Mortgage Loan Purchase Agreement or purchased or replaced by the
Column Performance Guarantor pursuant to the Column Performance Guarantee or the
NCBCC Performance Guarantor pursuant to the NCBCC Performance Guarantee, in each
case as contemplated by Section 2.03, (iv) such Mortgage Loan is purchased by
the applicable Special Servicer, the Majority Controlling Class
Certificateholder or any assignee of either of them pursuant to Section 3.18,
(v) such Mortgage Loan is purchased by a Master Servicer, a Special Servicer or
any Controlling Class Certificateholder(s) pursuant to Section 3.18 or Section
9.01 or (vi) such Mortgage Loan is acquired by the Sole Certificateholder(s) in
exchange for all of the Certificates pursuant to Section 9.01; and (b) with
respect to any REO Property (and the related REO Mortgage Loan), any of the
following events--(i) a Final Recovery Determination is made with respect to
such REO Property, (ii) such REO Property is purchased by a Master Servicer, a
Special Servicer or any Controlling Class Certificateholder(s) pursuant to
Section 9.01 or (iii) such REO Property is acquired by the Sole
Certificateholder(s) in exchange for all of the Certificates pursuant to Section
9.01.
"Liquidation Expenses" shall mean all customary, reasonable and
necessary "out-of-pocket" costs and expenses due and owing (but not otherwise
covered by Servicing Advances) in connection with the liquidation of any
Specially Serviced Mortgage Loan or REO Property pursuant to
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Section 3.09 or 3.18 (including legal fees and expenses, committee or referee
fees and, if applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee" shall mean, with respect to each Specially Serviced
Mortgage Loan or REO Property (other than any Specially Serviced Mortgage Loan
or REO Property that is purchased by the applicable Special Servicer or the
Majority Controlling Class Certificateholder pursuant to Section 3.18, that is
purchased by a Master Servicer, a Special Servicer or any Controlling Class
Certificateholder(s) pursuant to Section 9.01, that is acquired by the Sole
Certificateholder(s) in exchange for all of the Certificates pursuant to Section
9.01, that is repurchased or replaced no later than the end of the applicable
Initial Resolution Period and any applicable Resolution Extension Period, as a
result of a Material Breach or Material Document Defect, by a Mortgage Loan
Seller pursuant to the related Mortgage Loan Purchase Agreement or that is
purchased or replaced no later than the end of the applicable Initial Resolution
Period and any applicable Resolution Extension Period, as a result of a Material
Breach or Material Document Defect, by the Column Performance Guarantor pursuant
to the Column Performance Guarantee or the NCBCC Performance Guarantor pursuant
to the NCBCC Performance Guarantee), the fee designated as such and payable to
the applicable Special Servicer pursuant to the third paragraph of Section
3.11(c).
"Liquidation Fee Rate" shall mean, with respect to each Specially
Serviced Mortgage Loan or REO Property as to which a Liquidation Fee is payable,
1.0%.
"Liquidation Proceeds" shall mean all cash amounts (other than
Insurance Proceeds, Condemnation Proceeds and REO Revenues) actually received by
the Trust in connection with: (i) the 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 Borrower in accordance
with applicable law and/or the terms and conditions of the related Mortgage Note
and Mortgage; (ii) the realization upon any deficiency judgment obtained against
a Borrower; (iii) the purchase of a Specially Designated Defaulted Mortgage Loan
by the applicable Special Servicer, the Majority Controlling Class
Certificateholder or any assignee of either of them pursuant to Section 3.18;
(iv) the repurchase of a Mortgage Loan by a Mortgage Loan Seller pursuant to the
related Mortgage Loan Purchase Agreement, the Column Performance Guarantor
pursuant to the Column Performance Guarantee or the NCBCC Performance Guarantor
pursuant to the NCBCC Performance Guarantee; (v) the substitution of one or more
Replacement Mortgage Loans for a Deleted Mortgage Loan by a Mortgage Loan Seller
pursuant to the related Mortgage Loan Purchase Agreement, the Column Performance
Guarantor pursuant to the Column Performance Guarantee or the NCBCC Performance
Guarantor pursuant to the NCBCC Performance Guarantee (such cash amounts being
any Substitution Shortfall Amounts); (vi) the purchase of a Mortgage Loan or REO
Property by a Master Servicer, a Special Servicer or any Controlling Class
Certificateholder(s) pursuant to Section 9.01; or (viii) the acquisition of any
Mortgage Loan or REO Property by the Sole Certificateholder(s) in exchange for
all the Certificates pursuant to Section 9.01. Except for the purposes of
Section 3.11(c), "Liquidation Proceeds" shall also include any amounts
transferred from a Purchase Price Security Deposit Account to the Collection
Account pursuant to Section 2.03(b) and from a Special Reserve Account to the
Collection Account pursuant to Section 2.03(e).
"LOC Cash Reserve" shall have the meaning assigned thereto in the
definition of "Specially Designated Mortgage Loan Documents".
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"Loss Reimbursement Amount" shall mean:
(a) with respect to any REMIC I Regular Interest, for any Distribution
Date, the total amount of all Unfunded Principal Balance Reductions, if
any, incurred by (but not reimbursed to) REMIC II with respect to such
REMIC I Regular Interest on all prior Distribution Dates, if any;
(b) with respect to any REMIC II Regular Interest, for any Distribution
Date, the total amount of all Unfunded Principal Balance Reductions, if
any, incurred by (but not reimbursed to) REMIC III with respect to such
REMIC II Regular Interest on all prior Distribution Dates, if any; and
(c) 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.
"LTV Co-op Basis" shall mean, as of any date for any Co-op Mortgage
Loan, the fraction, expressed as a percentage, the numerator of which is the
Stated Principal Balance of such Co-op Mortgage Loan on such date, and the
denominator of which is the Appraised Value of the related Mortgaged Property.
"Majority Controlling Class Certificateholder" shall mean, as of any
date of determination, any single Holder or group of Holders of Certificates
representing a majority of the Voting Rights allocated to the Class of Principal
Balance Certificates that constitutes, or the Classes of Principal Balance
Certificates that constitute, the Controlling Class as of such date of
determination.
"Master Servicer" shall mean: (a) with respect to any Mortgage Loan
(other than a Co-op Mortgage Loan), any REO Property acquired by the Trust with
respect to a Mortgage Loan (other than a Co-op Mortgage Loan) and any matters
relating to the foregoing, the General Master Servicer; and (b) with respect to
any Co-op Mortgage Loan, any REO Property acquired by the Trust with respect to
a Co-op Mortgage Loan and any matters relating to the foregoing, the Co-op
Master Servicer.
"Master Servicer Remittance Amount" shall mean, with respect to either
Master Servicer for any Master Servicer Remittance Date, an amount equal to (a)
all amounts on deposit in such Master Servicer's Collection Account as of 11:00
a.m., New York City time, on such Master Servicer Remittance Date, net of (b)
any portion of the amounts described in clause (a) of this definition that
represents one or more of the following: (i) collected Monthly Payments that are
due on a Due Date following the end of the related Collection Period, (ii) any
payments of principal (including Principal Prepayments) and interest (including
Post-ARD Additional Interest), Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received by or on behalf of the Trust after the end of the
related Collection Period, (iii) any Prepayment Premiums and/or Yield
Maintenance Charges received by or on behalf of the Trust after the end of the
related Collection Period, (iv) any Excess Liquidation Proceeds, (v) any amounts
payable or reimbursable to any Person from such Collection Account pursuant to
clauses (ii) through (xvii) of Section 3.05(a), and (vi) any amounts deposited
in such Collection Account in error; provided that the Master Servicer
Remittance Amount with respect to each Master Servicer for the Master Servicer
Remittance Date that occurs in the same calendar month as the anticipated Final
Distribution Date shall be calculated without regard to clauses (b)(i), (b)(ii)
and (b)(iii) of this definition.
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"Master Servicer Remittance Date" shall mean the Business Day preceding
each Distribution Date.
"Master Servicing Fee" shall mean, with respect to each Mortgage Loan
and REO Mortgage Loan, the fee designated as such and payable to the applicable
Master Servicer pursuant to Section 3.11(a).
"Master Servicing Fee Rate" shall mean, with respect to each Mortgage
Loan and any successor REO Mortgage Loan, the rate per annum specified with
respect to such Mortgage Loan under the heading "Servicing and Trustee Fees" in
the Mortgage Loan Schedule, minus the Trustee Fee Rate.
"Material Breach" shall mean: (a) with respect to any Mortgage Loan,
any Breach that materially and adversely affects the value of, or the interests
of any Certificateholder in, such Mortgage Loan or the value of the related
Mortgaged Property; and (b) with respect to any REO Property, any Breach that
materially and adversely affects the value of, or the interests of any
Certificateholder in, such REO Property.
"Material Document Defect" shall mean: (a) with respect to any Mortgage
Loan, any Document Defect that materially and adversely affects the value of, or
the interests of any Certificateholder in, such Mortgage Loan or the value of
the related Mortgaged Property; and (b) with respect to any REO Property, any
Document Defect that materially and adversely affects the value of, or the
interests of any Certificateholder in, such REO Property; provided that, without
limiting the generality of the foregoing, the absence of a Specially Designated
Mortgage Loan Document shall automatically be a Material Document Defect with
respect to the affected Mortgage Loan.
"McDonald" shall mean McDonald Investments Inc. or its successor in
interest.
"Modified Mortgage Loan" shall mean any Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the
applicable Special Servicer pursuant to Section 3.20 in a manner that:
(a) materially affects the amount or timing of any payment of principal
or interest due thereon (other than, or in addition to, bringing Monthly
Payments current with respect to such Mortgage Loan);
(b) except as expressly contemplated by the related loan documents,
results in a release of the lien of the 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 applicable Special Servicer (at the expense of the related Borrower
and upon which the applicable Special Servicer may conclusively rely); or
(c) in the reasonable judgment of the applicable 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 payment (or, in the case of an ARD Mortgage
Loan after its Anticipated
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Repayment Date, the minimum required monthly payment) of principal and/or
interest on such Mortgage Loan, including any Balloon Payment, that is actually
payable by the related Borrower 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, insolvency or similar proceeding involving the related Borrower or
by reason of a modification, waiver or amendment granted or agreed to by the
applicable Master Servicer or the applicable Special Servicer pursuant to
Section 3.20); provided that the Monthly Payment due in respect of any ARD
Mortgage Loan after its Anticipated Repayment Date shall not include Post-ARD
Additional Interest.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or its successor
in interest. If neither such rating agency nor any successor remains in
existence, "Moody's" shall be deemed to refer to such other nationally
recognized statistical rating agency or other comparable Person designated by
the Depositor, notice of which designation shall be given to the other parties
hereto, and specific ratings of Xxxxx'x Investors Service, Inc. herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated. References herein to "applicable rating category" (other than such
references to "highest applicable rating category") shall, in the case of
Moody's, be deemed to refer to such applicable rating category of Moody's,
without regard to any plus or minus or other comparable rating qualification.
"Mortgage" shall mean, with respect to any Mortgage Loan, separately
and collectively, as the context may require, each mortgage, deed of trust, deed
to secure debt or similar document that secures the related Mortgage Note and
creates a lien on the related Mortgaged Property.
"Mortgage File" shall mean, with respect to any Mortgage Loan, subject
to Sections 1.04 and 2.01, the following documents on a collective basis:
(i) the original executed Mortgage Note, endorsed (either on the face
thereof or pursuant to a separate allonge) "Pay to the order of
Xxxxx Fargo Bank Minnesota, N.A., as trustee for the registered
holders of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-CKN5,
without recourse" or in blank, and further showing a complete,
unbroken chain of endorsement from the originator (if such
originator is other than the related 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 a copy of the Mortgage and of any intervening
assignments thereof that precede the assignment referred to in
clause (iv) of this definition, in each case (unless the
particular item has not been returned from the applicable
recording office) with evidence of recording indicated thereon or
certified as to recording by the applicable recording office;
(iii) an original or a copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and of any
intervening assignments thereof that precede the assignment
referred to in clause (v) of this definition, in each case
(unless the particular item has not been returned from the
applicable recording office) with evidence of recording indicated
thereon or certified as to recording by the applicable recording
office;
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(iv) an original executed assignment of the Mortgage, in favor of
Xxxxx Fargo, as trustee for the registered holders of Credit
Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5, in
recordable form (except for any missing recording information
with respect to such Mortgage);
(v) an original executed assignment of any related Assignment of
Leases (if such item is a document separate from the Mortgage),
in favor of Xxxxx Fargo, as trustee for the registered holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5, in
recordable form (except for any missing recording information
with respect to such Assignment of Leases);
(vi) originals or copies of any written assumption, modification,
written assurance and substitution agreements in those instances
where the terms or provisions of the Mortgage or Mortgage Note
have been modified or the Mortgage Loan has been assumed, in each
case (unless the particular item has not been returned from the
applicable recording office) with evidence of recording indicated
thereon or certified as to recording by the applicable recording
office if the instrument being modified or assumed is a
recordable document;
(vii) the original or a copy of the policy of lender's title insurance
or, if such policy has not yet been issued, a "marked-up" pro
forma title policy or commitment for title insurance marked as
binding and countersigned by the title insurer or its authorized
agent either on its face or by an acknowledged closing
instruction or escrow letter;
(viii) filed copies of any prior 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 related Mortgage
Loan Seller had possession of such UCC Financing Statements prior
to the Closing Date) and, in connection with such UCC Financing
Statements, an original UCC-2 or UCC-3, as appropriate, in form
suitable for filing, in favor of Xxxxx Fargo, as trustee for the
registered holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2001-CKN5;
(ix) the original or a copy of any environmental indemnity agreement
and any Environmental Insurance Policy relating solely to such
Mortgage Loan;
(x) the original or a copy of any power of attorney, guaranty,
loan agreement, Ground Lease and/or Ground Lease estoppels
relating to such Mortgage Loan;
(xi) any original documents (including any security agreement(s) and
any Letter(s) of Credit) relating to, evidencing or constituting
Additional Collateral and, if applicable, the originals or copies
of any intervening assignments thereof;
(xii) the original or a copy of any intercreditor agreement, co-lender
agreement or similar agreement relating to such Mortgage Loan;
and
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(xiii) if the related Mortgaged Property is a hospitality property, a
copy of the franchise agreement, if any, and the most recent
franchise comfort letter, if any;
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
be deemed not to include such documents and instruments required to be included
therein unless they are actually so received; and provided, further, that the
Mortgage File for any Mortgage Loan need not include any Letter of Credit
referred to in item (xi) of this definition if, in lieu thereof, the related
Mortgage Loan Seller has, on behalf of the related Borrower, either (i)
delivered to the Trustee a substitute letter of credit, in the same amount and
with the same draw conditions and renewal rights as, and otherwise substantially
similar to, that Letter of Credit and issued by an obligor that meets any
criteria in the related Mortgage Loan Documents applicable to the issuer of that
Letter of Credit or (ii) delivered to the applicable Master Servicer a cash
reserve in an amount equal to the amount of that Letter of Credit, which
substitute letter of credit can be drawn on, or which cash reserve can be
applied to cover, the same items as that Letter of Credit was intended to cover.
"Mortgage Loan" shall mean each of the Original Mortgage Loans and
Replacement Mortgage Loans that are from time to time held in the Trust Fund,
including any such mortgage loan that has been wholly or partially defeased. As
used herein, the term "Mortgage Loan" includes the related Mortgage Loan
Documents.
"Mortgage Loan Documents" shall mean, with respect to any Mortgage
Loan, the documents included or required to be included, as the context may
require, in the related Mortgage File and Servicing File.
"Mortgage Loan Purchase Agreement" shall mean any of the Column
Mortgage Loan Purchase Agreement, the KeyBank Mortgage Loan Purchase Agreement,
the NCB Mortgage Loan Purchase Agreement and the NCBCC Mortgage Loan Purchase
Agreement.
"Mortgage Loan Schedule" shall mean, collectively, the three schedules
of Mortgage Loans attached hereto as Exhibit B-1A, Exhibit B-1B and Exhibit
B-1C, respectively, as any such schedule may be amended from time to time in
accordance with this Agreement. Such schedules 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) of
the related Mortgaged Property;
(iii) the (A) original principal balance and (B) Cut-off Date
Principal Balance;
(iv) the amount of the Monthly Payment due on the first Due Date
following the Closing Date (and, if a Mortgage Loan currently
requires only payments of interest but begins to amortize
prior to maturity, on the first Due Date after amortization
begins);
(v) the Mortgage Rate as of the Closing Date;
(vi) the original and remaining term to stated maturity;
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(vii) in the case of a Balloon Mortgage Loan, the original and
remaining amortization term;
(viii) whether the Mortgage Loan is a Cross-Collateralized Mortgage
Loan and, if so, the other Mortgage Loans contained in the
related Cross-Collateralized Group;
(ix) the Anticipated Repayment Date for each ARD Mortgage Loan;
(x) whether such Mortgage Loan provides for defeasance and, if
so, the period during which defeasance may occur;
(xi) whether the Mortgage Loan is secured by a fee simple interest
in the Mortgaged Property; by the Borrower's leasehold
interest, and a fee simple interest, in the Mortgaged
Property; or solely by a leasehold interest in the Mortgaged
Property;
(xii) the name of the Mortgage Loan Seller;
(xiii) the name of the originator;
(xiv) the Interest Accrual Basis; and
(xv) the Administrative Fee Rate.
"Mortgage Loan Sellers" shall mean, collectively, Column, KeyBank, NCB
and NCBCC.
"Mortgage Note" shall mean the original executed note evidencing the
indebtedness of a Borrower under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool" shall mean all of the Mortgage Loans and any successor
REO Mortgage Loans, collectively, as of any particular date of determination.
"Mortgage Rate" shall mean, with respect to any Mortgage Loan (and any
successor REO Mortgage Loan), the 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 connection with a bankruptcy, insolvency or similar
proceeding involving the related Borrower or by the applicable Master Servicer
or the applicable Special Servicer in accordance with Section 3.20. In the case
of each of the ARD Mortgage Loans, the related Mortgage Rate will be subject to
increase in accordance with the related Mortgage Note if the particular Mortgage
Loan is not paid in full by its Anticipated Repayment Date.
"Mortgaged Property" shall mean, individually and collectively, as the
context may require, each real property (together with all improvements and
fixtures thereon) subject to the lien of a Mortgage and constituting collateral
for a Mortgage Loan. With respect to any Cross-Collateralized Mortgage Loan, if
and when the context may require, "Mortgaged Property" shall mean, collectively,
all the mortgaged real properties (together with all improvements and fixtures
thereon) securing the relevant Cross-Collateralized Group.
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"Mortgagee" shall mean the holder of legal title to any Mortgage Loan,
together with any third parties through which such holder takes actions with
respect to such Mortgage Loan.
"NCB" shall have the meaning assigned thereto in the Preliminary
Statement to this Agreement.
"NCB Mortgage Loan" shall mean any Mortgage Loan that is either an
Original NCB Mortgage Loan or a Replacement Mortgage Loan that was delivered
under the NCB Mortgage Loan Purchase Agreement in substitution for an Original
NCB Mortgage Loan.
"NCB Mortgage Loan Purchase Agreement" shall have the meaning assigned
thereto in the Preliminary Statement to this Agreement.
"NCB Subordinate Debt Conditions" shall mean, with respect to a
Borrower encumbering a Mortgaged Property relating to a Co-op Mortgage Loan with
a subordinate mortgage, the following conditions: (i) each of the loans, or the
sole loan, to be secured by each such subordinate mortgage is made by NCB or any
Affiliate of NCB, (ii) each such subordinate mortgage is expressly subject and
subordinate to the lien of the Mortgage encumbering the Mortgaged Property in
question, (iii) each such subordinate mortgage is expressly made in compliance
with the underwriting standards which NCB customarily employs in connection with
making subordinate mortgages for its own mortgage loan portfolio, (iv) as of the
date of the closing of the subordinate mortgage loan in question, the New
Loan-to-Value Ratio (as defined below) does not exceed the lesser of (A) 40% and
(B) the sum of 15% plus the Initial LTV Co-op Basis for the related Co-op
Mortgage Loan, (v) NCB or any Affiliate that originates the subordinate mortgage
loan, executes and delivers to the Trustee a subordination agreement with
respect to such subordinate mortgage in substantially the form of Exhibit M
hereto (provided that the Trustee shall have no responsibility for determining
the sufficiency or validity thereof), (vi) if the subordinate mortgage loan will
not be a fully amortizing loan, the stated maturity date of the subordinate
mortgage loan shall be no earlier than the maturity date of the related Co-op
Mortgage Loan, (vii) the subordinate mortgage loan shall have interest payable
on a current basis, with no deferral, (viii) the subordinate mortgage loan is
made solely for the purpose of funding capital expenditures, major repairs or
reserves at or with respect to the Mortgaged Property in question and (ix) the
aggregate amount of subordinate debt encumbering the Mortgaged Property in
question does not exceed $3,500,000. For purposes of this definition, and
notwithstanding anything herein to the contrary: "Mortgage Debt" shall mean the
sum of (x) the aggregate outstanding principal balance of all loans secured by
one or more mortgages then encumbering the Mortgaged Property in question
(including the related Co-op Mortgage Loan and any then existing subordinate
mortgage loans) and (y) the principal amount of the proposed new subordinate
mortgage loan; "New Loan-to-Value Ratio" shall mean, as of any date for any
Co-op Mortgage Loan, the fraction, expressed as a percentage, the numerator of
which is the Mortgage Debt for the related Mortgaged Property on such date, and
the denominator of which is the Appraised Value of the related Mortgaged
Property; and "Appraisal" shall mean an MAI appraisal of the applicable
Mortgaged Property made (a) in conformance with NCB's customary underwriting
requirements, and (b) not more than one year prior to the origination date of
the related Co-op Mortgage Loan and reviewed by the Co-op Master Servicer.
"NCB Trust Assets" shall mean the NCB Mortgage Loans, any REO
Properties acquired by the Trust with respect to the NCB Mortgage Loans and any
and all other related Trust Assets.
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"NCBCC" shall have the meaning assigned thereto in the Preliminary
Statement to this Agreement.
"NCBCC Mortgage Loan" shall mean any Mortgage Loan that is either an
Original NCBCC Mortgage Loan or a Replacement Mortgage Loan that was delivered
under the NCBCC Mortgage Loan Purchase Agreement or the NCBCC Performance
Guarantee in substitution for an Original NCBCC Mortgage Loan.
"NCBCC Mortgage Loan Purchase Agreement" shall have the meaning
assigned thereto in the Preliminary Statement to this Agreement.
"NCBCC Performance Guarantee" shall mean the Guarantee dated as of
November 1, 2001, from the NCBCC Performance Guarantor in favor of the Trustee,
relating to the obligations of NCBCC under Section 5 of the NCBCC Mortgage Loan
Purchase Agreement.
"NCBCC Performance Guarantor" shall mean NCB or any successor guarantor
under the NCBCC Performance Guarantee.
"NCBCC Trust Assets" shall mean the NCBCC Mortgage Loans, any REO
Properties acquired by the Trust with respect to the NCBCC Mortgage Loans and
any and all other related Trust Assets.
"Net Aggregate Prepayment Interest Shortfall" shall mean, with respect
to any Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the aggregate amount of the Compensating Interest Payments
remitted by the Master Servicers pursuant to Section 3.19(a) on the Master
Servicer Remittance Date related to such Distribution Date.
"Net Assumption Application Fee" shall have the meaning assigned
thereto in Section 3.08.
"Net Assumption Fee" shall have the meaning assigned thereto in Section
3.08.
"Net Default Charges" shall mean, with respect to any Mortgage Loan or
REO Mortgage Loan, the Default Charges referred to in clause fifth of Section
3.26(a), which are payable to the applicable Master Servicer as Additional
Master Servicing Compensation or the applicable Special Servicer as Additional
Special Servicing Compensation.
"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 in
connection with the investment of funds held in such Investment Account for the
benefit of a Master Servicer or Special Servicer, as applicable, in accordance
with Section 3.06, exceeds the aggregate of all losses, if any, incurred during
such Collection Period in connection with the investment of such funds for the
benefit of such Master Servicer or Special Servicer, as applicable, in
accordance with Section 3.06 (other than losses of what would otherwise have
constituted interest or other income earned on such funds).
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"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 for the benefit of a Master
Servicer or Special Servicer, as applicable, in accordance with Section 3.06
(other than losses of what would otherwise have constituted interest or other
income earned on such funds), exceeds the aggregate of all interest and other
income realized during such Collection Period in connection with the investment
of such funds for the benefit of such Master Servicer or Special Servicer, as
applicable, in accordance with Section 3.06; provided that, in the case of any
Investment Account and any particular investment of funds in such Investment
Account, Net Investment Loss shall not include any loss with respect to such
investment which is incurred solely as a result of the insolvency of the federal
or state chartered depositary institution or trust company that holds such
Investment Account, so long as such depositary institution or trust company (i)
satisfied the qualifications set forth in the definition of "Eligible Account"
both at the time such investment was made and also as of a date not more than 30
days prior to the date of such loss and (ii) was not an Affiliate of the Master
Servicer or Special Servicer, as applicable, that maintained such Investment
Account.
"Net Liquidation Proceeds" shall mean the excess, if any, of all
Liquidation Proceeds actually received by the Trust with respect to any
Specially Serviced Mortgage Loan or REO Property, over the amount of all
Liquidation Expenses incurred with respect thereto and all related Servicing
Advances reimbursable therefrom.
"Net Mortgage Rate" shall mean, with respect to any Mortgage Loan (or
successor REO Mortgage Loan), the rate per annum equal to (a) the related
Mortgage Rate minus (b) the related Administrative Fee Rate and, in the case of
an ARD Mortgage Loan after its Anticipated Repayment Date, the related Post-ARD
Additional Interest Rate.
"New Lease" shall mean any lease of an REO Property entered into at the
direction of the applicable Special Servicer, including any lease renewed,
modified or extended on behalf of the Certificateholders, if the applicable
Special Servicer has the right to renegotiate the terms of such lease.
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance" shall mean, as evidenced by the Officer's
Certificate and supporting documentation contemplated by Section 4.03(c), any
P&I Advance previously made or to be made in respect of any Mortgage Loan or any
REO Mortgage Loan that, as determined by the applicable Master Servicer or, if
applicable, the Trustee or any Fiscal Agent, in its reasonable judgment, based
on at least an Appraisal conducted within the twelve months preceding any such
determination, 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.
"Nonrecoverable Servicing Advance" shall mean, as evidenced by the
Officer's Certificate and supporting documentation contemplated by Section
3.11(h), any Servicing Advance previously made or to be made in respect of a
Mortgage Loan or REO Property that, as determined by the applicable Master
Servicer, the applicable Special Servicer or, if applicable, the Trustee or any
Fiscal Agent, in its reasonable judgment, based on at least an Appraisal
conducted within the twelve months preceding any such determination, will not be
ultimately recoverable from late payments, Insurance
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Proceeds, Condemnation Proceeds, Liquidation Proceeds or any other recovery on
or in respect of such Mortgage Loan or REO Property.
"Non-Registered Certificate" shall mean any Certificate that has not
been subject to registration under the Securities Act. As of the Closing Date,
the Class A-CP, Class A-X, Class A-Y, Class F, Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class O, Class P, Class R and Class V Certificates
will constitute Non-Registered Certificates.
"Non-United States Tax Person" shall mean any Person other than a
United States Tax Person.
"Ocean Towers Mortgage Loan" shall mean the Mortgage Loan for which the
related Mortgaged Property is identified on the Mortgage Loan Schedule as "Ocean
Towers".
"Officer's Certificate" shall mean a certificate signed by a Servicing
Officer of a Master Servicer or a Special Servicer or a Responsible Officer of
the Trustee or any Fiscal Agent, as the case may be.
"Opinion of Counsel" shall mean a written opinion of counsel (which
counsel, in the case of any such opinion relating to the taxation of the Trust
Fund or any portion thereof or the status of any REMIC Pool as a REMIC or the
status of either Grantor Trust Pool as a Grantor Trust for taxation purposes,
shall be Independent of the Depositor, each Mortgage Loan Seller, each Master
Servicer, each Special Servicer, the Trustee and any Fiscal Agent, but which may
act as counsel to such Person) acceptable to and delivered to the addressee(s)
thereof and which Opinion of Counsel, except as provided herein, shall not be at
the expense of the Trustee.
"Option Period" shall have the meaning assigned thereto in Section
3.18(c).
"Option Price" shall have the meaning assigned thereto in Section
3.18(c).
"Original Column Mortgage Loans" shall have the meaning assigned
thereto in the Preliminary Statement to this Agreement.
"Original KeyBank Mortgage Loans" shall have the meaning assigned
thereto in the Preliminary Statement to this Agreement.
"Original Mortgage Loans" shall have the meaning assigned thereto in
the Preliminary Statement to this Agreement.
"Original NCB Mortgage Loans" shall have the meaning assigned thereto
in the Preliminary Statement to this Agreement.
"Original NCBCC Mortgage Loans" shall have the meaning assigned thereto
in the Preliminary Statement to this Agreement.
"OTS" shall mean the Office of Thrift Supervision or any successor
thereto.
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"Ownership Interest" shall mean, in the case of 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, with respect to any Mortgage Loan or REO
Mortgage Loan, any advance made by the applicable Master Servicer, the Trustee
or any Fiscal Agent pursuant to Section 4.03.
"P&I Advance Date" shall mean the Business Day preceding each
Distribution Date.
"Pass-Through Rate" shall mean the per annum rate at which interest
accrues in respect of any Class of REMIC III Regular Interest Certificates
during any Interest Accrual Period, as set forth in or otherwise calculated in
accordance with Section 2.14(f).
"Percentage Interest" shall mean: (a) with respect to any REMIC III
Regular Interest Certificate, the portion of the relevant Class evidenced by
such Certificate, expressed as a percentage, the numerator of which is the
Certificate Principal Balance or Certificate Notional Amount, as the case may
be, of such Certificate as of the Closing Date, as specified on the face
thereof, and the denominator of which is the Class Principal Balance or Class
Notional Amount, as the case may be, of the relevant Class as of the Closing
Date; and (b) with respect to a Class R or Class V Certificate, the percentage
interest in distributions to be made with respect to the relevant Class, as
stated on the face of such Certificate.
"Performance Guarantors" shall mean, together, the Column Performance
Guarantor and the NCBCC Performance Guarantor.
"Performing Mortgage Loan" shall mean, as of any date of determination,
any Mortgage Loan as to which no Servicing Transfer Event then exists.
"Permitted Investments" shall mean any one or more of the following
obligations or securities:
(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, provided
that each such obligation is backed by the full faith and
credit of the United States;
(ii) repurchase agreements on obligations specified in clause (i),
provided that the short-term unsecured debt obligations of
the party agreeing to repurchase such obligations are at the
time of investment rated in the highest short-term debt
rating category of each of Moody's and S&P;
(iii) federal funds, unsecured uncertificated certificates of
deposit, time deposits and bankers' acceptances of any bank
or trust company organized under the laws of the United
States or any state thereof, provided that the short-term
unsecured debt obligations of such bank or trust company are
at the time of investment rated in the highest short-term
debt rating category of each of Moody's and S&P;
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(iv) commercial paper of any corporation incorporated under the
laws of the United States or any state thereof (or of any
corporation not so incorporated, provided that 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), provided that such
commercial paper is rated in the highest short-term debt
rating category of each of Moody's and S&P;
(v) units of money market funds which maintain a constant net
asset value, provided that such units of money market funds
are rated in the highest applicable rating category of each
of Moody's and S&P; or
(vi) any other obligation or security that is acceptable to the
Rating Agencies and will not result in an Adverse Rating
Event with respect to any Class of Rated Certificates (as
confirmed in writing to the Trustee by each Rating Agency);
provided that (A) no investment described hereunder shall evidence either the
right to receive (1) only interest with respect to such investment or (2) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations, (B) 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, (C) no investment
described hereunder may be sold prior to stated maturity if such sale would
result in a loss of principal on the instrument or a tax on "prohibited
transactions" under Section 860F of the Code and (D) no investment described
hereunder may have an "r" highlighter or other comparable qualifier attached to
its S&P rating; and provided, further, that each investment described hereunder
must have (X) a predetermined fixed amount of principal due at maturity (that
cannot vary or change), (Y) an original maturity of not more than 365 days and a
remaining maturity of not more than 30 days and (Z) except in the case of a
Permitted Investment described in clause (v) of this definition, a fixed
interest rate or an interest rate that is tied to a single interest rate index
plus a single fixed spread and moves proportionately with that index; and
provided, further, that each investment described hereunder must be a "cash flow
investment" (within the meaning of the REMIC Provisions).
"Permitted Transferee" shall mean any Transferee of a Class R
Certificate other than either a Disqualified Organization or a Non-United States
Tax Person; provided, however, that if a Transferee is classified as a
partnership under the Code, such Transferee shall only be a Permitted Transferee
if all of its beneficial owners are United States Tax Persons and the governing
documents of the Transferee prohibit a transfer of any interest in the
Transferee to any Non-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.
"Phase I Environmental Assessment" shall mean a "Phase I assessment" as
described in and meeting the criteria of the American Society for Testing and
Materials, Designation E-1527, which assessment shall, if conducted subsequent
to the Closing Date, include testing for radon (in the case of multifamily
properties), lead-based paint (in the case of multifamily properties built prior
to 1978) and asbestos (in the case of any properties built prior to 1985).
"Plan" shall mean any of those retirement plans and other employee
benefit plans, including individual retirement accounts and annuities, Xxxxx
plans and collective investment funds and
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separate accounts in which such plans, accounts or arrangements are invested,
including insurance company general accounts, that are subject to ERISA or the
Code.
"Plurality Class R Certificateholder" shall mean, as to any taxable
year of any REMIC Pool, the Holder of Certificates evidencing the largest
Percentage Interest in the Class R Certificates.
"Post-ARD Additional Interest" shall mean, with respect to any ARD
Mortgage Loan after its Anticipated Repayment Date, all interest accrued on the
principal balance of such ARD Mortgage Loan at the Post-ARD Additional Interest
Rate (the payment of which interest shall, under the terms of such Mortgage
Loan, be deferred until the principal balance of such Mortgage Loan has been
paid in full), together with all interest, if any, accrued at the related
Mortgage Rate on such deferred interest.
"Post-ARD Additional Interest Rate" shall mean, with respect to any ARD
Mortgage Loan after its Anticipated Repayment Date, the incremental increase in
the Mortgage Rate for such Mortgage Loan resulting from the passage of such
Anticipated Repayment Date.
"Prepayment Assumption" shall mean, for purposes of determining the
accrual of original issue discount, market discount and premium, if any, on the
Mortgage Loans, the REMIC I Regular Interests, the REMIC II Regular Interests,
the Group A-CP REMIC III Regular Interests, the Group A-X REMIC III Regular
Interests and the Certificates for federal income tax purposes, the assumptions
that each ARD Mortgage Loan is paid in its entirety on its Anticipated
Prepayment Date and that no Mortgage Loan is otherwise voluntarily prepaid prior
to its Stated Maturity Date.
"Prepayment Interest Excess" shall mean, with respect to any Mortgage
Loan that was subject to a Principal Prepayment in full or in part made after
its Due Date in any Collection Period, any payment of interest (net of related
Master Servicing Fees and, further, net of any portion of such interest that
represents Default Interest or Post-ARD Additional Interest) actually collected
from the related Borrower and intended to cover the period from and after such
Due Date to, but not including, the date of prepayment (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 was subject to a Principal Prepayment in full or in part made prior to
its Due Date in any Collection Period, the amount of interest, to the extent not
collected from the related Borrower (without regard to any Prepayment Premium or
Yield Maintenance Charge that may have been collected), that would have accrued
on the amount of such Principal Prepayment during the period from the date of
prepayment to, but not including, such Due Date (less the amount of related
Master Servicing Fees and, if applicable, exclusive of Default Interest and
Post-ARD Additional Interest).
"Prepayment Premium" shall mean, with respect to any Mortgage Loan, any
premium, fee or other additional amount paid or payable, as the context
requires, by a Borrower in connection with a Principal Prepayment on, or other
early collection of principal of, a Mortgage Loan or any successor REO Mortgage
Loan, to the extent such premium, fee or other additional amount is calculated
as a percentage of the principal amount being prepaid or as a specified amount
(other than a Yield Maintenance Minimum Amount).
"Primary Real Property Collateral" shall have the meaning assigned
thereto in Section 2.03(b).
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"Primary Servicing Office" shall mean the office of a Master Servicer
or Special Servicer, as the context may require, that is primarily responsible
for such party's servicing obligations hereunder.
"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, in its sole discretion, 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 Servicers and the
Special Servicers in writing of its selection.
"Principal Balance Certificate" shall mean any 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,
Class H, Class J, Class K, Class L, Class M, Class N, Class O and Class P
Certificates.
"Principal Distribution Amount" shall mean:
(a) with respect to any REMIC I Regular Interest for any Distribution
Date, an amount equal to that portion, if any, of the Total Principal
Distribution Amount for such Distribution Date that is attributable to each and
every Mortgage Loan and/or REO Mortgage Loan, as the case may be, that relates
to such REMIC I Regular Interest; and
(b) with respect to any Class of Principal Balance Certificates (and,
accordingly, with respect to that Class's Corresponding REMIC II Regular
Interest) for any Distribution Date, an amount equal to that portion, if any, of
the Total Principal Distribution Amount for such Distribution Date that is
allocable to such Class of Certificates as provided below in this definition.
For purposes of the foregoing, for so long as any of the Class A-P&I
Certificates remain outstanding, the Total Principal Distribution Amount for
each Distribution Date shall be allocated to such Certificates, up to the lesser
of (i) the aggregate Certificate Principal Balance of the Class A-P&I
Certificates outstanding immediately prior to such Distribution Date and (ii)
the entire such Total Principal Distribution Amount. The portion of the Total
Principal Distribution Amount for each Distribution Date that is so allocable to
the Class A-P&I Certificates shall, in turn, be allocated as among the
respective Classes of those Certificates as follows:
first, for so long as the Class A-1 Certificates are outstanding,
81.48429745084% of such Total Principal Distribution Amount shall be
allocated to the Class A-1 Certificates and 18.51570254916% of such Total
Principal Distribution Amount shall be allocated to the Class A-2
Certificates, until a sufficient portion of such Total Principal
Distribution Amount has been allocated to the Class A-1 Certificates in
accordance with this clause first such that, when principal distributions
are made on such Distribution Date pursuant to Section 4.01, the Class
Principal Balance of the Class A-1 Certificates will be reduced to zero;
second, for so long as the Class A-2 and Class A-3 Certificates are
outstanding, such Total Principal Distribution Amount (exclusive of any
portion thereof allocated in accordance with the immediately preceding
clause first) shall be allocated to the Class A-2 Certificates and the
Class A-3 Certificates on a pro rata basis in accordance with the
respective Class Principal
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Balances of those Classes of Certificates outstanding immediately prior to
such Distribution Date (net, in the case of the Class A-2 Certificates, of
any portion of such Total Principal Distribution Amount allocated to the
Class A-2 Certificates in accordance with the immediately preceding clause
first), until a sufficient portion of such Total Principal Distribution
Amount has been allocated to the Class A-2 and Class A-3 Certificates such
that, when principal distributions are made on such Distribution Date
pursuant to Section 4.01, the respective Class Principal Balances of those
Classes of Certificates will be reduced to zero (taking into account any
portion of such Total Principal Distribution Amount allocated to the Class
A-2 Certificates in accordance with the immediately preceding clause
first); and
then, for so long as the Class A-4 Certificates are outstanding, such
Total Principal Distribution Amount (exclusive of any portion thereof
allocated in accordance with the immediately preceding clause first and/or
clause second) shall be allocated to the Class A-4 Certificates, until a
sufficient portion of such Total Principal Distribution Amount has been
allocated to the Class A-4 Certificates in order to reduce the Class
Principal Balance of the Class A-4 Certificates to zero;
provided that, on and after any Senior Principal Distribution Cross-Over Date
(and, in any event, on the Final Distribution Date), the Total Principal
Distribution Amount for each Distribution Date shall be allocated to the Class
A-1 Certificates, the Class A-2 Certificates, the Class A-3 Certificates and the
Class A-4 Certificates on a pro rata basis in accordance with the respective
Class Principal Balances thereof outstanding immediately prior to the subject
Distribution Date. After the aggregate Certificate Principal Balance of the
Class A-P&I Certificates has been reduced to zero, the Total Principal
Distribution Amount for each Distribution Date (net of any portion thereof that
may have been allocated to the respective Classes of the Class A-P&I
Certificates in retirement thereof pursuant to the prior two sentences) shall be
allocated among the respective Classes of the Subordinate Principal Balance
Certificates, sequentially in the following order and, in the case of each such
Class of Subordinate Principal Balance Certificates, up to the lesser of (i) the
Class Principal Balance of such Class of Certificates outstanding immediately
prior to the subject Distribution Date and (ii) the remaining unallocated
portion of the Total Principal Distribution Amount for the subject Distribution
Date: first, to the Class B Certificates; second, to the Class C Certificates;
third, to the Class D Certificates; fourth, to the Class E Certificates; fifth,
to the F Certificates; sixth, to the Class G Certificates; seventh, to the Class
H Certificates; eighth, to the Class J Certificates; ninth, to the Class K
Certificates; tenth, to the Class L Certificates; eleventh, to the Class M
Certificates; twelfth, to the Class N Certificates; thirteenth, to the Class O
Certificates; and fourteenth, to the Class P Certificates.
"Principal Prepayment" shall mean any voluntary payment of principal
made by the Borrower 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, Yield Maintenance Charge and/or Post-ARD
Additional Interest 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.
"Projected Debt Service Coverage Ratio" shall mean, with respect to any
Co-op Mortgage Loan, as of any date of determination, the Projected Net Cash
Flow for the related Mortgaged Property on an annualized basis, divided by the
annualized monthly payments for such Co-op Mortgage Loan.
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"Projected Net Cash Flow" shall mean, with respect to any Mortgaged
Property that is a residential cooperative property, projected net operating
income at such Mortgaged Property, determined in a manner consistent with the
Appraisal obtained with respect to such Mortgaged Property in connection with
the origination of the related Mortgage Loan (or an updated Appraisal, if
required hereunder), assuming such Mortgaged Property was operated as a rental
property with rents set at prevailing market rates taking into account the
presence of existing rent controlled or rent stabilized occupants, reduced by
underwritten capital expenditures, property operating expenses, a market-rate
vacancy assumption and projected reserves.
"Proposed Plan" shall have the meaning assigned thereto in Section
3.17(a).
"Prospectus" shall mean the Base Prospectus and the Prospectus
Supplement, together.
"Prospectus Supplement" shall mean that certain prospectus supplement
dated November 1, 2001, relating to the Registered Certificates, that is a
supplement to the Base Prospectus.
"PTCE" shall mean Prohibited Transaction Class Exemption.
"PTE" shall mean Prohibited Transaction Exemption.
"Purchase Option" shall have the meaning assigned thereto in Section
3.18(c).
"Purchase Price" shall mean, with respect to any Mortgage Loan (or REO
Property), a cash price equal to the aggregate of (a) the outstanding principal
balance of such Mortgage Loan (or the related REO Mortgage Loan) as of the date
of purchase, (b) all accrued and unpaid interest on such Mortgage Loan (or the
related REO Mortgage Loan) at the related Mortgage Rate (exclusive of any
portion of such interest that represents Post-ARD Additional Interest) to, but
not including, the Due Date occurring in the Collection Period during which the
applicable purchase or repurchase occurs, (c) all related unreimbursed Servicing
Advances, (d) all accrued and unpaid Advance Interest with respect to any
related Advances, and (e) solely in the case of a repurchase or substitution by
a Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement,
the Column Performance Guarantor pursuant to the Column Performance Guarantee or
the NCBCC Performance Guarantor pursuant to the NCBCC Performance Guarantee, (i)
all related Special Servicing Fees, Workout Fees, Liquidation Fees, Advance
Interest (to the extent not otherwise included in clause (d) of this Agreement)
and other related Additional Trust Fund Expenses, whether paid or then owing,
and (ii) to the extent not otherwise included in the amount described in clause
(c) or clause (e)(i) of this definition, any costs and expenses incurred by the
applicable Master Servicer, the applicable Special Servicer or the Trustee (on
behalf of the Trust) in enforcing the obligation of such Person to repurchase or
replace such Mortgage Loan.
"Purchase Price Security Deposit" shall have the meaning assigned
thereto in Section 2.03(b).
"Purchase Price Security Deposit Account" shall mean a segregated
custodial account or accounts created by and maintained by either Master
Servicer, pursuant to Section 2.03(b), on behalf of the Trustee in trust for the
Certificateholders and the related Mortgage Loan Seller, which shall be entitled
"[name of subject Master Servicer], as a Master Servicer, in trust for the
registered holders of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-CKN5, and [name of
the related Mortgage Loan Seller], Purchase Price Security Deposit Account."
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"Qualified Appraiser" shall mean, in connection with the appraisal of
any Mortgaged Property or REO Property, an Independent MAI-designated appraiser
with at least five years of experience in respect of the relevant geographic
location and property type.
"Qualified Institutional Buyer" or "QIB" shall mean a "qualified
institutional buyer" within the meaning of 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.
"Qualifying Substitute Mortgage Loan" shall mean, in connection with
the replacement of a Defective Mortgage Loan as contemplated by Section 2.03,
any other mortgage loan which, on the date of substitution, (i) has a principal
balance, after deduction of the principal portion of any unpaid Monthly Payment
due on or before the date of substitution, not in excess of the Stated Principal
Balance of the Defective Mortgage Loan; (ii) is accruing interest at a fixed
rate of interest at least equal to, and not more than one percentage point in
excess of, that of the Defective Mortgage Loan; (iii) has the same Due Date as,
and a grace period for delinquent Monthly Payments that is no longer than, the
Due Date and grace period, respectively, of the Defective Mortgage Loan; (iv) is
accruing interest on the same Interest Accrual Basis as the Defected Mortgage
Loan; (v) has a remaining term to stated maturity not greater than, and not more
than one year less than, that of the Defective Mortgage Loan and, in any event,
has a Stated Maturity Date not later than two years prior to the Rated Final
Distribution Date; (vi) has a then current loan-to-value ratio not higher than,
and a then current debt service coverage ratio not lower than, the loan-to-value
ratio and debt service coverage ratio, respectively, of the Defective Mortgage
Loan as of the Closing Date (provided, however, that with respect to Co-op
Mortgage Loans and corresponding Replacement Mortgage Loans, "loan-to-value
ratio" and "debt service coverage ratio" as used in this clause (vi) shall mean
LTV Co-op Basis and Projected Debt Service Coverage Ratio, respectively); (vii)
has comparable prepayment restrictions to those of the Defective Mortgage Loan;
(viii) will comply (except in a manner that would not be adverse to the
interests of the Certificateholders (as a collective whole) in or with respect
to such mortgage loan), as of the date of substitution, with all of the
representations relating to the Defective Mortgage Loan set forth in or made
pursuant to the related Mortgage Loan Purchase Agreement; (ix) has a Phase I
Environmental Assessment relating to the related Mortgaged Property in its
Servicing File, which Phase I Environmental Assessment will evidence that there
is no material adverse environmental condition or circumstance at the related
Mortgaged Property for which further remedial action may be required under
applicable law; (x) constitutes a "qualified replacement mortgage" within the
meaning of Section 860G(a)(4) of the Code; and (xi) is secured by a residential
cooperative property if the Defective Mortgage Loan is a Co-op Mortgage Loan;
provided, however, that if more than one mortgage loan is to be substituted for
any Defective Mortgage Loan, then all such proposed Replacement Mortgage Loans
shall, in the aggregate, satisfy the requirement specified in clause (i) of this
definition and each such proposed Replacement Mortgage Loan shall, individually,
satisfy each of the requirements specified in clauses (ii) through (xi) of this
definition; and provided, further, that no mortgage loan shall be substituted
for a Defective Mortgage Loan unless (a) such prospective Replacement Mortgage
Loan shall be acceptable to the Controlling Class Representative (or, if there
is no Controlling Class Representative then serving, to the Holders of
Certificates representing a majority of the Voting Rights allocated to the
Controlling Class), in its (or their) sole discretion, and (b) each Rating
Agency shall have confirmed in writing to the Trustee that such substitution
will not in and of itself result in an Adverse Rating Event with respect to any
Class of Rated Certificates (such written confirmation to be obtained by the
party (i.e., the related Mortgage Loan Seller, the Column Performance Guarantor
or the
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NCBCC Performance Guarantor) effecting the substitution). It is understood and
agreed that the Controlling Class Representative (or, if no Controlling Class
Representative is then serving, the Holders of Certificates representing a
majority of the Voting Rights assigned to the Controlling Class) could find a
prospective Replacement Mortgage Loan unacceptable for any reason or no reason
whatsoever.
"Rated Certificate" shall mean any of the Certificates to which a
rating has been assigned by either Rating Agency at the request of the
Depositor.
"Rated Final Distribution Date" shall mean: (a) with respect to the
Class X-0, Xxxxx X-0, Class A-3, Class A-4, Class B, Class C, Class D, Class E,
Class F, Class G and Class H Certificates, the Distribution Date in September
2034; and (b) with respect to the other Classes of Rated Certificates, the
Distribution Date in September 2044.
"Rating Agency" shall mean either of Moody's and S&P.
"Realized Loss" shall mean:
(1) with respect to each defaulted Mortgage Loan as to which a Final
Recovery Determination has been made, or with respect to any successor REO
Mortgage 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 (a)
the unpaid principal balance of such Mortgage Loan or REO Mortgage Loan, as
the case may be, as of the commencement of the Collection Period in which
the Final Recovery Determination was made, plus (b) without taking into
account the amount described in subclause (1)(c) of this definition, all
unpaid interest accrued in respect of such Mortgage Loan or REO Mortgage
Loan, as the case may be, to but not including the related Due Date in the
Collection Period in which the Final Recovery Determination was made,
exclusive, however, of any portion of such unpaid interest that constitutes
Default Interest or, in the case of an ARD Mortgage Loan after its
Anticipated Repayment Date, Post-ARD Additional Interest, minus (c) all
payments and proceeds, if any, received in respect of such Mortgage Loan or
REO Mortgage Loan, as the case may be, during the Collection Period in
which such Final Recovery Determination was made (net of any related
Servicing Advances reimbursed therefrom and any related Liquidation
Expenses paid therefrom);
(2) with respect to each defaulted Mortgage Loan as to which any
portion of the principal or past due interest payable thereunder was
canceled in connection with a bankruptcy, insolvency or similar proceeding
involving the related Borrower or a modification, waiver or amendment of
such Mortgage Loan granted or agreed to by the applicable Master Servicer
or the applicable Special Servicer pursuant to Section 3.20, the amount of
such principal or past due interest (other than any Default Interest and,
in the case of an ARD Mortgage Loan after its Anticipated Repayment Date,
Post-ARD Additional Interest) so canceled; and
(3) with respect to each defaulted Mortgage Loan as to which the
Mortgage Rate thereon has been permanently reduced and not recaptured for
any period in connection with a bankruptcy, insolvency or similar
proceeding involving the related Borrower or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the applicable
Master Servicer or the applicable Special Servicer pursuant to Section
3.20, the amount of any consequent reduction in the interest portion of
each successive Monthly Payment due thereon (each such Realized Loss to be
deemed to have been incurred on the Due Date for each affected Monthly
Payment).
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"Record Date" shall mean, with respect to any Distribution Date, the
last Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Recording Omission" shall mean, with respect to any Mortgage Loan, any
Material Document Defect that exists, as of any date coinciding with or
following May 13, 2003, as a result of the omission from the Mortgage File for
such Mortgage Loan of the original or a copy of any document referred to in
clause (ii), clause (iii), clause (iv), clause (v) or, in the case of a
Mortgaged Property operated as a hospitality property, clause (viii) of the
definition of "Mortgage File", with evidence of recording thereon or a receipt
or other certification evidencing recording, because such document (i) was not
delivered by or on behalf of the related Mortgage Loan Seller either as a
recorded document or in proper form for recording in the appropriate recording
office or (ii) was returned unrecorded as a result of an actual or purported
defect therein.
"Recording Omission Credit" shall mean, with respect to any Mortgage
Loan as to which there exists a Recording Omission as of May 13, 2003, a letter
of credit in the amount of 25% of the then outstanding principal amount of such
Mortgage Loan and otherwise satisfying the criteria set forth in the related
Mortgage Loan Purchase Agreement.
"Recording Omission Reserve" shall mean, with respect to any Mortgage
Loan as to which there exists a Recording Omission as of May 13, 2003, a cash
deposit in the amount of 25% of the then outstanding principal amount of such
Mortgage Loan.
"Registered Certificate" shall mean any Certificate that has been
subject to registration under the Securities Act. As of the Closing Date, the
Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class C, Class D and Class
E Certificates constitute Registered Certificates.
"Regulation S" shall mean Regulation S under the Securities Act.
"Regulation S Certificates" shall mean the Regulation S Permanent
Global Certificate(s) together with the Regulation S Temporary Global
Certificate(s).
"Regulation S Legend" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside the United
States in reliance on Regulation S, a legend generally to the effect that such
Certificates may not be offered, sold, pledged or otherwise transferred in the
United States or to a United States Securities Person prior to the Release Date
except pursuant to an exemption from the registration requirements of the
Securities Act.
"Regulation S Global Certificate" shall mean, with respect to any Class
of Book-Entry Non-Registered Certificates offered and sold outside of the United
States in reliance on Regulation S, a single global Certificate, in definitive,
fully registered form without interest coupon, which Certificate bears a
Regulation S Legend.
"Reimbursement Rate" shall mean the rate per annum applicable to the
accrual of Advance Interest, which rate per annum is equal to the Prime Rate.
"Release Date" shall mean the date that is 40 days following the
Closing Date.
"REMIC" shall mean a "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
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"REMIC I" shall mean the segregated pool of assets designated as such
in Section 2.10(a)
"REMIC I Regular Interest" shall mean any of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and,
in each such case, designated as a "regular interest" in REMIC I. The REMIC I
Regular Interests have the designations and terms provided for in Section 2.10.
"REMIC I Remittance Rate" shall mean the per annum rate at which
interest accrues in respect of any REMIC I Regular Interest during any Interest
Accrual Period, as set forth in or otherwise calculated in accordance with
Section 2.10(f).
"REMIC I Residual Interest" shall mean the sole uncertificated
"residual interest", within the meaning of Section 860G(a)(2) of the Code, in
REMIC I issued pursuant to this Agreement.
"REMIC II" shall mean the segregated pool of assets designated as such
in Section 2.12(a).
"REMIC II Regular Interest" shall mean any of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder
and, in each such case, designated as a "regular interest" in REMIC II. The
REMIC II Regular Interests have the designations and terms provided for in
Section 2.12.
"REMIC II Regular Interest A-1" shall mean the REMIC II Regular
Interest that bears the designation "A-1".
"REMIC II Regular Interest A-2" shall mean the REMIC II Regular
Interest that bears the designation "A-2".
"REMIC II Regular Interest A-3" shall mean the REMIC II Regular
Interest that bears the designation "A-3".
"REMIC II Regular Interest A-4-1" shall mean the REMIC II Regular
Interest that bears the designation "A-4-1".
"REMIC II Regular Interest A-4-2" shall mean the REMIC II Regular
Interest that bears the designation "A-4-2".
"REMIC II Regular Interest B" shall mean the REMIC II Regular Interest
that bears the designation "B".
"REMIC II Regular Interest C" shall mean the REMIC II Regular Interest
that bears the designation "C".
"REMIC II Regular Interest D" shall mean the REMIC II Regular Interest
that bears the designation "D".
"REMIC II Regular Interest E" shall mean the REMIC II Regular Interest
that bears the designation "E".
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"REMIC II Regular Interest F" shall mean the REMIC II Regular Interest
that bears the designation "F".
"REMIC II Regular Interest G" shall mean the REMIC II Regular Interest
that bears the designation "G".
"REMIC II Regular Interest H" shall mean the REMIC II Regular Interest
that bears the designation "H".
"REMIC II Regular Interest J" shall mean the REMIC II Regular Interest
that bears the designation "J".
"REMIC II Regular Interest K" shall mean the REMIC II Regular Interest
that bears the designation "K".
"REMIC II Regular Interest L" shall mean the REMIC II Regular Interest
that bears the designation "L".
"REMIC II Regular Interest M" shall mean the REMIC II Regular Interest
that bears the designation "M".
"REMIC II Regular Interest N" shall mean the REMIC II Regular Interest
that bears the designation "N".
"REMIC II Regular Interest O" shall mean the REMIC II Regular Interest
that bears the designation "O".
"REMIC II Regular Interest P" shall mean the REMIC II Regular Interest
that bears the designation "P".
"REMIC II Remittance Rate" shall mean the per annum rate at which
interest accrues in respect of any REMIC II Regular Interest during any Interest
Accrual Period, as set forth in or otherwise calculated in accordance with
Section 2.12(f).
"REMIC II Residual Interest" shall mean the sole uncertificated
"residual interest", within the meaning of Section 860G(a)(2) of the Code, in
REMIC II issued pursuant to this Agreement.
"REMIC III" shall mean the segregated pool of assets designated as such
in Section 2.14(a).
"REMIC III Regular Interest A-CP-A-4-2" shall mean the "regular
interest" in REMIC III that bears the designation "A-CP-A-4-2".
"REMIC III Regular Interest A-CP-B" shall mean the "regular interest"
in REMIC III that bears the designation "A-CP-B".
"REMIC III Regular Interest A-CP-C" shall mean the "regular interest"
in REMIC III that bears the designation "A-CP-C".
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"REMIC III Regular Interest A-CP-D" shall mean the "regular interest"
in REMIC III that bears the designation "A-CP-D".
"REMIC III Regular Interest A-CP-E" shall mean the "regular interest"
in REMIC III that bears the designation "A-CP-E".
"REMIC III Regular Interest A-X-A-1" shall mean the "regular interest"
in REMIC III that bears the designation "A-X-A-1".
"REMIC III Regular Interest A-X-A-2" shall mean the "regular interest"
in REMIC III that bears the designation "A-X-A-2".
"REMIC III Regular Interest A-X-A-3" shall mean the "regular interest"
in REMIC III that bears the designation "A-X-A-3".
"REMIC III Regular Interest A-X-A-4-1" shall mean the "regular
interest" in REMIC III that bears the designation "A-X-A-4-1".
"REMIC III Regular Interest A-X-A-4-2" shall mean the "regular
interest" in REMIC III that bears the designation "A-X-A-4-2".
"REMIC III Regular Interest A-X-B" shall mean the "regular interest" in
REMIC III that bears the designation "A-X-B".
"REMIC III Regular Interest A-X-C" shall mean the "regular interest" in
REMIC III that bears the designation "A-X-C".
"REMIC III Regular Interest A-X-D" shall mean the "regular interest" in
REMIC III that bears the designation "A-X-D".
"REMIC III Regular Interest A-X-E" shall mean the "regular interest" in
REMIC III that bears the designation "A-X-E".
"REMIC III Regular Interest A-X-F" shall mean the "regular interest" in
REMIC III that bears the designation "A-X-F".
"REMIC III Regular Interest A-X-G" shall mean the "regular interest" in
REMIC III that bears the designation "A-X-G".
"REMIC III Regular Interest A-X-H" shall mean the "regular interest" in
REMIC III that bears the designation "A-X-H".
"REMIC III Regular Interest A-X-J" shall mean the "regular interest" in
REMIC III that bears the designation "A-X-J".
"REMIC III Regular Interest A-X-K" shall mean the "regular interest" in
REMIC III that bears the designation "A-X-K".
"REMIC III Regular Interest A-X-L" shall mean the "regular interest" in
REMIC III that bears the designation "A-X-L".
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"REMIC III Regular Interest A-X-M" shall mean the "regular interest" in
REMIC III that bears the designation "A-X-M".
"REMIC III Regular Interest A-X-N" shall mean the "regular interest" in
REMIC III that bears the designation "A-X-N".
"REMIC III Regular Interest A-X-O" shall mean the "regular interest" in
REMIC III that bears the designation "A-X-O".
"REMIC III Regular Interest A-X-P" shall mean the "regular interest" in
REMIC III that bears the designation "A-X-P".
"REMIC III Regular Interest Certificate" shall mean any of the Interest
Only Certificates and the Principal Balance Certificates.
"REMIC III Remittance Rate" shall mean the per annum rate at which
interest accrues in respect of any Group A-CP REMIC III Regular Interest or
Group A-X REMIC III Regular Interest during any Interest Accrual Period, as set
forth in or otherwise calculated in accordance with Section 2.14(f).
"REMIC III Residual Interest" shall mean the sole uncertificated
"residual interest", within the meaning of Section 860G(a)(2) of the Code, in
REMIC III issued pursuant to this Agreement.
"REMIC Pool" shall mean any of REMIC I, REMIC II or REMIC III.
"REMIC Provisions" shall mean the provisions of the federal income tax
law relating to real estate mortgage investment conduits, which appear at
Sections 860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and 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.
"REMIC Sub-Account" shall mean a sub-account of the Distribution
Account established pursuant to Section 3.04(b), which sub-account shall
constitute an asset of the Trust Fund and REMIC I, but not an asset of either
Grantor Trust Pool.
"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 a segregated custodial account or accounts
created and maintained by a Special Servicer, pursuant to Section 3.16(b), on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "[name of subject Special Servicer], as a Special Servicer, on behalf
of [name of Trustee], in trust for the registered holders of Credit Suisse First
Boston Mortgage Securities Corp., Commercial Mortgage Pass Through Certificates,
Series 2001-CKN5, REO Account."
"REO Acquisition" shall mean the acquisition of any REO Property
pursuant to Section 3.09.
"REO Disposition" shall mean the sale or other disposition of any REO
Property pursuant to Section 3.18.
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"REO Extension" shall have the meaning assigned thereto in Section
3.16(a).
"REO Mortgage Loan" shall mean the mortgage loan deemed for purposes
hereof to be outstanding with respect to each REO Property. Each REO Mortgage
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 or
the Trust's acquisition of the subject REO Property). Each REO Mortgage 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 any Balloon Payment), Assumed
Monthly Payments (in the case of a Balloon Mortgage 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 Mortgage Loan. In addition, all amounts payable or reimbursable to the
applicable Master Servicer, the applicable Special Servicer, the Trustee or any
Fiscal Agent in respect of the predecessor Mortgage Loan as of the date of the
related REO Acquisition, including any unpaid or unreimbursed Servicing Fees and
Advances (together with any related unpaid Advance Interest), shall continue to
be payable or reimbursable in the same priority and manner pursuant to Section
3.05(a) to the applicable Master Servicer, the applicable Special Servicer, the
Trustee or any Fiscal Agent, as the case may be, in respect of an REO Mortgage
Loan.
"REO Property" shall mean a Mortgaged Property acquired by or otherwise
on behalf of the Trust for the benefit of the Certificateholders through
foreclosure, acceptance of a deed in lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan.
"REO Revenues" shall mean all income, rents, profits and proceeds
derived from the ownership, operation or leasing of any REO Property.
"REO Tax" shall have the meaning assigned thereto in Section 3.17(a).
"Replacement Mortgage Loan" shall mean any mortgage loan that is
substituted by a Mortgage Loan Seller, the Column Performance Guarantor or the
NCBCC Performance Guarantor for a Defective Mortgage Loan as contemplated by
Section 2.03.
"Request for Release" shall mean a request signed by a Servicing
Officer of, as applicable, a Master Servicer in the form of Exhibit D-1 attached
hereto or a Special Servicer in the form of Exhibit D-2 attached hereto.
"Required Appraisal Loan" shall mean any Specially Serviced Mortgage
Loan (and any successor REO Mortgage Loan) as to which an Appraisal Trigger
Event has occurred; provided that a Mortgage Loan shall cease to be a Required
Appraisal Loan if and when, following the occurrence of the most recent
Appraisal Trigger Event with respect thereto, such Mortgage Loan has become a
Corrected Mortgage Loan and no other Servicing Transfer Event or Appraisal
Trigger Event has occurred with respect thereto during the preceding three
months.
"Reserve Account" shall mean any of the accounts established and
maintained pursuant to Section 3.03(d).
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"Reserve Funds" shall mean, with respect to any Mortgage Loan, any
amounts delivered by the related Borrower to be held in escrow by or on behalf
of the mortgagee representing: (i) reserves for repairs, replacements, capital
improvements and/or environmental testing and remediation with respect to the
related Mortgaged Property; (ii) reserves for tenant improvements and leasing
commissions; (iii) reserves for debt service; or (iv) amounts to be applied as a
Principal Prepayment on such Mortgage Loan or held as Additional Collateral in
the event that certain leasing or other economic criteria in respect of the
related Mortgaged Property are not met.
"Resolution Extension Period" shall have the meaning assigned thereto
in Section 2.03(b).
"Responsible Officer" shall mean: (a) when used with respect to the
Trustee, the President, the Treasurer, the Secretary, any Vice President, any
Assistant Vice President, any Trust Officer, any Assistant Secretary or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and having direct
responsibility for the administration of this Agreement; and (b) when used with
respect to any Fiscal Agent or any Certificate Registrar (other than the
Trustee), any officer or assistant officer thereof.
"Restricted Servicer Reports" shall mean each of the CMSA Servicer
Watch List, the CMSA Operating Statement Analysis Report, the CMSA NOI
Adjustment Worksheet, CMSA Financial File and the CMSA Comparative Financial
Status Report.
"Rule 144A Global Certificate" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates, a single global Certificate registered
in the name of the Depository or its nominee, in definitive, fully registered
form without interest coupons, which Certificate bears a Qualified Institutional
Buyer CUSIP number and does not bear a Regulation S Legend.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or its successor in interest. If neither such rating
agency nor any successor remains in existence, "S&P" shall be deemed to refer to
such other nationally recognized statistical rating agency or other comparable
Person designated by the Depositor, notice of which designation shall be given
to the other parties hereto, and specific ratings of Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc. herein referenced shall
be deemed to refer to the equivalent ratings of the party so designated.
References herein to "applicable rating category" (other than such references to
"highest applicable rating category") shall, in the case of S&P, be deemed to
refer to such applicable rating category of S&P, without regard to any plus or
minus or other comparable rating qualification.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Senior Certificates" shall mean, collectively, the Class A-P&I
Certificates and the Interest Only Certificates.
"Senior Principal Distribution Cross-Over Date" shall mean the first
Distribution Date as of which the aggregate Certificate Principal Balance of the
Class A-P&I Certificates outstanding immediately prior thereto equals or exceeds
the sum of (a) the aggregate Stated Principal Balance of the Mortgage Pool that
will be outstanding immediately following such Distribution Date, plus (b) the
lesser of (i) the Total Principal Distribution Amount for such Distribution Date
and (ii) the portion of the Standard Available Distribution Amount for such
Distribution Date that will remain after all
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distributions of interest to be made on the Senior Certificates on such
Distribution Date pursuant to Section 4.01(a) have been so made.
"Servicing Account" shall mean any of the accounts established and
maintained pursuant to Section 3.03(a).
"Servicing Advances" shall mean all customary, reasonable and necessary
"out-of-pocket" costs and expenses, including reasonable attorneys' fees and
expenses, paid or to be paid, as the context requires, out of its own funds, by
the applicable Master Servicer or the applicable Special Servicer (or, if
applicable, the Trustee or any Fiscal Agent) in connection with the servicing of
a Mortgage Loan as to which a default, delinquency or other unanticipated event
has occurred or is imminent, or in connection with the administration of any REO
Property, including (1) any such costs and expenses associated with (a)
compliance with the obligations of the applicable Master Servicer and/or the
applicable Special Servicer set forth in Sections 2.03, 3.01(d), 3.03(c) and
3.09, (b) the preservation, insurance, restoration, protection and management of
a Mortgaged Property, including the cost of any "force placed" insurance policy
purchased by the applicable Master Servicer or the applicable Special Servicer
to the extent such cost is allocable to a particular Mortgaged Property that the
applicable Master Servicer or the applicable 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 in respect of any such
Mortgage Loan or any REO Property, (d) any enforcement or judicial proceedings
with respect to any such Mortgage Loan, including foreclosures and similar
proceedings, (e) the operation, management, maintenance and liquidation of any
REO Property, (f) obtaining any Appraisal required to be obtained hereunder, and
(g) UCC filings (to the extent that the costs thereof are not reimbursed by the
related Borrower), (2) the reasonable and direct out-of-pocket travel expenses
incurred by such Special Servicer in connection with performing inspections
pursuant to Section 3.12(a), and (3) any other expenditure which is expressly
designated as a Servicing Advance herein; provided that, notwithstanding
anything to the contrary, "Servicing Advances" shall not include (A) allocable
overhead of a Master Servicer or Special Servicer, such as costs for office
space, office equipment, supplies and related expenses, employee salaries and
related expenses and similar internal costs and expenses, (B) costs incurred by
either such party or any Affiliate thereof in connection with its purchase of
any Mortgage Loan or REO Property pursuant to any provision of this Agreement or
(C) costs or expenses expressly required under this Agreement to be borne by a
Master Servicer or Special Servicer.
"Servicing Fees" shall mean, with respect to any Mortgage Loan or REO
Mortgage Loan, the Master Servicing Fee and the Special Servicing Fee.
"Servicing File" shall mean any documents (other than documents
required to be part of the related Mortgage File, but including any
correspondence file) in the possession or under the control of, or required
(pursuant to the applicable Mortgage Loan Purchase Agreement, this Agreement or
otherwise) to be delivered to, as the context may require, the applicable Master
Servicer or the applicable Special Servicer and relating to the origination and
servicing of any Mortgage Loan or the administration of any REO Property,
including any tenant subordination and non-disturbance agreements, third-party
underwriting reports, legal opinions and insurance policies relating to such
Mortgage Loan or the related Mortgaged Property that are in the possession of
the applicable Master Servicer or the applicable Special Servicer, as the case
may be, at any particular time.
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"Servicing Officer" shall mean any officer or employee of a Master
Servicer or Special Servicer involved in, or responsible for, the administration
and servicing of 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 by
such Master Servicer or Special Servicer.
"Servicing Return Date" shall mean, with respect to any Corrected
Mortgage Loan, the date that servicing thereof is returned by a Special Servicer
to the applicable Master Servicer pursuant to Section 3.21(a).
"Servicing Standard" shall mean, with respect to each of the Master
Servicers and Special Servicers, to service and administer the Mortgage Loans
and any REO Properties for which it is responsible hereunder: (a) with the same
care, skill, prudence and diligence as it services and administers comparable
mortgage loans and real properties on behalf of third parties or on behalf of
itself, whichever is the higher standard, giving due consideration to customary
and usual standards and practice utilized by prudent institutional commercial
mortgage loan servicers under comparable circumstances; (b) with a view to the
timely collection of all scheduled payments of principal and interest under the
Mortgage Loans, the full collection of all Prepayment Premiums and Yield
Maintenance Charges that may become payable under the Mortgage Loans and, in the
case of the applicable Special Servicer, if a Mortgage Loan comes into and
continues in default and if, in the good faith and reasonable judgment of such
Special Servicer, no satisfactory arrangements can be made for the collection of
the delinquent payments, the maximization of the recovery on such Mortgage Loan
to the Certificateholders (as a collective whole) on a present value basis (the
relevant discounting of anticipated collections that will be distributable to
Certificateholders to be performed at the related Net Mortgage Rate); and (c)
without regard to: (i) any relationship that the subject Master Servicer or
Special Servicer, as the case may be, or any of its Affiliates may have with the
related Borrower or with any other party to this Agreement; (ii) the ownership
of any Certificate by the subject Master Servicer or Special Servicer, as the
case may be or any of its Affiliates; (iii) the obligation of the subject Master
Servicer to make Advances, (iv) the obligation of the subject Special Servicer
to make, or direct the applicable Master Servicer to make, Servicing Advances;
(v) the right of the subject Master Servicer or Special Servicer, as the case
may be, or any of its Affiliates to receive reimbursement of costs, or the
sufficiency of any compensation payable to it, hereunder or with respect to any
particular transaction; or (vi) any ownership, servicing and/or management by
the subject Master Servicer or Special Servicer, as the case may be, or any of
its Affiliates of any other mortgage loans or real property; (vii) the ownership
by the subject Master Servicer or Special Servicer, as the case may be, or any
of its Affiliates of any other debt owed by, or secured by ownership interests
in, any of the Borrowers or any Affiliate of a Borrower; and (viii) the
obligations of the subject Master Servicer or Special Servicer, as the case may
be, or any of its Affiliates to repurchase any Mortgage Loan from the Trust
Fund, or to indemnify the Trust Fund, in any event as a result of a Material
Breach or a Material Document Defect.
"Servicing Transfer Event" shall mean, with respect to any Mortgage
Loan, any of the following events:
(a) the related Borrower has failed to make when due any Monthly
Payment (including a Balloon Payment) or any other payment required under
the related Mortgage Loan Documents, which failure continues, or the
applicable Master Servicer determines, in its reasonable judgment, will
continue, unremedied (i) except in the case of a delinquent Balloon
Payment, for 60 days beyond the date on which the subject payment was due,
and (ii) solely in
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the case of a delinquent Balloon Payment, for 90 days beyond the related
maturity date or, if the related Borrower has delivered to the applicable
Master Servicer a refinancing commitment reasonably acceptable to the
applicable Special Servicer, for such longer period, not to exceed 150 days
beyond the related maturity date, during which the refinancing would occur;
or
(b) the applicable Master Servicer has determined, in its reasonable
judgment, that a default in making a Monthly Payment (including a Balloon
Payment) or any other material payment required under the related Mortgage
Loan Documents is likely to occur within 30 days and either (i) the related
Borrower has requested a material modification of the payment terms of the
related Mortgage Loan or (ii) such default is likely to remain unremedied
for at least the period contemplated by clause (a) of this definition; or
(c) the applicable Master Servicer has determined, in its reasonable
judgment, that a default, other than as described in clause (a) or (b) of
this definition, has occurred that may materially impair the value of the
related Mortgaged Property as security for the Mortgage Loan, which default
has continued unremedied for the applicable cure period under the terms of
the Mortgage Loan (or, if no cure period is specified, for 60 days); or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary action against the
related Borrower under any present or future federal or state bankruptcy,
insolvency or similar law or the appointment of a conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceeding, or for the winding-up or liquidation
of its affairs, shall have been entered against the related Borrower and
such decree or order shall have remained in force undismissed, undischarged
or unstayed for a period of 60 days; or
(e) the related Borrower shall have consented to the appointment of a
conservator, receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceeding of or
relating to such Borrower or of or relating to all or substantially all of
its property; or
(f) the related Borrower shall have admitted in writing its inability
to pay its debts generally as they become due, filed a petition to take
advantage of any applicable insolvency or reorganization statute, made an
assignment for the benefit of its creditors, or voluntarily suspended
payment of its obligations; or
(g) the applicable Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the
related Mortgaged Property.
A Servicing Transfer Event with respect to any Mortgage Loan shall cease to
exist:
(w) in the case of the circumstances described in clause (a) above, if
and when the related Borrower 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 Borrower or by reason of a modification,
waiver or amendment granted or agreed to by the applicable Master Servicer
or the applicable Special Servicer pursuant to Section 3.20);
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(x) in the case of the circumstances described in clauses (b), (d), (e)
and (f) above, if and when such circumstances cease to exist in the
reasonable judgment of the applicable Special Servicer;
(y) in the case of the circumstances described in clause (c) above, if
and when such default is cured in the reasonable judgment of the
applicable Special Servicer; and
(z) in the case of the circumstances described in clause (g) above, if
and when such proceedings are terminated.
"Sole Certificateholder(s)" shall mean any Holder or group of Holders,
as the case may be, of 100% of the then outstanding Certificates.
"Special Reserve Account" shall mean a segregated custodial account or
accounts created and maintained by either Master Servicer, pursuant to Section
2.03(e), on behalf of the Trustee in trust for the Certificateholders and the
related Mortgage Loan Seller, which shall be entitled "[name of subject Master
Servicer], as a Master Servicer, in trust for the registered holders of Credit
Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2001-CKN5, and [name of the related Mortgage Loan Seller],
Special Reserve Account".
"Special Servicer" shall mean: (a) with respect to any Mortgage Loan
(other than a Co-op Mortgage Loan), any REO Property acquired by the Trust with
respect to a Mortgage Loan and any matters relating to the foregoing, the
General Special Servicer; and (b) with respect to any Co-op Mortgage Loan, any
REO Property acquired by the Trust with respect to such Co-op Mortgage Loan and
any matters relating to the foregoing, the Co-op Special Servicer.
"Special Servicing Fee" shall mean, with respect to each Specially
Serviced Mortgage Loan and each REO Mortgage Loan, the fee designated as such
and payable to the applicable Special Servicer pursuant to the first paragraph
of Section 3.11(c).
"Special Servicing Fee Rate" shall mean, with respect to each
Specially Serviced Mortgage Loan and each REO Mortgage Loan, 0.25% per annum.
"Specially Designated Defaulted Mortgage Loan" shall mean a Specially
Serviced Mortgage Loan that is delinquent 90 days or more with respect to any
Balloon Payment or 60 days (or, in the case of a Co-op Mortgage Loan, 90 days)
more with respect to any other Monthly Payment, with such delinquency to be
determined without giving effect to any grace period permitted by the related
Mortgage or Mortgage Note and without regard to any acceleration of payments
under the related Mortgage and Mortgage Note, or a Specially Serviced Mortgage
Loan as to which the amounts due thereunder have been accelerated following any
other material default.
"Specially Designated Mortgage Loan Documents" shall mean, with respect
to any Mortgage Loan, subject to Sections 1.04 and 2.01, the following documents
on a collective basis:
(i) the original executed Mortgage Note 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 a copy of the Mortgage (with or without
recording information);
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(iii) the original or a copy of the policy of lender's title
insurance or, if such policy has not yet been issued, a
"marked-up" pro forma title policy or commitment for title
insurance marked as binding and countersigned or evidenced as
binding by escrow letter or closing instructions;
(iv) the original or a copy of any Ground Lease;
(v) any Letter(s) of Credit constituting Additional Collateral
and, if applicable, the originals or copies of any
intervening assignments thereof;
provided that whenever the term "Specially Designated Mortgage Loan Documents"
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 and
instruments referred to in items (i) through (v) of this definition unless they
are actually so received; and provided, further, that the Specially Designated
Mortgage Loan Documents for any Mortgage Loan need not include any Letter of
Credit referred to in item (v) of this definition if, in lieu thereof, the
related Mortgage Loan Seller has, on behalf of the related Borrower, either (i)
delivered to the Trustee a substitute letter of credit, in the same amount and
with the same draw conditions and renewal rights as, and substantially similar
to, that Letter of Credit and issued by an obligor that meets any criteria in
the related Mortgage Loan Documents applicable to the issuer of that Letter of
Credit or (ii) delivered to the applicable Master Servicer a cash reserve in an
amount equal to the amount of that Letter of Credit (the "LOC Cash Reserve"),
which substitute letter of credit can be drawn on, or which cash reserve can be
applied to cover, the same items as that Letter of Credit was intended to cover.
"Specially Serviced Mortgage Loan" shall mean any Mortgage Loan as to
which there then exists a Servicing Transfer Event. Upon the occurrence of a
Servicing Transfer Event with respect to any Mortgage Loan, such Mortgage Loan
shall remain a Specially Serviced Mortgage Loan until the earliest of (i) its
removal from the Trust Fund, (ii) an REO Acquisition with respect to the related
Mortgaged Property, and (iii) the cessation of all existing Servicing Transfer
Events with respect to such Mortgage Loan.
"Standard Available Distribution Amount" shall mean, with respect to
any Distribution Date, an amount equal to (a) the sum of (i) all amounts on
deposit in the Distribution Account as of 11:00 a.m., New York City time, on
such Distribution Date, (ii) to the extent not included in the amount described
in clause (a)(i) of this definition, any P&I Advances and/or Compensating
Interest Payments that were made in respect of such Distribution Date, (iii) to
the extent not included in the amount described in clause (a)(i) of this
definition, the aggregate amount transferred (pursuant to Section 3.05(d)) from
the Excess Liquidation Proceeds Account to the Distribution Account in respect
of such Distribution Date, and (iv) to the extent not included in the amount
described in clause (a)(i) of this definition, if such Distribution Date occurs
during the month of March of 2002 or any year thereafter, the aggregate of the
Interest Reserve Amounts with respect to the Interest Reserve Loans transferred
from the Interest Reserve Account to the Distribution Account during such month
of March for distribution on such Distribution Date, net of (b) any portion of
the amounts described in clause (a) of this definition that represents one or
more of the following: (i) collected Monthly Payments that are due on a Due Date
following the end of the related Collection Period, (ii) any payments of
principal (including Principal Prepayments) and interest, Insurance Proceeds,
Condemnation Proceeds and Liquidation Proceeds received by or on behalf of the
Trust after the end of the related Collection Period, (iii) any Prepayment
Premiums, Yield Maintenance Charges and/or Post-ARD Additional Interest,
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(iv) any amounts payable or reimbursable to any Person from the Distribution
Account pursuant to clauses (iii) through (vi) of Section 3.05(b), (v) if such
Distribution Date occurs during the month of February of 2002 or any year
thereafter or during the month of January of 2002 or any year thereafter that is
not a leap year, the aggregate of the Interest Reserve Amounts with respect to
the Interest Reserve Loans to be withdrawn (pursuant to Section 3.04(c) and
Section 3.05(b)(ii)) from the Distribution Account and deposited into the
Interest Reserve Account during such month of February or such month of January,
as the case may be, and held for future distribution, and (vi) any amounts
deposited in the Distribution Account in error; provided that the Standard
Available Distribution Amount for the Final Distribution Date shall be
calculated without regard to clauses (b)(i), (b)(ii) and (b)(v) of this
definition.
"Startup Day" shall mean, with respect to each REMIC Pool, the day
designated as such in Section 2.10(a) (in the case of REMIC I), Section 2.12(a)
(in the case of REMIC II) or Section 2.14(a) (in the case of REMIC III), as
applicable.
"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 or, in the case of a Replacement Mortgage Loan, on the related date of
substitution) on which the last payment of principal is due and payable under
the terms of such Mortgage Note, without regard to any change in or modification
of such terms in connection with a bankruptcy or similar proceeding involving
the related Borrower or a modification, waiver or amendment of such Mortgage
Loan granted or agreed to by the applicable Master Servicer or the applicable
Special Servicer pursuant to Section 3.20 and, in the case of an ARD Mortgage
Loan, without regard to its Anticipated Repayment Date.
"Stated Principal Balance" shall mean, with respect to any Mortgage
Loan (and any successor REO Mortgage Loan), a principal balance which (a)
initially shall equal the unpaid principal balance thereof as of the related Due
Date in November 2001 or, in the case of any Replacement Mortgage Loan, as of
the related date of substitution, in any event after application of all payments
of principal due thereon on or before such date, whether or not received, and
(b) shall be permanently reduced on each subsequent Distribution Date (to not
less than zero) by (i) that portion, if any, of the Total Principal Distribution
Amount for such Distribution Date attributable to such Mortgage Loan (or
successor REO Mortgage Loan), and (ii) the principal portion of any Realized
Loss incurred in respect of such Mortgage Loan (or successor REO Mortgage Loan)
during the related Collection Period; provided that, if a Liquidation Event
occurs in respect of any Mortgage Loan or REO Property, then the "Stated
Principal Balance" of such Mortgage Loan or of the related REO Mortgage Loan, as
the case may be, shall be zero commencing as of the Distribution Date in the
Collection Period next following the Collection Period in which such Liquidation
Event occurred.
"Subordinate Certificate" shall mean any 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, Class P and Class R Certificates.
"Subordinate Principal Balance Certificate" shall mean any of the
Subordinate Certificates that are also Principal Balance Certificates.
"Sub-Servicer" shall mean any Person with which a Master Servicer or
Special Servicer has entered into a Sub-Servicing Agreement.
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"Sub-Servicing Agreement" shall mean the written contract between a
Master Servicer or Special Servicer, on the one hand, and any Sub-Servicer, on
the other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
"Substitution Shortfall Amount" shall mean, in connection with the
substitution of one or more Replacement Mortgage Loans for any Defective
Mortgage Loan, the amount, if any, by which the Purchase Price for such
Defective Mortgage Loan (calculated as if it were to be repurchased, instead of
replaced, on the relevant date of substitution), exceeds the Stated Principal
Balance or the aggregate Stated Principal Balance, as the case may be, of such
Replacement Mortgage Loan(s).
"Tax Matters Person" shall mean, with respect to any REMIC Pool, the
Person designated as the "tax matters person" of such REMIC Pool in the manner
provided under Treasury regulation section 1.860F-4(d) and temporary Treasury
regulation section 301.6231(a)(7)-1T, which Person shall, pursuant to Section
10.01(b), be the Plurality Class R Certificateholder.
"Tax Returns" shall mean the federal income tax return on IRS Form
1066, U.S. Real Estate Mortgage Investment Conduit Income (REMIC) Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holder 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 or local tax laws.
"Termination Price" shall have the meaning assigned thereto in Section
9.01(a).
"Total Principal Distribution Amount" shall mean:
(a) with respect to any Distribution Date prior to the Final
Distribution Date, an amount equal to the aggregate (without duplication)
of the following--
(i) all payments of principal (including Principal Prepayments)
received by or on behalf of the Trust with respect to the Mortgage Loans
during the related Collection Period, in each case net of any portion of
the particular payment that represents a Late Collection of principal for
which a P&I Advance was previously made for a prior Distribution Date or
that represents the principal portion of a Monthly Payment due on or before
the related Due Date in November 2001 or on a Due Date subsequent to the
end of the related Collection Period,
(ii) all scheduled payments of principal due in respect of the Mortgage
Loans for their respective Due Dates occurring during the related
Collection Period that were received by or on behalf of the Trust (other
than as part of a Principal Prepayment) prior to the related Collection
Period,
(iii) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received by or on behalf of the Trust with respect to any of the
Mortgage Loans during the related Collection Period that were identified
and applied as recoveries of principal of such Mortgage Loans in accordance
with Section 1.03, in each case net of any portion of such proceeds that
represents a Late Collection of principal due on or before the related Due
Date in November 2001 or for which a P&I Advance was previously made for a
prior Distribution Date,
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(iv) all Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds and REO Revenues received by or on behalf of the Trust in respect
of any REO Properties during the related Collection Period that were
identified and applied as recoveries of principal of the related REO
Mortgage Loans in accordance with Section 1.03, in each case net of any
portion of such proceeds and/or revenues that represents a Late Collection
of principal due on or before the related Due Date in November 2001 or for
which a P&I Advance was previously made for a prior Distribution Date, and
(v) the respective principal portions of all P&I Advances made in
respect of the Mortgage Loans and any REO Mortgage Loans with respect to
such Distribution Date; and
(b) with respect to the Final Distribution Date, an amount equal to the
aggregate Stated Principal Balance of the entire Mortgage Pool outstanding
immediately prior to the Final 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).
"Transferee" shall mean any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor" shall mean any Person who is disposing by Transfer of any
Ownership Interest in a Certificate.
"Trust" shall mean the trust created hereby.
"Trust Assets" shall mean the assets comprising the Trust Fund.
"Trustee" shall mean Xxxxx Fargo, in its capacity as trustee hereunder,
or any successor trustee appointed as provided herein.
"Trustee Report" shall have the meaning assigned thereto in Section
4.02(a).
"Trustee's Fee" shall mean, with respect to any Mortgage Loan or REO
Mortgage Loan, the fee designated as such and payable to the Trustee pursuant to
Section 8.05(a).
"Trustee's Fee Rate" shall mean 0.0025% per annum.
"Trust Fund" shall mean, collectively, all of the assets of all the
REMIC Pools and Grantor Trust Pools, together with the Purchase Price Security
Deposit Accounts, the Special Reserve Accounts and any Recording Omission
Reserves and Recording Omission Credits delivered by any Mortgage Loan Seller,
the Column Performance Guarantor or the NCBCC Performance Guarantor to the
applicable Master Servicer as contemplated by Section 2.03.
"UCC" shall mean the Uniform Commercial Code in effect in the
applicable jurisdiction.
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"UCC Financing Statement" shall mean a financing statement executed and
filed pursuant to the Uniform Commercial Code, as in effect in any relevant
jurisdiction.
"Uncertificated Principal Balance" shall mean the principal balance
outstanding from time to time of any REMIC I Regular Interest (calculated in
accordance with Section 2.10(e) hereof) or any REMIC II Regular Interest
(calculated in accordance with Section 2.12(e) hereof).
"Underwriters" shall mean, collectively, CSFB Corporation, McDonald and
Xxxxxx.
"Underwriter Exemption" shall mean PTE 89-90, as amended by PTE 97-34
and PTE 2000-58, and as may be subsequently amended following the Closing Date.
"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), the Uncertificated Principal Balance of any REMIC
II Regular Interest pursuant to Section 4.04(b) or the Uncertificated Principal
Balance of any REMIC I Regular Interest pursuant to Section 4.04(c).
"United States Securities Person" shall mean any "U.S. person" as
defined in Rule 902(k) of Regulation S.
"United States Tax Person" shall mean a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any political subdivision
thereof, or an estate whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States Tax Persons have the authority to control all substantial
decisions of the trust, all within the meaning of Section 7701(a)(30) of the
Code.
"Unrestricted Servicer Reports" shall mean each of the files and
reports comprising the CMSA Investor Reporting Package (excluding the CMSA Bond
Level File, the CMSA Collateral Summary File and the Restricted Servicer
Reports).
"USAP" shall mean the Uniform Single Attestation Program for Mortgage
Bankers established by the Mortgage Bankers Association of America.
"USPAP" shall mean the Uniform Standards of Professional Appraisal
Practices.
"Voting Rights" shall mean the voting rights evidenced by the
respective Certificates. At all times during the term of this Agreement, 99.0%
of the Voting Rights shall be allocated among all the Holders of the various
Classes of Principal Balance Certificates in proportion to the respective Class
Principal Balances of such Classes, and 1.0% of the Voting Rights shall be
allocated among all the Holders of the various Classes of Interest Only
Certificates in proportion to the respective Class Notional Amounts of such
Classes. Voting Rights allocated to a particular Class of Certificateholders
shall be allocated among such Certificateholders in proportion to the respective
Percentage Interests evidenced by their respective Certificates. No Voting
Rights shall be allocated to the Class R or Class V Certificateholders.
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"Xxxxx Fargo" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"Workout Fee" shall mean, with respect to each Corrected Mortgage Loan,
the fee designated as such and payable to the applicable Special Servicer
pursuant to the second paragraph of Section 3.11(c).
"Workout Fee Rate" shall mean, with respect to each Corrected Mortgage
Loan, 1.0%.
"Yield Maintenance Certificates" shall mean 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.
"Yield Maintenance Charge" shall mean, with respect to any Mortgage
Loan, any premium, fee or other additional amount paid or payable, as the
context requires, by a Borrower in connection with a Principal Prepayment on, or
other early collection of principal of, a Mortgage Loan, calculated, in whole or
in part, pursuant to a yield maintenance formula or otherwise pursuant to a
formula that reflects the lost interest, including a Yield Maintenance Minimum
Amount.
"Yield Maintenance Minimum Amount" shall mean, with respect to a
Mortgage Loan that provides for a Yield Maintenance Charge to be paid in
connection with any Principal Prepayment thereon or other early collection of
principal thereof, any specified amount or specified percentage of the amount
prepaid which constitutes the minimum amount that such Yield Maintenance Charge
may be.
SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(i) capitalized terms used in this Agreement have the meanings assigned
to them in this Agreement and 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 as in effect from time to time;
(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" and "including" shall mean without limitation
by reason of enumeration.
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SECTION 1.03. Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts collected by or on behalf of the Trust in respect of
any Cross-Collateralized Group in the form of payments from Borrowers, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds, shall be applied among
the Mortgage Loans constituting such Cross-Collateralized Group in accordance
with the express provisions of the related Mortgage Loan Documents and, in the
absence of such express provisions, in accordance with the Servicing Standard.
All amounts collected by or on behalf of the Trust 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 Borrowers,
Insurance Proceeds, Condemnation Proceeds or Liquidation 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 Loan Documents and, in the absence of
such express provisions or if and to the extent that such terms authorize the
lender to use its discretion, shall be applied: first, as a recovery of any
related and unreimbursed Servicing Advances and, if applicable, unpaid
Liquidation Expenses; second, as a recovery of accrued and unpaid interest on
such Mortgage Loan to, but not including, the date of receipt by or on behalf of
the Trust (or, in the case of a full Monthly Payment from any Borrower, through
the related Due Date), exclusive, however, of any portion of such accrued and
unpaid interest that constitutes Default Interest or, in the case of an ARD
Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD
Additional Interest; third, as a recovery of 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); fourth, unless a Liquidation Event
has occurred in respect of such Mortgage Loan, as a recovery of amounts to be
currently applied to the payment of, or escrowed for the future payment of, real
estate taxes, assessments, insurance premiums, ground rents (if applicable) and
similar items; fifth, unless a Liquidation Event has occurred in respect of such
Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be
held in escrow; sixth, as a recovery of any Prepayment Premium or Yield
Maintenance Charge then due and owing under such Mortgage Loan; seventh, as a
recovery of any Default Charges then due and owing under such Mortgage Loan;
eighth, as a recovery of any assumption fees and modification fees then due and
owing under such Mortgage Loan; ninth, as a recovery of any other amounts then
due and owing under such Mortgage Loan other than remaining unpaid principal
and, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date,
other than Post-ARD Additional Interest; tenth, as a recovery of any remaining
principal of such Mortgage Loan to the extent of its entire remaining unpaid
principal balance; and, eleventh, in the case of an ARD Mortgage Loan after its
Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD
Additional Interest on such ARD Mortgage Loan to but not including the date of
receipt by or on behalf of the Trust.
(b) Collections by or on behalf of the Trust in respect of each REO
Property (exclusive of amounts to be applied to the payment of the costs of
operating, managing, maintaining and disposing of such REO Property) shall be
treated: first, as a recovery of any related and unreimbursed Servicing Advances
and, if applicable, unpaid Liquidation Expenses; second, as a recovery of
accrued and unpaid interest on the related REO Mortgage Loan to, but not
including, the Due Date in the Collection Period of receipt, by or on behalf of
the Trust, exclusive, however, of any portion of such accrued and unpaid
interest that constitutes Default Interest or, in the case of an REO Mortgage
Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date,
that constitutes Post-ARD Additional Interest; third, as a recovery of principal
of the related REO Mortgage Loan to the extent of its entire unpaid principal
balance; fourth, as a recovery of any Prepayment Premium or Yield
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Maintenance Charge deemed to be due and owing in respect of the related REO
Mortgage Loan; fifth, as a recovery of any Default Charges deemed to be due and
owing in respect of the related REO Mortgage Loan; sixth, as a recovery of any
other amounts deemed to be due and owing in respect of the related REO Mortgage
Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD
Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD
Additional Interest); and seventh, in the case of an REO Mortgage Loan that
relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a
recovery of any accrued and unpaid Post-ARD Additional Interest on such REO
Mortgage Loan to but not including the date of receipt by or on behalf of the
Trust.
(c) For the purposes of this Agreement, Post-ARD Additional Interest on
an ARD Mortgage Loan or a successor REO Mortgage Loan shall be deemed not to
constitute principal or any portion thereof and shall not be added to the unpaid
principal balance or Stated Principal Balance of such ARD Mortgage Loan or
successor REO Mortgage Loan, notwithstanding that the terms of the related loan
documents so permit. To the extent any Post-ARD Additional Interest is not paid
on a current basis, it shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or REO
Property and allocable to shared fees and shared charges owing in respect of
such Mortgage Loan or the related REO Mortgage Loan, as the case may be, that
constitute Additional Master Servicing Compensation payable to the applicable
Master Servicer and/or Additional Special Servicing Compensation payable to the
applicable Special Servicer, are insufficient to cover the full amount of such
fees and charges, such amounts shall be allocated between such of those fees and
charges as are payable to the applicable Master Servicer, on the one hand, and
such of those fees and charges as are payable to the applicable Special
Servicer, on the other, pro rata in accordance with their respective
entitlements.
(e) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the applicable Master
Servicer and reflected in the appropriate monthly report from such Master
Servicer and in the appropriate monthly Trustee Report as provided in Section
4.02.
(f) In the case of each Mortgaged Property that is a residential
cooperative property, the respective files and reports comprising the CMSA
Investor Reporting Package (other than the CMSA Servicer Watch List) shall
present the Projected Net Cash Flow for such Mortgaged Property and the
Projected Debt Service Coverage Ratio for the related Co-op Mortgage Loan, as
such terms apply to residential cooperative properties, if and to the extent
that such file or report requires preparation and/or submission of data
concerning net cash flow or debt service coverage.
SECTION 1.04. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that the groups of Mortgage Loans identified on the Mortgage Loan
Schedule as being cross-collateralized with each other are, in the case of each
such particular group of Mortgage Loans, by their terms, cross-defaulted and
cross-collateralized with each other. For purposes of reference only in this
Agreement, and without in any way limiting the servicing rights and powers of
the applicable Master Servicer and/or the applicable Special Servicer, with
respect to any Cross-Collateralized Mortgage Loan (or successor REO Mortgage
Loan), the Mortgaged Property (or REO Property) that relates or corresponds
thereto shall be the property identified in the Mortgage Loan Schedule as
corresponding thereto. The provisions
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of this Agreement, including each of the defined terms set forth in Section
1.01, shall be interpreted in a manner consistent with this Section 1.04;
provided that, if there exists with respect to any Cross-Collateralized Group
only one original of any document referred to in the definition of "Mortgage
File" covering all the Mortgage Loans in such Cross-Collateralized Group, then
the inclusion of the original of such document in the Mortgage File for any of
the Mortgage Loans constituting such Cross-Collateralized Group shall be deemed
an inclusion of such original in the Mortgage File for each such Mortgage Loan.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF REMIC I REGULAR INTERESTS, REMIC II
REGULAR INTERESTS, GROUP A-X REMIC III REGULAR INTERESTS, GROUP A-CP REMIC III
REGULAR INTERESTS, REMIC I RESIDUAL INTEREST, REMIC II RESIDUAL INTEREST, REMIC
III RESIDUAL INTEREST AND CERTIFICATES
SECTION 2.01. 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, further, that such trust be
designated as "Credit Suisse First Boston Mortgage Securities Trust 2001-CKN5".
Xxxxx Fargo 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. It is
not intended that this Agreement create a partnership or a joint-stock
association.
(b) The Depositor, concurrently with the execution and delivery hereof,
does hereby sell, assign, transfer and otherwise convey to the Trustee without
recourse for the benefit of the Certificateholders, all the right, title and
interest of the Depositor in, to and under (i) the Original Mortgage Loans, all
payments under and proceeds of such Mortgage Loans received after the Closing
Date (other than scheduled payments of interest and principal due on or before
the respective Due Dates for the Original Mortgage Loans in November 2001), and
all documents included in the related Mortgage Files and Servicing Files and any
related Additional Collateral; (ii) any REO Property acquired in respect of any
such Mortgage Loan; (iii) such funds or assets as from time to time are
deposited in each Collection Account, the Distribution Account, the Interest
Reserve Account, the Excess Liquidation Proceeds Account and, if established,
each REO Account, each Purchase Price Security Deposit Account and/or each
Special Reserve Account; (iv) the Mortgage Loan Purchase Agreements; (v) the
Column Performance Guarantee; (vi) the NCBCC Performance Guarantee; and (vii)
all other assets included or to be included in the Trust Fund. This conveyance
is subject to the right of the Designated Sub-Servicers to primary service
certain of the Original Mortgage Loans pursuant to the Designated Sub-Servicer
Agreements.
Upon the sale of Certificates representing at least 10% of the
aggregate Certificate Principal Balance of all the Certificates to parties that
are not Affiliates of the Depositor, the Depositor shall, under GAAP, report:
(i) its acquisition of the Original Column Mortgage Loans from Column, pursuant
to the Column Mortgage Loan Purchase Agreement, as a purchase of such Mortgage
Loans from Column; (ii) its acquisition of the Original KeyBank Mortgage Loans
from KeyBank, pursuant to the KeyBank Mortgage Loan Purchase Agreement, as a
purchase of such Mortgage Loans from KeyBank; (iii) its acquisition of the
Original NCB Mortgage Loans from NCB, pursuant to the NCB Mortgage Loan Purchase
Agreement, as a purchase of such Mortgage Loans from NCB; (iv) its acquisition
of the Original NCBCC Mortgage Loans from NCBCC, pursuant to the NCBCC Mortgage
Loan Purchase Agreement, as a purchase of such Mortgage Loans from NCBCC; and
(v) its transfer of the Original Mortgage Loans to the Trustee, pursuant to this
Section 2.01(b), as a sale of such Mortgage Loans to the Trustee. In connection
with the foregoing, upon the sale of Certificates representing at least 10% of
the aggregate Certificate Principal Balance of all the Certificates to parties
that are not Affiliates of the Depositor, the Depositor shall cause all of its
financial and accounting records to reflect such acquisitions as purchases and
such transfer as a sale (in each case, as opposed to a secured loan).
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Regardless of its treatment of the transfer of the Original Mortgage Loans to
the Trust under GAAP, the Depositor shall at all times following the Closing
Date cause all of its records and financial statements and any relevant
consolidated financial statements of any direct or indirect parent to clearly
reflect that the Original Mortgage Loans have been transferred to the Trust and
are no longer available to satisfy claims of the Depositor's creditors.
After the Depositor's transfer of the Original 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 conveyance of the Original Mortgage Loans and the related
rights and property accomplished hereby is absolute and is intended by the
parties hereto to constitute an absolute transfer of such Mortgage Loans and
such other related rights and property by the Depositor to the Trustee for the
benefit of the Certificateholders. Furthermore, it is not intended that such
conveyance be a pledge of security for a loan. If such conveyance is determined
to be a pledge of security for a loan, however, the Depositor and the Trustee
intend 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) this Agreement shall
constitute a security agreement under applicable law, (ii) the Depositor shall
be deemed to have granted to the Trustee (in such capacity) a first priority
security interest in all of the Depositor's right, title and interest in and to
the assets constituting the Trust Fund, including the Mortgage Loans subject
hereto from time to time, all principal and interest received on or with respect
to such Mortgage Loans after the Closing Date (other than scheduled payments of
interest and principal due and payable on such Mortgage Loans on or prior to the
related Due Date in November 2001 or, in the case of a Replacement Mortgage
Loan, on or prior to the related date of substitution), all amounts held from
time to time in each Collection Account, the Distribution Account, the Interest
Reserve Account, the Excess Liquidation Proceeds Account and, if established,
each REO Account, each Purchase Price Security Deposit Account and/or each
Special Reserve Account and all reinvestment earnings on such amounts, and all
of the Depositor's right, title and interest under the Mortgage Loan Purchase
Agreements, the Column Performance Guarantee and the NCBCC Performance
Guarantee, (iii) the possession by the Trustee or its agent of the Mortgage
Notes with respect to the Mortgage Loans subject hereto from time to time and
such other items of property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party" or possession by a purchaser or person designated by such secured party
for the purpose of perfecting such security interest under applicable law, and
(iv) notifications to, and acknowledgments, receipts or confirmations from,
Persons holding such property, shall be deemed to be notifications to, or
acknowledgments, receipts or confirmations from, bailees or agents (as
applicable) of the Trustee for the purpose of perfecting such security interest
under applicable law. The Depositor shall file or cause to be filed, as a
precautionary filing, a Form UCC-1 financing statement substantially in the form
attached as Exhibit J hereto in all appropriate locations in the State of
Delaware promptly following the initial issuance of the Certificates, and the
General Master Servicer shall prepare and file at each such office, and the
Trustee shall execute, continuation statements with respect thereto, in each
case within six months prior to the fifth anniversary of the immediately
preceding filing. The Depositor hereby authorizes the Trustee and General Master
Servicer to prepare and file in the name of the Depositor, and shall cooperate
in a reasonable manner with the Trustee and the Master Servicers in preparing
and filing, such continuation statements. This Section 2.01(c) shall constitute
notice to the Trustee pursuant to any requirements of the UCC in effect in each
applicable jurisdiction.
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(d) In connection with the Depositor's assignment pursuant to Section
2.01(b) above, the Depositor hereby represents and warrants that it has
contractually obligated each Mortgage Loan Seller, at such Mortgage Loan
Seller's expense, pursuant to the related Mortgage Loan Purchase Agreement, to
deliver to and deposit with, or cause to be delivered to and deposited with, the
Trustee or a Custodian appointed thereby, on or before the Closing Date, the
Mortgage File and any Additional Collateral (other than Reserve Funds) for each
Original Mortgage Loan acquired by the Depositor from such Mortgage Loan Seller.
In addition, with respect to each Mortgage Loan under which any Additional
Collateral is in the form of a Letter of Credit as of the Closing Date, the
Depositor hereby represents and warrants that it has contractually obligated the
related Mortgage Loan Seller, subject to the next paragraph, to cause to be
prepared, executed and delivered to the issuer of each such Letter of Credit
such notices, assignments and acknowledgments as are required under such Letter
of Credit to assign, without recourse, to the Trustee the related Mortgage Loan
Seller's rights as the beneficiary thereof and drawing party thereunder. The
Depositor shall deliver to the Trustee on or before the Closing Date a fully
executed counterpart of each Mortgage Loan Purchase Agreement, the Column
Performance Guarantee and the NCBCC Performance Guarantee.
Notwithstanding the foregoing, if any Mortgage Loan Seller is unable to
deliver any Letter of Credit constituting Additional Collateral for any of its
Original Mortgage Loans, then that Mortgage Loan Seller may, in lieu thereof,
deliver on behalf of the related Borrower, to be used for the same purposes as
such missing Letter of Credit either: (i) a substitute instrument substantially
comparable to, but in all cases in the same amount and with the same draw
conditions and renewal rights as, that Letter of Credit and issued by an obligor
that meets any criteria in the related Mortgage Loan Documents applicable to the
issuer of that Letter of Credit; or (ii) a cash reserve in an amount equal to
the amount of that Letter of Credit. For purposes of the delivery requirements
of this Section 2.01, any such substitute instrument shall be deemed to be
Additional Collateral of the type covered by the prior paragraph of this Section
2.01(d) and any such cash reserve shall be deemed to be Reserve Funds of the
type covered by Section 2.01(f).
(e) As soon as reasonably possible, and in any event within 45 days
after the later of (i) the Closing Date (or, in the case of a Replacement
Mortgage Loan substituted as contemplated by Section 2.03, after the related
date of substitution) and (ii) the date on which all recording information
necessary to complete the subject document is received by the Trustee, the
Trustee shall complete (to the extent necessary), and shall submit for recording
or filing, as the case may be, including via electronic means, if appropriate,
in or with the appropriate office for real property records or UCC Financing
Statements, as applicable, each assignment of Mortgage and assignment of
Assignment of Leases in favor of the Trustee referred to in clauses (iv) and (v)
of the definition of "Mortgage File" that has been received by the Trustee or a
Custodian on its behalf and each UCC-2 and UCC-3 in favor of the Trustee
referred to in clause (viii) of the definition of "Mortgage File" that has been
received by the Trustee or a Custodian on its behalf. Each such assignment shall
reflect that it should be returned by the public recording office to the Trustee
following recording, and each such UCC-2 and UCC-3 shall reflect that the file
copy thereof or an appropriate receipt therefor, as applicable, should be
returned to the Trustee 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 copy of
the recorded original. At such time as such assignments, UCC-2s, UCC-3s or
verifications of electronic filing have been returned to the Trustee, the
Trustee shall forward a copy thereof to the applicable Master Servicer. If any
such document or instrument is lost or returned unrecorded or unfiled, as the
case may be, because of a defect therein, the Trustee shall direct the related
Mortgage Loan Seller to prepare or cause to be prepared promptly, pursuant to
the related Mortgage Loan
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Purchase Agreement, a substitute therefor or cure such defect, as the case may
be, and thereafter the Trustee shall, upon receipt thereof, cause the same to be
duly recorded or filed, as appropriate. If any Mortgage Loan Seller has been so
notified and has not prepared a substitute document or cured such defect, as the
case may be, within 45 days, the Trustee shall promptly notify the Master
Servicers, the Special Servicers, the Rating Agencies and the Controlling Class
Representative.
The Depositor hereby represents and warrants that it has contractually
obligated each Mortgage Loan Seller, pursuant to the related Mortgage Loan
Purchase Agreement, to pay the reasonable fees and out-of-pocket expenses of the
Trustee in connection with the above-referenced recording and filing of
assignments and instruments of transfer insofar as they relate to the Original
Mortgage Loans acquired by the Depositor from such Mortgage Loan Seller, all as
more particularly provided for in the related Mortgage Loan Purchase Agreement;
provided that no Mortgage Loan Seller shall be responsible for actually
recording or filing any such assignment or instrument of transfer. In addition,
the Depositor hereby further represents and warrants that it has contractually
obligated each Mortgage Loan Seller, pursuant to the related Mortgage Loan
Purchase Agreement, to provide the Trustee with a power of attorney to enable
the Trustee to record any loan documents required to be recorded pursuant to
this Section 2.01(e), that the Trustee has been unable to record.
(f) In connection with the Depositor's assignment pursuant to Section
2.01(b) above, the Depositor hereby represents and warrants that it has
contractually obligated each Mortgage Loan Seller, at such Mortgage Loan
Seller's expense, pursuant to the related Mortgage Loan Purchase Agreement, to
deliver to and deposit with, or cause to be delivered to and deposited with, the
applicable Master Servicer, on or before the Closing Date, the following items
(except to the extent that any of the following items are to be retained by a
subservicer that will continue to act on behalf of the applicable Master
Servicer): (i) originals or copies of all financial statements, appraisals,
environmental/engineering reports, leases, rent rolls (or, in the case of
Mortgage Loans secured by residential cooperative properties, maintenance
schedules), third-party underwriting reports, insurance policies, legal
opinions, tenant estoppels and any other relevant documents that the applicable
Master Servicer or Special Servicer reasonably deems necessary to service the
subject Mortgage Loan in the possession or under the control of such Mortgage
Loan Seller that relate to the Original Mortgage Loans transferred by it to the
Depositor and, to the extent they are not required to be a part of a Mortgage
File for any such Original Mortgage Loan, originals or copies of all documents,
certificates and opinions in the possession or under the control of such
Mortgage Loan Seller that were delivered by or on behalf of the related
Borrowers in connection with the origination of such Original Mortgage Loans
(provided that such Mortgage Loan Seller shall not be required to deliver
documents or materials prepared by it or its Affiliates solely for internal
uses); and (ii) all unapplied Reserve Funds and Escrow Payments in the
possession or under the control of such Mortgage Loan Seller that relate to the
Original Mortgage Loans transferred by such Mortgage Loan Seller to the
Depositor. Each Master Servicer shall hold all such documents, records and funds
that it so receives on behalf of the Trustee in trust for the benefit of the
Certificateholders.
(g) Also in connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor shall deliver to and deposit with, or cause
to be delivered to and deposited with, the applicable Master Servicer, on or
before the Closing Date, the original or a copy of any Environmental Insurance
Policy acquired by the Depositor or an Affiliate of the Depositor, including all
those with respect to the Mortgage Loans identified in Exhibit B-4, and the
Depositor shall deliver to and deposit with, or cause to be delivered to and
deposited with, the Trustee, on or before the Closing Date, the Initial Deposit.
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SECTION 2.02. Acceptance of Mortgage Assets by Trustee.
(a) Subject to the other provisions in this Section 2.02, the Trustee,
by its execution and delivery of this Agreement, hereby accepts receipt on
behalf of the Trust, directly or through a Custodian on its behalf, of (i) the
Original 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 received by it that constitute portions
of the Mortgage Files, and that it holds and will hold the Original Mortgage
Loans and such other assets, together with any other Mortgage Loans and 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.
The Trustee or such Custodian shall hold any Letter of Credit in a custodial
capacity only and shall have no obligation to maintain, extend the term of,
enforce or otherwise pursue any rights under such Letter of Credit. In
connection with the foregoing, the Trustee hereby certifies to each of the other
parties hereto and the Mortgage Loan Sellers that, as to each Original Mortgage
Loan, except as to any LOC Cash Reserve and except as specifically identified in
the Schedule of Exceptions to Mortgage File Delivery attached hereto as Exhibit
B-2, (i) the Specially Designated Mortgage Loan Documents and all Mortgage Note
allonges are in its possession or the possession of a Custodian on its behalf,
and (ii) such Mortgage Loan Documents, and all Mortgage Note allonges, 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 Borrower), (B) appear to have been executed
and (C) purport to relate to such Mortgage Loan.
Further, with respect to the documents described in clause (viii) of
the definition of Mortgage File, absent actual knowledge to the contrary or
copies of UCC Financing Statements delivered to the Trustee as part of the
Mortgage File indicating otherwise, the Trustee may assume, for purposes of the
certification delivered in this Section 2.02(a), that the related Mortgage File
should include one local UCC Financing Statement filing for each related
Mortgaged Property and one state-level UCC Financing Statement for each related
Borrower.
(b) On or about the 45th day following the Closing Date (and, if any
exceptions are noted or if the recordation/filing contemplated by Section
2.01(e) has not been completed (based solely on receipt by the Trustee of the
particular documents showing evidence of the recordation/filing), every 90 days
thereafter until the earliest of (i) the date on which such exceptions are
eliminated and such recordation/filing has been completed, and (ii) the date on
which all the affected Mortgage Loans are removed from the Trust Fund), the
Trustee or a Custodian on its behalf shall review the documents delivered to it
or such Custodian with respect to each Original Mortgage Loan, and the Trustee
shall, subject to Sections 1.04, 2.02(c) and 2.02(d), certify in writing
(substantially in the form of Exhibit B-3) to each of the other parties hereto,
the Mortgage Loan Sellers and the Controlling Class Representative that, as to
each Original Mortgage Loan then subject to this Agreement (except as to any LOC
Cash Reserve and except as specifically identified in any exception report
annexed to such certification): (i) the original Mortgage Note specified in
clause (i) of the definition of "Mortgage File" and all allonges thereto, if any
(or a copy of such Mortgage Note, together with a lost note affidavit certifying
that the original of such Mortgage Note has been lost), the original or copy of
documents specified in clauses (ii) through (v) and (vii) of the definition of
"Mortgage File" and, in the case of a hospitality property, the documents
specified in clause (viii) of the definition of "Mortgage File" (without regard
to the parenthetical) and any other Specially Designated Mortgage Loan
Documents, have been received by it or a Custodian on its behalf; (ii) if such
report is due more than 180 days after the Closing Date, the
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recordation/filing contemplated by Section 2.01(e) has been completed (based
solely on receipt by the Trustee of the particular recorded/filed documents or
an appropriate receipt of recording/filing therefor); (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 Borrower), (B) appear to have been executed
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 clause (iii)(a) of the
definition of "Mortgage Loan Schedule" accurately reflects the information set
forth in the related Mortgage File. At any time subsequent to the second
anniversary of the Closing Date, the Trustee shall, upon request, prepare and
deliver to the requesting party (including any Certificateholder or Certificate
Owner) an updated version of the exception report provided for in the prior
sentence.
If a Mortgage Loan Seller, the Column Performance Guarantor or the
NCBCC Performance Guarantor substitutes a Replacement Mortgage Loan for any
Defective Mortgage Loan as contemplated by Section 2.03, the Trustee or a
Custodian on its behalf shall review the documents delivered to it or such
Custodian with respect to such Replacement Mortgage Loan, and the Trustee shall
deliver a certification comparable to that described in the prior paragraph, in
respect of such Replacement Mortgage Loan, on or about the 30th day following
the related date of substitution (and, if any exceptions are noted, every 90
days thereafter until the earliest of (i) the date on which such exceptions are
eliminated and all related recording/filing has been completed, (ii) the date on
which such Replacement Mortgage Loan is removed from the Trust Fund and (iii)
the second anniversary of the date on which such Replacement Mortgage Loan was
added to the Trust Fund). At any time subsequent to the second anniversary of
the date on which such Replacement Mortgage Loan is added to the Trust Fund, the
Trustee shall, upon request, prepare and deliver to the requesting party
(including any Certificateholder or Certificate Owner) an updated version of the
exception report provided for in the prior sentence.
(c) None of the Trustee, the Master Servicers, the Special Servicers 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, except as expressly provided in Section 2.01(e), none of the
Trustee, the Master Servicers, the Special Servicers 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) In performing the reviews contemplated by subsections (a) and (b)
above, the Trustee may conclusively rely on the related Mortgage Loan Seller as
to the purported genuineness of any such document and any signature thereon. It
is understood that the scope of the Trustee's review of the Mortgage Files is
limited solely to confirming that the documents specified in clauses (i) through
(v), clause (vii) and, in the case of any Mortgage Loan secured by a Mortgage on
a hospitality property, clause (viii) of the definition of "Mortgage File" and
any other Specially Designated Mortgage Loan Documents, have been received and
such additional information as will be necessary for delivering the
certifications required by subsections (a) and (b) above.
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SECTION 2.03. Certain Repurchases and Substitutions of Mortgage
Loans by the Mortgage Loan Sellers, the Column
Performance Guarantor and the NCBCC Performance
Guarantor; the Purchase Price Security Deposit Account
and the Special Reserve Account.
(a) If any party hereto discovers, or receives notice from a non-party,
that a Document Defect or Breach exists with respect to any Mortgage Loan, then
such party shall give prompt written notice thereof to the other parties hereto,
including (unless it is the party that discovered the Document Defect or Breach)
the Trustee. Upon the Trustee's discovery or receipt of notice that a Document
Defect or Breach exists with respect to any Mortgage Loan, the Trustee shall
notify the Controlling Class Representative, the Depositor, the related Mortgage
Loan Seller, the Column Performance Guarantor (if a Column Mortgage Loan is
involved), and the NCBCC Performance Guarantor (if an NCBCC Mortgage Loan is
involved).
If necessary, the Trustee shall request each Mortgage Loan Seller to
comply with the second paragraph of Section 2(c) of the related Mortgage Loan
Purchase Agreement with respect to any Document Defect or other deficiency in a
Mortgage File relating to an Original Mortgage Loan transferred by such Mortgage
Loan Seller to the Depositor. If the Trustee becomes aware of any failure on the
part of any Mortgage Loan Seller to do so, the Trustee shall promptly notify the
applicable Master Servicer and the applicable Special Servicer.
(b) Promptly upon its becoming aware of any Material Document Defect or
Material Breach with respect to any Mortgage Loan, the applicable Master
Servicer shall (and the applicable Special Servicer may) notify the related
Mortgage Loan Seller, the Column Performance Guarantor (if the affected Mortgage
Loan is a Column Mortgage Loan), and the NCBCC Performance Guarantor (if the
affected Mortgage Loan is an NCBCC Mortgage Loan) in writing of such Material
Document Defect or Material Breach, as the case may be, and direct the related
Mortgage Loan Seller, the Column Performance Guarantor (if the affected Mortgage
Loan is a Column Mortgage Loan), and the NCBCC Performance Guarantor (if the
affected Mortgage Loan is an NCBCC Mortgage Loan) that it or they, as the case
may be, must, not later than 90 days (or, in the case of a Material Document
Defect that consists of the failure to deliver a Specially Designated Mortgage
Loan Document, 15 days) from the receipt by the related Mortgage Loan Seller,
the Column Performance Guarantor (if the affected Mortgage Loan is a Column
Mortgage Loan), and the NCBCC Performance Guarantor (if the affected Mortgage
Loan is an NCBCC Mortgage Loan) of such notice (such 90-day (or, if applicable,
15-day) period, the "Initial Resolution Period"), correct or cure such Material
Document Defect or Material Breach, as the case may be, in all material
respects, or (subject to Section 2.03(e) below) repurchase the affected Mortgage
Loan (as, if and to the extent required by the related Mortgage Loan Purchase
Agreement, the Column Performance Guarantee or the NCBCC Performance Guarantee,
as applicable), at the applicable Purchase Price; provided that if the related
Mortgage Loan Seller or, alternatively, if the affected Mortgage Loan is or, as
of the Closing Date, was a Column Mortgage Loan, the Column Performance
Guarantor or, alternatively, if the affected Mortgage Loan is an NCBCC Mortgage
Loan, the NCBCC Performance Guarantor certifies to the Trustee in writing (i)
that such Material Document Defect or Material Breach, as the case may be, does
not relate to whether the affected Mortgage Loan is or, as of the Closing Date,
was a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code,
(ii) that such Material Document Defect or Material Breach, as the case may be,
is capable of being cured but not within the applicable Initial Resolution
Period, (iii) that the related Mortgage Loan Seller or, alternatively, if the
affected Mortgage Loan is a Column Mortgage Loan, the Column Performance
Guarantor or, alternatively, if the affected Mortgage Loan is an NCBCC Mortgage
Loan, the NCBCC
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Performance Guarantor has commenced and is diligently proceeding with the cure
of such Material Document Defect or Material Breach, as the case may be, within
the applicable Initial Resolution Period, (iv) what actions the related Mortgage
Loan Seller or, alternatively, if the affected Mortgage Loan is a Column
Mortgage Loan, the Column Performance Guarantor or, alternatively, if the
affected Mortgage Loan is an NCBCC Mortgage Loan, the NCBCC Performance
Guarantor is pursuing in connection with the cure of such Material Document
Defect or Material Breach, as the case may be, and (v) that the related Mortgage
Loan Seller or, alternatively, if the affected Mortgage Loan is a Column
Mortgage Loan, the Column Performance Guarantor or, alternatively, if the
affected Mortgage Loan is an NCBCC Mortgage Loan, the NCBCC Performance
Guarantor anticipates that such Material Document Defect or Material Breach, as
the case may be, will be cured within an additional period equal to any such
applicable Resolution Extension Period (a copy of which certification shall be
delivered by the Trustee to the applicable Master Servicer, the applicable
Special Servicer and the Controlling Class Representative), then the related
Mortgage Loan Seller, the Column Performance Guarantor (if the affected Mortgage
Loan is a Column Mortgage Loan), and the NCBCC Performance Guarantor (if the
affected Mortgage Loan is an NCBCC Mortgage Loan) shall have an additional
period equal to any such applicable Resolution Extension Period to complete such
correction or cure (or, upon failure to complete such correction or cure, to
repurchase the affected Mortgage Loan); and provided, further, that, in lieu of
effecting any such repurchase (but, in any event, no later than such repurchase
would have to have been completed), the related Mortgage Loan Seller, the Column
Performance Guarantor (if the affected Mortgage Loan is a Column Mortgage Loan),
and the NCBCC Performance Guarantor (if the affected Mortgage Loan is an NCBCC
Mortgage Loan) shall be permitted, during the three-month period following the
Startup Day for REMIC I (or during the two-year period following such Startup
Day if the affected Mortgage Loan is a "defective obligation" within the meaning
of Section 860G(a)(4)(B)(ii) of the Code and Treasury regulation section
1.860G-2(f)), to replace the affected Mortgage Loan with one or more Qualifying
Substitute Mortgage Loans and to pay a cash amount equal to the applicable
Substitution Shortfall Amount, subject to any other applicable terms and
conditions of the related Mortgage Loan Purchase Agreement, the Column
Performance Guarantee or the NCBCC Performance Guarantee, as applicable, and
this Agreement. If any Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 2.03, the applicable Master Servicer shall
designate its Collection Account as the account to which funds in the amount of
the applicable Purchase Price or Substitution Shortfall Amount (as the case may
be) are to be wired, and the applicable Master Servicer shall promptly notify
the Trustee when such deposit is made. Any such repurchase or replacement of a
Mortgage Loan shall be on a whole loan, servicing released basis.
"Resolution Extension Period" shall mean:
(i) for purposes of remediating a Material Breach with respect to any
Mortgage Loan, 90 days;
(ii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is and remains a Performing Mortgage Loan
throughout the applicable Initial Resolution Period, the period commencing
at the end of the applicable Initial Resolution Period and ending on, and
including, the earlier of (A) the 90th day following the end of such
Initial Resolution Period and (B) the 45th day following the related
Mortgage Loan Seller's receipt of written notice from the Trustee, the
applicable Master Servicer or the applicable Special Servicer of the
occurrence of any Servicing Transfer Event with respect to such Mortgage
Loan subsequent to the end of such Initial Resolution Period;
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(iii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Performing Mortgage Loan as of the
commencement of the applicable Initial Resolution Period, but as to which a
Servicing Transfer Event occurs during such Initial Resolution Period, the
period commencing at the end of the applicable Initial Resolution Period
and ending on, and including, the 90th day following the earlier of (A) the
end of such Initial Resolution Period and (B) the related Mortgage Loan
Seller's receipt of written notice from the Trustee, the applicable Master
Servicer or the applicable Special Servicer of the occurrence of such
Servicing Transfer Event; and
(iv) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Specially Serviced Mortgage Loan as
of the commencement of the applicable Initial Resolution Period, zero (-0-)
days, except that, if the related Mortgage Loan Seller did not receive
written notice from the Trustee, the applicable Master Servicer or the
applicable Special Servicer of the relevant Servicing Transfer Event as of
the commencement of the applicable Initial Resolution Period, then such
Servicing Transfer Event will be deemed to have occurred during such
Initial Resolution Period and clause (iii) of this definition will be
deemed to apply;
provided that, except as otherwise set forth in the following two provisos,
there shall be no Resolution Extension Period in respect of a Material Document
Defect involving a Specially Designated Mortgage Loan Document; and provided,
further, that if a Material Document Defect exists with respect to any Mortgage
Loan, and if the related Mortgage Loan Seller, the Column Performance Guarantor
or the NCBCC Performance Guarantor, as the case may be, escrows with the
applicable Master Servicer, prior to the end of the Initial Resolution Period
and any Resolution Extension Period otherwise applicable to the remediation of
such Material Document Defect without regard to this proviso, cash in the amount
of the then Purchase Price for such Mortgage Loan and subsequently delivers to
the applicable Master Servicer, on a monthly basis, such additional cash as may
be necessary to maintain a total escrow equal to the Purchase Price for such
Mortgage Loan as such price may increase over time (the total amount of cash
delivered to the applicable Master Servicer with respect to any Mortgage Loan as
contemplated by this proviso or the immediately following proviso, the "Purchase
Price Security Deposit"), then the Resolution Extension Period applicable to the
remediation of such Material Document Defect shall be extended until the
earliest of (i) the second anniversary of the Closing Date, (ii) the date on
which such Mortgage Loan is no longer outstanding and part of the Trust Fund and
(iii) if such Mortgage Loan becomes a Specially Serviced Mortgage Loan, the
date, if any, on which the applicable Special Servicer determines in its
reasonable judgment that such Material Document Defect will materially interfere
with or delay the realization against the related Mortgaged Property or
materially increase the cost thereof; and provided, further, that if the
Material Document Defect referred to in the preceding proviso consists of a
failure to deliver a Specially Designated Mortgage Loan Document, and if the
related Mortgage Loan Seller, the Column Performance Guarantor or the NCBCC
Performance Guarantor, as the case may be, delivers to the applicable Master
Servicer a Purchase Price Security Deposit equal to 25% of the outstanding
principal balance of the subject Mortgage Loan, then the Resolution Extension
Period applicable to the remediation of such Material Document Defect shall be
extended to the 15th day following the end of the applicable Initial Resolution
Period.
The applicable Master Servicer shall establish, and maintain any
Purchase Price Security Deposit delivered to it with respect to any Mortgage
Loan in, one or more accounts (individually and collectively, a "Purchase Price
Security Deposit Account"), each of which shall be an Eligible Account, and
shall be entitled to make withdrawals from the Purchase Price Security Deposit
for any Mortgage
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Loan maintained in such account(s) for the following purposes: (i) to cover any
costs and expenses resulting from the applicable Material Document Defect; (ii)
upon any discounted payoff or other liquidation of such Mortgage Loan, to cover
any Realized Loss related thereto; and (iii) if the related Mortgage Loan Seller
(or, if it is the party that delivered the subject Purchase Price Security
Deposit, the Column Performance Guarantor or the NCBCC Performance Guarantor) so
directs, or if the balance on deposit in such Purchase Price Security Deposit
Account declines, and for 45 days remains, below the Purchase Price for such
Mortgage Loan (except where a Purchase Price Security Deposit equal to 25% of
the outstanding principal balance of the subject Mortgage Loan is permitted to
be delivered in order to obtain a 15-day Resolution Extension Period with
respect to the failure to deliver a Specially Designated Mortgage Loan
Document), or if such Material Document Defect is not remedied on or before the
second anniversary of the Closing Date, or if such Mortgage Loan becomes a
Specially Serviced Mortgage Loan and the applicable Special Servicer determines,
in its reasonable judgment that such Material Document Defect will materially
interfere with or delay the realization against the related Mortgaged Property
or materially increase the cost thereof, to apply the Purchase Price Security
Deposit to a full or partial, as applicable, payment of the Purchase Price for
such Mortgage Loan. Any amounts withdrawn by the applicable Master Servicer from
the Purchase Price Security Deposit Account for any Mortgage Loan shall be
deposited by such Master Servicer into its Collection Account. Any withdrawals
from a Purchase Price Security Deposit Account shall be deemed to be
"Liquidation Proceeds" for the purposes of this Agreement (other than Section
3.11(c)). Any Purchase Price Security Deposit Account, and any Purchase Price
Security Deposit, shall be part of the Trust Fund but outside any REMIC Pool or
Grantor Trust Pool. The investment of funds in the Purchase Price Security
Deposit Accounts shall be governed by the terms of the respective Mortgage Loan
Purchase Agreements. The related Mortgage Loan Seller (or, if it is the party
that delivered such amount, the Column Performance Guarantor or the NCBCC
Performance Guarantor) may obtain a release of the Purchase Price Security
Deposit for any Mortgage Loan (net of any amounts payable therefrom as
contemplated by the first sentence of this paragraph) upon such Mortgage Loan's
being paid in full or otherwise satisfied, liquidated or removed from the Trust
Fund or upon the subject Material Document Defect's being remedied in all
material respects. Any such repurchase or replacement of a Mortgage Loan shall
be on a whole loan, servicing released basis.
If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased or replaced by a Mortgage Loan
Seller, the Column Performance Guarantor or the NCBCC Performance Guarantor as
contemplated by this Section 2.03, then, prior to the subject repurchase or
substitution, the applicable Master Servicer shall use its reasonable efforts,
subject to the terms of the affected Mortgage Loans, to prepare and, to the
extent necessary and appropriate, have executed by the related Borrower and
record, such documentation as may be necessary to terminate the
cross-collateralization between the Mortgage Loans in such Cross-Collateralized
Group that are to be repurchased or replaced, on the one hand, and the remaining
Mortgage Loans 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 (as to each such
group, the "Primary Real Property Collateral"); provided that no such
termination shall be effected unless and until the applicable Master Servicer
and the Trustee have received from the related Mortgage Loan Seller, the Column
Performance Guarantor or the NCBCC Performance Guarantor, as applicable, (i) an
Opinion of Counsel addressed to the Trustee and the applicable Master Servicer
from Independent counsel to the effect that such termination will not cause an
Adverse REMIC Event to occur with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to either Grantor Trust Pool and (ii) written
confirmation from each Rating Agency that such termination will not cause an
Adverse Rating Event to occur with respect to any Class of Rated Certificates;
and provided, further, that the related
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Mortgage Loan Seller, the Column Performance Guarantor or the NCBCC Performance
Guarantor, as applicable, may, at its option, repurchase or replace the entire
Cross-Collateralized Group without termination of the cross-collateralization.
To the extent necessary and appropriate, the Trustee shall execute (or, subject
to Section 3.10, provide the applicable Master Servicer with a limited power of
attorney that enables the applicable Master Servicer to execute) the loan
documentation referred to in the prior sentence; provided that the Trustee
shall not be liable for any misuse of any such power of attorney by a Master
Servicer. The applicable Master Servicer shall advance all costs and expenses
incurred by the Trustee and such Master Servicer with respect to any
Cross-Collateralized Group pursuant to this paragraph, and such advances shall
(i) constitute and be reimbursable as Servicing Advances and (ii) be included
in the calculation of Purchase Price for the Mortgage Loan(s) to be repurchased
or replaced. No Master Servicer or Special Servicer shall be liable to any
Certificateholder or any other party hereto if the cross-collateralization of
any Cross-Collateralized Group cannot be terminated as contemplated by this
paragraph for any reason beyond the control of such Master Servicer or Special
Servicer, as the case may be.
If the cross-collateralization of any Cross-Collateralized Group of
Mortgage Loans cannot be terminated as contemplated by the prior paragraph for
any reason (including, but not limited to, the failure of the related Mortgage
Loan Seller, the Column Performance Guarantor or the NCBCC Performance
Guarantor, as the case may be, to satisfy any of the conditions set forth in the
proviso to the first sentence of the prior paragraph), if the related Mortgage
Loan Seller, the Column Performance Guarantor or the NCBCC Performance
Guarantor, as the case may be, has not elected to purchase the entire affected
Cross-Collateralized Group, and if such Cross-Collateralized Group is then
subject to this Agreement, then, to the extent that the related Mortgage Loan
Seller, the Column Performance Guarantor or the NCBCC Performance Guarantor, as
the case may be, is required to repurchase or replace any Mortgage Loan in that
Cross-Collateralized Group in the manner prescribe above while the Trust
continues to hold any other Mortgage Loan in that Cross-Collateralized Group,
the related Mortgage Loan Purchase Agreement shall provide for the Trustee, on
behalf of the Trust, and the related Mortgage Loan Seller each to agree to
forbear from enforcing any remedies against the other's Primary Real Property
Collateral; provided that the Trustee and the applicable Master Servicer shall
have received from the related Mortgage Loan Seller, the Column Performance
Guarantor or the NCBCC Performance Guarantor, as the case may be, an Opinion of
Counsel from Independent counsel to the effect that (i) the exercise of remedies
by the related Mortgage Loan Seller, the Column Performance Guarantor or the
NCBCC Performance Guarantor, as the case may be, on the one hand, or the Trust,
on the other hand, with respect to the Primary Real Property Collateral securing
the respective Mortgage Loan(s) in such Cross-Collateralized Group held by such
party would not materially and adversely affect the rights of the other such
party to proceed against the Primary Real Property Collateral for the respective
Mortgage Loan(s) in such Cross-Collateralized Group held by such other party and
(ii) the foregoing arrangement would not result in an Adverse REMIC Event with
respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to any
Grantor Trust Pool. Any reserve or other cash collateral or letters of credit
securing the subject Cross-Collateralized Group shall be allocated between the
Mortgage Loans therein held by the related Mortgage Loan Seller, the Column
Performance Guarantor or the NCBCC Performance Guarantor, as the case may be, on
the one hand, and the Trust, on the other hand, in accordance with the related
Mortgage Loan Documents, or otherwise on a pro rata basis based upon the
outstanding principal balances of their respective Mortgage Loans in such
Cross-Collateralized Group. All other terms of the Mortgage Loans in such
Cross-Collateralized Group shall remain in full force and effect, without any
modification thereof. The Borrowers under the respective Cross-Collateralized
Groups of Mortgage Loans are intended third-party beneficiaries of the provision
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set forth in this paragraph. The provisions of this paragraph may not be
modified with respect to any Mortgage Loan in a Cross-Collateralized Group
without the related Borrower's consent.
If the cross-collateralization of any Cross-Collateralized Group of
Mortgage Loans cannot be terminated as contemplated by the second preceding
paragraph for any reason (including, but not limited to, the failure of the
related Mortgage Loan Seller, the Column Performance Guarantor or the NCBCC
Performance Guarantor, as the case may be, to satisfy any of the conditions set
forth in the proviso to the first sentence of the second preceding paragraph)
and the forbearance arrangement in respect of such Cross-Collateralized Group
cannot be effected as contemplated by the preceding paragraph for any reason
(including, but not limited to, the failure of the related Mortgage Loan Seller,
the Column Performance Guarantor or the NCBCC Performance Guarantor, as the case
may be, to satisfy any of the conditions set forth in the proviso to the first
sentence of the prior paragraph), then the entire Cross-Collateralized Group
shall be repurchased or replaced if the subject Material Breach or Material
Document Defect, as the case may be, is not remedied in all material respects by
the end of the applicable Initial Resolution Period and any applicable
Resolution Extension Period.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan by a Mortgage Loan Seller, the Column Performance Guarantor or the
NCBCC Performance Guarantor as contemplated by this Section 2.03, the applicable
Master Servicer shall direct the party effecting the substitution to deliver the
related Mortgage File to the Trustee, to certify that such substitute mortgage
loan satisfies or such substitute mortgage loans satisfy, as the case may be,
all of the requirements of the definition of "Qualifying Substitute Mortgage
Loan" and to send such certification to the Trustee. No mortgage loan may be
substituted for a Defective Mortgage Loan as contemplated by this Section 2.03
if the Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in
which case, absent a cure of the relevant Material Breach or Material Document
Defect, the affected Mortgage Loan will be required to be repurchased as
contemplated hereby. Monthly Payments due with respect to each Replacement
Mortgage Loan (if any) after the related date of substitution, and Monthly
Payments due with respect to each corresponding Deleted Mortgage Loan (if any)
after the related Due Date in November 2001 and on or prior to the related date
of substitution, shall be part of the Trust Fund. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) on or prior to the related
date of substitution, and Monthly Payments due with respect to each
corresponding Deleted Mortgage Loan (if any) after the related date of
substitution, shall not be part of the Trust Fund and are to be remitted by the
applicable Master Servicer to the party effecting the related substitution
promptly following receipt.
If any Mortgage Loan is to be repurchased or replaced by a Mortgage
Loan Seller, the Column Performance Guarantor or the NCBCC Performance Guarantor
as contemplated by this Section 2.03, the applicable Master Servicer shall
direct such Mortgage Loan Seller, the Column Performance Guarantor or the NCBCC
Performance Guarantor, as the case may be, to amend the Mortgage Loan Schedule
to reflect the removal of any Deleted Mortgage Loan and, if applicable, the
substitution of the related Replacement Mortgage Loan(s); and, upon its receipt
of such amended Mortgage Loan Schedule, the applicable Master Servicer shall
deliver or cause the delivery of such amended Mortgage Loan Schedule to the
other parties hereto. Upon any substitution of one or more Replacement Mortgage
Loans for a Deleted Mortgage Loan, such Replacement Mortgage Loan(s) shall
become part of the Trust Fund and be subject to the terms of this Agreement in
all respects.
The reasonable "out-of-pocket" costs and expenses incurred by the
applicable Master Servicer and/or the Trustee pursuant to this Section 2.03(b),
including reasonable attorney fees and
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expenses, shall constitute Servicing Advances to the extent not collected from
the related Mortgage Loan Seller, the Column Performance Guarantor or the NCBCC
Performance Guarantor or reimbursed from a Purchase Price Security Deposit
Account or a Special Reserve Account or under a Recording Omission Credit.
(c) Upon receipt of an Officer's Certificate from the applicable Master
Servicer to the effect that the full amount of the Purchase Price or
Substitution Shortfall Amount (as the case may be) for any Mortgage Loan
repurchased or replaced by the related Mortgage Loan Seller, the Column
Performance Guarantor or the NCBCC Performance Guarantor as contemplated by this
Section 2.03 has been deposited in such Master Servicer's Collection Account,
and further, if applicable, upon receipt of the Mortgage File for each
Replacement Mortgage Loan (if any) to be substituted for a Deleted Mortgage
Loan, together with any certifications and/or opinions required pursuant to
Section 2.03(b) to be delivered by the party effecting the
repurchase/substitution, the Trustee shall (i) release or cause the release of
the Mortgage File and any Additional Collateral held by or on behalf of the
Trustee for the Deleted Mortgage Loan to the party effecting the
repurchase/substitution or its designee and (ii) execute and deliver such
instruments of release, transfer and/or assignment, in each case without
recourse, as shall be provided to it and are reasonably necessary to vest in the
party effecting the repurchase/substitution or its designee the ownership of the
Deleted Mortgage Loan, and the applicable Master Servicer shall notify the
affected Borrowers of the transfers of the Deleted Mortgage Loan(s) and any
Replacement Mortgage Loan(s). In connection with any such repurchase or
substitution by the related Mortgage Loan Seller, the Column Performance
Guarantor or the NCBCC Performance Guarantor, each of the applicable Master
Servicer and the applicable Special Servicer shall deliver to the party
effecting the repurchase/substitution or its designee any portion of the related
Servicing File, together with any Escrow Payments, Reserve Funds and Additional
Collateral, held by or on behalf of such Master Servicer or such Special
Servicer, as the case may be, with respect to the Deleted Mortgage Loan, in each
case at the expense of the party effecting the repurchase/substitution. The
reasonable "out-of-pocket" costs and expenses, including reasonable attorneys'
fees and expenses, incurred by a Master Servicer, a Special Servicer and/or the
Trustee pursuant to this Section 2.03(c), to the extent not collected from the
related Mortgage Loan Seller, the Column Performance Guarantor or the NCBCC
Performance Guarantor or reimbursed from a Purchase Price Security Deposit
Account or a Special Reserve Account or under a Recording Omission Credit, shall
be reimbursable to each of them as Servicing Advances in respect of the affected
Mortgage Loan.
(d) The related Mortgage Loan Purchase Agreement, the Column
Performance Guarantee (in the case of the Column Mortgage Loans), and the NCBCC
Performance Guarantee (in the case of the NCBCC Mortgage Loans) provide the sole
remedies available to the Certificateholders, or the Trustee on their behalf,
respecting any Breach or Document Defect. If a Mortgage Loan Seller (or, in the
case of a Column Mortgage Loan, each of Column and the Column Performance
Guarantor or, in the case of an NCBCC Mortgage Loan, each of NCBCC and the NCBCC
Performance Guarantor) defaults on its obligations to repurchase or replace any
Mortgage Loan as contemplated by this Section 2.03, the applicable Master
Servicer shall (and the applicable Special Servicer may) promptly notify the
Trustee, and the Trustee shall notify the Certificateholders. Thereafter, the
applicable Master Servicer shall (and the applicable Special Servicer may) take
such actions on behalf of the Trust with respect to the enforcement of such
repurchase/substitution obligations (and if the applicable Master Servicer (or
the applicable Special Servicer) is notified or otherwise becomes aware of a
default on the part of any Mortgage Loan Seller in respect of its obligations
under the second paragraph of Section 2(c) of the related Mortgage Loan Purchase
Agreement, such Master Servicer shall (and such Special Servicer may) also take
such actions on behalf of the Trust with respect to the enforcement of such
obligations of such
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Mortgage Loan Seller), including the institution and prosecution of appropriate
legal proceedings, as such Master Servicer (or, if applicable, such Special
Servicer) shall determine are in the best interests of the Certificateholders
(taken as a collective whole). Any and all reasonable "out-of-pocket" costs and
expenses incurred by a Master Servicer, a Special Servicer and/or the Trustee
pursuant to this Section 2.03(d), including, reasonable attorney's fees and
expenses, to the extent not collected from the related Mortgage Loan Seller, the
Column Performance Guarantor or the NCBCC Performance Guarantor or reimbursed
from a Purchase Price Security Deposit Account or a Special Reserve Account or
under a Recording Omission Credit, shall constitute Servicing Advances in
respect of the affected Mortgage Loan.
(e) If, on or after May 13, 2003, any Mortgage Loan Seller, the Column
Performance Guarantor or the NCBCC Performance Guarantor receives notice of a
Material Document Defect with respect to any of its Mortgage Loans, which
Material Document Defect constitutes a Recording Omission, then such Mortgage
Loan Seller, the Column Performance Guarantor or the NCBCC Performance
Guarantor, as the case may be, may, with the consent of the Controlling Class
Representative, which consent may be granted or withheld in its sole discretion,
in lieu of repurchasing or replacing such Mortgage Loan (as and to the extent
contemplated by Section 2.03(b) above), but in no event later than such
repurchase would have to have been completed, establish a Recording Omission
Credit or a Recording Omission Reserve with the applicable Master Servicer. In
furtherance of the preceding sentence, (A) the applicable Master Servicer shall
establish one or more accounts (collectively, the "Special Reserve Account")
with respect to the subject Mortgage Loan, each of which shall be an Eligible
Account; (B) such Master Servicer shall deposit any Recording Omission Reserve
into the Special Reserve Account within one Business Day after receipt; and (C)
such Master Servicer shall administer the Special Reserve Account in accordance
with the terms of the related Mortgage Loan Purchase Agreement. In the event
that the applicable Master Servicer is entitled to apply any related Recording
Omission Reserve or to draw upon any related Recording Omission Credit to cover
losses or expenses directly incurred by the Trust as a result of a Recording
Omission with respect to any Mortgage Loan, then prior to making a Servicing
Advance or incurring an Additional Trust Fund Expense to cover any losses or
expenses directly resulting from such Recording Omission, such Master Servicer
shall draw upon such related Recording Omission Reserve (out of the Special
Reserve Account) or upon such related Recording Omission Credit, as the case may
be, up to the amount of such losses or expenses, and shall deposit the funds
from such draw into such Master Servicer Collection Account, and such amounts
shall be deemed to be "Liquidation Proceeds" for all purposes of this Agreement
(other than Section 3.11(c)) and shall be applied to cover such losses or
expenses. The Recording Omission Reserve or Recording Omission Credit (or any
unused balance thereof) delivered by any Mortgage Loan Seller, the Column
Performance Guarantor or the NCBCC Performance Guarantor with respect to any
Mortgage Loan shall be released to such Mortgage Loan Seller, the Column
Performance Guarantor or the NCBCC Performance Guarantor, as the case may be, by
the applicable Master Servicer upon the earlier of (i) the curing of all
Recording Omissions with respect to such Mortgage Loan and (ii) the removal of
such Mortgage Loan from the Trust Fund. The Special Reserve Account, and any
Recording Omission Reserves and Recording Title Policy Credits, shall be part of
the Trust Fund but outside any REMIC Pool or Grantor Trust Pool. The investment
of funds in the Special Reserve Account shall be governed by the terms of the
respective Mortgage Loan Purchase Agreements.
(f) If the applicable Mortgage Loan Seller disputes that a Material
Document Defect or Material Breach exists with respect to a Mortgage Loan or
otherwise refuses (i) to effect a correction or cure of such Material Document
Defect or Material Breach, (ii) to repurchase the affected Mortgage
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Loan from the Trust or (iii) to replace such Mortgage Loan with a Qualifying
Substitute Mortgage Loan, each in accordance with the related Mortgage Loan
Purchase Agreement, then provided that (i) the applicable Initial Resolution
Period and any applicable Resolution Extension Period has expired and (ii) the
Mortgage Loan is then in default and is then a Specially Serviced Mortgage Loan,
the applicable Special Servicer may, subject to the Servicing Standard, modify,
work-out or foreclose, sell or otherwise liquidate (or permit the liquidation
of) the Mortgage Loan pursuant to the terms of this Agreement, while pursuing
the repurchase claim, and such action shall not be a defense to the repurchase
claim or alter the applicable Purchase Price.
The related Mortgage Loan Seller and any applicable Performance
Guarantor shall be notified promptly and in writing by the applicable Special
Servicer of any offer that it receives to purchase an REO Property. Upon the
receipt of such notice by the related Mortgage Loan Seller, the related Mortgage
Loan Seller (or, if it elects not to do so, any applicable Performance
Guarantor) shall then have the right to repurchase such REO Property from the
Trust at a purchase price equal to the amount of such offer. The related
Mortgage Loan Seller and any applicable Performance Guarantor shall have three
(3) Business Days to purchase such REO Property from the date that it was
notified of such offer. The applicable Special Servicer shall be obligated to
provide the related Mortgage Loan Seller and any applicable Performance
Guarantor with the most recent appraisal or other third-party reports relating
to an REO Property within its possession to enable the related Mortgage Loan
Seller and any applicable Performance Guarantor to evaluate such REO Property.
Any sale of a Mortgage Loan, or foreclosure upon such Mortgage Loan and sale of
an REO Property, to a Person other than the related Mortgage Loan Seller and any
applicable Performance Guarantor shall be (i) without recourse of any kind
(either expressed or implied) by such Person against the related Mortgage Loan
Seller or any applicable Performance Guarantor and (ii) without representation
or warranty of any kind (either expressed or implied) by the related Mortgage
Loan Seller and any applicable Performance Guarantor to or for the benefit of
such person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the subject Mortgage Loan or REO Property) shall not prejudice any claim against
the related Mortgage Loan Seller for repurchase of the subject Mortgage Loan or
REO Property. The provisions of this Section 2.03 regarding remedies against the
related Mortgage Loan Seller for a Material Breach or Material Document Defect
with respect to any Mortgage Loan shall also apply to the related REO Property.
If the related Mortgage Loan Seller fails to correct or cure the
Material Document Defect or Material Breach or purchase the REO Property, then
the provisions above regarding notice of offers related to such REO Property and
the related Mortgage Loan Seller's right to purchase such REO Property shall
apply. If a court of competent jurisdiction issues a final order that the
related Mortgage Loan Seller is or was obligated to repurchase the related
Mortgage Loan or REO Property or the related Mortgage Loan Seller otherwise
accepts liability, then, after the expiration of any applicable appeal period,
but in no event later than the termination of the Trust pursuant to this
Agreement, the related Mortgage Loan Seller will be obligated to pay to the
Trust the amount, if any, by which the applicable Purchase Price exceeds any
Liquidation Proceeds received upon such liquidation (including those arising
from any sale to the related Mortgage Loan Seller); provided that the prevailing
party in such action shall be entitled to recover all costs, fees and expenses
(including reasonable attorneys' fees) related thereto.
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SECTION 2.04. Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the other
parties hereto and for the benefit of the Certificateholders, as of the Closing
Date, that:
(i) The Depositor is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(ii) The Depositor's execution and delivery of, performance under, and
compliance with this Agreement, will not violate the Depositor'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 by which it is bound, which default or
breach, in the good faith and reasonable judgment of the Depositor, is
likely to affect materially and adversely either the ability of the
Depositor to perform its obligations under this Agreement or the financial
condition of the Depositor.
(iii) The Depositor has the full power and authority to own its
properties, to conduct its business as presently conducted by it and to
enter into and consummate all transactions involving the Depositor
contemplated by this Agreement, has duly authorized the execution, delivery
and performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery
by each of the other parties hereto, constitutes a valid, legal and binding
obligation of the Depositor, enforceable against the Depositor in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of, performance under and compliance with this Agreement will not
constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Depositor's
good faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Depositor to perform its obligations
under this Agreement or the financial condition of the Depositor.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Depositor of the transactions contemplated herein,
except (A) for those consents, approvals, authorizations or orders that
previously have been obtained, (B) such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and sale of
the Certificates by the Underwriters, and (C) any recordation of the
assignments of Mortgage Loan Documents to the Trustee pursuant to Section
2.01(e), which has not yet been completed.
(vii) The Depositor's transfer of the Original Mortgage Loans to the
Trustee as contemplated herein requires no regulatory approval, other than
any such approvals as have been
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obtained, and is not subject to any bulk transfer or similar law in effect
in any applicable jurisdiction.
(viii) The Depositor is not transferring the Original Mortgage Loans to
the Trustee with any intent to hinder, delay or defraud its present or
future creditors.
(ix) The Depositor has been solvent at all relevant times prior to, and
will not be rendered insolvent by, its transfer of the Original Mortgage
Loans to the Trustee, pursuant to Section 2.01(b).
(x) After giving effect to its transfer of the Original Mortgage Loans
to the Trustee, pursuant to Section 2.01(b), the value of the Depositor's
assets, either taken at their present fair saleable value or at fair
valuation, will exceed the amount of the Depositor's debts and obligations,
including contingent and unliquidated debts and obligations of the
Depositor, and the Depositor will not be left with unreasonably small
assets or capital with which to engage in and conduct its business.
(xi) The Depositor does not intend to, and does not believe that it
will, incur debts or obligations beyond its ability to pay such debts and
obligations as they mature.
(xii) No proceedings looking toward merger, liquidation, dissolution or
bankruptcy of the Depositor are pending or contemplated.
(xiii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that, if determined adversely
to the Depositor, would prohibit the Depositor from entering into this
Agreement or that, in the Depositor's good faith and reasonable judgment,
is likely to materially and adversely affect either the ability of the
Depositor to perform its obligations under this Agreement or the financial
condition of the Depositor.
(xiv) Immediately prior to the transfer of the Original Mortgage Loans
to the Trustee for the benefit of the Certificateholders pursuant to this
Agreement, the Depositor had such right, title and interest in and to each
Original Mortgage Loan as was transferred to it by the related Mortgage
Loan Seller pursuant to the related Mortgage Loan Purchase Agreement. The
Depositor has not transferred any of its right, title and interest in and
to the Original Mortgage Loans to any Person other than the Trustee.
(xv) The Depositor is transferring all of its right, title and interest
in and to the Original Mortgage Loans to the Trustee for the benefit of the
Certificateholders free and clear of any and all liens, pledges, charges,
security interests and other encumbrances created by or through the
Depositor.
(xvi) Except for any actions that are the express responsibility of
another party hereunder or under any Mortgage Loan Purchase Agreement, and
further except for actions that the Depositor is expressly permitted to
complete subsequent to the Closing Date, the Depositor has taken all
actions required under applicable law to effectuate the transfer of all of
its right, title and interest in and to the Original Mortgage Loans by the
Depositor to the Trustee.
(b) The representations and warranties of the Depositor set forth in
Section 2.04(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons
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for whose benefit they were made for so long as the Trust remains in existence.
Upon discovery by any party hereto of any breach of any of such representations
and warranties that materially and adversely affects the interests of the
Certificateholders or any party hereto, the party discovering such breach shall
give prompt written notice thereof to the other parties hereto.
SECTION 2.05. Representations and Warranties of the General Master
Servicer.
(a) The General Master Servicer hereby represents and warrants to each
of the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The General Master Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Ohio,
and the General Master Servicer is in compliance with the laws of each
State in which any related Mortgaged Property is located to the extent
necessary to ensure the enforceability of each Column Mortgage Loan and
KeyBank Mortgage Loan and to perform its obligations under this Agreement.
(ii) The General Master Servicer's execution and delivery of,
performance under and compliance with this Agreement, will not violate the
General 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 by which it is bound,
which default or breach, in the good faith and reasonable judgment of the
General Master Servicer, is likely to affect materially and adversely
either the ability of the General Master Servicer to perform its
obligations under this Agreement or the financial condition of the General
Master Servicer.
(iii) The General Master Servicer has the full power and authority to
enter into and consummate all transactions involving the General Master
Servicer 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 General Master Servicer, enforceable against the General
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, receivership, moratorium
and other laws affecting the enforcement of creditors' rights generally,
and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The General Master Servicer is not in violation of, and its
execution and delivery of, performance under and compliance with 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 General Master Servicer's good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of the General Master
Servicer to perform its obligations under this Agreement or the financial
condition of the General Master Servicer.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the General Master Servicer of the transactions
contemplated herein, except for those consents, approvals,
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authorizations or orders that previously have been obtained or where the
lack of such consent, approval, authorization or order would not have a
material adverse effect on the ability of the General Master Servicer to
perform its obligations under this Agreement.
(vii) No litigation is pending or, to the best of the General Master
Servicer's knowledge, threatened against the General Master Servicer that,
if determined adversely to the General Master Servicer, would prohibit the
General Master Servicer from entering into this Agreement or that, in the
General Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the General Master
Servicer to perform its obligations under this Agreement or the financial
condition of the General Master Servicer.
(viii) The General Master Servicer has errors and omissions insurance
in the amounts and with the coverage required by Section 3.07(d).
(ix) The General Master Servicer has examined each of the Sub-Servicing
Agreements entered into by the General Master Servicer that will be in
effect as of the Closing Date with respect to the Column Mortgage Loans and
the KeyBank Mortgage Loans, and each such Sub-Servicing Agreement complies
with the requirements of Section 3.22(a) in all material respects.
(b) The representations and warranties of the General Master Servicer
set forth in Section 2.05(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 remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Any successor General 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 2.05(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 2.05(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 2.06. Representations and Warranties of the General Special
Servicer.
(a) The General Special Servicer hereby represents and warrants to each
of the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The General Special Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Ohio,
and the General Special Servicer is in compliance with the laws of each
State in which any related Mortgaged Property is located to the extent
necessary to ensure the enforceability of each Mortgage Loan (other than a
Co-op Mortgage Loan) and to perform its obligations under this Agreement.
(ii) The General Special Servicer's execution and delivery of,
performance under and compliance with this Agreement will not violate the
General Special Servicer's organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both, would constitute
a default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or any
of its assets, which default, in the good faith and reasonable judgment of
the General Special Servicer, is likely to affect materially and
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adversely either the ability of the General Special Servicer to perform its
obligations under this Agreement or the financial condition of the General
Special Servicer.
(iii) The General Special Servicer has the full power and authority to
enter into and consummate all transactions involving the General Special
Servicer 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 General Special Servicer, enforceable against the General
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, receivership, moratorium
and other laws affecting the enforcement of creditors' rights generally,
and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The General Special Servicer is not in violation of, and its
execution and delivery of, performance under 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 General Special Servicer's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the General Special Servicer to perform its obligations under this
Agreement or the financial condition of the General Special Servicer.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the General Special Servicer of the transactions
contemplated herein, except for those consents, approvals, authorizations
or orders that previously have been obtained or where the lack of such
consent, approval, authorization or order would not have a material adverse
effect on the ability of the General Special Servicer to perform its
obligations under this Agreement.
(vii) No litigation is pending or, to the best of the General Special
Servicer's knowledge, threatened against the General Special Servicer that,
if determined adversely to the General Special Servicer, would prohibit the
General Special Servicer from entering into this Agreement or that, in the
General Special Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the General Special
Servicer to perform its obligations under this Agreement or the financial
condition of the General Special Servicer.
(viii) The General Special Servicer has errors and omissions insurance
in the amounts and with the coverage required by Section 3.07(d).
(ix) As of the Closing Date, the General Special Servicer is not a
party to any Sub-Servicing Agreement providing for the performance of
duties of the General Special Servicer by any Sub-Servicers with respect to
any of the Mortgage Loans or REO Properties.
(b) The representations and warranties of the General Special Servicer
set forth in Section 2.06(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 remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties that
materially
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and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Any successor General 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 2.06(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.06(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 2.07. Representations and Warranties of the Co-op Master
Servicer.
(a) The Co-op Master Servicer hereby represents and warrants to each of
the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Co-op Master Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the United States, and the
Co-op Master Servicer is in compliance with the laws of each State in which
any related Mortgaged Property is located to the extent necessary to ensure
the enforceability of each Co-op Mortgage Loan and to perform its
obligations under this Agreement.
(ii) The Co-op Master Servicer's execution and delivery of, performance
under and compliance with this Agreement, will not violate the Co-op 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 by which it is bound, which default or
breach, in the good faith and reasonable judgment of the Co-op Master
Servicer, is likely to affect materially and adversely either the ability
of the Co-op Master Servicer to perform its obligations under this
Agreement or the financial condition of the Co-op Master Servicer.
(iii) The Co-op Master Servicer has the full power and authority to
enter into and consummate all transactions involving the Co-op Master
Servicer 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 Co-op Master Servicer, enforceable against the Co-op
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, receivership, moratorium
and other laws affecting the enforcement of creditors' rights generally,
and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Co-op Master Servicer is not in violation of, and its execution
and delivery of, performance under and compliance with 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 Co-op Master
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Co-op Master Servicer to
perform its obligations under this Agreement or the financial condition of
the Co-op Master Servicer.
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(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Co-op Master Servicer of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders that
previously have been obtained or where the lack of such consent, approval,
authorization or order would not have a material adverse effect on the
ability of the Co-op Master Servicer to perform its obligations under this
Agreement.
(vii) No litigation is pending or, to the best of the Co-op Master
Servicer's knowledge, threatened against the Co-op Master Servicer that, if
determined adversely to the Co-op Master Servicer, would prohibit the Co-op
Master Servicer from entering into this Agreement or that, in the Co-op
Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Co-op Master
Servicer to perform its obligations under this Agreement or the financial
condition of the Co-op Master Servicer.
(viii) The Co-op Master Servicer has errors and omissions insurance in
the amounts and with the coverage required by Section 3.07(d).
(ix) As of the Closing Date, the Co-op Master Servicer is not a party
to any Sub-Servicing Agreement providing for the performance of duties of
the Co-op Master Servicer by any Sub-Servicer with respect to the Co-op
Mortgage Loans.
(b) The representations and warranties of the Co-op Master Servicer set
forth in Section 2.07(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 remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Any successor Co-op 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 2.07(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 2.07(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 2.08. Representations and Warranties of the Co-op Special
Servicer.
(a) The Co-op Special Servicer hereby represents and warrants to each
of the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Co-op Special Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the United States, and the
Co-op Special Servicer is in compliance with the laws of each State in
which any related Mortgaged Property is located to the extent necessary to
ensure the enforceability of each Co-op Mortgage Loan and to perform its
obligations under this Agreement.
(ii) The Co-op Special Servicer's execution and delivery of,
performance under and compliance with this Agreement will not violate the
Co-op Special Servicer's organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both, would constitute
a default) under, or result in the breach of, any material agreement or
other instrument
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to which it is a party or which is applicable to it or any of its assets,
which default, in the good faith and reasonable judgment of the Co-op
Special Servicer, is likely to affect materially and adversely either the
ability of the Co-op Special Servicer to perform its obligations under this
Agreement or the financial condition of the Co-op Special Servicer.
(iii) The Co-op Special Servicer has the full power and authority to
enter into and consummate all transactions involving the Co-op Special
Servicer 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 Co-op Special Servicer, enforceable against the Co-op
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, receivership, moratorium
and other laws affecting the enforcement of creditors' rights generally,
and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Co-op Special Servicer is not in violation of, and its
execution and delivery of, performance under 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 Co-op Special Servicer's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Co-op Special Servicer to perform its obligations under this
Agreement or the financial condition of the Co-op Special Servicer.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Co-op Special Servicer of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders that
previously have been obtained or where the lack of such consent, approval,
authorization or order would not have a material adverse effect on the
ability of the Co-op Special Servicer to perform its obligations under this
Agreement.
(vii) No litigation is pending or, to the best of the Co-op Special
Servicer's knowledge, threatened against the Co-op Special Servicer that,
if determined adversely to the Co-op Special Servicer, would prohibit the
Co-op Special Servicer from entering into this Agreement or that, in the
Co-op Special Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Co-op Special
Servicer to perform its obligations under this Agreement or the financial
condition of the Co-op Special Servicer.
(viii) The Co-op Special Servicer has errors and omissions insurance in
the amounts and with the coverage required by Section 3.07(d).
(ix) As of the Closing Date, the Co-op Special Servicer is not a party
to any Sub-Servicing Agreement providing for the performance of duties of
the Co-op Special Servicer by any Sub-Servicer with respect to any Co-op
Mortgage Loans or related REO Properties.
(b) The representations and warranties of the Co-op Special Servicer
set forth in Section 2.08(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 remains in existence. Upon
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discovery by any party hereto of a breach of any of such representations and
warranties that materially and adversely affects the interests of the
Certificateholders or any party hereto, the party discovering such breach shall
give prompt written notice to each of the other parties hereto.
(c) Any successor Co-op 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 2.08(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 2.08(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 2.09. Representations, Warranties and Covenants of the Trustee.
(a) The Trustee hereby represents and warrants to, and covenants with,
each of the other parties hereto and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The Trustee is duly organized and validly existing as a national
banking association under the laws of the United States and is, shall be
or, if necessary, shall appoint a co-trustee that is, in compliance with
the laws of each State in which any Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan
(insofar as such enforceability is dependent upon compliance by the Trustee
with such laws) and to perform its obligations under this Agreement.
(ii) The Trustee's execution and delivery of, performance under and
compliance with this Agreement, 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 a material breach of, any material agreement or other material
instrument to which it is a party or by which it is bound, which breach or
default, in the good faith and reasonable judgment of the Trustee 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.
(iii) The Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery
by each of 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, receivership, moratorium and other laws affecting the
enforcement of creditors' rights generally and, in particular, the rights
of creditors of national banking associations, 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, performance under and compliance with this Agreement will not
constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Trustee's
good faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Trustee to perform its obligations
under this Agreement or the financial condition of the Trustee.
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(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Trustee of the transactions contemplated herein, except
for those consents, approvals, authorizations or orders that previously
have been obtained.
(vii) 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 that, 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.
(viii) The Trustee is eligible to act as trustee hereunder in
accordance with Section 8.06.
(b) The representations, warranties and covenants of the Trustee set
forth in Section 2.09(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 remains in existence. Upon discovery by any
party hereto of a breach of any such representations, warranties and covenants
that materially and adversely affects the interests of the Certificateholders or
any party hereto, 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 2.09(a), subject to such appropriate modifications to the
representation, warranty and covenant set forth in Section 2.09(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 2.10. Creation of REMIC I; Issuance of the REMIC I Regular
Interests and the REMIC I Residual Interest; Certain Matters Involving REMIC I.
(a) It is the intention of the parties hereto that the following
segregated pool of assets constitute a REMIC for federal income tax purposes
and, further, that such segregated pool of assets be designated as "REMIC I":
(i) the Mortgage Loans that are from time to time subject to this Agreement,
together with (A) all payments under and proceeds of such Mortgage Loans
received after the Closing Date or, in the case of any such Mortgage Loan that
is a Replacement Mortgage Loan, after the related date of substitution (other
than scheduled payments of interest and principal due on or before the
respective Due Dates for such Mortgage Loans in November 2001 or, in the case of
any such Mortgage Loan that is a Replacement Mortgage Loan, on or before the
related date of substitution, and exclusive of any amounts that constitute
Post-ARD Additional Interest collected in respect of the ARD Mortgage Loans
after their respective Anticipated Repayment Dates), and (B) all documents
included in the related Mortgage Files and Servicing Files and any related
Additional Collateral; (ii) any REO Property acquired in respect of any Mortgage
Loan; (iii) such funds and assets as from time to time are deposited in the
Collection Accounts, the Distribution Account, the Interest Reserve Account, the
Excess Liquidation Proceeds Account and, if established, the REO Accounts
(exclusive of any amounts that constitute Post-ARD Additional Interest collected
in respect of the ARD Mortgage Loans after their respective Anticipated
Repayment Dates); and (iv) the rights of the Depositor under the respective
Mortgage Loan Purchase Agreements, the Column Performance Guarantee and the
NCBCC Performance Guarantee (exclusive of any Recording Omission Reserves,
Recording Omission Credits
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and/or Purchase Price Security Deposits delivered by a Mortgage Loan Seller, the
Column Performance Guarantor or the NCBCC Performance Guarantor to the
applicable Master Servicer as contemplated by Section 2.03). The Closing Date is
hereby designated as the "Startup Day" of REMIC I within the meaning of Section
860G(a)(9) of the Code.
(b) Concurrently with the assignment of the Original Mortgage Loans and
certain related assets to the Trustee pursuant to Section 2.01(b) and in
exchange therefor, the REMIC I Regular Interests and the REMIC I Residual
Interest shall be issued. Two separate REMIC I Regular Interests shall be issued
with respect to each Original Mortgage Loan that is a Co-op Mortgage Loan, and a
single separate REMIC I Regular Interest shall be issued with respect to each
other Original Mortgage Loan. For purposes of this Agreement, each REMIC I
Regular Interest shall relate to the Original Mortgage Loan in respect of which
it was issued, to each Replacement Mortgage Loan (if any) substituted for such
Original Mortgage Loan, and to each REO Mortgage Loan deemed outstanding with
respect to any REO Property acquired in respect of any such Original Mortgage
Loan or any such Replacement Mortgage Loan. Neither the REMIC I Residual
Interest nor any of the REMIC I Regular Interests shall be certificated. The
REMIC I Regular Interests and the REMIC I Residual Interest shall collectively
constitute the entire beneficial ownership of REMIC I.
(c) The REMIC I Regular Interests shall constitute the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the REMIC
I Residual Interest shall constitute the sole "residual interest" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC I. None of the parties
hereto, to the extent it is within the control thereof, shall create or permit
the creation of any other "interests" in REMIC I (within the meaning of Treasury
regulation section 1.860D-1(b)(1)).
(d) One of the REMIC I Regular Interests that relates to each Original
Mortgage Loan that is a Co-op Mortgage Loan shall be a "Group PB REMIC I Regular
Interest", and the other REMIC I Regular Interest that relates to such Original
Mortgage Loan shall be a "Group A-Y REMIC I Regular Interest". The sole REMIC I
Regular Interest that relates to each Original Mortgage Loan that is not a Co-op
Mortgage Loan shall be a "Group PB REMIC I Regular Interest". The designation
for each Group PB REMIC I Regular Interest shall be the identification number
for the related Original Mortgage Loan set forth in the Mortgage Loan Schedule
preceded by "PB-". The designation for each Group A-Y REMIC I Regular Interest
shall be the identification number for the related Original Mortgage Loan set
forth in the Mortgage Loan Schedule preceded by "A-Y-".
(e) Each Group PB REMIC I Regular Interest shall have an Uncertificated
Principal Balance. As of the Closing Date, the Uncertificated Principal Balance
of each Group PB REMIC I Regular Interest shall equal the Cut-off Date Principal
Balance of the related Original Mortgage Loan (as specified in the Mortgage Loan
Schedule). On each Distribution Date, the Uncertificated Principal Balance of
each Group PB REMIC I Regular Interest shall be permanently reduced by any
distributions of principal deemed made with respect to such REMIC I Regular
Interest on such Distribution Date pursuant to Section 4.01(l) and, further, by
any Unfunded Principal Balance Reduction made with respect to such REMIC I
Regular Interest on such Distribution Date pursuant to Section 4.04(c). Except
as provided in the preceding sentence, the Uncertificated Principal Balance of
each Group PB REMIC I Regular Interest shall not otherwise be increased or
reduced. Deemed distributions to REMIC II in reimbursement of Unfunded Principal
Balance Reductions with respect to a Group PB REMIC I Regular Interest shall not
constitute deemed distributions of principal and shall not result in any
reduction of the Uncertificated Principal Balance of such REMIC I Regular
Interest.
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The Group A-Y REMIC I Regular Interests shall not have
principal balances. For purposes of accruing interest, however, each Group A-Y
REMIC I Regular Interest shall have an Uncertificated Notional Amount that is,
as of any date of determination, equal to the then total Stated Principal
Balance of the related Mortgage Loan(s) and/or REO Mortgage Loan(s).
(f) Each REMIC I Regular Interest shall have a REMIC I Remittance Rate.
The REMIC I Remittance Rate with respect to any particular Group PB
REMIC I Regular Interest for any Interest Accrual Period shall be calculated as
follows:
(i) if, as of the Closing Date, the related Original Mortgage Loan
bears or bore, as the case may be, interest calculated on a 30/360 Basis, then
the REMIC I Remittance Rate with respect to the subject Group PB REMIC I Regular
Interest for any Interest Accrual Period shall equal the Net Mortgage Rate in
effect for the related Original Mortgage Loan as of the Closing Date (reduced by
the related Class A-Y Strip Rate if such Original Mortgage Loan is or was, as
the case may be, a Co-op Mortgage Loan); and
(ii) if, as of the Closing Date, the related Original Mortgage Loan
bears or bore, as the case may be, interest calculated on an Actual/360 Basis,
then the REMIC I Remittance Rate with respect to the subject REMIC I Regular
Interest for any Interest Accrual Period shall (subject to adjustment as
provided below in this clause (ii)) equal the product of (A) a fraction
(expressed as a percentage), the numerator of which is the number of days in
such Interest Accrual Period, and the denominator of which is 30, multiplied by
(B) the Net Mortgage Rate in effect for the related Original Mortgage Loan as of
the Closing Date (reduced by the related Class A-Y Strip Rate if such Original
Mortgage Loan is or was, as the case may be, a Co-op Mortgage Loan); provided
that, in the case of a REMIC I Regular Interest that corresponds to an Interest
Reserve Loan, if the subject Interest Accrual Period occurs during the month of
January of 2002 or any year thereafter or during the month of December of 2001
or any year thereafter that does not immediately precede a leap year, the REMIC
I Remittance Rate with respect to such REMIC I Regular Interest for such
Interest Accrual Period shall equal (M) the REMIC I Remittance Rate with respect
to such REMIC I Regular Interest for such Interest Accrual Period, calculated
without regard to this proviso, minus (N) a fraction (expressed as a
percentage), the numerator of which is equal to 12 times the related Interest
Reserve Amount that is to be transferred from the Distribution Account to the
Interest Reserve Account on the related Distribution Date in accordance with
Section 3.04(c), and the denominator of which is equal to the Uncertificated
Principal Balance of such REMIC I Regular Interest outstanding immediately prior
to the related Distribution Date; and, provided, further, that, in the case of a
REMIC I Regular Interest that corresponds to an Interest Reserve Loan, if the
subject Interest Accrual Period occurs during the month of February of 2002 or
any year thereafter, the REMIC I Remittance Rate with respect to such REMIC I
Regular Interest for such Interest Accrual Period shall equal (S) the REMIC I
Remittance Rate with respect to such REMIC I Regular Interest for such Interest
Accrual Period, calculated without regard to this proviso, plus (T) a fraction
(expressed as a percentage), the numerator of which is equal to 12 times any
related Interest Reserve Amount(s) to be transferred from the Interest Reserve
Account to the Distribution Account pursuant to Section 3.05(c) for distribution
on the related Distribution Date, and the denominator of which is equal to the
Uncertificated Principal Balance of such REMIC I Regular Interest outstanding
immediately prior to the related Distribution Date.
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The REMIC I Remittance Rate with respect to any particular Group A-Y
REMIC I Regular Interest for any Interest Accrual Period shall be calculated as
follows:
(i) if, as of the Closing Date, the related Original Mortgage Loan
bears or bore, as the case may be, interest calculated on a 30/360 Basis,
then the REMIC I Remittance Rate with respect to the subject Group A-Y
REMIC I Regular Interest for any Interest Accrual Period shall equal the
Class A-Y Strip Rate for such Original Mortgage Loan; and
(ii) if, as of the Closing Date, the related Original Mortgage Loan
bears or bore, as the case may be, interest calculated on an Actual/360
Basis, then the REMIC I Remittance Rate with respect to the subject Group
A-Y REMIC I Regular Interest for any Interest Accrual Period shall equal
the product of (A) the Class A-Y Strip Rate for such Original Mortgage
Loan, multiplied by (B) a fraction, the numerator of which is the number of
days in such Interest Accrual Period, and the denominator of which is 30.
(g) Each REMIC I Regular Interest shall bear interest, and such
interest shall commence accruing on November 1, 2001. In the case of each REMIC
I Regular Interest, such interest shall be calculated on a 30/360 Basis and,
during each Interest Accrual Period, shall accrue at the REMIC I Remittance Rate
with respect to such REMIC I Regular Interest for such Interest Accrual Period
on the Uncertificated Principal Balance (or, in the case of a Group A-Y REMIC I
Regular Interest, the Uncertificated Notional Amount) of such REMIC I Regular
Interest outstanding immediately prior to the related Distribution Date. The
total amount of such interest accrued with respect to each REMIC I Regular
Interest during each Interest Accrual Period (herein referred to as the
"Interest Accrual Amount" with respect to such REMIC I Regular Interest for such
Interest Accrual Period) shall equal 1/12 of the product of (i) the REMIC I
Remittance Rate with respect to such REMIC I Regular Interest for such Interest
Accrual Period, multiplied by (ii) the Uncertificated Principal Balance (or, in
the case of a Group A-Y REMIC I Regular Interest, the Uncertificated Notional
Amount) of such REMIC I Regular Interest outstanding immediately prior to the
related Distribution Date. The portion of the Interest Accrual Amount with
respect to any REMIC I Regular Interest for any Interest Accrual Period that
shall be distributable to REMIC II, as the holder of such REMIC I Regular
Interest, on the related Distribution Date pursuant to Section 4.01(l), shall be
an amount (herein referred to as the "Current Interest Distribution Amount" with
respect to such REMIC I Regular Interest for the related Distribution Date)
equal to (i) the Interest Accrual Amount with respect to such REMIC I Regular
Interest for the related Interest Accrual Period, reduced (to not less than
zero) by (ii) the portion of any Net Aggregate Prepayment Interest Shortfall for
such Distribution Date that is allocable to such REMIC I Regular Interest. For
purposes of the foregoing, the Net Aggregate Prepayment Interest Shortfall, if
any, for each Distribution Date shall be allocated among all the REMIC I Regular
Interests on a pro rata basis in accordance with their respective Interest
Accrual Amounts for the related Interest Accrual Period. If the entire Current
Interest Distribution Amount with respect to any REMIC I Regular Interest for
any Distribution Date is not deemed distributed to REMIC II, as the holder of
such REMIC I Regular Interest, on such Distribution Date pursuant to Section
4.01(l), then the unpaid portion of such Current Interest Distribution Amount
shall be added to, and be payable as part of, the Carryforward Interest
Distribution Amount with respect to such REMIC I Regular Interest for future
Distribution Dates. The "Carryforward Interest Distribution Amount" with respect
to any REMIC I Regular Interest for any Distribution Date shall be an amount
equal to the excess, if any, of (i) all Current Interest Distribution Amounts
with respect to such REMIC I Regular Interest for all prior Distribution Dates,
if any, over (ii) the total amount of interest deemed distributed to REMIC II
with respect to such REMIC I Regular Interest on all such prior Distribution
Dates, if any, pursuant to Section 4.01(l).
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(h) Solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC I Regular
Interest shall be the latest Rated Final Distribution Date for any Class of
Rated Certificates.
(i) The REMIC I Residual Interest will not have a principal balance and
will not bear interest.
SECTION 2.11. Conveyance of the REMIC I Regular Interests;
Acceptance of the REMIC I Regular Interests by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all of its right, title and interest in and to the REMIC I Regular Interests to
the Trustee for the benefit of the Holders of the REMIC III Regular Interest
Certificates and the Class R Certificates. The Trustee acknowledges the
assignment to it of the REMIC I Regular Interests and declares that it holds and
will hold the same in trust for the exclusive use and benefit of all present and
future Holders of the REMIC III Regular Interest Certificates and Class R
Certificates.
SECTION 2.12. Creation of REMIC II; Issuance of the REMIC II
Regular Interests and the REMIC II Residual Interest;
Certain Matters Involving REMIC II.
(a) It is the intention of the parties hereto that the segregated pool
of assets consisting of the REMIC I Regular Interests constitute a REMIC for
federal income tax purposes and, further, that such segregated pool of assets be
designated as "REMIC II". The Closing Date is hereby designated as the "Startup
Day" of REMIC II within the meaning of Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the REMIC I Regular Interests
to the Trustee pursuant to Section 2.11 and in exchange therefor, the REMIC II
Regular Interests and the REMIC II Residual Interest shall be issued. There
shall be 20 separate REMIC II Regular Interests. Neither the REMIC II Residual
Interest nor any of the REMIC II Regular Interests shall be certificated. The
REMIC II Regular Interests and the REMIC II Residual Interest shall collectively
constitute the entire beneficial ownership of REMIC II.
(c) The REMIC II Regular Interests shall constitute the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the REMIC
II Residual Interest shall constitute the sole "residual interest" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC II. None of the parties
hereto, to the extent it is within the control thereof, shall create or permit
the creation of any other "interests" in REMIC II (within the meaning of
Treasury regulation section 1.860D-1(b)(1)).
(d) The REMIC II Regular Interests will have the following respective
alphabetic or alphanumeric designations: "A-Y", "A-1", "X-0", "X-0", "X-0-0",
"X-0-0", "X", "C", "D", "E", "F", "G", "H", "J", "K", "L", "M", "N", "O" and
"P".
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(e) Each Group XX XXXXX XX Regular Interest shall have an
Uncertificated Principal Balance. The following table sets forth for each Group
XX XXXXX XX Regular Interest the initial Uncertificated Principal Balance
thereof:
DESIGNATION OF INITIAL UNCERTIFICATED
REMIC II REGULAR INTEREST PRINCIPAL BALANCE
------------------------- -----------------
A-1 $ 38,582,000
A-2 $ 25,000,000
A-3 $ 108,000,000
A-4-1 $ 161,279,000
A-4-2 $ 520,000,000
B $ 37,548,000
C $ 18,773,000
D $ 24,138,000
E $ 10,728,000
F $ 13,410,000
G $ 18,773,000
H $ 12,069,000
J $ 14,751,000
K $ 20,114,000
L $ 5,364,000
M $ 13,410,000
N $ 9,387,000
O $ 8,046,000
P $ 13,410,114
On each Distribution Date, the Uncertificated Principal Balance of each
Group XX XXXXX XX Regular Interest shall be permanently reduced by any
distributions of principal deemed made with respect to such REMIC II Regular
Interest on such Distribution Date pursuant to Section 4.01(k) and, further, by
any Unfunded Principal Balance Reduction made with respect to such REMIC II
Regular Interest on such Distribution Date pursuant to Section 4.04(b). Except
as provided in the preceding sentence, the Uncertificated Principal Balance, if
any, of each Group XX XXXXX XX Regular Interest shall not otherwise be increased
or decreased. Deemed distributions to REMIC III in reimbursement of Unfunded
Principal Balance Reductions with respect to any Group XX XXXXX XX Regular
Interest, shall not constitute deemed distributions of principal and shall not
result in any reduction of the Uncertificated Principal Balance of such REMIC II
Regular Interest.
REMIC II Regular Interest A-Y shall not have a principal balance. For
purposes of accruing interest, however, REMIC II Regular Interest A-Y shall have
an Uncertificated Notional Amount that is, as of any date of determination,
equal to the total of the then Uncertificated Notional Amounts of the Group A-Y
REMIC I Regular Interests.
(f) Each REMIC II Regular Interest shall have or be deemed to have a
REMIC II Remittance Rate that, with respect to any Interest Accrual Period,
shall equal: (i) in the case of REMIC II Regular Interest A-Y, the weighted
average, expressed as a percentage and rounded to ten decimal places, of the
respective REMIC I Remittance Rates in effect for all the Group A-Y REMIC I
Regular Interests for such Interest Accrual Period, weighted on the basis of the
respective Uncertificated
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Notional Amounts of such REMIC I Regular Interests outstanding immediately prior
to the related Distribution Date; and (ii) in the case of each other REMIC II
Regular Interest, the weighted average, expressed as a percentage and rounded to
ten decimal places, of the respective REMIC I Remittance Rates in effect for all
the Group PB REMIC I Regular Interests for such Interest Accrual Period,
weighted on the basis of such respective Uncertificated Principal Balances of
such REMIC I Regular Interests outstanding immediately prior to the related
Distribution Date.
(g) Each REMIC II Regular Interest shall bear interest, and such
interest shall commence accruing on November 1, 2001. In the case of each REMIC
II Regular Interest, such interest shall be calculated on a 30/360 Basis and,
during each Interest Accrual Period, shall accrue at the REMIC II Remittance
Rate with respect to such REMIC II Regular Interest for such Interest Accrual
Period on the Uncertificated Principal Balance (or, in the case of REMIC II
Regular Interest A-Y, the Uncertificated Notional Amount) of such REMIC II
Regular Interest outstanding immediately prior to the related Distribution Date.
The total amount of such interest accrued with respect to each REMIC II Regular
Interest during each Interest Accrual Period (herein referred to as the
"Interest Accrual Amount" with respect to such REMIC II Regular Interest for
such Interest Accrual Period) shall equal 1/12 of the product of (i) the REMIC
II Remittance Rate with respect to such REMIC II Regular Interest for such
Interest Accrual Period, multiplied by (ii) the Uncertificated Principal Balance
(or, in the case of REMIC II Regular Interest A-Y, the Uncertificated Notional
Amount) of such REMIC II Regular Interest outstanding immediately prior to the
related Distribution Date.
The portion of the Interest Accrual Amount with respect to any REMIC II
Regular Interest for any Interest Accrual Period that shall be distributable to
REMIC III, as the holder of such REMIC II Regular Interest, on the related
Distribution Date pursuant to Section 4.01(k), shall be an amount (herein
referred to as the "Current Interest Distribution Amount" with respect to such
REMIC II Regular Interest for the related Distribution Date) equal to (i) the
Interest Accrual Amount with respect to such REMIC II Regular Interest for the
related Interest Accrual Period, reduced (to not less than zero) by (ii) the
portion of any Net Aggregate Prepayment Interest Shortfall for such Distribution
Date that is allocable to such REMIC II Regular Interest. For purposes of the
foregoing, the Net Aggregate Prepayment Interest Shortfall, if any, for each
Distribution Date shall be allocated among all the REMIC II Regular Interests on
a pro rata basis in accordance with their respective Interest Accrual Amounts
for the related Interest Accrual Period. The Current Interest Distribution
Amount with respect to REMIC II Regular Interest A-Y for any Distribution Date
can also be expressed as 100% of the total Current Interest Distribution Amount
with respect to the Group A-Y REMIC I Regular Interests for such Distribution
Date.
If the entire Current Interest Distribution Amount with respect to any
REMIC II Regular Interest for any Distribution Date is not deemed distributed to
REMIC III, as the holder of such REMIC II Regular Interest, on such Distribution
Date pursuant to Section 4.01(k), then the unpaid portion of such Current
Interest Distribution Amount shall be added to, and be payable as part of, the
Carryforward Interest Distribution Amount with respect to such REMIC II Regular
Interest for future Distribution Dates. The "Carryforward Interest Distribution
Amount" with respect to any REMIC II Regular Interest for any Distribution Date
shall be an amount equal to the excess, if any, of (i) all Current Interest
Distribution Amounts with respect to such REMIC II Regular Interest for all
prior Distribution Dates, if any, over (ii) the total amount of interest deemed
distributed to REMIC III with respect to such REMIC II Regular Interest on all
such prior Distribution Dates, if any, pursuant to Section 4.01(k).
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(h) Solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC II Regular
Interest shall be the latest Rated Final Distribution Date for any Class of
Rated Certificates.
(i) The REMIC II Residual Interest shall not have a principal balance
and shall not bear interest.
SECTION 2.13. Conveyance of the REMIC II Regular Interests; Acceptance
of the REMIC II Regular Interests by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all of its right, title and interest in and to the REMIC II Regular Interests to
the Trustee for the benefit of the Holders of the REMIC III Regular Interest
Certificates and the Class R Certificates. The Trustee acknowledges the
assignment to it of the REMIC II Regular Interests and declares that it holds
and will hold the same in trust for the exclusive use and benefit of all present
and future Holders of the REMIC III Regular Interest Certificates and the Class
R Certificates.
SECTION 2.14. Creation of REMIC III; Issuance of the REMIC III
Regular Interest Certificates, the Group A-X REMIC III
Regular Interests, the Group A-CP REMIC III Regular
Interests and the REMIC III Residual Interest; Certain
Matters Involving REMIC III.
(a) It is the intention of the parties hereto that the segregated pool
of assets consisting of the REMIC II Regular Interests constitute a REMIC for
federal income tax purposes and, further, that such segregated pool of assets be
designated as "REMIC III". The Closing Date is hereby designated as the "Startup
Day" of REMIC III within the meaning of Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the REMIC II Regular Interests
to the Trustee pursuant to Section 2.13 and in exchange therefor, the Group A-X
REMIC III Regular Interests, the Group A-CP REMIC III Regular Interests and the
REMIC III Residual Interest shall be issued, and the Trustee shall execute, and
the Certificate Registrar shall authenticate and deliver, to or upon the order
of the Depositor, the REMIC III Regular Interest Certificates in authorized
denominations. There shall be 21 Classes of REMIC III Regular Interest
Certificates. The Class A-X Certificates shall collectively represent all of the
Group A-X REMIC III Regular Interests. The Class A-CP Certificates shall
collectively represent all of the Group A-CP REMIC III Regular Interests. The
REMIC III Residual Interest shall not be certificated. The interests evidenced
by the REMIC III Regular Interest Certificates, together with the REMIC III
Residual Interest, shall collectively constitute the entire beneficial ownership
of REMIC III.
(c) The respective Group A-X REMIC III Regular Interests, the
respective Group A-CP REMIC III Regular Interests and the respective interests
evidenced by the Class A-Y Certificates and the various Classes of the Principal
Balance Certificates shall constitute the "regular interests" (within the
meaning of Section 860G(a)(1) of the Code), and the REMIC III Residual Interest
shall constitute the sole "residual interest" (within the meaning of Section
860(G)(a)(2) of the Code), in REMIC III. None of the parties hereto, to the
extent it is within the control thereof, shall create or permit the creation of
any other "interests" in REMIC III (within the meaning of Treasury regulation
section 1.860D-1(b)(1)).
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(d) The 21 Classes of the REMIC III Regular Interest Certificates will
have the following respective alphabetic or alphanumeric class designations:
"A-X", "A-Y", "A-CP", "X-0", "X-0", "X-0", "X-0", "X", "C", "D", "E", "F", "G",
"H", "J", "K", "L", "M", "N", "O" and "P".
The Group A-X REMIC III Regular Interests will have the following
respective alphabetic or alphanumeric designations: "A-X-A-1", "A-X-A-2",
"A-X-A-3", "A-X-A-4-1", "A-X-A-4-2", "A-X-B", "A-X-C", "A-X-D", "A-X-E",
"A-X-F", "A-X-G", "A-X-H", "A-X-J", "A-X-K", "A-X-L", "A-X-M", "A-X-N", "A-X-O"
and "A-X-P". The Group A-X REMIC III Regular Interests shall constitute the
respective Components of the Class A-X Certificates.
The Group A-CP REMIC III Regular Interests will have the following
respective alphabetic or alphanumeric designations: "A-CP-A-4-2", "A-CP-B",
"A-CP-C", "A-CP-D" and "A-CP-E". The Group A-CP REMIC III Regular Interests
shall constitute the respective Components of the Class A-CP Certificates.
(e) Each Class of Principal Balance Certificates shall have a Class
Principal Balance. The following table sets forth for each Class of Principal
Balance Certificates the initial Class Principal Balance thereof:
CLASS INITIAL CLASS
DESIGNATION PRINCIPAL BALANCE
----------- -----------------
Class A-1 $ 38,582,000
Class A-2 $ 25,000,000
Class A-3 $ 108,000,000
Class A-4 $ 681,279,000
Class B $ 37,548,000
Class C $ 18,773,000
Class D $ 24,138,000
Class E $ 10,728,000
Class F $ 13,410,000
Class G $ 18,773,000
Class H $ 12,069,000
Class J $ 14,751,000
Class K $ 20,114,000
Class L $ 5,364,000
Class M $ 13,410,000
Class N $ 9,387,000
Class O $ 8,046,000
Class P $ 13,410,114
On each Distribution Date, the Class Principal Balance of each Class of
Principal Balance Certificates shall be permanently reduced by any distributions
of principal made with respect to such Class of Certificates on such
Distribution Date pursuant to Section 4.01(a) or Section 4.01(b), as applicable,
and, further, by any Unfunded Principal Balance Reduction made with respect to
such Class of Certificates on such Distribution Date pursuant to Section
4.04(a). Except as provided in the preceding sentence, the Class Principal
Balance of each Class of Principal Balance Certificates shall not otherwise be
increased or reduced. Distributions to the Holders of any Class of Principal
Balance
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Certificates in reimbursement of any Unfunded Principal Balance Reductions with
respect to such Class of Certificates shall not constitute distributions of
principal and shall not result in any reduction of the related Class Principal
Balance.
The Interest Only Certificates shall not have principal balances. For
purposes of accruing interest, however, each Class of Interest Only Certificates
shall have or be deemed to have a Class Notional Amount that is, as of any date
of determination, equal to: (i) in the case of the Class A-X Certificates, the
total of the then Uncertificated Principal Balances of all the Group XX XXXXX XX
Regular Interests; (ii) in the case of the Class A-Y Certificates, the then
Uncertificated Notional Amount of REMIC III Regular Interest A-Y; and (iii) in
the case of the Class A-CP Certificates, the total of the then Uncertificated
Principal Balances of REMIC II Regular Interest A-4-2, REMIC II Regular Interest
B, REMIC II Regular Interest C, REMIC II Regular Interest D and REMIC II Regular
Interest E.
None of the Group A-X REMIC III Regular Interests or the Group A-CP
REMIC III Regular Interests shall have a principal balance. For purposes of
accruing interest, however, each of the Group A-X REMIC III Regular Interests
and the Group A-CP REMIC III Regular Interest shall have a Component Notional
Amount that is, as of any date of determination, equal to the Uncertificated
Principal Balance of its Corresponding REMIC II Regular Interest.
(f) Each Class of REMIC III Regular Interest Certificates shall have or
be deemed to have a Pass-Through Rate, and each of the Group A-X REMIC III
Regular Interests and the Group A-CP REMIC III Regular Interests shall have a
REMIC III Remittance Rate.
Each Class of Principal Balance Certificates identified in the
following table shall, for each and every Interest Accrual Period, have the
fixed Pass-Through Rates set forth next to its alphabetic or alphanumeric, as
the case may be, class designation:
CLASS PASS-THROUGH RATE
----- -----------------
A-1 3.801% per annum
A-2 4.890% per annum
A-3 5.107% per annum
A-4 5.435% per annum
B 5.692% per annum
C 5.781% per annum
D 5.961% per annum
E 6.083% per annum
F 6.350% per annum
J 5.196% per annum
K 5.196% per annum
L 5.196% per annum
M 5.196% per annum
N 5.196% per annum
O 5.196% per annum
P 5.196% per annum
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The Pass-Through Rate for the Class G Certificates for any Interest
Accrual Period shall equal the lesser of (i) 6.448% per annum and (ii) the REMIC
II Remittance Rate with respect to REMIC II Regular Interest G for such Interest
Accrual Period.
The Pass-Through Rate for the Class H Certificates for any Interest
Accrual Period shall equal the lesser of (i) 6.315% per annum and (ii) the REMIC
II Remittance Rate with respect to REMIC II Regular Interest H for such Interest
Accrual Period.
The Pass-Through Rate for the Class A-X Certificates for any Interest
Accrual Period shall be deemed to equal the weighted average, expressed as a
percentage and rounded to ten decimal places, of the respective REMIC III
Remittance Rates in effect for all of the Group A-X REMIC III Regular Interests
for such Interest Accrual Period, weighted on the basis of the respective
Component Notional Amounts of the Group A-X REMIC III Regular Interests
immediately prior to the related Distribution Date.
The REMIC III Remittance Rate for any of REMIC III Regular Interest
A-X-A-1, REMIC III Regular Interest A-X-A-2, REMIC III Regular Interest A-X-A-3,
REMIC III Regular Interest A-X-F, REMIC III Regular Interest A-X-G, REMIC III
Regular Interest A-X-H, REMIC III Regular Interest A-X-J, REMIC III Regular
Interest A-X-K, REMIC III Regular Interest A-X-L, REMIC III Regular Interest
A-X-M, REMIC III Regular Interest A-X-N, REMIC III Regular Interest A-X-O and
REMIC III Regular Interest A-X-P for any Interest Accrual Period shall equal the
excess, if any, of (i) the REMIC II Remittance Rate in effect during such
Interest Accrual Period for the Corresponding REMIC II Regular Interest in
respect of such Group A-X REMIC III Regular Interest, over (ii) the Adjusted
REMIC II Remittance Rate in effect during such Interest Accrual Period for the
Corresponding REMIC II Regular Interest in respect of such Group A-X REMIC III
Regular Interest.
The REMIC III Remittance Rate for any of REMIC III Regular Interest
A-X-A-4-2, REMIC III Regular Interest A-X-B, REMIC III Regular Interest A-X-C,
REMIC III Regular Interest A-X-D and REMIC III Regular Interest A-X-E for any
Interest Accrual Period shall be as follows:
(i) if such Interest Accrual Period occurs from and including November
2001 through and including October 2008, a rate per annum equal to the
excess, if any, of (A) the REMIC II Remittance Rate in effect during such
Interest Accrual Period for the Corresponding REMIC II Regular Interest in
respect of such Group A-X REMIC III Regular Interest, over (B) 7.430% per
annum; and
(ii) if such Interest Accrual Period occurs after October 2008, a rate
per annum equal to the excess, if any, of (A) the REMIC II Remittance Rate
in effect during such Interest Accrual Period for the Corresponding REMIC
II Regular Interest in respect of such Group A-X REMIC III Regular
Interest, over (B) the Adjusted REMIC II Remittance Rate in effect during
such Interest Accrual Period for the Corresponding REMIC II Regular
Interest in respect of such Group A-X REMIC III Regular Interest.
The Pass-Through Rate for the Class A-Y Certificates for any Interest
Accrual Period shall be deemed to equal the REMIC II Remittance Rate in effect
for REMIC II Regular Interest A-Y for such Interest Accrual Period.
The Pass-Through Rate for the Class A-CP Certificates for any Interest
Accrual Period shall be deemed to equal the weighted average, expressed as a
percentage and rounded to ten decimal
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places, of the respective REMIC III Remittance Rates in effect for all of the
Group A-CP REMIC III Regular Interests for such Interest Accrual Period,
weighted on the basis of the respective Component Notional Amounts of the Group
A-CP REMIC III Regular Interests immediately prior to the related Distribution
Date.
The REMIC II Remittance Rate for any of the Group A-CP REMIC III
Regular Interests for any Interest Accrual Period shall be as follows:
(i) if such Interest Accrual Period occurs from and including November
2001 through and including October 2008, a rate per annum equal to the
excess, if any, of (A) the lesser of (1) 7.430% per annum and (2) the REMIC
II Remittance Rate in effect during such Interest Accrual Period for the
Corresponding REMIC II Regular Interest in respect of such Group A-CP REMIC
III Regular Interest, over (B) the Adjusted REMIC II Remittance Rate in
effect during such Interest Accrual Period for the Corresponding REMIC II
Regular Interest in respect of such Group A-CP REMIC III Regular Interest;
and
(ii) if such Interest Accrual Period occurs after October 2008, 0% per
annum.
(g) Each Class of REMIC III Regular Interest Certificates shall bear
interest, and such interest shall commence accruing on November 1, 2001. In the
case of each Class of REMIC III Regular Interest Certificates, such interest
shall be calculated on a 30/360 Basis and, during each Interest Accrual Period,
shall accrue at the Pass-Through Rate with respect to such Class of Certificates
for such Interest Accrual Period on the Class Principal Balance (or, in the case
of a Class of Interest Only Certificates, the Class Notional Amount) of such
Class of Certificates outstanding immediately prior to the related Distribution
Date. Accordingly, the total amount of such interest accrued with respect to any
Class of REMIC III Regular Interest Certificates during any Interest Accrual
Period (herein referred to as the "Interest Accrual Amount" with respect to such
Class of Certificates for such Interest Accrual Period) shall equal 1/12 of the
product of (i) the Pass-Through Rate with respect to such Class of Certificates
for such Interest Accrual Period, multiplied by (ii) the Class Principal Balance
(or, in the case of a Class Interest Only Certificates, the Class Notional
Amount) of such Class of Certificates outstanding immediately prior to the
related Distribution Date. The portion of the Interest Accrual Amount with
respect to the Class A-X Certificates or the Class A-CP Certificates for any
Interest Accrual Period that is attributable to any particular Component of such
Class of Certificates shall be an amount (herein referred to as the "Interest
Accrual Amount" with respect to such Component for such Interest Accrual Period)
equal to 1/12 of the product of (i) the REMIC III Remittance Rate with respect
to such Component for such Interest Accrual Period, multiplied by (ii) the
Component Notional Amount of such Component immediately prior to the related
Distribution Date.
The Class A-CP Certificates and the respective Group A-CP REMIC III
Regular Interests shall cease to accrue interest after the end of the October
2008 Interest Accrual Period.
The portion of the Interest Accrual Amount with respect to any Class of
REMIC III Regular Interest Certificates for any Interest Accrual Period that
shall be distributable to the Holders of such Class of Certificates on the
related Distribution Date pursuant to Section 4.01(a) or Section 4.01(b), as
applicable, shall be an amount (herein referred to as the "Current Interest
Distribution Amount" with respect to such Class of Certificates for the related
Distribution Date) equal to (i) the Interest Accrual Amount with respect to such
Class of Certificates for the related Interest Accrual Period, reduced (to not
less than zero) by (ii) the portion of any Net Aggregate Prepayment Interest
Shortfall for such
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Distribution Date that is allocable to such Class of Certificates. For purposes
of the foregoing, the Net Aggregate Prepayment Interest Shortfall, if any, for
each Distribution Date shall be allocated among all the Classes of REMIC III
Regular Interest Certificates on a pro rata basis in accordance with their
respective Interest Accrual Amounts for the related Interest Accrual Period. The
portion of the Current Interest Distribution Amount with respect to the Class
A-X Certificates or the Class A-CP Certificates for any Distribution Date that
is attributable to any particular Component of such Class of Certificates shall
be an amount (herein referred to as the "Current Interest Distribution Amount"
with respect to such Component for such Distribution Date) equal to (i) the
Interest Accrual Amount with respect to such Component for the related Interest
Accrual Period, reduced (to not less than zero) by (ii) such Component's share
of the portion of any Net Aggregate Prepayment Interest Shortfall for such
Distribution Date that is allocable to such Class of Certificates. For purposes
of the foregoing, any portion of the Net Aggregate Prepayment Interest Shortfall
for any Distribution Date that is allocated to the Class A-X Certificates or the
Class A-CP Certificates shall in turn be allocated among the Components of such
Class of Certificates on a pro rata basis in accordance with their respective
Interest Accrual Amounts for the related Interest Accrual Period. The Current
Interest Distribution Amount with respect to the Class A-Y Certificates for any
Distribution Date can also be expressed as 100% of the Current Interest
Distribution Amount with respect to REMIC II Regular Interest A-Y for such
Distribution Date.
If the entire Current Interest Distribution Amount with respect to any
Class of REMIC III Regular Interest Certificates for any Distribution Date is
not distributed to the Holders thereof on such Distribution Date pursuant to
Section 4.01(a) or Section 4.01(b), as applicable, then the unpaid portion of
such Current Interest Distribution Amount shall be added to, and be payable as
part of, the Carryforward Interest Distribution Amount with respect to such
Class of Certificates for future Distribution Dates. The "Carryforward Interest
Distribution Amount" with respect to any Class of REMIC III Regular Interest
Certificates for any Distribution Date shall be an amount equal to the excess,
if any, of (i) all Current Interest Distribution Amounts with respect to such
Class of Certificates for all prior Distribution Dates, if any, over (ii) the
total amount of interest distributed to the Holders of such Class of
Certificates on all such prior Distribution Dates, if any, pursuant to Section
4.01(a) or Section 4.01(b), as applicable. The portion of the Carryforward
Interest Distribution Amount with respect to the Class A-X Certificates or the
Class A-CP Certificates for any Distribution Date that is attributable to any
particular Component of such Class of Certificates shall be an amount (herein
referred to as the "Carryforward Interest Distribution Amount" with respect to
such Component for such Distribution Date) equal to the excess, if any, of (i)
all Current Interest Distribution Amounts with respect to such Component for all
prior Distribution Dates, if any, over (ii) the total amount of interest deemed
distributed to the Holders of such Class of Certificates with respect to such
Component on all such prior Distribution Dates, if any, pursuant to Section
4.01(a).
(h) Solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each Class of
Principal Balance Certificates, for the Class A-Y Certificates, for each
Component of the Class A-X Certificates and for each Component of the Class A-CP
Certificates shall be the Rated Final Distribution Date with respect to such
Class of Certificates.
(i) The REMIC III Residual Interest shall not have a principal balance
and shall not bear interest.
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SECTION 2.15. Acceptance of Grantor Trusts by Trustee; Issuance of the
Class V and Class R Certificates.
(a) It is the intention of the parties hereto that the segregated pool
of assets consisting of any collections of Post-ARD Additional Interest received
on the ARD Mortgage Loans constitute a Grantor Trust for federal income tax
purposes and, further, that such segregated pool of assets be designated as
"Grantor Trust V". The Trustee, by its execution and delivery hereof,
acknowledges the assignment to it of the assets of Grantor Trust V and declares
that it holds and will hold such assets in trust for the exclusive use and
benefit of all present and future Holders of the Class V Certificates.
Concurrently with the assignment to it of the assets included in Grantor Trust
V, the Trustee shall execute, and the Certificate Registrar shall authenticate
and deliver, to or upon the order of the Depositor, the Class V Certificates in
authorized denominations evidencing the entire beneficial ownership of Grantor
Trust V. The rights of the Holders of the Class V Certificates to receive
distributions from the proceeds of Grantor Trust V, and all ownership interests
of such Holders in and to such distributions, shall be as set forth in this
Agreement.
(b) The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all right, title and interest of the Depositor in and to the REMIC I Residual
Interest, the REMIC II Residual Interest and the REMIC III Residual Interest to
the Trustee for the benefit of the Holders of the Class R Certificates. It is
the intention of the parties hereto that the segregated pool of assets
consisting of the REMIC I Residual Interest, the REMIC II Residual Interest and
the REMIC III Residual Interest constitute a Grantor Trust for federal income
tax purposes and, further, that such segregated pool of assets be designated as
"Grantor Trust R". The Trustee, by its execution and delivery hereof,
acknowledges the assignment to it of the assets of Grantor Trust R and declares
that it holds and will hold such assets in trust for the exclusive use and
benefit of all present and future Holders of the Class R Certificates.
Concurrently with the assignment to it of the assets included in Grantor Trust
R, the Trustee shall execute, and the Certificate Registrar shall authenticate
and deliver, to or upon the order of the Depositor, the Class R Certificates in
authorized denominations evidencing the entire beneficial ownership of Grantor
Trust R. The rights of the Holders of the Class R Certificates to receive
distributions from the proceeds of Grantor Trust R, and all ownership interests
of such Holders in and to such distributions, shall be as set forth in this
Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. General Provisions.
(a) The General Master Servicer shall be the Master Servicer with
respect to all the Trust Assets other than the Co-op Trust Assets and, as such,
subject to Section 3.21, shall service and administer such of the Trust Assets
(other than the Co-op Trust Assets) as constitute Performing Mortgage Loans and
shall continue to collect such information and prepare such reports to the
Trustee, and shall render such other incidental services, as shall be required
of such Master Servicer hereunder with respect to such of the Trust Assets
(other than the Co-op Trust Assets) as constitute Specially Serviced Mortgage
Loans and REO Properties. The Co-op Master Servicer shall be the Master Servicer
with respect to the Co-op Trust Assets and, as such, subject to Section 3.21,
shall service and administer such of the Co-op Trust Assets as constitute
Performing Mortgage Loans and shall continue to collect such information and
prepare such reports to the Trustee, and shall render such other incidental
services, as shall be required of such Master Servicer hereunder with respect to
such of the Co-op Trust Assets as constitute Specially Serviced Mortgage Loans
and REO Properties. The General Special Servicer shall be the Special Servicer
with respect to all the Trust Assets other than the Co-op Trust Assets and, as
such, subject to Section 3.21, shall service and administer such of the Trust
Assets (other than the Co-op Trust Assets) as constitute Specially Serviced
Mortgage Loans and REO Properties and shall render such incidental services as
are required of such Special Servicer with respect to such of the Trust Assets
(other than the Co-op Trust Assets) as constitute Performing Mortgage Loans. The
Co-op Special Servicer shall be the Special Servicer with respect to the Co-op
Trust Assets and, as such, subject to Section 3.21, shall service and administer
such of the Co-op Trust Assets as constitute Specially Serviced Mortgage Loans
and REO Properties and shall render such incidental services as are required of
such Special Servicer with respect to such of the Co-op Trust Assets as
constitute Performing Mortgage Loans.
(b) Each of the Master Servicers and the Special Servicers shall
service and administer the Mortgage Loans and any REO Properties that it is
obligated to service and administer pursuant to this Agreement, for the benefit
of the Certificateholders (as a collective whole), in accordance with: (i) any
and all applicable laws; (ii) the express terms of this Agreement and the
respective Mortgage Loan Documents; and (iii) to the extent consistent with the
foregoing, the Servicing Standard. Subject to the foregoing, each Master
Servicer and Special Servicer shall 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 such servicing and administration which it may deem necessary or
desirable. Without limiting the generality of the foregoing, each Master
Servicer (with respect to those Performing Mortgage Loans that it is obligated
to service and administer pursuant to this Agreement) and Special Servicer (with
respect to those Specially Serviced Mortgage Loans that it is obligated to
service and administer pursuant to this Agreement), in its own name or in the
name of the Trustee, 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 the Mortgage
or other security document in the related Mortgage File on the related Mortgaged
Property and other related collateral; (ii) any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, or of
partial or full defeasance, and all other comparable instruments; and (iii)
subject to Sections 3.08 and 3.20, any and all assumptions, modifications,
waivers, substitutions, extensions, amendments and
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consents. Subject to Section 3.10, the Trustee shall, at the written request of
a Servicing Officer of any Master Servicer or Special Servicer, furnish, or
cause to be so furnished, to such Master Servicer or Special Servicer, as the
case may be, any limited powers of attorney and other documents (each of which
shall be prepared by such Master Servicer or Special Servicer, as the case may
be) necessary or appropriate to enable it to carry out its servicing and
administrative duties hereunder; provided that the Trustee shall not be held
liable for any misuse of any such power of attorney by any Master Servicer or
Special Servicer.
(c) The relationship of each of the Master Servicers and Special
Servicers to the Trustee and, unless they are the same Person, each other 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 Mortgage Loan Payments.
(a) The applicable Master Servicer, with respect to each Performing
Mortgage Loan, and the applicable Special Servicer, with respect to each
Specially Serviced Mortgage Loan, shall undertake reasonable efforts to collect
all payments called for under the terms and provisions of each Mortgage Loan
and, in connection therewith, shall follow such collection procedures as are
consistent with applicable law, the express terms of this Agreement and the
related Mortgage Loan Documents and, to the extent consistent with the
foregoing, the Servicing Standard; provided that none of the Master Servicers or
Special Servicers (other than the applicable Special Servicer) shall, with
respect to any ARD Mortgage Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Post-ARD Additional Interest
(other than the making of requests for its collection), and the applicable
Special Servicer may do so only if (i) the taking of an enforcement action with
respect to the payment of other amounts due under such Mortgage Loan is, in the
reasonable judgment of the applicable Special Servicer, and without regard to
such Post-ARD Additional Interest, also necessary, appropriate and consistent
with the Servicing Standard or (ii) all other amounts due under such Mortgage
Loan have been paid, the payment of such Post-ARD Additional Interest has not
been forgiven in accordance with Section 3.20 and, in the reasonable judgment of
the applicable Special Servicer, the Liquidation Proceeds expected to be
recovered in connection with such enforcement action will cover the anticipated
costs of such enforcement action and, if applicable, any associated Advance
Interest. Consistent with the foregoing, the applicable Master Servicer (as to a
Performing Mortgage Loan) and the applicable Special Servicer (as to a Specially
Serviced Mortgage Loan) each may waive any Default Charges in connection with
any specific delinquent payment on such Mortgage Loan.
(b) At least ninety days prior to the maturity date of each Balloon
Mortgage Loan, the applicable Master Servicer shall send a notice to the related
Borrower of such maturity date (with a copy to be sent to the applicable Special
Servicer) and shall request confirmation that the Balloon Payment will be paid
by such maturity date.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) Each Master Servicer shall establish and maintain one or more
accounts ("Servicing Accounts"), in which all Escrow Payments received by it
with respect to the Mortgage Loans as to which it is the applicable Master
Servicer, shall be deposited and retained. The General Master Servicer shall
maintain the Servicing Accounts with respect to the non-Co-op Mortgage Loans
(including any such Mortgage Loans that are Specially Serviced Mortgage Loans),
and the Co-op
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Master Servicer shall maintain the Servicing Accounts with respect
to the Co-op Mortgage Loans (including any such Mortgage Loans that are
Specially Serviced Mortgage Loans). Subject to any terms of the related Mortgage
Loan Documents that specify the nature of the account in which Escrow Payments
shall be held, each Servicing Account shall be an Eligible Account. As and to
the extent consistent with the Servicing Standard, applicable law and the
related Mortgage Loan Documents, each Master Servicer may make withdrawals from
the Servicing Accounts maintained by it, and may apply Escrow Payments held
therein with respect to any Mortgage Loan (together with interest earned
thereon), only as follows: (i) 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 related Mortgaged Property; (ii) to reimburse such Master Servicer,
either Special Servicer, the Trustee or any Fiscal Agent, as applicable, for any
unreimbursed Servicing Advances made thereby with respect to such Mortgage Loan
to cover any of the items described in the immediately preceding clause (i);
(iii) to refund to the related Borrower any sums as may be determined to be
overages; (iv) to pay interest or other income, if required and as described
below, to the related Borrower on balances in the Servicing Account (or, if and
to the extent not payable to the related Borrower to pay such interest or other
income (up to the amount of any Net Investment Earnings in respect of such
Servicing Account for each Collection Period) to such Master Servicer); (v)
after an event of default, to pay the principal of, accrued interest on and any
other amounts payable with respect to such Mortgage Loan; or (vi) to clear and
terminate the Servicing Account at the termination of this Agreement in
accordance with Section 9.01. Each Master Servicer shall pay or cause to be paid
to the relevant Borrowers interest and other income, if any, earned on the
investment of funds in Servicing Accounts maintained thereby, if and to the
extent required by law or the terms of the related Mortgage Loan Documents. If a
Master Servicer shall deposit in a Servicing Account maintained by it 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. Promptly after any Escrow Payments are received by a Special
Servicer from any Borrower, and in any event within two Business Days after any
such receipt, such Special Servicer shall remit such Escrow Payments to the
applicable Master Servicer for deposit in the applicable Servicing Account(s).
(b) The applicable Master Servicer shall as to each Mortgage Loan
(including each Specially Serviced 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 consistent with the Servicing
Standard to obtain, from time to time, all bills for the payment of such items
(including renewal premiums) and effect payment thereof prior to the applicable
penalty or termination date. For purposes of effecting any such payment with
respect to any Mortgage Loan, the applicable Master Servicer shall apply Escrow
Payments as allowed under the terms of the related Mortgage Loan Documents;
provided that if such Mortgage Loan does not require the related Borrower to
escrow for the payment of real estate taxes, assessments, insurance premiums,
ground rents (if applicable) and similar items, each of the applicable Master
Servicer (or, if such Mortgage Loan becomes a Specially Serviced Mortgage Loan,
the applicable Special Servicer) shall, subject to and in accordance with the
Servicing Standard, enforce the requirement of the related Mortgage that the
related Borrower make payments in respect of such items at the time they first
become due.
(c) In accordance with the Servicing Standard, but subject to Section
3.11(h), the applicable Master Servicer shall make a Servicing Advance with
respect to each Mortgaged Property (including each Mortgaged Property relating
to a Specially Serviced Mortgage Loan) all such funds as
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are necessary for the purpose of effecting the timely payment of (i) real estate
taxes, assessments and other similar items, (ii) ground rents (if applicable),
and (iii) premiums on Insurance Policies (including, premiums on any
Environmental Insurance Policy), in each instance prior to the applicable
penalty or termination date if and to the extent that (x) Escrow Payments (if
any) collected from the related Borrower are insufficient to pay such item when
due, and (y) the related Borrower has failed to pay such item on a timely basis;
provided that, in the case of amounts described in the preceding clause (i), the
applicable Master Servicer shall not make a Servicing Advance of any such amount
if such Master Servicer reasonably anticipates (in accordance with the Servicing
Standard) that such amounts will be paid by the related Borrower on or before
the applicable penalty date, in which case such Master Servicer shall use its
best efforts consistent with the Servicing Standard to confirm whether such
amounts have been paid and, subject to Section 3.11(h), shall make a Servicing
Advance of such amounts, if necessary, not later than five Business Days
following confirmation by such Master Servicer that such amounts have not been
paid by the applicable penalty date. All such Advances shall be reimbursable in
the first instance from related collections from the Borrowers and further as
provided in Section 3.05(a). No costs incurred by a Master Servicer in effecting
the payment of real estate taxes, assessments and, if applicable, ground rents
on or in respect of such Mortgaged Properties shall, for purposes hereof,
including calculating monthly distributions to Certificateholders, be added to
the respective unpaid principal balances or Stated Principal Balances of the
subject Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so
permit; provided that this sentence shall not be construed to limit the rights
of the applicable Master Servicer or the applicable Special Servicer on behalf
of the Trust to enforce any obligations of the related Borrower under such
Mortgage Loan.
(d) Each Master Servicer shall establish and maintain one or more
accounts ("Reserve Accounts"), in which all Reserve Funds, if any, received by
it with respect to the Mortgage Loans as to which it is the applicable Master
Servicer, shall be deposited and retained. The General Master Servicer shall
maintain the Reserve Accounts with respect to all of the Mortgage Loans (other
than the Co-op Mortgage Loans), and the Co-op Master Servicer shall maintain the
Reserve Accounts with respect to the Co-op Mortgage Loans. Subject to any terms
of the related Mortgage Loan Documents that specify the nature of the account in
which Reserve Funds shall be held, each Reserve Account shall be an Eligible
Account. As and to the extent consistent with the Servicing Standard, applicable
law and the related Mortgage Loan Documents, each Master Servicer may make
withdrawals from the Reserve Accounts maintained by it, and may apply Reserve
Funds held therein with respect to any Mortgage Loan (together with interest
earned thereon), only as follows: (i) in the case of Reserve Funds that are
intended to cover specific costs and expenses, to pay for, or to reimburse the
related Borrower in connection with, the costs associated with the related
tenant improvements, leasing commissions, repairs, replacements, capital
improvements and/or environmental testing and remediation, litigation and/or
other special expenses at or with respect to the related Mortgaged Property for
which such Reserve Funds were intended and to refund the related Borrower any
sums as may be determined to be overages; (ii) in the case of Reserve Funds
intended to cover debt service payments, to apply amounts on deposit therein in
respect of principal and interest on such Mortgage Loan; (iii) to reimburse such
Master Servicer, either Special Servicer, the Trustee or any Fiscal Agent, as
applicable, for any unreimbursed Advances made thereby with respect to such
Mortgage Loan to cover any of the items described in the immediately preceding
clauses (i) and (ii); (iv) to release such Reserve Funds to the related Borrower
if the conditions precedent for such release are satisfied or, in the case of
Earn-Out Reserve Funds, to otherwise apply such Reserve Funds in accordance with
the related Mortgage Loan Documents if the conditions precedent for such release
are not satisfied, including any requirements set forth in this Agreement; (v)
to pay interest or other income, if required and as described below, to the
related Borrower on balances in the Reserve Account (or, if and to the extent
not payable to the related
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Borrower, to pay such interest or other income (up to the amount of any Net
Investment Earnings in respect of such Reserve Account for each Collection
Period) to such Master Servicer); (vi) after an event of default, to pay the
principal of, accrued interest on and any other amounts payable with respect to
such Mortgage Loan; or (vii) to clear and terminate the Reserve Account at the
termination of this Agreement in accordance with Section 9.01. If the Borrower
under any Mortgage Loan delivers a Letter of Credit in lieu of Reserve Funds,
then the applicable Master Servicer shall make draws on such Letter of Credit at
such times and for such purposes as it would have made withdrawals from a
Reserve Account and, to the extent consistent with the Servicing Standard,
applicable law and the related Mortgage Loan Documents, in order to convert the
amount of such Letter of Credit into Reserve Funds. Notwithstanding the
foregoing, no Master Servicer shall release any Earn-Out Reserve Funds, or
return any related Letter of Credit delivered in lieu of Earn-Out Reserve Funds,
to the related Borrower, unless and until: (i) such Master Servicer has so
notified the applicable Special Servicer in writing and has provided the
applicable Special Servicer with any written or electronic information in such
Master Servicer's possession regarding such Mortgage Loan or the related
Mortgaged Property that the applicable Special Servicer may reasonably request
within ten Business Days of receiving such written notice; and (ii) subject to
Section 3.24, the applicable Special Servicer has consented to such release of
any such Earn-Out Reserve Funds or return of any related Letter of Credit (such
consent to be given or withheld in accordance with the Servicing Standard and to
be deemed given if the applicable Special Servicer does not object in writing to
such release of any such Earn-Out Reserve Funds or return of any such Letter of
Credit within ten Business Days after receiving such additional information from
the applicable Master Servicer (or, if it did not request additional
information, within ten Business Days after receiving such notice)). Each Master
Servicer shall pay or cause to be paid to the relevant Borrowers interest and
other income, if any, earned on the investment of funds in Reserve Accounts
maintained thereby, if and to the extent required by law or the terms of the
related Mortgage Loan Documents. If a Master Servicer shall deposit in a Reserve
Account maintained by it any amount not required to be deposited therein, it may
at any time withdraw such amount from such Reserve Account, any provision herein
to the contrary notwithstanding. Promptly after any Reserve Funds are received
by a Special Servicer from any Borrower, and in any event within two Business
Days of such receipt, such Special Servicer shall remit such Reserve Funds to
the applicable Master Servicer for deposit in the applicable Reserve Account(s).
Any out-of-pocket expenses, including reasonable attorneys' fees and expenses,
incurred by a Master Servicer to enable such Master Servicer to make any draw
under any Letter of Credit shall constitute a Servicing Advance, and such Master
Servicer shall make reasonable efforts to recover such expenses from the related
Borrower to the extent the Borrower is required to pay such expenses under the
terms of the related Mortgage Loan.
(e) To the extent an operations and maintenance plan is required to be
established and executed pursuant to the terms of a Mortgage Loan, the
applicable Master Servicer shall request from the related Borrower written
confirmation thereof within a reasonable time after the later of the Closing
Date and the date as of which such plan is required to be established or
completed. To the extent any other action or remediation with respect to
environmental matters is required to have been taken or completed pursuant to
the terms of a Mortgage Loan, the applicable Master Servicer shall request from
the related Borrower written confirmation of such action and remediations within
a reasonable time after the later of the Closing Date and the date as of which
such action or remediations are required to have been taken or completed. To the
extent that a Borrower shall fail to promptly respond to any inquiry described
in this Section 3.03(e), the applicable Master Servicer shall notify the
Trustee, the applicable Special Servicer and the Controlling Class
Representative. The applicable Master Servicer shall promptly notify the
Trustee, the applicable Special Servicer and the Controlling Class
Representative if
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such Master Servicer shall determine that the Borrower under any Mortgage Loan
has failed to perform its obligations under such Mortgage Loan in respect of
environmental matters.
(f) Subject to applicable law and the terms of the related Mortgage
Loan Documents, funds in the Servicing Accounts and the Reserve Accounts may be
invested only in Permitted Investments in accordance with the provisions of
Section 3.06.
SECTION 3.04. Collection Accounts, Distribution Account, Interest
Reserve Account and Excess Liquidation Proceeds Account.
(a) The Master Servicers shall segregate and hold all funds collected
and received by each of them in connection with the Mortgage Pool separate and
apart from their own respective funds and general assets. In connection
therewith, each Master Servicer shall establish and maintain one or more
segregated accounts (collectively, a "Collection Account"), in which the funds
described below are to be deposited and held on behalf of the Trustee in trust
for the benefit of the Certificateholders. Each account that constitutes a
Collection Account shall be an Eligible Account. Each Master Servicer shall
deposit or cause to be deposited in its Collection Account, within one Business
Day of receipt by it (in the case of payments by Borrowers or other collections
on the Mortgage Loans as to which it acts as Master Servicer) or as otherwise
required hereunder, the following payments and collections received or made by
or on behalf of such Master Servicer subsequent to the Closing Date with respect
to the Mortgage Loans and REO Properties as to which it is the applicable Master
Servicer (other than in respect of scheduled payments of principal and interest
due and payable on such Mortgage Loans on or before their respective Due Dates
in November 2001 (or, in the case of a Replacement Mortgage Loan, on or before
the related date of substitution), which payments shall be delivered promptly to
the related Mortgage Loan Seller or its designee, with negotiable instruments
endorsed as necessary and appropriate without recourse):
(i) all payments, from whatever source, or transfers from a debt
service reserve account, on account of principal of such Mortgage Loans,
including Principal Prepayments;
(ii) all payments, from whatever source, or transfers from a debt
service reserve account, on account of interest on such Mortgage Loans,
including Default Interest and Post-ARD Additional Interest;
(iii) all Prepayment Premiums, Yield Maintenance Charges and late
payment charges received with respect to such Mortgage Loans;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received with respect to such Mortgage Loans;
(v) any amounts required to be deposited by such Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in such Collection Account;
(vi) any amounts relating to such Mortgage Loan and/or REO Properties
required to be deposited by such Master Servicer or a Special Servicer
pursuant to Section 3.07(b) in connection with losses resulting from a
deductible clause in a blanket or master force placed hazard insurance
policy;
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(vii) any amounts relating to such REO Properties required to be
transferred from any REO Account pursuant to Section 3.16(c);
(viii) any amounts relating to such Mortgage Loans required to be
transferred from any Purchase Price Security Deposit Account pursuant to
Section 2.03(b);
(ix) any amounts relating to such Mortgage Loans required to be
transferred from any Special Reserve Account pursuant to Section 2.03(e);
and
(x) insofar as they do not constitute Escrow Payments or Reserve Funds,
any amounts relating to such Mortgage Loans paid by a Borrower specifically
to cover items for which a Servicing Advance has been made or that
represent a recovery of property protection expenses from a Borrower.
The foregoing requirements for deposit in a Collection Account shall be
exclusive. Without limiting the generality of the foregoing, actual payments
from Borrowers in the nature of Escrow Payments, assumption fees, assumption
application fees, earn-out fees, extension fees, modification fees, charges for
beneficiary statements or demands and amounts collected for checks returned for
insufficient funds, need not be deposited by either Master Servicer in its
Collection Account. Each Master Servicer shall promptly deliver to the
applicable Special Servicer any of the foregoing items received by it with
respect to any Mortgage Loan, if and to the extent that such items constitute
Additional Special Servicing Compensation. If either Master Servicer shall
deposit in its Collection Account any amount not required to be deposited
therein, it may at any time withdraw such amount from such Collection Account,
any provision herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (x) of the first paragraph of this Section 3.04(a) with respect to any
Mortgage Loan, a Special Servicer shall promptly, but in no event later than one
Business Day after receipt, remit such amounts to the applicable Master Servicer
for deposit into such Master Servicer's Collection Account, unless such Special
Servicer determines, consistent with the Servicing Standard, that a particular
item should not be deposited because of a restrictive endorsement. With respect
to any such amounts paid by check to the order of a Special Servicer, such
Special Servicer shall endorse such check to the order of the applicable Master
Servicer (in its capacity as such), without recourse, representation or
warranty, unless such Special Servicer determines, consistent with the Servicing
Standard, that a particular item cannot be so endorsed and delivered because of
a restrictive endorsement. Any such amounts received by a Special Servicer with
respect to an REO Property shall be deposited by such Special Servicer into its
REO Account and remitted to the applicable Master Servicer for deposit into such
Master Servicer's Collection Account pursuant to Section 3.16(c).
(b) The Trustee shall establish and maintain one or more segregated
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 Trustee shall, as a
bookkeeping matter, establish and maintain two sub-accounts of the Distribution
Account (i) one of which sub-accounts (such sub-account, the "REMIC
Sub-Account") shall be deemed to be held in trust for the benefit of the Holders
of the REMIC III Regular Interest Certificates and the Class R Certificates, and
(ii) one of which sub-accounts (such sub-account, the "Class V Sub-Account")
shall be deemed to be held in trust for the benefit of the Holders of the Class
V Certificates. By 2:00 p.m. (New York City time) on each Master Servicer
Remittance Date, each Master Servicer shall deliver to the Trustee, for
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deposit in the Distribution Account, an aggregate amount of immediately
available funds equal to the Master Servicer Remittance Amount with respect to
such Master Servicer for such Master Servicer Remittance Date. Immediately upon
deposit of a Master Servicer Remittance Amount into the Distribution Account,
any portion thereof that represents any Post-ARD Additional Interest related to
the ARD Mortgage Loans shall be deemed to have been deposited into the Class V
Sub-Account, and the remaining portion thereof shall be deemed to have been
deposited into the REMIC Sub-Account. In addition, each Master Servicer shall,
as and when required hereunder, deliver to the Trustee for deposit in the
Distribution Account any P&I Advances and Compensating Interest Payments
required to be made by such Master Servicer hereunder. Furthermore, any amounts
paid by any party hereto to indemnify the Trust Fund pursuant to any provision
hereof shall be delivered to the Trustee for deposit in the Distribution
Account. The Trustee shall, upon receipt, deposit in the Distribution Account
any and all amounts received or, pursuant to Section 4.03, advanced by the
Trustee or any Fiscal Agent that are required by the terms of this Agreement to
be deposited therein. As and when required pursuant to Section 3.05(c), the
Trustee shall transfer Interest Reserve Amounts in respect of the Interest
Reserve Loans from the Interest Reserve Account to the Distribution Account.
Furthermore, as and when required pursuant to Section 3.05(d), the Trustee shall
transfer monies from the Excess Liquidation Proceeds Account to the Distribution
Account. If the Trustee shall deposit in the Distribution Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
the Distribution Account, any provision herein to the contrary notwithstanding.
(c) The Trustee shall establish and maintain one or more accounts
(collectively, the "Interest Reserve Account") to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the Interest
Reserve Account shall be an Eligible Account. On the Distribution Date in
January (except during a leap year) and February of each calendar year,
commencing in 2002, prior to any distributions being made with respect to the
Certificates on such Distribution Date, the Trustee shall, with respect to each
Interest Reserve Loan, withdraw from the Distribution Account and deposit in the
Interest Reserve Account an amount equal to the Interest Reserve Amount, if any,
in respect of such Interest Reserve Loan for such Distribution Date; provided
that no such transfer of monies from the Distribution Account to the Interest
Reserve Account shall be made on the Final Distribution Date.
(d) If any Excess Liquidation Proceeds are received, 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, each Master Servicer shall withdraw from its Collection 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 a Collection Account may be invested in Permitted
Investments in accordance with the provisions of Section 3.06. Funds in the
Distribution Account, the Interest Reserve Account and the Excess Liquidation
Proceeds Account shall remain uninvested. Each Master Servicer shall give notice
to the other parties hereto of the location of its Collection Account as of the
Closing Date and of the new location of its Collection Account prior to any
change thereof. The Distribution Account, Interest Reserve Account and Excess
Liquidation Proceeds Account shall each be established at the Corporate Trust
Office of the Trustee as of the Closing Date, and the Trustee shall give notice
to the other parties hereto of the new location of each of the Distribution
Account, Interest Reserve Account and Excess Liquidation Proceeds Account prior
to any change thereof.
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SECTION 3.05. Permitted Withdrawals From the Collection Accounts, the
Distribution Account, the Interest Reserve Account and
the Excess Liquidation Proceeds Account.
(a) Each Master Servicer may, from time to time, make withdrawals from
its Collection 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 (A)
the Master Servicer Remittance Amount with respect to such Master Servicer
for each Master Servicer Remittance Date and (B) any amounts that may be
applied by such Master Servicer to make P&I Advances pursuant to Section
4.03(a);
(ii) to reimburse itself, the Trustee or any Fiscal Agent, as
applicable, for xxxxxxxxxxxx X&X Advances made by such Person (in each
case, with its own funds) with respect to those Mortgage Loans as to which
such Master Servicer is the applicable Master Servicer and/or any successor
REO Mortgage Loans in respect thereof, such Master Servicer's, the
Trustee's and any Fiscal Agent's, as the case may be, respective rights to
reimbursement pursuant to this clause (ii)with respect to any P&I Advance
(other than a Nonrecoverable P&I Advance, which is reimbursable pursuant to
clause (vi) below) being limited to amounts that represent Late Collections
of interest and principal received in respect of the particular Mortgage
Loan or REO Mortgage Loan as to which such P&I Advance was made (net of
related Master Servicing Fees and/or Workout Fees);
(iii) to pay itself earned and unpaid Master Servicing Fees with
respect to those Mortgage Loans as to which it is the applicable Master
Servicer and/or any REO Mortgage Loans in respect thereof, such Master
Servicer's right to payment pursuant to this clause (iii) with respect to
any such Mortgage Loan or REO Mortgage Loan being limited to amounts that
are allocable as interest thereon;
(iv) to pay each Special Servicer (or, if applicable, any predecessor
thereto) earned and unpaid Special Servicing Fees, Workout Fees and
Liquidation Fees to which it is entitled pursuant to, and from the sources
contemplated by, Section 3.11(c), but only if and to the extent that such
Workout Fees and Liquidation Fees relate to Mortgage Loans and/or REO
Properties as to which such Master Servicer is the applicable Master
Servicer;
(v) to reimburse itself, either Special Servicer, the Trustee or any
Fiscal Agent, as applicable, for any unreimbursed Servicing Advances made
thereby (in each case, with its own funds) with respect to those Mortgage
Loans and REO Properties as to which such Master Servicer is the applicable
Master Servicer, such Master Servicer's, either Special Servicer's, the
Trustee's and any Fiscal Agent's, as the case may be, respective rights to
reimbursement pursuant to this clause (v) with respect to any Servicing
Advance (other than a Nonrecoverable Servicing Advance, which is
reimbursable pursuant to clause (vi) below) being limited to (A) payments
made by the related Borrower that are allocable to cover the item in
respect of which such Servicing Advance was made, and (B) Insurance
Proceeds, Condemnation Proceeds, Liquidation 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;
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(vi) (A) to reimburse itself, either Special Servicer, the Trustee or
any Fiscal Agent, as applicable, out of such general collections on the
Mortgage Loans and any REO Properties as are then on deposit in such
Collection Account, for any unreimbursed Nonrecoverable Advances made
thereby with respect to any of the Mortgage Loans and/or REO Properties as
to which such Master Servicer is the applicable Master Servicer and (B) if
such Master Servicer shall have received from the other Master Servicer an
Officer's Certificate setting forth that (1) such other Master Servicer,
either Special Servicer, the Trustee or any Fiscal Agent, as applicable, is
entitled to reimbursement for any Nonrecoverable Advance made with respect
to any of the Mortgage Loans and/or REO Properties as to which such other
Master Servicer is the applicable Master Servicer (and setting forth the
nature and amount of such unreimbursed Nonrecoverable Advance and the party
entitled to reimbursement therefor) and (2) such other Master Servicer has
insufficient funds then on deposit in its Collection Account, to reimburse
such other Master Servicer, either Special Servicer, the Trustee or any
Fiscal Agent, as applicable, out of such general collections on the
Mortgage Loans and any REO Properties as are then on deposit in the subject
Master Servicer's Collection Account, for such unreimbursed Nonrecoverable
Advance made with respect to any of the Mortgage Loans and/or REO
Properties as to which such other Master Servicer is the applicable Master
Servicer;
(vii) to pay itself, either Special Servicer, the Trustee or any Fiscal
Agent, as applicable, any unpaid Advance Interest accrued on Advances made
by such Person with respect to Mortgage Loans and/or REO Properties as to
which such Master Servicer is the applicable Master Servicer, such payment
to be made, as and to the extent contemplated by Section 3.26, out of
Default Charges collected on the Mortgage Loan or REO Mortgage Loan, as the
case may be, that relates to the subject Advance;
(viii) to the extent that, during any Collection Period, such Master
Servicer has reimbursed or is reimbursing itself, either Special Servicer,
the Trustee or any Fiscal Agent, as applicable, for any unreimbursed
Advance with respect to any Mortgage Loan or REO Property as to which such
Master Servicer is the applicable Master Servicer pursuant to clause (ii),
(v) or (vi) above or pursuant to Section 3.03(c) or Section 3.03(d), and
insofar as payment has not already been made, and the related Default
Charges then on deposit in such Collection Account are not sufficient to
make such payment, pursuant to clause (vii) above, to pay itself, such
Special Servicer, the Trustee or such Fiscal Agent, as the case may be, out
of such general collections on the Mortgage Loans and any REO Properties as
are then on deposit in such Collection Account, any related Advance
Interest accrued and payable on the portion of such Advance so reimbursed
or being reimbursed;
(ix) to pay any outstanding expense, other than Advance Interest, that
was incurred with respect to any Mortgage Loan or REO Property as to which
such Master Servicer is the applicable Master Servicer and that, if paid
from a source other than Default Charges on such Mortgage Loan or the
related REO Mortgage Loan, as the case may be, would constitute an
Additional Trust Fund Expense, such payment to be made, as and to the
extent contemplated by Section 3.26, out of Default Charges collected on
the Mortgage Loan or REO Mortgage Loan, as the case may be, that relates to
such expense;
(x) to pay itself any items of Additional Master Servicing
Compensation, and to pay the applicable Special Servicer any items of
Additional Special Servicing Compensation, in each case on deposit in such
Collection Account from time to time;
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(xi) to pay any unpaid Liquidation Expenses incurred with respect to
any Mortgage Loan or REO Property as to which such Master Servicer is the
applicable Master Servicer, such payments to be made, first, out of
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds and, if
applicable, REO Revenues received with respect to such Mortgage Loan or REO
Property, as the case may be, and then, out of such general collections on
other Mortgage Loans and REO Properties as are then on deposit in such
Collection Account;
(xii) to pay, in accordance with Section 3.11(i), out of such general
collections on the Mortgage Loans and any REO Properties as are then on
deposit in such Collection Account, certain servicing expenses related to
the Mortgage Loans and REO Properties as to which such Master Servicer is
the applicable Master Servicer, which expenses would, if advanced,
constitute Nonrecoverable Servicing Advances;
(xiii) to pay, out of such general collections on the Mortgage Loans
and any REO Properties as are then on deposit in such Collection Account,
costs and expenses incurred by the Trust pursuant to Section 3.09(c) with
respect to any Mortgage Loan or REO Property as to which such Master
Servicer is the applicable Master Servicer (other than the costs of
environmental testing, which are to be covered by, and reimbursable as, a
Servicing Advance);
(xiv) to pay itself, either Special Servicer, the Depositor, the
Trustee, any Fiscal Agent, or any of their respective directors, officers,
members, managers, employees and agents, as the case may be, out of such
general collections on the Mortgage Loans and any REO Properties as are
then on deposit in such Collection Account, any amounts payable to any such
Person pursuant to Section 6.03, Section 7.01(b), Section 8.05(b), or
Section 8.13, as applicable, but only if and to the extent that such
amounts relate to Mortgage Loans and/or REO Properties as to which such
Master Servicer is the applicable Master Servicer;
(xv) to pay, out of such general collections on the Mortgage Loans and
any REO Properties then on deposit in such Collection Account, any
reasonable out-of-pocket cost or expense (including the reasonable fees of
tax accountants and attorneys) incurred by the Trustee pursuant to Section
3.17(a)(iii) in connection with providing advice to a Special Servicer with
respect to any REO Property as to which such Master Servicer is the
applicable Master Servicer;
(xvi) to pay itself, either Special Servicer, the Trustee, any Fiscal
Agent or the Depositor, as the case may be, any amount related to the
Mortgage Loans and/or REO Properties as to which such Master Servicer is
the applicable Master Servicer, that is specifically required to be paid to
such Person at the expense of the Trust Fund under any provision of this
Agreement and to which reference is not made in any other clause of this
Section 3.05(a), it being acknowledged that this clause (xvi) shall not be
construed to modify any limitation otherwise set forth in this Agreement on
the time at which any Person is entitled to payment or reimbursement of any
amount or the funds from which any such payment or reimbursement is
permitted to be made;
(xvii) to pay itself, either Special Servicer, any Mortgage Loan
Seller, a Controlling Class Certificateholder or any other particular
Person, as the case may be, with respect to any Mortgage Loan as to which
such Master Servicer is the applicable Master Servicer and that was
previously purchased or otherwise removed from the Trust Fund by such
Person pursuant to or
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as contemplated by this Agreement, all amounts received on such Mortgage
Loan subsequent to the date of purchase or other removal;
(xviii) to transfer any Excess Liquidation Proceeds on deposit in such
Collection Account to the Excess Liquidation Proceeds Account in accordance
with Section 3.04(d); and
(xix) to clear and terminate such Collection Account at the termination
of this Agreement pursuant to Section 9.01.
If amounts on deposit in either Collection Account at any particular
time (after withdrawing any portion of such amounts deposited in such Collection
Account in error) are insufficient to satisfy all payments, reimbursements and
remittances to be made therefrom as set forth in clauses (ii) through (xvii)
above, then the corresponding withdrawals from such Collection Account shall be
made in the following priority and subject to the following rules: (x) if the
payment, reimbursement or remittance is to be made from a specific source of
funds, then such payment, reimbursement or remittance shall be made from that
specific source of funds on a pro rata basis with any and all other payments,
reimbursements and remittances to be made from such specific source of funds;
and (y) if the payment, reimbursement or remittance can be made from any funds
on deposit in such Collection Account, then (following any withdrawals made from
such Collection Account in accordance with the immediately preceding clause (x)
above) such payment, reimbursement or remittance shall be made from the general
funds remaining on deposit in such Collection Account on a pro rata basis with
any and all other payments, reimbursements or remittances to be made from such
general funds; provided that any reimbursements of Advances in respect of any
particular Mortgage Loan or REO Property out of a Collection Account pursuant to
any of clauses (ii), (v) and (vi) above, and any payments of interest thereon
out of a Collection Account pursuant to either of clauses (vii) and (viii)
above, shall be made (to the extent of their respective entitlements to such
reimbursements and/or payments): first, to any Fiscal Agent; second, to the
Trustee; and third, pro rata, to the applicable Master Servicer and Special
Servicer.
Each Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, in
connection with any withdrawal from its Collection Account pursuant to any of
clauses (ii) through (xviii) above.
Each Master Servicer shall pay to the applicable Special Servicer from
such Master Servicer's Collection Account amounts permitted to be paid to such
Special Servicer therefrom promptly upon receipt of a certificate of a Servicing
Officer of such Special Servicer describing the item and amount to which such
Special Servicer is entitled. Each Master Servicer may rely conclusively on any
such certificate and shall have no duty to re-calculate the amounts stated
therein. Each Special Servicer shall keep and maintain separate accounting for
each Specially Serviced Mortgage Loan and REO Property as to which it is the
applicable Special Servicer, on a loan-by-loan and property-by-property basis,
for the purpose of justifying any request thereby for withdrawal from a
Collection Account.
(b) The Trustee shall, from time to time, make withdrawals from the
Distribution Account for each of the following purposes (the order set forth
below not constituting an order of priority for such withdrawals):
(i) to make distributions to Certificateholders on each Distribution
Date pursuant to Section 4.01;
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(ii) to transfer Interest Reserve Amounts in respect of the Interest
Reserve Loans to the Interest Reserve Account as and when required by
Section 3.04(c);
(iii) to pay itself, either Master Servicer, either Special Servicer,
the Depositor, the Trustee, any Fiscal Agent or any of their respective
directors, officers, members, managers, employees and agents, as the case
may be, any amounts payable to any such Person pursuant to Section 6.03,
Section 7.01(b), Section 8.05 or Section 8.13, as applicable, if and to the
extent such amounts are not payable out of a Collection Account pursuant to
Section 3.05;
(iv) to pay any and all federal, state and local taxes imposed on any
REMIC Pool or on the assets or transactions of any REMIC Pool, together
with all incidental costs and expenses, and any and all expenses relating
to tax audits, if and to the extent that either (A) none of the parties
hereto are liable therefor pursuant to Section 10.01(b) and/or Section
10.01(f) or (B) any such Person that may be so liable has failed to timely
make the required payment;
(v) to pay for the cost of the Opinions of Counsel sought by the
Trustee as contemplated by Section 11.01(a) or Section 11.01(c) in
connection with any amendment to this Agreement requested by the Trustee
which amendment is in furtherance of the rights and interests of
Certificateholders;
(vi) to pay for the cost of recording this Agreement pursuant to
Section 11.02(a); and
(vii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) On the Master Servicer Remittance Date in March of each year
(commencing in March 2002), and in any event on the Master Servicer Remittance
Date that occurs in the same calendar month as the Final Distribution Date, the
Trustee shall withdraw from the Interest Reserve Account and deposit in the
Distribution Account all Interest Reserve Amounts in respect of the Interest
Reserve Loans then on deposit in the Interest Reserve Account.
(d) On the Business Day prior to each Distribution Date, the Trustee
shall withdraw from the Excess Liquidation Proceeds Account and deposit in the
Distribution Account, for distribution on such Distribution Date, an amount
equal to the lesser of (i) the entire amount, if any, then on deposit in the
Excess Liquidation Proceeds Account and (ii) the excess, if any, of the
aggregate amount distributable on such Distribution Date pursuant to Sections
4.01(a) and 4.01(b), over the Standard 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
Business Day prior to the Final Distribution Date, the Trustee shall withdraw
from the Excess Liquidation Proceeds Account and deposit in the Distribution
Account, for distribution on such Distribution Date, any and all amounts then on
deposit in the Excess Liquidation Proceeds Account.
(e) The Trustee, any Fiscal Agent, the Depositor, each Master Servicer
and each Special Servicer, as applicable, shall in all cases have a right prior
to the Certificateholders to any particular funds on deposit in the Collection
Accounts and the Distribution Account from time to time for the reimbursement or
payment of compensation, Advances (with interest thereon at the Reimbursement
Rate) and their respective expenses hereunder, but only if and to the extent
such compensation, Advances (with interest) and expenses are to be reimbursed or
paid from such particular
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funds on deposit in such Collection Account or the Distribution Account pursuant
to the express terms of this Agreement.
SECTION 3.06. Investment of Funds in the Collection Accounts,
Servicing Accounts, Reserve Accounts, Purchase Price
Security Deposit Accounts, Special Reserve Accounts and
the REO Accounts.
(a) Each Master Servicer may direct (pursuant to a standing order or
otherwise) any depositary institution (including the Trustee) maintaining its
Collection Account and any Purchase Price Security Deposit Account, Special
Reserve Account, Servicing Account or Reserve Account maintained by it, and each
Special Servicer may direct (pursuant to a standing order or otherwise) any
depositary institution maintaining its REO Account, to invest, or if it is such
depositary institution, may itself invest, the funds held therein (each such
account, for purposes of this Section 3.06, an "Investment Account") in (but
only 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 or the related
Mortgage Loan Documents, as applicable; provided that any such investment of
funds in any Servicing Account or Reserve Account shall be subject to applicable
law and the terms of the related Mortgage Loan Documents; and provided, further,
that the funds in any Investment Account shall remain uninvested unless and
until the applicable Master Servicer or Special Servicer, as appropriate, gives
timely investment instructions with respect thereto pursuant to this Section
3.06. 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). Each Master Servicer (with
respect to Permitted Investments of amounts in its Collection Account or any
Purchase Price Security Deposit Account, Special Reserve Account, Servicing
Account or Reserve Account maintained by it) and each Special Servicer (with
respect to Permitted Investments of amounts in its REO Account), acting on
behalf of the Trustee, shall (and Trustee hereby designates the applicable
Master Servicer or Special Servicer, as the case may be, as the Person that
shall) (i) be the "entitlement holder" of any Permitted Investment that is a
"security entitlement" and (ii) maintain "control" of any Permitted Investment
that is either a "certificated security" or an "uncertificated security". For
purposes of this Section 3.06(a), the terms "entitlement holder", "security
entitlement", "control", "certificated security" and "uncertificated security"
shall have the meanings given such terms in Revised Article 8 (1994 Revision) of
the UCC, and "control" of any Permitted Investment by a Master Servicer or
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. If amounts on deposit in an Investment Account are at any
time invested in a Permitted Investment payable on demand, the Master Servicer
or Special Servicer, as the case may be, that maintains such Investment Account
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 at least
equal to 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 such Master Servicer or 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
such Investment Account.
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(b) Whether or not a Master Servicer directs the investment of funds in
its Collection Account or any Purchase Price Security Deposit Account or Special
Reserve Account maintained by it, 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 such Master Servicer and shall be subject to its
withdrawal in accordance with Section 3.05(a). Whether or not a Master Servicer
directs the investment of funds in any Servicing Account or Reserve Account
maintained by it, 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, and subject to the requirements
of applicable law or the terms of the related Mortgage Loan regarding the
payment of such interest and investment income to the related Borrower, shall be
for the sole and exclusive benefit of such Master Servicer and shall be subject
to withdrawal from time to time in accordance with Section 3.03. Whether or not
a Special Servicer directs the investment of funds in its REO Account, 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 such Special Servicer and
shall be subject to its withdrawal in accordance with Section 3.16(b). If any
loss shall be incurred in respect of any Permitted Investment on deposit in any
Investment Account, the Master Servicer or Special Servicer, as the case may be,
that maintains such Investment Account, 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, in respect of such Investment Account for such
Collection Period (or, in the case of a Servicing Account or Reserve Account,
the entire amount of such loss), except (in the case of any such loss with
respect to a Servicing Account or Reserve Account) to the extent the loss
amounts were invested for the benefit of a Borrower under the terms of a
Mortgage Loan or applicable law and such Borrower has no recourse against the
Trust in respect of such loss.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of any payment due (or in any other performance
required) under any Permitted Investment or deposit in any Investment Account,
and if the Master Servicer or Special Servicer, as the case may be, that
maintains such Investment Account, is in default of its obligations under
Section 3.06(b), the Trustee may (and, subject to Section 8.02, upon the request
of Holders of Certificates entitled to not less than 25% of the Voting Rights
allocated to any Class of REMIC III Regular Interest Certificates, the Trustee
shall) take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate legal
proceedings. Any costs incurred by the Trustee in taking any such action shall
be reimbursed to it by the Master Servicer or Special Servicer, as the case may
be, that maintains such Investment Account. This provision is in no way intended
to limit any actions that a Master Servicer or Special Servicer may take in this
regard at its own expense.
(d) Amounts on deposit in the Distribution Account, the Interest
Reserve Account and the Excess Liquidation Proceeds Account shall remain
uninvested.
(e) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including the calculation
of the Standard Available Distribution Amount and the Master Servicer Remittance
Amounts, the amounts so invested shall be deemed to remain on deposit in such
Investment Account.
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SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.
(a) In the case of each Mortgage Loan (including each Specially
Serviced Mortgage Loan), the applicable Master Servicer shall use reasonable
efforts consistent with the Servicing Standard to cause the related Borrower to
maintain, and, if such Borrower does not so maintain, such Master Servicer will
itself cause to be maintained, for the related Mortgaged Property all insurance
coverage as is required, subject to applicable law, under the related Mortgage
Loan Documents; provided that, if and to the extent that any Mortgage Loan
grants the lender thereunder any discretion (by way of consent, approval or
otherwise) as to the insurance coverage that the related Borrower is required to
maintain, the applicable Master Servicer shall exercise such discretion in a
manner consistent with the Servicing Standard, with a view towards requiring
insurance comparable to that required under other Mortgage Loans with express
provisions governing such matters and, in any event, business interruption or
rental loss insurance for at least 12 months; and provided, further, that, if
and to the extent that any Mortgage Loan grants the lender thereunder any
discretion (by way of consent, approval or otherwise) as to the insurance
provider from whom the related borrower is to obtain the requisite insurance
coverage, the applicable Master Servicer shall require the related Borrower to
obtain the requisite insurance coverage from Qualified Insurers that, in each
case, have a financial strength or claims-paying rating no lower than two rating
categories below the highest rated Certificates outstanding, and in any event no
lower than "A" from S&P and "A2" from Xxxxx'x (or in such other form and amount
or issued by an insurer with such other financial strength or claims-paying
ability as would not, as confirmed in writing by the relevant Rating Agency,
result in an Adverse Rating Event); and provided, further, that, in the case of
any Mortgage Loan, the applicable Master Servicer shall be required to maintain
such insurance coverage upon the related Borrower's failure to do so only to the
extent that such insurance is available at commercially reasonable rates and the
Trustee as mortgagee has an insurable interest. Subject to Section 3.17(b), the
applicable Special Servicer shall also cause to be maintained for each REO
Property no less insurance coverage (to the extent available at commercially
reasonable rates) than was previously required of the related Borrower under the
related Mortgage Loan Documents and, at a minimum, (i) hazard insurance with a
replacement cost rider, (ii) business interruption or rental loss insurance for
at least 12 months, and (iii) commercial general liability insurance, in each
case, in an amount customary for the type and geographic location of such REO
Property and consistent with the Servicing Standard; provided that all such
insurance shall be obtained from Qualified Insurers that, in each case, shall
have a financial strength or claims-paying rating no lower than two rating
categories below the highest rated Certificates outstanding, and in any event no
lower than "A" from S&P and "A2" from Xxxxx'x (or in such other form and amount
or issued by an insurer with such other financial strength or claims-paying
ability as would not, as confirmed in writing by the relevant Rating Agency,
result in an Adverse Rating Event). All such insurance policies shall contain
(if they insure against loss to property) a "standard" mortgagee clause, with
loss payable to the applicable Master Servicer on behalf of the Trustee (in the
case of insurance maintained in respect of a Mortgage Loan), or shall name the
Trustee as the insured, with loss payable to the applicable Special Servicer on
behalf of the Trustee (in the case of insurance maintained in respect of an REO
Property), and shall be issued by an insurer authorized under applicable law to
issue such insurance. Any amounts collected by a Master Servicer or 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 Borrower, in each case in accordance with
the Servicing Standard) shall be deposited in the Collection Account of the
applicable Master Servicer, subject to withdrawal pursuant to Section 3.05(a),
in the case of amounts received in respect of a Mortgage Loan, or in the REO
Account of the applicable Special Servicer, subject to withdrawal pursuant to
Section 3.16(c), in the case of amounts received in respect of an REO
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Property. Any cost incurred by a Master Servicer or Special Servicer in
maintaining any such insurance shall not, for purposes hereof, including
calculating monthly distributions to Certificateholders, be added to unpaid
principal balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit; provided,
however, that this sentence shall not limit the rights of a Master Servicer on
behalf of the Trust to enforce any obligations of the related Borrower under
such Mortgage Loan. Costs to a Master Servicer or Special Servicer of
maintaining insurance policies pursuant to this Section 3.07 shall be paid by
and reimbursable to such Master Servicer or Special Servicer, as the case may
be, as a Servicing Advance.
(b) If a Master Servicer or Special Servicer shall obtain and maintain,
or cause to be obtained and maintained, a blanket policy or master force placed
policy insuring against hazard losses on all of the Mortgage Loans or REO
Properties, as applicable, as to which it is the applicable Master Servicer or
Special Servicer, as the case may be, then, to the extent such policy (i) is
obtained from a Qualified Insurer having a financial strength or claims-paying
rating no lower than "A" from S&P and "A2" from Xxxxx'x or having such other
financial strength or claims-paying ability rating as would not, as confirmed in
writing by the relevant Rating Agency, result in an Adverse Rating Event, and
(ii) provides protection equivalent to the individual policies otherwise
required, such Master Servicer or 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 or REO
Properties, as applicable. Such a blanket or master force placed policy may
contain a deductible clause (not in excess of a customary amount), in which case
the Master Servicer or Special Servicer, as the case may be, that maintains such
policy shall, if there shall not have been maintained on any Mortgaged Property
or REO Property thereunder a 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 an individual policy, promptly deposit into
the Collection Account maintained by the applicable Master Servicer, from its
own funds, the amount not otherwise payable under the blanket or master force
placed policy in connection with such loss or losses because of such deductible
clause to the extent that any such deductible exceeds the deductible limitation
that pertained to the related Mortgage Loan (or, in the absence of any such
deductible limitation, the deductible limitation for an individual policy which
is consistent with the Servicing Standard). Each Master Servicer and Special
Servicer shall prepare and present, on behalf of itself, the Trustee and
Certificateholders, claims under any such blanket or master force placed policy
maintained by it in a timely fashion in accordance with the terms of such
policy.
(c) Within 45 days after the Closing Date, with respect to each of the
Mortgage Loans covered by an Environmental Insurance Policy that are listed on
Exhibit B-4 to this Agreement, the applicable Master Servicer shall notify the
insurer under such Environmental Insurance Policy and take all other action
necessary for the Trustee, on behalf of the Certificateholders, to be an insured
(and for such Master Servicer, on behalf of the Trust, to make claims) under
such Environmental Insurance Policy. In the event that the applicable Master
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 Mortgage Loan covered thereby, the applicable Master Servicer shall, in
accordance with the terms of such Environmental Insurance Policy and the
Servicing Standard, timely make a claim thereunder with the appropriate insurer
and shall take such other actions in accordance with the Servicing Standard
which are necessary under such Environmental Insurance Policy in order to
realize the full value thereof for the benefit of the Certificateholders. If any
other party hereto has actual knowledge of an Insured Environmental Event with
respect to any Mortgage Loan listed on Exhibit B-4 to this Agreement, such party
shall promptly so notify the applicable Master Servicer. Any legal fees,
premiums or other out-of-pocket costs incurred in accordance with the Servicing
Standard in connection with any such claim
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under an Environmental Insurance Policy shall be paid by the applicable Master
Servicer and shall be reimbursable to it as a Servicing Advance. With respect to
each Environmental Insurance Policy that relates to one or more Mortgage Loans,
the applicable Master Servicer shall review and familiarize itself with the
terms and conditions relating to enforcement of claims and shall monitor the
dates by which any claim must be made or any action must be taken under such
policy in order to realize the full value thereof for the benefit of the
Certificateholders in the event the applicable Master Servicer has actual
knowledge of an Insured Environmental Event giving rise to a claim under such
policy.
In the event that the applicable Master Servicer receives notice of any
termination of any Environmental Insurance Policy that relates to one or more
Mortgage Loans, such Master Servicer shall, within five Business Days after
receipt of such notice, notify the applicable Special Servicer, the Controlling
Class Representative, the Rating Agencies and the Trustee of such termination in
writing. Upon receipt of such notice, the applicable Master Servicer shall
address such termination in accordance with Section 3.07(a) in the same manner
as it would the termination of any other Insurance Policy required under the
related Mortgage Loan Documents. Any legal fees, premiums or other out-of-pocket
costs incurred in accordance with the Servicing Standard in connection with a
resolution of such termination of an Environmental Insurance Policy shall be
paid by the applicable Master Servicer and shall be reimbursable to it as a
Servicing Advance.
(d) Each of the Master Servicers and Special Servicers shall at all
times during the term of this Agreement (or, in the case of a Special Servicer,
at all times during the term of this Agreement during which Specially Serviced
Mortgage Loans and/or REO Properties as to which it is the applicable Special
Servicer exist as part of the Trust Fund) keep in force with a Qualified Insurer
having a financial strength or claims-paying rating no lower than two rating
categories below the highest rated Certificates outstanding, and in any event no
lower than "A" from S&P and "A2" from Xxxxx'x, a fidelity bond in such form and
amount as would permit it to be a qualified Xxxxxx Xxx seller-servicer of
multifamily mortgage loans (or in such other form and amount or issued by an
insurer with such other financial strength or claims-paying ability rating as
would not result in an Adverse Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the Trustee by the relevant Rating
Agency)). A Master Servicer or 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 such Master Servicer or Special Servicer, as the case may
be. Such fidelity bond shall provide that it may not be canceled without ten
days' prior written notice to the Trustee.
Each of the Master Servicers and Special Servicers shall at all times
during the term of this Agreement (or, in the case of a Special Servicer, at all
times during the term of this Agreement during which Specially Serviced Mortgage
Loans and/or REO Properties as to which it is the applicable Special Servicer
exist as part of the Trust Fund) also keep in force with a Qualified Insurer
having a financial strength or claims-paying rating no lower than two rating
categories below the highest rated Certificates outstanding, and in any event no
lower than "A" from S&P and "A2" from Xxxxx'x, a policy or policies of insurance
covering loss occasioned by the errors and omissions of its officers and
employees in connection with its servicing obligations hereunder, which policy
or policies shall be in such form and amount as would permit it to be a
qualified Xxxxxx Xxx seller-servicer of multifamily mortgage loans (or in such
other form and amount or issued by an insurer with such other financial strength
or claims-paying rating as would not result in an Adverse Rating Event with
respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee by the relevant Rating Agency)). A Master Servicer or Special Servicer
shall be deemed to have complied with the foregoing provisions if
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an Affiliate thereof has such insurance and, by the terms of such policy or
policies, the coverage afforded thereunder extends to such Master Servicer or
Special Servicer, as the case may be. Any such errors and omissions policy shall
provide that it may not be canceled without ten days' prior written notice to
the Trustee.
SECTION 3.08. Enforcement of Alienation Clauses.
The applicable Master Servicer (with respect to a Performing Mortgage
Loan) and the applicable Special Servicer (with respect to a Specially Serviced
Mortgage Loan), on behalf of the Trustee as the mortgagee of record, shall
enforce any restrictions, contained in the related Mortgage or other related
loan document on transfers or further encumbrances of the related Mortgaged
Property and on transfers of interests in the related Borrower, unless the
applicable Master Servicer or the applicable Special Servicer, as the case may
be, has determined, in its reasonable judgment, that waiver of such restrictions
would be in accordance with the Servicing Standard; provided that, subject to
the related Mortgage Loan Documents and applicable law, neither the applicable
Master Servicer nor the applicable Special Servicer shall waive any right it
has, or grant any consent it is otherwise entitled to withhold, in accordance
with any related "due-on-encumbrance" clause under any Mortgage Loan (other than
a Co-op Mortgage Loan as to which the NCB Subordinate Debt Conditions have been
satisfied) until it has received written confirmation from each Rating Agency
that such action would not result in an Adverse Rating Event with respect to any
Class of Rated Certificates; and provided, further, that, if the affected
Mortgage Loan, individually or together with all other Mortgage Loans, if any,
that are in the same Cross-Collateralized Group as such Mortgage Loan, has a
Cut-off Date Principal Balance in excess of the lesser of $20,000,000 and 2% of
the aggregate Stated Principal Balance of the Mortgage Pool, then, subject to
the related Mortgage Loan Documents, applicable law and Section 3.20(a), neither
the applicable Master Servicer nor the applicable Special Servicer shall waive
any right it has, or grant any consent it is otherwise entitled to withhold, in
accordance with any related "due-on-sale" clause under any Mortgage Loan until
it has received written confirmation from each Rating Agency that such action
would not result in an Adverse Rating Event with respect to any Class of Rated
Certificates; and provided, further, that, subject to the related Mortgage Loan
Documents, applicable law and Section 3.20(a), the applicable Master Servicer
shall not waive any right it has, or grant any consent it is otherwise entitled
to withhold, in accordance with any related "due-on-encumbrance" clause under
any Mortgage Loan (other than a Co-op Mortgage Loan as to which the NCB
Subordinate Debt Conditions have been satisfied) until it has received the
consent of the applicable Special Servicer (the giving of which consent shall be
subject to Section 3.24); and provided, further, that, subject to the related
Mortgage Loan Documents, applicable law and Section 3.20(a), the applicable
Master Servicer shall not waive any right it has, or grant any consent it is
otherwise entitled to withhold, in accordance with any related "due-on-sale"
clause under any Mortgage Loan until it has received the consent of the
applicable Special Servicer (the giving of which consent shall be subject to
Section 3.24); and provided, further, that, subject to the related Mortgage Loan
Documents and applicable law, neither the applicable Master Servicer nor the
applicable Special Servicer shall waive any right it has, or grant any consent
it is otherwise entitled to withhold, in accordance with any related
"due-on-sale" or "due-on-encumbrance" clause under any Mortgage Loan, or approve
the assumption of any Mortgage Loan, unless in any such case, all associated
costs and expenses are covered without any expense to the Trust (it being
understood and agreed that, except as expressly provided herein, neither the
applicable Master Servicer nor the applicable Special Servicer shall be
obligated to cover or assume any such costs or expenses); and provided, further,
that neither the applicable Master Servicer nor the applicable Special Servicer
shall (to the extent that it is within the control thereof to prohibit such
event) consent to the transfer of any Mortgaged Property which secures a
Cross-Collateralized Group unless (i) all of the Mortgaged
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Properties securing such Cross-Collateralized Group are transferred
simultaneously by the respective Borrower or (ii) it obtains the consent of the
Controlling Class Representative. In the case of any Mortgage Loan, the
applicable Master Servicer and the applicable Special Servicer shall each
provide the other with all such information as each may reasonably request in
order to make such determination and as to the applicable Master Servicer, to
obtain the applicable Special Servicer's consent.
In connection with any permitted assumption of any Mortgage Loan or
waiver of a "due-on-sale" or "due-on-encumbrance" clause thereunder, the
applicable Master Servicer (in the case of a Performing Mortgage Loan) or the
applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan)
shall prepare all documents necessary and appropriate for such purposes and
shall coordinate with the related Borrower for the due execution and delivery of
such documents.
With respect to any Co-op Mortgage Loan which permits NCB to allow a
Borrower under such Mortgage Loan to incur subordinate debt if the NCB
Subordinate Debt Conditions are met, the Co-op Master Servicer may, in
accordance with the Servicing Standard, without the need to obtain any consent
hereunder (and without the need to obtain any ratings confirmation), permit such
Borrower to incur subordinate debt if the NCB Subordinate Debt Conditions have
been met (as certified in writing to the Trustee and the Controlling Class
Representative by the Co-op Master Servicer no later than five Business Days
prior to the making of the subject subordinate loan). With respect to any Co-op
Mortgage Loan which does not contain specific provisions regarding the
incurrence of subordinate debt, or which prohibits the incurrence of subordinate
debt, or which requires the consent of the Mortgagee in order to incur
subordinate debt, the Co-op Master Servicer may, nevertheless, in accordance
with the Servicing Standard, without the need to obtain any consent hereunder
(and without the need to obtain a ratings confirmation), permit the related
Borrower to incur subordinate debt if the NCB Subordinate Debt Conditions have
been met (as certified in writing to the Trustee and the Controlling Class
Representative by the Co-op Master Servicer no later than five Business Days
prior to the making of the subject subordinate loan). The Co-op Master Servicer
shall pay any and all Rating Agency fees and expenses associated with obtaining
any ratings confirmation with respect to waiving a "due-on-sale" or
"due-on-encumbrance" clause under a Co-op Mortgage Loan, if and to the extent
the related Borrower is not required under the related Mortgage Loan Documents
to make such payment.
If a Master Servicer or Special Servicer collects an assumption fee or
an assumption application fee in connection with any transfer or proposed
transfer of any interest in a Borrower or a Mortgaged Property, then such Master
Servicer or Special Servicer, as applicable, will apply that fee to cover the
costs and expenses associated with that transfer or proposed transfer that are
not otherwise paid by the related Borrower and that would otherwise be payable
or reimbursable out of the Trust Fund, including any Rating Agency fees and
expenses to the extent such fees and expenses are collectible under applicable
law and the applicable Master Servicer or Special Servicer, as appropriate,
fails to enforce such requirement in accordance with the related Mortgage Loan
Documents. Any remaining portion of such assumption fee (such remaining portion,
a "Net Assumption Fee") or of such assumption application fee (such remaining
portion, a "Net Assumption Application Fee") will be applied as additional
compensation to the applicable Master Servicer or the applicable Special
Servicer in accordance with Section 3.11. Neither the applicable Master Servicer
nor the applicable Special Servicer shall waive any assumption fee or assumption
application fee, to the extent it would constitute additional compensation for
the other such party, without the consent of such other party.
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SECTION 3.09. Realization Upon Defaulted Mortgage Loans.
(a) The applicable Special Servicer shall, subject to Sections 3.09(b),
3.09(c), 3.09(d) and 3.24, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of the real property and other collateral securing any Mortgage Loan
that comes into and continues in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, including
pursuant to Section 3.20; provided that none of the Master Servicers or Special
Servicers (other than the applicable Special Servicer) shall, with respect to
any ARD Mortgage Loan after its Anticipated Repayment Date, take any enforcement
action with respect to the payment of Post-ARD Additional Interest (other than
the making of requests for its collection), and the applicable Special Servicer
may do so only if (i) the taking of an enforcement action with respect to the
payment of other amounts due under such Mortgage Loan is, in the reasonable
judgment of the applicable Special Servicer, and without regard to such Post-ARD
Additional Interest, also necessary, appropriate and consistent with the
Servicing Standard or (ii) all other amounts due under such Mortgage Loan have
been paid, the payment of such Post-ARD Additional Interest has not been
forgiven in accordance with Section 3.20 and, in the reasonable judgment of the
applicable Special Servicer, the Liquidation Proceeds expected to be recovered
in connection with such enforcement action will cover the anticipated costs of
such enforcement action and, if applicable, any associated Advance Interest. In
connection with the foregoing, in the event of a default under any Mortgage Loan
or Cross-Collateralized Group that is secured by real properties located in
multiple states, and such states include California or another state with a
statute, rule or regulation comparable to California's "one action rule", then
the applicable Special Servicer shall consult Independent counsel regarding the
order and manner in which the applicable Special Servicer should foreclose upon
or comparably proceed against such properties. The reasonable costs of such
consultation shall be paid by, and reimbursable to, the applicable Special
Servicer as a Servicing Advance. In addition, all other costs and expenses
incurred in any foreclosure sale or similar proceeding shall be paid by, and
reimbursable to, the applicable Special Servicer as a Servicing Advance. Nothing
contained in this Section 3.09 shall be construed so as to require the
applicable Special Servicer, on behalf of the Trust, 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 applicable
Special Servicer taking into account the factors described in Section 3.18 and
the results of any appraisal obtained pursuant to the following sentence or
otherwise, all such cash bids to be made in a manner consistent with the
Servicing Standard. If and when the applicable Special Servicer deems it
necessary in accordance with the Servicing Standard for purposes of establishing
the fair market value of any Mortgaged Property securing a defaulted Mortgage
Loan, whether for purposes of bidding at foreclosure or otherwise, the
applicable Special Servicer is authorized to have an Appraisal completed with
respect to such property (the cost of which appraisal shall be covered by, and
be reimbursable as, a Servicing Advance).
No Master Servicer or Special Servicer, other than the applicable
Special Servicer or a single member limited liability company formed by the
applicable Special Servicer pursuant to Section 3.16(a), shall foreclose upon or
otherwise comparably convert, including by taking title thereto, any real
property or other collateral securing a defaulted Mortgage Loan.
(b) Notwithstanding the foregoing provisions of this Section 3.09, no
Mortgaged Property shall be acquired by a Special Servicer on behalf of the
Trust under such circumstances, in such manner or pursuant to such terms as
would (i) cause such Mortgaged Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code (unless the
portion of such REO Property that is not treated as "foreclosure property" and
that is held by any REMIC Pool at any
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given time constitutes not more than a de minimis amount of the assets of such
REMIC Pool within the meaning of Treasury regulation section 1.860D-1(b)(3)(i)
and (ii)), or (ii) except as permitted by Section 3.17(a), subject the Trust to
the imposition of any federal income or prohibited transaction taxes under the
Code. Subject to the foregoing, however, a Mortgaged Property may be acquired
through a single member limited liability company. In addition, except as
permitted under Section 3.17(a), a Special Servicer shall not acquire any
personal property on behalf of the Trust pursuant to this Section 3.09 unless
either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the applicable
Special Servicer; or
(ii) the applicable Special Servicer shall have obtained an Opinion of
Counsel (the cost of which shall be covered by, and reimbursable as, a
Servicing Advance) to the effect that the holding of such personal property
as part of the Trust Fund will not result in an Adverse REMIC Event with
respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to
either Grantor Trust Pool.
(c) Notwithstanding the foregoing provisions of this Section 3.09, a
Special Servicer shall not, on behalf of the Trust, 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 judgment of the applicable 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, unless:
(i) the applicable Special Servicer has previously determined in
accordance with the Servicing Standard, based on a Phase I Environmental
Assessment (and any additional environmental testing that the applicable
Special Servicer deems necessary and prudent) of such Mortgaged Property
conducted by an Independent Person who regularly conducts Phase I
Environmental Assessments and performed during the 12-month period
preceding any such acquisition of title or other action, that such
Mortgaged Property is in compliance with applicable environmental laws and
regulations and 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
(ii) in the event that the determination described in clause (c)(i)
above cannot be made, the applicable Special Servicer has previously
determined in accordance with the Servicing Standard, on the same basis as
described in clause (c)(i) above, and taking into account the coverage
provided under the related Environmental Insurance Policy, that it would
maximize the recovery to the Certificateholders on a present value basis
(the relevant discounting of anticipated collections that will be
distributable to Certificateholders to be performed at the related Net
Mortgage Rate) to acquire title to or possession of the Mortgaged Property
and to take such remedial, corrective and/or other further actions as are
necessary to bring the Mortgaged Property into compliance with applicable
environmental laws and regulations and to appropriately address any of the
circumstances and conditions referred to in clause (c)(i) above.
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Any such determination by the applicable Special Servicer contemplated
by clause (i) or clause (ii) of the preceding paragraph shall be evidenced by an
Officer's Certificate to such effect delivered to the Trustee, the applicable
Master Servicer and the Controlling Class Representative, specifying all of the
bases for such determination, such Officer's Certificate to be accompanied by
all related environmental reports. The cost of such Phase I Environmental
Assessment and any such additional environmental testing shall be advanced by
the applicable Master Servicer at the direction of the applicable Special
Servicer given in accordance with the Servicing Standard; provided, however,
that no Master Servicer shall be obligated in connection therewith to advance
any funds which, if so advanced, would constitute a Nonrecoverable Servicing
Advance. Amounts so advanced shall be subject to reimbursement as Servicing
Advances in accordance with Section 3.05(a). The cost of any remedial,
corrective or other further action contemplated by clause (ii) of the preceding
paragraph shall be payable out of the applicable Master Servicer's Collection
Account pursuant to Section 3.05(a).
(d) If neither of the conditions set forth in clauses (i) and (ii) of
the first paragraph of Section 3.09(c) has been satisfied with respect to any
Mortgaged Property securing a defaulted Mortgage Loan, the applicable Special
Servicer shall take such action as is in accordance with the Servicing Standard
(other than proceeding against the Mortgaged Property) and, at such time as it
deems appropriate, may, on behalf of the Trust, release all or a portion of such
Mortgaged Property from the lien of the related Mortgage.
(e) The applicable Special Servicer shall report to the Trustee, the
applicable Master Servicer and the Controlling Class Representative monthly in
writing as to any actions taken by such Special Servicer with respect to any
Mortgaged Property as to which neither of the conditions set forth in clauses
(i) and (ii) of the first paragraph of Section 3.09(c) has been satisfied, in
each case until the earliest to occur of satisfaction of either of such
conditions, release of the lien of the related Mortgage on such Mortgaged
Property and the related Mortgage Loan's becoming a Corrected Mortgaged Loan.
(f) The applicable 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 related Mortgaged Property is
located and the terms of the subject Mortgage Loan permit such an action and
shall, in accordance with the Servicing Standard, seek such deficiency judgment
if it deems advisable.
(g) Annually in each January, the applicable Special Servicer shall on
a timely basis forward to the applicable Master Servicer, who shall promptly
file same with the IRS on a timely basis, the information returns with respect
to the reports of foreclosures and abandonments and reports relating to any
cancellation of indebtedness income with respect to any Mortgage Loan or
Mortgaged Property required by Sections 6050H (as applicable), 6050J and 6050P
of the Code. Contemporaneously, the applicable Special Servicer shall deliver to
the applicable Master Servicer, who shall promptly forward it to the Trustee, an
Officer's Certificate stating that all such information returns relating to any
Specially Serviced Mortgage Loan or REO Property that were required to be filed
during the prior twelve (12) months have been properly completed and timely
provided to such Master Servicer. The applicable Master Servicer shall prepare
and file the information returns with respect to the receipt of any mortgage
interest received in a trade or business from individuals with respect to any
Mortgage Loan as required by Section 6050H of the Code. All information returns
shall be in form and substance sufficient to meet the reporting requirements
imposed by the relevant sections of the Code.
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(h) As soon as the applicable Special Servicer makes a Final Recovery
Determination with respect to any Mortgage Loan or REO Property, it shall
promptly notify the Trustee, the applicable Master Servicer and the Controlling
Class Representative. Each Special Servicer shall maintain accurate records,
prepared by a Servicing Officer, of each such Final Recovery Determination (if
any) made by it 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 applicable Master Servicer no later than the third Business Day
following such Final Recovery Determination.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the applicable Master Servicer of a notification that payment in full shall be
escrowed or made in a manner customary for such purposes, the applicable Master
Servicer shall promptly so notify the Trustee and request delivery to it or its
designee of the related Mortgage File (such notice and request to be effected by
delivering to the Trustee a Request for Release in the form of Exhibit D-1
attached hereto, which Request for Release shall be accompanied by the form of
any release or discharge to be executed by the Trustee 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 such Master
Servicer's Collection Account pursuant to Section 3.04(a) have been or will be
so deposited). Upon receipt of such Request for Release, the Trustee shall
promptly release, or cause any related Custodian to release, the related
Mortgage File to the applicable Master Servicer or its designee and shall
deliver to the applicable Master Servicer or its designee such accompanying
release or discharge, duly executed. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to a
Collection Account or the Distribution Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the applicable Master Servicer or the
applicable Special Servicer shall otherwise require any Mortgage File (or any
portion thereof), then, upon request of such Master Servicer and receipt from
such 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 such
Special Servicer and receipt from such Special Servicer of a Request for Release
in the form of Exhibit D-2 attached hereto, the Trustee shall release, or cause
any related Custodian to release, such Mortgage File (or portion thereof) to
such Master Servicer or such Special Servicer, as the case may be, or its
designee. Upon return of such Mortgage File (or portion thereof) to the Trustee
or the related Custodian, or upon the applicable Special Servicer's delivery to
the Trustee of an Officer's Certificate stating that (i) such Mortgage Loan was
liquidated and all amounts received or to be received in connection with such
liquidation that are required to be deposited into the applicable Master
Servicer's Collection Account pursuant to Section 3.04(a) have been or will be
so deposited or (ii) such Mortgage Loan has become an REO Property, a copy of
the Request for Release shall be returned by the Trustee to the applicable
Master Servicer or the applicable Special Servicer, as appropriate.
(c) Within five Business Days of the applicable Special Servicer's
request therefor (or, if the applicable Special Servicer notifies the Trustee of
an exigency, within such shorter period as is reasonable under the
circumstances), the Trustee shall execute and deliver to the applicable Special
Servicer, in the form supplied to the Trustee by such Special Servicer, any
court pleadings, requests for trustee's sale or other documents 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 Borrower
on a Mortgage Note or Mortgage or to obtain a deficiency judgment, or to enforce
any other remedies or
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rights provided by a Mortgage Note or Mortgage or otherwise available at law or
in equity or to defend any legal action or counterclaim filed against the Trust,
the applicable Master Servicer or such Special Servicer; provided that the
Trustee may alternatively execute and deliver to the applicable Special
Servicer, in the form supplied to the Trustee by such Special Servicer, a
limited power of attorney issued in favor of such Special Servicer and
empowering such Special Servicer to execute and deliver any or all of such
pleadings or documents relating to any Mortgage Loan on behalf of the Trustee
(however, the Trustee shall not be liable for any misuse of such power of
attorney by a Special Servicer). Together with such pleadings or documents (or
such power of attorney empowering the applicable Special Servicer to execute the
same on behalf of the Trustee), the applicable Special Servicer shall deliver to
the Trustee an Officer's Certificate requesting that such pleadings or documents
(or such power of attorney empowering the applicable Special Servicer to execute
the same on behalf of the Trustee) be executed by the Trustee and certifying as
to the reason such pleadings or documents are required and that the execution
and delivery thereof by the Trustee (or by the applicable Special Servicer on
behalf of the Trustee) will not invalidate or otherwise affect the lien of the
subject Mortgage, except for the termination of such a lien upon completion of
the foreclosure or trustee's sale.
SECTION 3.11. Master Servicing and Special Servicing Compensation;
Interest on and Reimbursement of Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
and any Fiscal Agent Regarding Back-up Servicing
Advances.
(a) As compensation for its activities hereunder, each Master Servicer
shall be entitled to receive the Master Servicing Fee with respect to each
Mortgage Loan (including each Specially Serviced Mortgage Loan) as to which it
is the applicable Master Servicer and each REO Mortgage Loan that relates to an
REO Property as to which it is the applicable Master Servicer. As to each
Mortgage Loan and REO Mortgage Loan, for each calendar month (commencing with
November 2001) or any applicable portion thereof, the Master Servicing Fee shall
accrue at the related Master Servicing Fee Rate on the same principal amount as
interest accrues from time to time during such calendar month (or portion
thereof) on such Mortgage Loan or is deemed to accrue from time to time during
such calendar month (or portion thereof) on such REO Mortgage Loan, as the case
may be, and shall be calculated on the same Interest Accrual Basis as is
applicable for such Mortgage Loan or REO Mortgage Loan, as the case may be. The
Master Servicing Fee with respect to any Mortgage Loan or REO Mortgage Loan
shall cease to accrue if a Liquidation Event occurs in respect thereof. Master
Servicing Fees earned with respect to any Mortgage Loan or REO Mortgage Loan
shall be payable monthly from payments of interest on such Mortgage Loan or REO
Revenues allocable as interest on such REO Mortgage Loan, as the case may be.
The applicable Master Servicer shall be entitled to recover unpaid Master
Servicing Fees in respect of any Mortgage Loan or REO Mortgage Loan out of the
portion any related Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds allocable as interest on such Mortgage Loan or REO Mortgage Loan, as
the case may be.
A Master Servicer's right to receive the Master Servicing Fees to which
it is entitled may not be transferred in whole or in part except in connection
with the transfer of all of such Master Servicer's responsibilities and
obligations under this Agreement and except as otherwise expressly provided
herein.
(b) The applicable Master Servicer shall be entitled to receive the
following items as additional servicing compensation (the following items,
collectively, "Additional Master Servicing Compensation"):
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(i) any and all Net Default Charges accrued with respect to a
Performing Mortgage Loan;
(ii) 50% of any and all Net Assumption Application Fees, Net Assumption
Fees, modification fees, extension fees, consent fees, waiver fees, fees
paid in connection with defeasance and earn-out fees actually paid by a
Borrower with respect to a Performing Mortgage Loan;
(iii) any and all charges for beneficiary statements or demands,
amounts collected for checks returned for insufficient funds and other loan
processing fees actually paid by a Borrower with respect to a Performing
Mortgage Loan and, in the case of checks returned for insufficient funds,
with respect to a Specially Serviced Mortgage Loan;
(iv) any and all Prepayment Interest Excesses collected with respect to
each Mortgage Loan, including a Specially Serviced Mortgage Loan; and
(v) interest or other income earned on deposits in the Investment
Accounts maintained by such Master Servicer, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to any such Investment Account for each Collection Period and,
further, in the case of a Servicing Account or Reserve Account, only to the
extent such interest or other income is not required to be paid to any
Borrower under applicable law or under the related Mortgage).
To the extent that any of the amounts described in clauses (i) through
(iv) in the preceding paragraph are collected by a Special Servicer, such
Special Servicer shall promptly pay such amounts to the applicable Master
Servicer.
(c) As compensation for its activities hereunder, each Special Servicer
shall be entitled to receive monthly the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan as to which it is the applicable Special
Servicer and each REO Mortgage Loan that relates to an REO Property as to which
it is the applicable Special Servicer. As to each Specially Serviced Mortgage
Loan and REO Mortgage Loan, for any particular calendar month or applicable
portion thereof, the Special Servicing Fee shall accrue at the Special Servicing
Fee Rate on the same principal amount as interest accrues from time to time
during such calendar month (or portion thereof) on such Specially Serviced
Mortgage Loan or is deemed to accrue from time to time during such calendar
month (or portion thereof) on such REO Mortgage Loan, as the case may be, and
shall be calculated on the same Interest Accrual Basis as is applicable for such
Specially Serviced Mortgage Loan or REO Mortgage Loan, as the case may be. The
Special Servicing Fee with respect to any Specially Serviced Mortgage Loan or
REO Mortgage Loan shall cease to accrue as of the date a Liquidation Event
occurs in respect thereof or, in the case of a Specially Serviced Mortgage Loan,
as of the date 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 applicable Master
Servicer's Collection Account pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the applicable
Special Servicer shall be entitled to receive the Workout Fee with respect to
each Corrected Mortgage Loan. As to each Corrected Mortgage Loan, the Workout
Fee shall be payable out of, and shall be calculated by application of the
Workout Fee Rate to, (i) each payment of interest (other than Post-ARD
Additional Interest and Default Interest) and principal received from the
related Borrower on such Mortgage Loan
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for so long as it remains a Corrected Mortgage Loan and (ii) the interest (other
than Advance Interest) and principal portions of any Liquidation Proceeds
received on such Mortgage Loan while it is a Corrected Mortgage Loan in
connection with the repurchase or replacement thereof subsequent to the end of
the applicable Initial Resolution Period and any applicable Resolution Period,
as a result of a Material Breach or a Material Document Defect, by the related
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement
or, if applicable, by the Column Performance Guarantor pursuant to the Column
Performance Guarantee or by the NCBCC Performance Guarantor pursuant to the
NCBCC Performance Guarantee. The Workout Fee with respect to any Corrected
Mortgage Loan will cease to be payable if a Servicing Transfer Event occurs with
respect thereto or if the related Mortgaged Property becomes an REO Property;
provided that a new Workout Fee would become payable if and when such Mortgage
Loan again became a Corrected Mortgage Loan. If a Special Servicer is
terminated, including pursuant to Section 3.25, or resigns in accordance with
Section 6.04, it shall retain the right to receive any and all Workout Fees
payable in respect of (i) any Mortgage Loans as to which it was the applicable
Special Servicer, that became Corrected Mortgage Loans during the period that it
acted in such capacity and that were still Corrected Mortgage Loans at the time
of such termination or resignation and (ii) any Specially Serviced Mortgage Loan
for which it has resolved the circumstances and/or conditions causing such
Mortgage Loan to be a Specially Serviced Mortgage Loan, but which had not as of
the time it was terminated or resigned become a Corrected Mortgage Loan solely
because the related Borrower had not made three consecutive timely Monthly
Payments and which subsequently becomes a Corrected Mortgage Loan as a result of
the related Borrower making such three consecutive timely Monthly Payments (and
the successor Special Servicer shall not be entitled to any portion of such
Workout Fees), in each case until the Workout Fee for any such loan ceases to be
payable in accordance with the preceding sentence; provided that, in the case of
any Specially Serviced Mortgage Loan described in clause (ii) of this sentence,
the terminated Special Servicer shall immediately deliver the related Servicing
File to the applicable Master Servicer, and the applicable Master Servicer shall
(without further compensation) monitor that all conditions precedent to such
Mortgage Loan's becoming a Corrected Mortgage Loan are satisfied and, further,
shall immediately transfer such Servicing File to the new applicable Special
Servicer if and when it becomes apparent to the applicable Master Servicer that
such conditions precedent will not be satisfied.
As further compensation for its activities hereunder, the applicable
Special Servicer shall also be entitled to receive a Liquidation Fee with
respect to each Specially Serviced Mortgage Loan or REO Property as to which (i)
it is the applicable Special Servicer and (ii) it receives any full, partial or
discounted payoff from the related Borrower or any Condemnation Proceeds or
Liquidation Proceeds (other than in connection with the purchase of any such
Specially Serviced Mortgage Loan by the applicable Special Servicer or the
Majority Controlling Class Certificateholder pursuant to Section 3.18, the
purchase of any such Specially Serviced Mortgage Loan or REO Property by a
Master Servicer, a Special Servicer or a Controlling Class Certificateholder
pursuant to Section 9.01, the acquisition of any such Specially Serviced
Mortgage Loan or REO Property by the Sole Certificateholder(s) in exchange for
all the Certificates pursuant to Section 9.01, or the repurchase or replacement
no later than the end of the applicable Initial Resolution Period and any
applicable Resolution Extension Period, as a result of a Material Breach or
Material Document Defect, of any such Specially Serviced Mortgage Loan or REO
Property by a Mortgage Loan Seller pursuant to the related Mortgage Loan
Purchase Agreement, by the Column Performance Guarantor pursuant to the Column
Performance Guarantee or by the NCBCC Performance Guarantor pursuant to the
NCBCC Performance Guarantee). As to each such Specially Serviced Mortgage Loan
or REO Property, the Liquidation Fee shall be payable out of, and shall be
calculated by application of the Liquidation Fee Rate to, any such full, partial
or discounted payoff, Condemnation Proceeds and/or Liquidation Proceeds received
or collected in respect thereof (other than
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any portion of such payment or proceeds that represents Post-ARD Additional
Interest, Default Charges, a Prepayment Premium or a Yield Maintenance Charge).
The Liquidation Fee with respect to any such Specially Serviced Mortgage Loan
will not be payable if such Mortgage Loan becomes a Corrected Mortgage Loan.
Notwithstanding anything herein to the contrary, no Liquidation Fee will be
payable in connection with the receipt of, or out of, Liquidation Proceeds
collected as a result of the purchase or substitution of any Specially Serviced
Mortgage Loan or REO Property described in the parenthetical to the first
sentence of this paragraph.
A Special Servicer's right to receive the Special Servicing Fee, the
Workout Fee and/or the Liquidation Fee to which it is entitled may not be
transferred in whole or in part except in connection with the transfer of all of
such Special Servicer's responsibilities and obligations under this Agreement
and except as otherwise expressly provided herein.
(d) The applicable Special Servicer shall be entitled to receive the
following items as additional special servicing compensation (the following
items, collectively, the "Additional Special Servicing Compensation"):
(i) any and all Net Default Charges accrued with respect to a Specially
Serviced Mortgage Loan or an REO Mortgage Loan;
(ii) any and all Net Assumption Fees, Net Assumption Application Fees,
modification fees, extension fees, consent fees, waiver fees, fees paid in
connection with defeasance, earn-out fees and charges for beneficiary
statements or demands that are actually received on or with respect to a
Specially Serviced Mortgage Loan or an REO Mortgage Loan;
(iii) 50% of any and all Net Assumption Fees, Net Assumption
Application Fees, modification fees, extension fees, consent fees, waiver
fees, fees paid in connection with defeasance and earn-out fees that are
actually received on or with respect to a Performing Mortgage Loan; and
(iv) interest or other income earned on deposits in any REO Account
maintained by such Special Servicer, in accordance with Section 3.06(b)
(but only to the extent of the Net Investment Earnings, if any, with
respect to such REO Account for each Collection Period).
To the extent that any of the amounts described in clauses (i) through
(iii) of the preceding paragraph are collected by a Master Servicer, such Master
Servicer shall promptly pay such amounts to the applicable Special Servicer and
shall not be required to deposit such amounts in such Master Servicer's
Collection Account pursuant to Section 3.04(a).
(e) Each of the Master Servicers and Special Servicers shall be
required (subject to Section 3.11(h) below) to pay out of its own funds all
expenses incurred by it in connection with its servicing activities hereunder
(including payment of any amounts due and owing to any of Sub-Servicers retained
by it (including any termination fees) and the premiums for any blanket policy
or the standby fee or similar premium, if any, for any master force placed
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
Collection Account, Purchase Price Security Deposit Account, Special Reserve
Account, Servicing Account, Reserve Account or REO Account, and no Master
Servicer or Special Servicer shall be entitled to reimbursement for any such
expense incurred by it except as expressly provided in this Agreement. If either
Master Servicer is required to make any Servicing Advance hereunder at the
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discretion of a Special Servicer in accordance with Section 3.19 or otherwise,
such Special Servicer shall promptly provide such Master Servicer with such
documentation regarding the subject Servicing Advance as such Master Servicer
may reasonably request.
(f) If a Master Servicer or Special Servicer is required under this
Agreement to make a Servicing Advance, but fails to do so within ten days after
such Advance is required to be made, the Trustee shall, if it has actual
knowledge of such failure on the part of such Master Servicer or Special
Servicer, as the case may be, give notice of such failure to the defaulting
party. If such Advance is not made by such Master Servicer or Special Servicer
within three Business Days after such notice, then (subject to Section 3.11(h)
below) the Trustee or a Fiscal Agent appointed thereby shall make such Advance.
If any Fiscal Agent makes any such Servicing Advance, the Trustee shall be
deemed not to be in default under this Agreement for failing to do so.
(g) Each Master Servicer, each Special Servicer, the Trustee and any
Fiscal Agent shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, accrued on the amount of each Servicing
Advance made thereby (with its own funds), for so long as such Servicing Advance
is outstanding. Such interest with respect to any Servicing Advances shall be
payable: (i) first, in accordance with Sections 3.05 and 3.26, out of any
Default Charges subsequently collected on or in respect of the particular
Mortgage Loan or REO Mortgage Loan as to which such Servicing Advance relates;
and (ii) then, after such Servicing Advance is reimbursed, but only if and to
the extent that such Default Charges are insufficient to cover such Advance
Interest, out of general collections on the Mortgage Loans and REO Properties on
deposit in the applicable Master Servicer's Collection Account. The applicable
Master Servicer shall reimburse itself, either Special Servicer, the Trustee or
any Fiscal Agent, as appropriate, for any Servicing Advance made by any such
Person with respect to any Mortgage Loan or REO Property as to which such Master
Servicer is the applicable Master Servicer as soon as practicable after funds
available for such purpose are deposited in such Master Servicer's Collection
Account. A Master Servicer shall not be entitled to Advance Interest on any
Servicing Advance made thereby to the extent a payment is received but is being
held by such Master Servicer in suspense.
(h) Notwithstanding anything to the contrary set forth herein, none of
the Master Servicers, the Special Servicers, the Trustee or any Fiscal Agent
shall be required to make any Servicing Advance that it determines in its
reasonable judgment would constitute a Nonrecoverable Servicing Advance. The
determination by any Person with an obligation hereunder to make Servicing
Advances 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 by such Person in its reasonable judgment and shall be
evidenced by an Officer's Certificate delivered promptly to the Depositor and
the Trustee (unless it is the Person making such determination), which shall
provide a copy thereof to the Controlling Class Representative, setting forth
the basis for such determination, accompanied by a copy of an Appraisal of the
related Mortgaged Property or REO Property performed within the 12 months
preceding such determination, and further accompanied by any other information,
including engineers' reports, environmental surveys or similar reports, that
such Person may have obtained and that support such determination.
Notwithstanding the foregoing, the Trustee and any Fiscal Agent shall be
entitled to conclusively rely on any determination of nonrecoverability that may
have been made by the applicable Master Servicer or the applicable Special
Servicer with respect to a particular Servicing Advance for any Mortgage Loan or
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REO Property, and the applicable Master Servicer and the applicable Special
Servicer shall each be entitled to conclusively rely on any determination of
nonrecoverability that may have been made by the other such party with respect
to a particular Servicing Advance for any Mortgage Loan or REO Property. A copy
of any such Officer's Certificate (and accompanying information) of a Master
Servicer shall also be delivered promptly to the Special Servicer for the
subject Mortgage Loan or REO Property, a copy of any such Officer's Certificate
(and accompanying information) of a Special Servicer shall also be promptly
delivered to the Master Servicer for the subject Mortgage Loan or REO Property,
and a copy of any such Officer's Certificates (and accompanying information) of
the Trustee or the Fiscal Agent shall also be promptly delivered to the Master
Servicer and Special Servicer for the subject Mortgage Loan or REO Property.
(i) Notwithstanding anything to the contrary set forth herein, the
applicable Master Servicer may (and, at the direction of the applicable Special
Servicer if a Specially Serviced Mortgage Loan or an REO Property is involved,
shall) pay directly out of such Master Servicer's Collection Account any
servicing expense that, if paid by the applicable Master Servicer or the
applicable Special Servicer, would constitute a Nonrecoverable Servicing Advance
for the subject Mortgage Loan or REO Property; provided that the applicable
Master Servicer (or the applicable 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 is in the best interests of the
Certificateholders (as a collective whole), as evidenced by an Officer's
Certificate delivered promptly to the Depositor and the Trustee, which shall
provide a copy thereof to 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 a Master Servicer shall
also be delivered promptly to the Special Servicer for the subject Mortgage Loan
or REO Property, and a copy of any such Officer's Certificate (and accompanying
information) of a Special Servicer shall also be promptly delivered to the
Master Servicer for the subject Mortgage Loan or REO Property.
SECTION 3.12. Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports.
(a) The applicable Special Servicer shall perform or cause to be
performed a physical inspection of a Mortgaged Property as soon as practicable
(but in any event not later than 60 days) after the related Mortgage Loan
becomes a Specially Serviced Mortgage Loan (and, in cases where the related
Mortgage Loan has become a Specially Serviced Mortgage Loan, the applicable
Special Servicer shall continue to perform or cause to be performed a physical
inspection of the subject Mortgaged Property at least once per calendar year
thereafter for so long as the related Mortgage Loan remains a Specially Serviced
Mortgage Loan or if such Mortgaged Property becomes an REO Property); provided
that each Special Servicer shall be entitled to reimbursement of the reasonable
and direct out-of-pocket expenses incurred by it in connection with each such
inspection as Servicing Advances. Beginning in 2002, the applicable Master
Servicer shall at its expense perform or cause to be performed an inspection of
the Mortgaged Property for each Mortgage Loan at least once per calendar year
(or, in the case of each Mortgage Loan with an unpaid principal balance of under
$2,000,000, once every two years), if the applicable Special Servicer has not
already done so during that period pursuant to the preceding sentence. Each of
the Master Servicers and Special Servicers shall prepare (and, promptly
following preparation, if there has been a material adverse change in the
condition of the subject Mortgaged Property or REO Property, as applicable,
deliver to the Controlling Class Representative) a written report of each such
inspection performed by it or on its behalf that sets forth in detail the
condition of the subject Mortgaged Property and that specifies the occurrence or
existence of: (i) any sale, transfer or abandonment of the subject Mortgaged
Property of which such Master Servicer or Special Servicer, as applicable, is
aware, (ii) any change in the condition or occupancy of the subject Mortgaged
Property of
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which such Master Servicer or Special Servicer, as applicable, is aware and that
it considers, in accordance with the Servicing Standard, material, or (iii) any
waste committed on the Mortgaged Property of which such Master Servicer or
Special Servicer, as the case may be, is aware and that it considers, in
accordance with the Servicing Standard, material. Each of the Master Servicers
and Special Servicers shall, upon request, deliver to the Trustee and the
Controlling Class Representative a copy (or image in suitable electronic media)
of each such written report prepared by it, in each case within 30 days
following the request (or, if later, within 30 days following the later of
completion of the related inspection if the inspection is performed by the
applicable Master Servicer or Special Servicer, as appropriate, or receipt of
the related inspection report if the inspection is performed by a third-party).
Upon request, the Trustee shall request from the applicable Master Servicer or
Special Servicer, as appropriate, and, to the extent such items have been
delivered to the Trustee by the applicable Master Servicer or Special Servicer,
as appropriate, deliver to each of the Depositor, the related Mortgage Loan
Seller, the Controlling Class Representative, any Certificateholder or, if the
Trustee has in accordance with Section 5.06(b) confirmed the Ownership Interest
in Certificates held thereby, any Certificate Owner, a copy (or image in
suitable electronic media) of each such written report prepared by a Master
Servicer or Special Servicer.
(b) Commencing with respect to the calendar quarter ended December 31,
2001, the applicable Special Servicer, in the case of any Specially Serviced
Mortgage Loan, and the applicable Master Servicer, in the case of each
Performing Mortgage Loan, shall make reasonable efforts to collect promptly from
each related Borrower quarterly and annual operating statements, budgets and
rent rolls (or, in the case of a residential cooperative property, maintenance
schedules) of the related Mortgaged Property, and quarterly and annual financial
statements of such Borrower, whether or not delivery of such items is required
(or, in the case of Co-op Mortgage Loans, only if delivery of such items is
required) pursuant to the terms of the related Mortgage. In addition, the
applicable Special Servicer shall cause quarterly and annual operating
statements, budgets and rent rolls to be regularly prepared in respect of each
REO Property and shall collect all such items promptly following their
preparation. Each Special Servicer shall deliver copies (or images in suitable
electronic media) of all of the foregoing items so collected or obtained by it
to the applicable Master Servicer within 30 days of its receipt thereof. In the
case of each Performing Mortgage Loan serviced by the Co-op Master Servicer,
such deliveries shall be limited to those required under the applicable loan
documents.
The applicable Master Servicer shall maintain a CMSA Operating
Statement Analysis Report with respect to each Mortgaged Property and REO
Property. Within 60 days after receipt by the applicable Master Servicer from
the related Borrower or otherwise, as to a Performing Mortgage Loan, and within
30 days after receipt by the applicable Master Servicer from a Special Servicer
or otherwise, as to a Specially Serviced Mortgage Loan or an REO Property, of
any annual operating statements or rent rolls (or, in the case of a residential
cooperative property, maintenance schedules) with respect to any Mortgaged
Property or REO Property, such Master Servicer shall, based upon such operating
statements or rent rolls (or, in the case of a residential cooperative property,
maintenance schedules), prepare (or, if previously prepared, update) the CMSA
Operating Statement Analysis Report for the subject Mortgaged Property or REO
Property. Each Master Servicer shall remit a copy of each CMSA Operating
Statement Analysis Report prepared or updated by it (promptly following initial
preparation and each update thereof), together with, if so requested, the
underlying operating statements and rent rolls (or, in the case of a residential
cooperative property, maintenance schedules), to the Trustee and the applicable
Special Servicer in a format reasonably acceptable to the Trustee and the
applicable Special Servicer. The Trustee shall, upon request, request from the
applicable Master Servicer (if necessary) and, to the extent such items have
been delivered to the Trustee by the applicable Master Servicer,
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deliver to the Controlling Class Representative, any Certificateholder or, if
the Trustee has in accordance with Section 5.06(b) confirmed the Ownership
Interest in the Certificates held thereby, any Certificate Owner, a copy of the
CMSA Operating Statement Analysis (or update thereof) for any Mortgaged Property
or REO Property and, if requested, the related operating statement or rent rolls
(or, in the case of a residential cooperative property, maintenance schedules).
Within 60 days (or, in the case of items received from a Special
Servicer with respect to Specially Serviced Mortgage Loans and REO Properties,
30 days) after receipt by the applicable Master Servicer of any quarterly or
annual operating statements with respect to any Mortgaged Property or REO
Property, such Master Servicer shall prepare or update and forward to the
Trustee, the applicable Special Servicer and the Controlling Class
Representative (in an electronic format reasonably acceptable to the Trustee and
the applicable Special Servicer) a CMSA NOI Adjustment Worksheet for such
Mortgaged Property or REO Property, together with, if so requested, the related
quarterly or annual operating statements.
If, with respect to any Mortgage Loan (other than a Specially Serviced
Mortgage Loan), the applicable Special Servicer has any questions for the
related Borrower based upon the information received by the applicable Special
Servicer pursuant to Section 3.12(a) or 3.12(b), the applicable Master Servicer
shall, in this regard and without otherwise changing or modifying its duties
hereunder, reasonably cooperate with the applicable Special Servicer in
assisting such Special Servicer to contact and solicit information from such
Borrower.
(c) Not later than 2:00 p.m. (New York City time) on the first Business
Day following each Determination Date, each Special Servicer shall prepare and
deliver or cause to be delivered to the Master Servicers (in each case to the
extent relevant thereto) and the Controlling Class Representative the following
reports (or data files relating to reports of the Master Servicer) with respect
to those Specially Serviced Mortgage Loans and REO Properties as to which such
Special Servicer is the applicable Special Servicer, providing the required
information as of such Determination Date: (i) a CMSA Property File; and (ii) a
CMSA Loan Periodic Update File (which, in each case, if applicable, will
identify each subject Mortgage Loan(s) by loan number and property name). At or
before 2:00 p.m. (New York City time) on the first Business Day following each
Determination Date, each Special Servicer shall prepare and deliver or cause to
be delivered to the Master Servicers (in each case to the extent relevant
thereto) the following reports or the related data fields reflected in the
reports reasonably requested with respect to those Specially Serviced Mortgage
Loans and REO Properties as to which such Special Servicer is the applicable
Special Servicer, providing the information required of such Special Servicer
pursuant to Section 3.12(e) as of such Determination Date: (i) a CMSA Delinquent
Loan Status Report; (ii) a CMSA Comparative Financial Status Report; (iii) a
CMSA Historical Liquidation Report; (iv) a CMSA Historical Loan Modification
Report; and (v) a CMSA REO Status Report. In addition, the applicable Special
Servicer shall from time to time provide the applicable Master Servicer with
such information in such Special Servicer's possession regarding any Specially
Serviced Mortgage Loan or REO Property as may be requested by such Master
Servicer and is reasonably necessary for such Master Servicer to prepare each
report and any supplemental information required to be provided by such Master
Servicer to the Trustee.
(d) Not later than 3:00 p.m. (New York City time) on the second
Business Day following each Determination Date, each Master Servicer, with
respect to those Mortgage Loans and REO Properties as to which it is the
applicable Master Servicer, shall prepare (if and to the extent necessary) and
deliver or cause to be delivered to the Trustee, in a computer-readable medium
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downloadable by the Trustee (or, at the Trustee's written request, in a form
reasonably acceptable to the recipient, including on a loan-by-loan basis), each
of the files and reports comprising the CMSA Investor Reporting Package
(excluding any CMSA Operating Statement Analysis Report, any CMSA NOI Adjustment
Worksheet, the CMSA Bond Level File, the CMSA Collateral Summary File, the CMSA
Loan Setup File and the CMSA Loan Periodic Update File), in each case providing
the most recent information with respect to the subject Mortgage Loans and REO
Properties as of the related Determination Date (and which, in each case, if
applicable, will identify each subject Mortgage Loan by loan number and property
name); provided that a Master Servicer shall not be required to prepare and
deliver any of the files and reports comprising the CMSA Investor Reporting
Package (other than the CMSA Loan Periodic Update File) before the second
Business Day following the third Determination Date following the Closing Date.
Each Master Servicer may, but is not required to, make any of the
reports or files comprising the CMSA Investor Reporting Package prepared by it
with respect to the Mortgage Loans and REO Properties as to which it is the
applicable Master Servicer, available each month on such Master Servicer's
Internet Website only with the use of a password, in which case such Master
Servicer shall provide such password to (i) the other parties to this Agreement,
who by their acceptance of such password shall be deemed to have agreed not to
disclose such password to any other Person, (ii) the Rating Agencies and the
Controlling Class Representative, and (iii) each Certificateholder and
Certificate Owner who requests such password, provided that any such
Certificateholder or Certificate Owner, as the case may be, has delivered a
certification substantially in the form of Exhibit K-1 to the Trustee (with a
copy to such Master Servicer). In connection with providing access to its
Internet Website, a Master Servicer may require registration and the acceptance
of a disclaimer and otherwise (subject to the preceding sentence) adopt
reasonable rules and procedures, which may include, to the extent a Master
Servicer deems necessary or appropriate, conditioning access on execution of an
agreement governing the availability, use and disclosure of such information,
and which may provide indemnification to such Master Servicer for any liability
or damage that may arise therefrom.
(e) Each Special Servicer shall deliver to the Master Servicers the
reports set forth in Section 3.12(b) and Section 3.12(c), and the Master
Servicers shall deliver to the Trustee the reports set forth in Section 3.12(d),
in an electronic format reasonably acceptable to the Special Servicers, the
Master Servicers and the Trustee. Each Master Servicer may, absent manifest
error, conclusively rely on the reports to be provided by a Special Servicer
pursuant to Section 3.12(b) and Section 3.12(c). The Trustee may, absent
manifest error, conclusively rely on the reports to be provided by a Master
Servicer pursuant to Section 3.12(d). In the case of information or reports to
be furnished by a Master Servicer to the Trustee pursuant to Section 3.12(d), to
the extent that such information or reports are, in turn, based on information
or reports to be provided by a Special Servicer pursuant to Section 3.12(b) or
Section 3.12(c) or to the extent that such reports are to be prepared and
delivered by a Special Servicer pursuant to Section 3.12(b) or Section 3.12(c),
a Master Servicer shall have no obligation to provide such information or
reports to the Trustee until it has received the requisite information or
reports from such Special Servicer, and a Master Servicer shall not be in
default hereunder due to a delay in providing the reports required by Section
3.12(d) caused by a Special Servicer's failure to timely provide any information
or report required under Section 3.12(b) or Section 3.12(c) of this Agreement.
(f) Notwithstanding the foregoing, however, the failure of a Master
Servicer or Special Servicer to disclose any information otherwise required to
be disclosed by this Section 3.12 shall not constitute a breach of this Section
3.12 to the extent such Master Servicer or Special Servicer so fails because
such disclosure, in the reasonable belief of such Master Servicer or Special
Servicer, as the case
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may be, would violate any applicable law or any provision of a Mortgage Loan
Document prohibiting disclosure of information with respect to the Mortgage
Loans or Mortgaged Properties or would constitute a waiver of the
attorney-client privilege on behalf of the Trust. Each Master Servicer and
Special Servicer may disclose any such information or any additional information
to any Person so long as such disclosure is consistent with applicable law, the
related Mortgage Loan Documents and the Servicing Standard. A Master Servicer or
Special Servicer may affix to any information provided by it any disclaimer it
deems appropriate in its reasonable discretion (without suggesting liability on
the part of any other party hereto).
(g) The Depositor shall provide to the Master Servicers (in each case
to the extent relevant thereto) and the Trustee the initial data (as of the
respective Due Dates for the Original Mortgage Loans in November 2001 or the
most recent earlier date for which such data is available) contemplated by the
CMSA Loan Setup File, the CMSA Loan Periodic Update File, the CMSA Operating
Statement Analysis Report and the CMSA Property File.
(h) If a Master Servicer or Special Servicer is required to deliver any
statement, report or information under any provision of this Agreement, such
Master Servicer or Special Servicer, as the case may be, may satisfy such
obligation by (x) physically delivering a paper copy of such statement, report
or information, (y) delivering such statement, report or information in a
commonly used electronic format or (z) making such statement, report or
information available on a Master Servicer's Internet Website or the Trustee's
Internet Website, unless this Agreement expressly specifies a particular method
of delivery. Notwithstanding the foregoing, the Trustee may request delivery in
paper format of any statement, report or information required to be delivered to
the Trustee and clause (z) shall not apply to the delivery of any information
required to be delivered to the Trustee unless the Trustee consents to such
delivery.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicers and Special Servicers shall deliver to the
Trustee, the Depositor, the Underwriters and the Controlling Class
Representative, on or before May 1 of each year, beginning in 2003, an Officer's
Certificate (the "Annual Performance Certification") stating, as to the signer
thereof, that (i) a review of the activities of such Master Servicer or Special
Servicer, as the case may be, during the preceding calendar year and of its
performance under this Agreement has been made under such officer's supervision,
(ii) to the best of such officer's knowledge, based on such review, such Master
Servicer or Special Servicer, as the case may be, has fulfilled all of its
obligations under this Agreement in all material respects throughout such year
(or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof), and (iii) such Master Servicer or Special Servicer, as the case may
be, has received no notice regarding the qualification, or challenging the
status, of any REMIC Pool as a REMIC or either Grantor Trust Pool as a Grantor
Trust from the IRS or any other governmental agency or body (or, if it has
received any such notice, specifying the details thereof); provided that each
Master Servicer and Special Servicer shall be required to deliver its Annual
Performance Certification by March 15 in 2003 or any given year thereafter if it
has received written confirmation from the Trustee or the Depositor by January
31 of that year that a Report on Form 10-K is required to be filed in respect of
the Trust for the preceding calendar year.
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SECTION 3.14. Reports by Independent Public Accountants.
On or before May 1 of each year, beginning in 2003, each of the Master
Servicers and Special Servicers, at its expense, shall cause a firm of
independent public accountants that is a member of the American Institute of
Certified Public Accountants to furnish a statement (the "Annual Accountants'
Report") to the Trustee, the Depositor, the Underwriters and the Controlling
Class Representative, to the effect that such firm has examined the servicing
operations of such Master Servicer or Special Servicer, as the case may be, for
the previous calendar year and that, on the basis of such examination, conducted
substantially in compliance with USAP, such firm confirms that such Master
Servicer or Special Servicer, as the case may be, has complied during such
previous calendar year with the minimum servicing standards (to the extent
applicable to commercial and multifamily mortgage loans) identified in USAP in
all material respects, except for such significant exceptions or errors in
records that, in the opinion of such firm, USAP requires it to report; provided
that each Master Servicer and Special Servicer shall be required to cause the
delivery of its Annual Accountants' Report by March 15 in 2003 or any given year
thereafter if it has received written confirmation from the Trustee or the
Depositor by January 31 of that year that a Report on Form 10-K is required to
be filed in respect of the Trust for the preceding calendar year. In rendering
its report such firm may rely, as to matters relating to the direct servicing of
securitized commercial and multifamily mortgage loans by sub-servicers, upon
comparable reports of firms of independent certified public accountants rendered
on the basis of examinations conducted in accordance with the same standards
(rendered within one year of such report) with respect to those sub-servicers.
Each of the Master Servicers and Special Servicers will reasonably
cooperate with the Depositor in providing any other form of accountants' reports
as may be required by the Commission in connection with the Commission's
issuance of a no-action letter relating to the Depositor's reporting
requirements in respect of the Trust pursuant to the Exchange Act, and the
reasonable additional costs of providing such other forms of accountants'
reports shall be borne by the Depositor.
SECTION 3.15. Access to Certain Information.
(a) Each of the Master Servicers and Special Servicers shall afford to
the Trustee, any Fiscal Agent, the Depositor, each Rating Agency and the
Controlling Class Representative and to the OTS, the FDIC and any other banking
or insurance regulatory authority that may exercise authority over any
Certificateholder or Certificate Owner, 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, the terms of the
related Mortgage Loan Documents or contract entered into prior to the Closing
Date 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 without charge but only upon reasonable prior written request
and during normal business hours at the offices of the particular Master
Servicer or Special Servicer, as the case may be, designated by it. Each Master
Servicer and Special Servicer may affix a reasonable disclaimer to any
information provided by it for which it is not the original source (without
suggesting liability on the part of any other party hereto). In connection with
providing access to such records to the Controlling Class Representative, each
Master Servicer and Special Servicer may require registration (to the extent
access is provided via a Master Servicer's Internet Website) and the acceptance
of a reasonable and customary disclaimer and otherwise adopt reasonable rules
and procedures, which may include, to the extent a Master Servicer or Special
Servicer, as applicable, deems necessary or appropriate, conditioning access on
the execution and delivery of an agreement governing the availability, use and
disclosure of such information.
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(b) No Master Servicer or Special Servicer shall be liable for
providing or disseminating information in accordance with the terms of this
Agreement.
(c) Upon the request of the Controlling Class Representative made not
more frequently than once a month, or at such mutually acceptable time each
month as the Controlling Class Representative shall reasonably designate, each
of the Master Servicers and Special Servicers shall, without charge, make a
knowledgeable Servicing Officer available, at the option of the Controlling
Class Representative either by telephone or at the office of such Servicing
Officer, to answer questions from the Controlling Class Representative regarding
the performance and servicing of the Mortgage Loans and/or REO Properties for
which such Master Servicer or Special Servicer, as the case may be, is
responsible.
SECTION 3.16. Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or certificate
of sale shall be issued to the Trustee or its nominee, on behalf of the
Certificateholders or, subject to Section 3.09(b), to a single member limited
liability company of which the Trust is the sole member, which limited liability
company is formed or caused to be formed by the applicable Special Servicer at
the expense of the Trust for the purpose of taking title to one or more REO
Properties pursuant to this Agreement. Any such limited liability company formed
by a Special Servicer shall be a manager-managed limited liability company, with
such 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
applicable Special Servicer, on behalf of the Trust, shall sell any REO Property
by the end of the third calendar year (or, in the case of a "qualified
healthcare property" within the meaning of Section 856(c)(6) of the Code, the
end of the second calendar year) following the year in which the Trust acquires
ownership of such REO Property for purposes of Section 860G(a)(8) of the Code,
unless such Special Servicer either (i) applies, more than 60 days prior to the
expiration of such liquidation period, 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, to the effect that the
holding by the Trust of such REO Property subsequent to the end of the third
calendar year (or, in the case of a "qualified healthcare property" within the
meaning of Section 856(c)(6) of the Code, the end of the second calendar year)
following the year in which such acquisition occurred will not result in an
Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust
Event with respect to either Grantor Trust Pool. Regardless of whether the
applicable Special Servicer applies for or is granted the REO Extension
contemplated by clause (i) of the immediately preceding sentence or obtains the
Opinion of Counsel referred to in clause (ii) of such sentence, the applicable
Special Servicer shall act in accordance with the Servicing Standard to
liquidate the subject REO Property on a timely basis. If the applicable Special
Servicer is granted such REO Extension or obtains such Opinion of Counsel with
respect to any REO Property, such Special Servicer shall (i) promptly forward a
copy of such REO Extension or Opinion of Counsel to the Trustee, and (ii) sell
such REO Property within such extended period as is permitted by such REO
Extension or contemplated by such Opinion of Counsel, as the case may be. Any
expense incurred by a Special Servicer in connection with its applying for and
being granted the REO Extension contemplated by clause (i) of the third
preceding sentence or its obtaining the Opinion of Counsel contemplated by
clause (ii) of the third preceding sentence, and for the creation of and the
operating of a limited liability company, shall be covered by, and be
reimbursable as, a Servicing Advance.
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(b) Each Special Servicer shall segregate and hold all funds collected
and received by it in connection with any REO Property separate and apart from
its own funds and general assets. If title to any REO Property is acquired by or
on behalf of the Trust, then the applicable Special Servicer shall establish and
maintain one or more accounts (collectively, an "REO Account"), to be held on
behalf of the Trustee in trust for the benefit of the Certificateholders, for
the retention of revenues and other proceeds derived from such REO Property.
Each account that constitutes an REO Account shall be an Eligible Account. The
applicable Special Servicer shall deposit, or cause to be deposited, in its REO
Account, within one Business Day following receipt, all REO Revenues, Insurance
Proceeds and Liquidation Proceeds received in respect of an REO Property. Funds
in an REO Account may be invested in Permitted Investments in accordance with
Section 3.06. Each Special Servicer shall be entitled to make withdrawals from
its REO Account to pay itself, as Additional Special Servicing Compensation,
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, if any, with respect to such REO Account for any Collection
Period). Each Special Servicer shall give notice to the other parties hereto of
the location of its REO Account when first established and of the new location
of its REO Account prior to any change thereof.
(c) The applicable Special Servicer shall withdraw from its 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
such REO Account relating to such REO Property. Within two Business Days
following the end of each Collection Period, the applicable Special Servicer
shall withdraw from its REO Account and deposit into the applicable Master
Servicer's Collection Account, or deliver to the applicable Master Servicer for
deposit into such Collection Account, the aggregate of all amounts received in
respect of each REO Property during such Collection Period, net of any
withdrawals made out of such amounts pursuant to the preceding sentence;
provided that, in the case of each REO Property, the applicable Special Servicer
may retain in its REO Account such portion of such proceeds and collections 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 improvements and other related expenses), such reserve not to
exceed an amount sufficient to cover such items reasonably expected to be
incurred during the following 12-month period.
(d) Each 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, its REO Account pursuant to Section 3.16(b) or 3.16(c).
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition of title to any Mortgaged Property
securing a defaulted Mortgage Loan, the applicable 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. If
the applicable Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property
would be subject to tax as "net income from foreclosure property" within
the meaning of the REMIC Provisions or to the tax imposed on "prohibited
transactions" under Section 860F of the Code (either such tax referred to
herein as an "REO Tax"), then such Mortgaged Property may be Directly
Operated by the applicable Special Servicer as REO Property;
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(ii) Directly Operating such Mortgaged Property as an 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 applicable
Special Servicer may (provided that in the judgment of the applicable
Special Servicer, exercised in accordance with the Servicing Standard, it
is commercially reasonable) so lease or otherwise operate such REO
Property; or
(iii) It is reasonable to believe that Directly Operating such 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 incurring or possibly incurring an REO Tax on
income from such property, then the applicable Special Servicer shall
deliver to the Trustee, in writing, a proposed plan (the "Proposed Plan")
to manage such property as REO Property. Such plan shall include potential
sources of income and good faith estimates of the amount of income from
each such source. Within a reasonable period of time after receipt of such
plan, the Trustee shall consult with the applicable Special Servicer and
shall advise the applicable Special Servicer of the Trust's federal income
tax reporting position with respect to the various sources of income that
the Trust would derive under the Proposed Plan. In addition, the Trustee
shall (to the maximum extent reasonably possible) advise the applicable
Special Servicer of the estimated amount of taxes that the Trust would be
required to pay with respect to each such source of income. After receiving
the information described in the two preceding sentences from the Trustee,
the applicable Special Servicer shall either (A) implement the Proposed
Plan (after acquiring the respective Mortgaged Property as REO Property) or
(B) manage and operate such property in a manner that would not result in
the imposition of an REO Tax on the income derived from such property.
Subject to Section 3.17(b), the applicable Special Servicer's decision
as to how each REO Property shall be managed and operated shall be in accordance
with the Servicing Standard. Neither the applicable Special Servicer nor the
Trustee shall be liable to the Certificateholders, the Trust, the other parties
hereto or each other for errors in judgment made in good faith in the exercise
of their discretion while performing their respective responsibilities under
this Section 3.17(a) with respect to any REO Property. Nothing in this Section
3.17(a) is intended to prevent the sale of any REO Property pursuant to the
terms and subject to the conditions of Section 3.18.
(b) If title to any REO Property is acquired, the applicable Special
Servicer shall manage, conserve, protect and operate such REO Property for the
benefit of the Certificateholders solely for the purpose of its disposition and
sale in a manner that does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or,
except as contemplated by Section 3.17(a), result in the receipt by any REMIC
Pool of any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code, in an Adverse REMIC Event with respect to any REMIC
Pool or in an Adverse Grantor Trust Event with respect to either Grantor Trust
Pool. Except as contemplated by Section 3.17(a), the applicable Special Servicer
shall not enter into any lease, contract or other agreement with respect to any
REO Property that causes the Trust to receive, and (unless required to do so
under any lease, contract or agreement to which the applicable Special Servicer
or the Trust may become a party or successor to a party due to a foreclosure,
deed-in-lieu of foreclosure or other similar exercise of a creditor's rights or
remedies with respect to the related Mortgage Loan) shall not, with respect to
any REO Property, cause or allow the Trust to receive, any
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"net income from foreclosure property" that is subject to taxation under
the REMIC Provisions. Subject to the foregoing, however, the applicable
Special Servicer shall have full power and authority to do any and all
things in connection with the administration of any REO Property, as are
consistent with the Servicing Standard and, consistent therewith, shall
withdraw from its 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 other 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 Special Servicer's REO
Account with respect to any REO Property are insufficient for the purposes
contemplated by the preceding sentence with respect to such REO Property, the
applicable Master Servicer shall, at the direction of the applicable Special
Servicer, make a Servicing Advance of such amounts as are necessary for such
purposes unless such Master Servicer or Special Servicer determines, in its
reasonable judgment, that such advances would, if made, be Nonrecoverable
Servicing Advances; provided, however, that such Master Servicer may in its sole
discretion make any such Servicing Advance without regard to recoverability if
it is a necessary fee or expense incurred in connection with the defense or
prosecution of legal proceedings.
(c) The applicable Special Servicer may 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 may 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) shall be reasonable and customary in consideration of the
nature and locality of the REO Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor, in a timely manner, (A) pay all
costs and expenses incurred in connection with the operation and management
of such REO Property, including those listed in Section 3.17(b) above, and
(B) remit all related revenues collected (net of its fees and such costs
and expenses) to the applicable Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the applicable Special Servicer of any of its
duties and obligations hereunder with respect to the operation and
management of any such REO Property; and
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(v) the applicable 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.
Each Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of such Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. To the extent the costs of any contract with any
Independent Contractor for the operation and management of any REO Property are
greater that the revenues available from such property, such excess costs shall
be covered by, and be reimbursable as, a Servicing Advance.
SECTION 3.18. Fair Value Option; Sale of REO Properties.
(a) The parties hereto may sell or purchase, or permit the sale or
purchase of, a Mortgage Loan or REO Property only on the terms and subject to
the conditions set forth in this Section 3.18 or as otherwise expressly provided
in or contemplated by: Section 2.03 and Section 9.01 of this Agreement; the
Mortgage Loan Purchase Agreements; the Column Performance Guarantee; the NCBCC
Performance Guarantee; and the related Mortgage Loan Documents.
(b) If any Mortgage Loan becomes a Specially Designated Defaulted
Mortgage Loan, then the applicable Special Servicer shall so notify the Trustee,
the Controlling Class Representative and the applicable Master Servicer, and the
Trustee shall, in turn, notify the Holder(s) of the Controlling Class, in
writing. In addition, the applicable Special Servicer shall determine (in
accordance with the Servicing Standard, taking into account the considerations
contemplated by the following paragraph, but without regard to the Purchase
Option provided for in Section 3.18(c) below), and report to the Trustee and the
applicable Master Servicer, the Fair Value of such Mortgage Loan. The applicable
Special Servicer's determination of the Fair Value of any Specially Designated
Defaulted Mortgage Loan shall be made as soon as reasonably practicable, but in
no event later than 20 days after the applicable Special Servicer receives the
requisite Appraisal or any other third-party reports that it deems necessary to
make the determination. If at any time the applicable Special Servicer becomes
aware of any circumstances or conditions that have occurred or arisen with
respect to any Specially Designated Defaulted Mortgage Loan or the related
Mortgaged Property subsequent to, and that would, in the applicable Special
Servicer's reasonable judgment, materially affect, the applicable Special
Servicer's most recent Fair Value determination with respect to such Specially
Designated Defaulted Mortgage Loan, then the applicable Special Servicer shall
redetermine (in the same manner as provided above, but taking into account such
new circumstances or conditions known to the applicable Special Servicer), and
report to the Trustee, the Controlling Class Representative and the applicable
Master Servicer (and the Trustee shall, in turn, report to the Holder(s) of the
Controlling Class), the updated Fair Value of the subject Specially Designated
Defaulted Mortgage Loan.
In determining the Fair Value of any Specially Designated Defaulted
Mortgage Loan, the applicable Special Servicer shall take into account, among
other factors, the period and amount of the delinquency on such Mortgage Loan,
the occupancy level and physical condition of the related Mortgaged Property,
the state of the local economy in the area where the related Mortgaged Property
is located, and the time and expense associated with a purchaser's foreclosing
on the related Mortgaged Property or working out such Mortgage Loan. In
addition, the applicable Special Servicer shall refer to all relevant
information contained in the Servicing File, shall take into account the most
recent Appraisal
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obtained or conducted with respect to the related Mortgaged Property in the
preceding 12-month period in accordance with this Agreement and shall not
determine the Fair Value of any Specially Designated Default Mortgage Loan
without such an Appraisal; provided that the applicable Special Servicer shall
take account of any change in the circumstances regarding or the condition of
the related Mortgaged Property known to the applicable Special Servicer that has
occurred or arisen subsequent to, and that would materially affect the value of
the related Mortgaged Property reflected in, such Appraisal. Furthermore, the
applicable Special Servicer shall consider available objective third-party
information obtained from generally available sources, as well as information
obtained from vendors providing real estate services to the applicable Special
Servicer, concerning the market for distressed real estate loans and the real
estate market for the subject property type in the area where the related
Mortgaged Property is located. The applicable Special Servicer may, to the
extent it is reasonable to do so, conclusively rely on any opinions or reports
of Independent third parties in making such determination. All reasonable costs
and expenses incurred by a Special Servicer pursuant to this Section 3.18(b)
shall constitute, and be reimbursable as, Servicing Advances. The other parties
to this Agreement shall cooperate with all reasonable requests for information
made by a Special Servicer in order to allow such Special Servicer to perform
its duties pursuant to this Section 3.18(b).
(c) The Majority Controlling Class Certificateholder (exclusive of the
Depositor, the related Mortgage Loan Seller, or any of their respective
Affiliates and/or agents) may, at its option, purchase from the Trust any
Specially Designated Defaulted Mortgage Loan (such option, the "Purchase
Option"), at a cash price (the "Option Price") equal to the Fair Value of such
Mortgage Loan (as most recently determined by the applicable Special Servicer
and reported to the Trustee and the applicable Master Servicer as provided in
Section 3.18(b) above) or, if no such Fair Value has yet been established as
provided in Section 3.18(b) above or if the applicable Special Servicer is in
the process of redetermining such Fair Value because of a change in
circumstances, equal to the Purchase Price; provided that:
(i) the Purchase Option with respect to any Specially Designated
Defaulted Mortgage Loan will remain in effect only for the period (the
"Option Period") that commences on the date that such Mortgage Loan first
becomes a Specially Designated Defaulted Mortgage Loan and ends on the
earliest of (A) the date on which such Mortgage Loan becomes a Corrected
Mortgage Loan or otherwise ceases to be a Specially Designated Defaulted
Mortgage Loan and (B) the date on which a Liquidation Event occurs with
respect to such Mortgage Loan or the related Mortgaged Property becomes an
REO Property.
(ii) the Purchase Option with respect to any Specially Designated
Defaulted Mortgage Loan will be assignable by the Majority Controlling
Class Certificateholder during the Option Period to a third party other
than the Depositor, the related Mortgage Loan Seller, or one of their
respective Affiliates and/or agents (provided that the parties hereto are
notified in writing of the assignment);
(iii) if the Purchase Option with respect to any Specially Designated
Defaulted Mortgage Loan is not exercised by the Majority Controlling Class
Certificateholder or any assignee thereof within 30 days after the Fair
Value of such Mortgage Loan has initially been established as provided in
Section 3.18(b) above, then the Majority Controlling Class
Certificateholder shall be deemed to have assigned such Purchase Option,
for a 30-day period only, to the applicable Special Servicer;
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(iv) during the 30-day period following the assignment to it of the
Purchase Option with respect to any Specially Designated Defaulted Mortgage
Loan, the applicable Special Servicer shall be entitled to exercise such
Purchase Option or to assign such Purchase Option to a third party other
than the Depositor, the related Mortgage Loan Seller or one of their
respective Affiliates and/or agents (provided that the other parties hereto
are notified in writing of the assignment);
(v) if the Purchase Option with respect to any Specially Designated
Defaulted Mortgage Loan is not exercised by the applicable Special Servicer
or its assignee within the 30-day period following the assignment of such
Purchase Option to the applicable Special Servicer as contemplated by
clause (iii) above, then such Purchase Option will automatically revert to
the Majority Controlling Class Certificateholder; and
(vi) prior to any exercise of the Purchase Option with respect to any
Specially Designated Defaulted Mortgage Loan by the applicable Special
Servicer or any Affiliate or assignee thereof, subject to the following
paragraph, the other Special Servicer shall confirm and report to the
Trustee and the applicable Special Servicer (or, if such other Special
Servicer and the applicable Special Servicer are the same Person or
Affiliates, the Trustee, upon reasonable notice, shall confirm and report
to the applicable Special Servicer) that it believes that the applicable
Special Servicer's determination of the Fair Value of such Mortgage Loan
reasonably reflects an amount no less than that which would, in its
judgment, be realized in connection with a sale of such Mortgage Loan if it
were offered in a commercially reasonable manner and an open bid auction
were conducted; provided that the applicable Special Servicer may revise
any such Fair Value determination that is rejected by the other Special
Servicer (or, if applicable, the Trustee).
Notwithstanding anything contained in clause (vi) of the preceding
paragraph to the contrary, if the other Special Servicer or the Trustee is
required to confirm or reject the applicable Special Servicer's Fair Value
determination as contemplated by such clause (vi), either such party may (at its
option) designate an Independent third party, with adequate experience in the
trading of defaulted mortgage loans, to confirm that the applicable Special
Servicer's Fair Value determination as contemplated by such clause (vi). In the
event that the other Special Servicer or the Trustee designates such a third
party to make such determination, neither the other Special Servicer nor the
Trustee will assume any responsibility for such third party's determination, and
the other Special Servicer and the Trustee shall be entitled to conclusively
rely upon such third party's determination. Such other Special Servicer or the
Trustee, as the case may be, may direct the applicable Master Servicer to pay
such a third party (or, if it makes the confirmation of the applicable Special
Servicer's Fair Value determination as contemplated by clause (vi) of the
preceding paragraph, may direct the applicable Master Servicer to pay it) a fee
of up to $2,500 plus (subject to the next sentence) related costs and expenses
out of the Collection Account maintained by the applicable Master Servicer. The
reasonable costs of all appraisals, inspection reports and broker opinions of
value, incurred by such other Special Servicer, the Trustee or any such third
party pursuant to this paragraph or clause (vi) of the preceding paragraph shall
be advanced by the applicable Master Servicer and shall constitute, and be
reimbursable as, Servicing Advances.
Any party entitled to do so may exercise the Purchase Option with
respect to any Specially Designated Defaulted Mortgage Loan by providing to the
Trustee, the applicable Master Servicer and the applicable Special Servicer--
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(i) written notice of its intention to purchase such Mortgage Loan at
the Option Price; and
(ii) if such party is the assignee of the applicable Special Servicer
or the Majority Controlling Class Certificateholder, evidence of its right
to exercise such Purchase Option.
The actual purchase of such Specially Designated Defaulted Mortgage Loan shall
occur (by delivery of cash in the amount of the applicable Option Price to the
applicable Special Servicer for deposit in the applicable Master Servicer's
Collection Account) no later than 20 days after the later of (i) such exercise
of the Purchase Option with respect to such Mortgage Loan and (ii) if
applicable, the confirmation of the applicable Special Servicer's Fair Value of
such Mortgage Loan in accordance with clause (vi) of the first paragraph of this
Section 3.18(c) and/or in accordance with the second paragraph of this Section
3.18(c).
Notwithstanding the Purchase Option provided for in this Section
3.18(c), the applicable Special Servicer shall proceed in respect of any
Specially Designated Defaulted Mortgage Loan in accordance with Section 3.09
and/or Section 3.20, without regard to such Purchase Option.
(d) The applicable Special Servicer shall use its reasonable efforts,
consistent with the Servicing Standard, to solicit cash bids for each REO
Property in such manner as will be reasonably likely to realize a fair price
(determined pursuant to Section 3.18(e) below) for any REO Property within a
customary and normal time frame for the sale of comparable properties (and, in
any event, within the time period provided for by Section 3.16(a)). The
applicable Special Servicer shall accept the first (and, if multiple cash bids
are received by a specified bid date, the highest) cash bid received from any
Person that constitutes a fair price (determined pursuant to Section 3.18(e)
below) for such REO Property. If the applicable Special Servicer reasonably
believes that it will be unable to realize a fair price (determined pursuant to
Section 3.18(e) below) with respect to any REO Property within the time
constraints imposed by Section 3.16(a), then the applicable Special Servicer
shall, consistent with the Servicing Standard and subject to Section 3.24,
dispose of such REO Property upon such terms and conditions as it shall deem
necessary and desirable to maximize the recovery thereon under the
circumstances.
The applicable Special Servicer shall give the Trustee and the
Controlling Class Representative not less than five (5) Business Days' prior
written notice of its intention to sell any REO Property pursuant to this
Section 3.18(d). 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.
(e) Whether any cash bid constitutes a fair price for any REO Property
for purposes of Section 3.18(d), shall be determined by the applicable 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 applicable 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 a Qualified
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Appraiser that is (i) selected by the applicable Special Servicer if neither
such Special Servicer nor any Affiliate thereof is bidding with respect to the
subject REO Property and (ii) selected by the Trustee if either the applicable
Special Servicer or any Affiliate thereof is so bidding. Where any Interested
Person is among those bidding with respect to any REO Property, the applicable
Special Servicer shall require that all bids be submitted to it (or, if the
applicable Special Servicer is bidding, be submitted 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 applicable
Special Servicer shall take into account the results of any Appraisal or updated
Appraisal that it or the applicable Master Servicer may have obtained in
accordance with this Agreement within the prior twelve (12) months, as well as,
among other factors, the occupancy level and physical condition of the REO
Property, the state of the then current local economy and commercial real estate
market where the REO Property is located and the obligation to dispose of any
REO Property within a customary and normal time frame for the sale of comparable
properties (and, in any event, within the time period specified in Section
3.16(a)). The Purchase Price for any REO Property shall in all cases be deemed a
fair price. Notwithstanding the other provisions of this Section 3.18, no cash
bid from the applicable 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
applicable Special Servicer or any Affiliate) have been received. In the event
the bid of the applicable 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 for any REO Property and the original bid of the applicable Special
Servicer or any Affiliate thereof is the highest of all cash bids received, then
the bid of the applicable Special Servicer or such Affiliate shall be accepted,
provided that the Trustee has otherwise determined, as provided above in this
Section 3.18(e), that such bid constitutes a fair price for the subject REO
Property. Any bid by the applicable Special Servicer for any REO Property shall
be unconditional; and, if accepted, the subject REO Property shall be
transferred to the applicable Special Servicer without recourse, representation
or warranty other than customary representations as to title given in connection
with the sale of a real property.
(f) Subject to Sections 3.18(a) through 3.18(e) above, the applicable
Special Servicer shall act on behalf of the Trustee in negotiating with
Independent third parties in connection with the sale of any REO Property and
taking any other action necessary or appropriate in connection with the sale of
any Specially Designated Defaulted Mortgage Loan or REO Property, and the
collection of all amounts payable in connection therewith. In connection with
the sale of any REO Property, the applicable Special Servicer may charge
prospective bidders, and may retain, fees that approximate such Special
Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or evaluating bids without obligation to deposit such
amounts into a Collection Account. Any sale of a Specially Designated Defaulted
Mortgage Loan or any REO Property 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 applicable Special Servicer nor the Trustee
shall have any liability to any Certificateholder with respect to the purchase
price therefor accepted by the applicable Special Servicer or the Trustee.
(g) Any sale of any Specially Designated Defaulted Mortgage Loan or REO
Property shall be for cash only.
(h) The purchase price for any Specially Designated Defaulted Mortgage
Loan or REO Property sold under this Section 3.18 shall be deposited into the
applicable Master Servicer's
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Collection Account, and the Trustee, upon receipt of written notice from the
applicable Master Servicer to the effect that such deposit has been made (based
upon notification by the applicable Special Servicer to such Master Servicer of
the amount of the purchase price), shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be provided to
it and are reasonably necessary to vest ownership of such Mortgage Loan or REO
Property in the Person who purchased such Mortgage Loan or REO Property.
SECTION 3.19. Additional Obligations of Master Servicers.
(a) Each Master Servicer shall deliver to the Trustee for deposit in
the Distribution Account by 2:00 p.m. (New York City time) on each Master
Servicer Remittance Date, without any right of reimbursement therefor, a cash
payment (a "Compensating Interest Payment") in an amount equal to the lesser of
(i) the aggregate amount of Prepayment Interest Shortfalls incurred in
connection with Principal Prepayments received during the most recently ended
Collection Period with respect to Mortgage Loans as to which such Master
Servicer is the applicable Master Servicer, and (ii) the aggregate of (A) that
portion of such Master Servicer's Master Servicing Fees for the related
Collection Period that is, in the case of each and every Mortgage Loan and REO
Mortgage Loan for which such Master Servicing Fees are being paid in such
Collection Period, calculated at 0.02% per annum, and (B) all Prepayment
Interest Excesses and, to the extent earned on Principal Prepayments, Net
Investment Earnings received by such Master Servicer during the most recently
ended Collection Period; provided, however, that if a Prepayment Interest
Shortfall occurs as a result of the applicable Master Servicer's allowing the
related Borrower to deviate from the terms of the related Mortgage Loan
Documents regarding Principal Prepayments (other than (X) subsequent to a
material default under the related Mortgage Loan Documents, (Y) pursuant to
applicable law or a court order, or (Z) at the request or with the consent of
the Controlling Class Representative), then, for purposes of calculating the
Compensating Interest Payment for the subject Collection Period, the rate
referred to in clause (ii)(A) above shall be 0.05% per annum (except as to the
NCB Mortgage Loans and NCBCC Mortgage Loans that are not Co-op Mortgage Loans
and as to the Mortgage Loans secured by the Mortgaged Properties identified on
the Mortgage Loan Schedule as Macomb Mall and XxXxxxxx Station Apartments, for
which it shall in each case be 0.02% per annum); and provided, further, that the
rights of the Certificateholders to offset the aggregate Prepayment Interest
Shortfalls shall not be cumulative.
(b) No more frequently than once per calendar month, a Special Servicer
may require the applicable Master Servicer, and such Master Servicer shall be
obligated, out of such Master Servicer's own funds, to reimburse such Special
Servicer for any unreimbursed Servicing Advances (other than Nonrecoverable
Servicing Advances) made by such Special Servicer with respect to Mortgage Loans
and/or REO Properties as to which such Master Servicer is the applicable Master
Servicer, together with interest thereon at the Reimbursement Rate from the date
made to, but not including, the date of reimbursement. Such reimbursement and
any accompanying payment of interest shall be made within ten Business Days of
the written request therefor by wire transfer of immediately available funds to
an account designated by the requesting Special Servicer. Upon a Master
Servicer's reimbursement to a Special Servicer of any Servicing Advance and
payment to such Special Servicer of interest thereon, all in accordance with
this Section 3.19(b), such Master Servicer shall for all purposes of this
Agreement be deemed to have made such Servicing Advance at the same time as such
Special Servicer actually made such Servicing Advance, and accordingly, such
Master Servicer shall be entitled to reimbursement for such Servicing Advance,
together with interest thereon in accordance with Sections 3.05(a) and 3.11(g),
at the same time, in the same manner and to the same extent as such
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Master Servicer would otherwise have been entitled if it had actually made such
Servicing Advance at the time such Special Servicer did.
Notwithstanding anything to the contrary contained in any other Section
of this Agreement, if a Special Servicer is required under this Agreement to
make a Servicing Advance with respect to any Mortgage Loan or REO Property, but
does not desire to do so, then such Special Servicer may, in its sole
discretion, request that the applicable Master Servicer make such Servicing
Advance. Any such request shall be made, in writing, in a timely manner that
does not adversely affect the interests of any Certificateholder (and, in any
event, to the extent reasonably practicable, at least five Business Days in
advance of the date on which the subject Servicing Advance is to be made) and
shall be accompanied by such information and documentation regarding the subject
Servicing Advance as the applicable Master Servicer may reasonably request;
provided, however, that a Special Servicer shall not be entitled to make such a
request of either Master Servicer (other than for emergency advances) more
frequently than once per calendar month (although such request may relate to
more than one Servicing Advance). Each Master Servicer shall have the obligation
to make any such Servicing Advance (other than a Nonrecoverable Servicing
Advance) that it is so requested by a Special Servicer to make, within five
Business Days of such Master Servicer's receipt of such request. If the request
is timely and properly made, the requesting Special Servicer shall be relieved
of any obligations with respect to a Servicing Advance that it so requests the
applicable Master Servicer to make with respect to any Mortgage Loan or REO
Property (regardless of whether or not such Master Servicer shall make such
Servicing Advance). Each Master Servicer shall be entitled to reimbursement for
any Servicing Advance made by it at the direction of a Special Servicer,
together with interest thereon in accordance with Sections 3.05(a) and 3.11(g),
at the same time, in the same manner and to the same extent as such Master
Servicer is entitled with respect to any other Servicing Advances made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(b), a
Master Servicer shall not be required to reimburse a Special Servicer for, or to
make at the direction of a Special Servicer, any Servicing Advance if such
Master Servicer determines in its reasonable judgment that such Servicing
Advance, although not characterized by the requesting Special Servicer as a
Nonrecoverable Servicing Advance, is in fact a Nonrecoverable Servicing Advance.
Such Master Servicer shall notify the requesting Special Servicer in writing of
such determination and, if applicable, such Nonrecoverable Servicing Advance
shall be reimbursed to such Special Servicer pursuant to Section 3.05(a).
(c) Promptly following the occurrence of an Appraisal Trigger Event
with respect to any Mortgage Loan, the applicable Special Servicer shall obtain
(or, if such Mortgage Loan has a Stated Principal Balance of $2,000,000 or less,
unless the Controlling Class Representative permits otherwise, conduct) an
Appraisal of the related Mortgaged Property, unless an Appraisal thereof had
previously been obtained (or, if applicable, conducted) within the preceding
12-month period and there has been no subsequent material change in the
circumstances surrounding the related Mortgaged Property that, in the judgment
of the applicable Special Servicer, would materially affect the value of the
property, and shall deliver a copy of such Appraisal to the Trustee, the
applicable Master Servicer and the Controlling Class Representative. If such
Appraisal is obtained from a Qualified Appraiser, the cost thereof shall be
covered by, and be reimbursable as, a Servicing Advance. Promptly following the
receipt of, and based upon, such Appraisal, the applicable Special Servicer
shall determine and report to the Trustee, the applicable Master Servicer and
the Controlling Class Representative the then applicable Appraisal Reduction
Amount, if any, with respect to the subject Required Appraisal Loan.
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For so long as any Mortgage Loan or REO Mortgage Loan remains a
Required Appraisal Loan, the applicable Special Servicer shall, within 30 days
of each anniversary of such loan's having become a Required Appraisal Loan,
obtain (or, if such Required Appraisal Loan has a Stated Principal Balance of
$2,000,000 or less, unless the Controlling Class Representative permits
otherwise, conduct) an update of the prior Appraisal. If such update is obtained
from a Qualified Appraiser, the cost thereof shall be covered by, and be
reimbursable as, a Servicing Advance. Promptly following the receipt of, and
based upon, such update, the applicable Special Servicer shall redetermine and
report to the Trustee and the applicable Master Servicer the then applicable
Appraisal Reduction Amount, if any, with respect to the subject Required
Appraisal Loan.
The Controlling Class Representative shall have the right at any time
within six months of the date of the receipt of any Appraisal to require that
the applicable Special Servicer obtain a new Appraisal of the subject Mortgaged
Property in accordance with MAI standards, at the expense of the Controlling
Class Certificateholders, and upon receipt of such Appraisal the applicable
Special Servicer shall redetermine the Appraisal Reduction Amount.
(d) The General Master Servicer shall pay, without any right of
reimbursement therefor, the post-Closing Date fees of the Rating Agencies for
ongoing surveillance of the Rated Certificates; provided that the General Master
Servicer shall not be required to pay without reimbursement the fees charged by
any Rating Agency for a confirmation as to the lack of an Adverse Rating Event
with respect to any Class of Rated Certificates in connection with any other
particular matter, unless the General Master Servicer was the applicable Master
Servicer in such circumstance and failed to use efforts consistent with the
Servicing Standard to collect such fees from the related Borrower, which shall
include, if it has the right to do so under the applicable Mortgage Loan,
conditioning its consent or approval on such payment by the related Borrower
unless such condition would be a violation of applicable law or the Servicing
Standard.
(e) In connection with each prepayment of principal received hereunder,
the applicable Master Servicer shall calculate any applicable Prepayment Premium
or Yield Maintenance Charge, as the case may be, payable under any Mortgage
Loan. Promptly following its determination thereof, the applicable Master
Servicer shall disclose to the Trustee and, upon request, any Certificateholder
its calculation of any such Prepayment Premium or Yield Maintenance Charge,
including, in the case of a Yield Maintenance Charge, the U.S. Treasury rate
and, if different, the discount rate used to calculate such Yield Maintenance
Charge.
(f) With respect to each Mortgage Loan that provides for defeasance,
the applicable Master Servicer shall, to the extent permitted by the terms of
such Mortgage Loan, require the related Borrower (i) to provide replacement
collateral consisting of U.S. government securities within the meaning of
Treasury regulation section 1.860G-2(a)(8)(i) in an amount sufficient to make
all scheduled payments under the Mortgage Loan (or defeased portion thereof)
when due (and assuming, in the case of an ARD Mortgage Loan, to the extent
consistent with the related Mortgage Loan Documents, that such Mortgage Loan
matures on its Anticipated Repayment Date), (ii) to deliver a certificate from
an independent certified public accounting firm certifying that the replacement
collateral is sufficient to make such payments, (iii) at the option of the
applicable Master Servicer, to designate a single purpose entity (which may be a
subsidiary of the applicable Master Servicer established for the purpose of
assuming all defeased Mortgage Loans) to assume the Mortgage Loan (or defeased
portion thereof) and own the defeasance collateral, (iv) to implement such
defeasance only after the second anniversary of the Closing Date, (v) to provide
an Opinion of Counsel that the Trustee has a perfected, first priority
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security interest in the new collateral, and (vi) in the case of a partial
defeasance of the Mortgage Loan, to defease a principal amount equal to at least
125% of the allocated loan amount for the Mortgaged Property or Properties to be
released. If the subject Mortgage Loan has a Cut-off Date Principal Balance less
than $5,000,000 and an outstanding principal balance less than 1% of the then
aggregate Stated Principal Balance of the Mortgage Pool, and if either the terms
of the subject Mortgage Loan permit the applicable Master Servicer to impose the
foregoing requirements or the applicable Master Servicer satisfies such
requirements on its own, then confirmation that such defeasance will not result
in an Adverse Rating Event is not required so long as the applicable Master
Servicer delivers to S&P a certification in the form attached hereto as Exhibit
N. In such case, the applicable Master Servicer shall provide the Rating
Agencies and the Controlling Class Representative with notice that the foregoing
requirements have been met with respect to the subject Mortgage Loan. However,
if the subject Mortgage Loan has a Cut-off Date Principal Balance greater than
or equal to $5,000,000 or an outstanding principal balance greater than or equal
to 1% of the aggregate Stated Principal Balance of the Mortgage Pool, or if the
terms of the subject Mortgage Loan do not permit the applicable Master Servicer
to impose such requirements and the applicable Master Servicer does not satisfy
such requirements on its own, then the applicable Master Servicer shall so
notify the Rating Agencies and the Controlling Class Representative and, so long
as such a requirement would not violate applicable law or the Servicing
Standard, obtain a confirmation that such defeasance will not result in an
Adverse Rating Event. Subject to the related Mortgage Loan Documents and
applicable law, the applicable Master Servicer shall not execute a defeasance
unless (i) the subject Mortgage Loan requires the Borrower to pay all Rating
Agency fees associated with defeasance (if Rating Agency confirmation of
no-downgrade is a specific condition precedent thereto) and all expenses
associated with defeasance or other arrangements for payment of such costs are
made at no expense to the Trust Fund or the applicable Master Servicer
(provided, however, that in no event shall such proposed "other arrangements"
result in any liability to the Trust Fund including any indemnification of the
applicable Master Servicer or Special Servicer which may result in legal
expenses to the Trust Fund), and (ii) the Borrower is required to provide all
Opinions of Counsel, including Opinions of Counsel that the defeasance will not
cause an Adverse REMIC Event or an Adverse Grantor Trust Event and that the
Mortgage Loan Documents are fully enforceable in accordance with their terms
(subject to bankruptcy, insolvency and similar standard exceptions), and any
applicable rating confirmations.
(g) The applicable Master Servicer shall, as to each Mortgage Loan
which is secured by the interest of the related Borrower under a Ground Lease,
promptly (and in any event within 45 days) after the Closing Date notify the
related ground lessor of the transfer of such Mortgage Loan to the Trust
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
applicable Master Servicer.
(h) If a Mortgage Loan provides or allows that the related Borrower's
failure to make any Monthly Payment due thereunder on the applicable Due Date
will not result in an event of default for which such Mortgage Loan may be
accelerated and/or, except in the case of a Co-op Mortgage Loan, accrue Default
Charges unless and until the applicable Master Servicer notifies such Borrower
of the failure or the elapse of a specified number of days following the
applicable Master
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Servicer's delivery of such notice, then the applicable Master Servicer shall
promptly (and in any event within two Business Days following the applicable Due
Date) notify the related Borrower of such a failure. If a Co-op Mortgage Loan
provides or allows that the related Borrower's failure to make any Monthly
Payment due thereunder on the applicable Due Date will not result in an event of
default for which such Mortgage Loan may accrue Default Charges unless and until
the applicable Master Servicer notifies such Borrower of the failure or the
elapse of a specified number of days following the applicable Master Servicer's
delivery of such notice, then the applicable Master Servicer shall, in
accordance with such Master Servicer's customary practices and in accordance
with the Servicing Standard, notify the related Borrower of such a failure.
(i) With respect to the Mortgage Loans secured by the Mortgaged
Properties identified on the Mortgage Loan Schedule as ARC North and South and
0000 Xxxxxxxxxxx Xxxxxxxxx, respectively, which provide for the release of a
portion of the related Mortgaged Property without a partial defeasance or the
payment of a release price, the applicable Master Servicer shall not permit the
release of any such portion of the related Mortgaged Property until it has
obtained an Opinion of Counsel that such release would not result in an Adverse
REMIC Event with respect to any REMIC Pool and confirmation that such release
will not result in an Adverse Rating Event with respect to any Class of Rated
Certificates.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) The applicable Special Servicer (solely as to a Specially Serviced
Mortgage Loan) or the applicable Master Servicer (solely as to a Performing
Mortgage Loan) may (consistent with the Servicing Standard) agree to any
modification, waiver or amendment of any term of, extend the maturity of, defer
or forgive interest (including Default Interest and Post-ARD Additional
Interest) on and principal of, defer or forgive late payment charges, Prepayment
Premiums and Yield Maintenance Charges on, permit the release, addition or
substitution of collateral securing, and/or permit the release, addition or
substitution of the Borrower on or any guarantor of, any Mortgage Loan, subject,
however, to Sections 3.08 and 3.24 and, further to each of the following
limitations, conditions and restrictions:
(i) other than as provided in Sections 2.03(b), 3.02, 3.08, 3.20(f) and
3.20(g), the applicable Master Servicer shall not agree to any
modification, waiver or amendment of any term of, or take any of the other
acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan,
that would affect the amount or timing of any related payment of principal,
interest or other amount payable under such Mortgage Loan or affect the
security for such Mortgage Loan, unless such Master Servicer has obtained
the consent of the applicable Special Servicer (it being understood and
agreed that (A) the applicable Master Servicer shall promptly provide the
applicable Special Servicer with notice of any Borrower request for such
modification, waiver or amendment, the applicable Master Servicer's
recommendations and analysis, and with all information reasonably available
to the applicable Master Servicer that the applicable Special Servicer may
reasonably request in order to withhold or grant any such consent, (B) the
applicable Special Servicer shall decide whether to withhold or grant such
consent in accordance with the Servicing Standard and (C) if any such
consent has not been expressly denied within ten Business Days of the
applicable Special Servicer's receipt from the applicable Master Servicer
of such Master Servicer's recommendations and analysis and all information
reasonably requested thereby and reasonably available to the applicable
Master Servicer in order to make an informed decision (or, if the
applicable Special Servicer did not request any information, within ten
Business Days from such notice), such consent shall be deemed to have been
granted);
(ii) other than as provided in Sections 3.02 and 3.08, the applicable
Special Servicer shall not agree to (or, in the case of a Performing
Mortgage Loan, consent to the applicable Master Servicer's agreeing to) any
modification, waiver or amendment of any term of, or take (or, in the case
of a Performing Mortgage Loan, consent to the applicable Master Servicer's
taking) any of the other acts referenced in this Section 3.20(a) with
respect to, any Mortgage
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Loan that would affect the amount or timing of any related payment of
principal, interest or other amount payable thereunder or, in the
reasonable, good faith judgment of the applicable Special Servicer, would
materially impair the security for such Mortgage Loan, unless a material
default on such Mortgage Loan has occurred or, in the reasonable, good
faith judgment of the applicable Special Servicer, a default in respect of
payment on such Mortgage Loan is reasonably foreseeable, and such
modification, waiver, amendment or other action is reasonably likely to
produce a greater recovery to Certificateholders (as a collective whole) on
a present value basis (the relevant discounting of anticipated collections
that will be distributable to Certificateholders to be done at the related
Net Mortgage Rate), than would liquidation;
(iii) the applicable Special Servicer shall not extend (or, in the case
of a Performing Mortgage Loan, consent to the applicable Master Servicer's
extending) the date on which any Balloon Payment is scheduled to be due on
any Mortgage Loan to a date beyond the earliest of (A) the fifth
anniversary of such Mortgage Loan's Stated Maturity Date, (B) two years
prior to the latest Rated Final Distribution Date for any Class of Rated
Certificates, (C) if such Mortgage Loan is secured by a Mortgage solely or
primarily on the related Borrower's leasehold interest in the related
Mortgaged Property, 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 end of the then current term of the
related Ground Lease (plus any unilateral options to extend), and (D) if
such Mortgage Loan is covered by an environmental insurance policy, two
years prior to the expiration of the term of such policy unless the
applicable Special Servicer shall have first determined in its reasonable
judgment, based upon a Phase I Environmental Assessment (and any additional
environmental testing that the applicable Special Servicer deems necessary
and prudent) conducted by an Independent Person who regularly conducts
Phase I Environmental Assessments, and at the expense of the Borrower, that
there are no circumstances or conditions present at the related Mortgaged
Property for which investigation, testing, monitoring, containment,
clean-up or remediation would be required under any then applicable
environmental laws or regulations;
(iv) neither the applicable Master Servicer nor the applicable Special
Servicer shall make or permit any modification, waiver or amendment of any
term of, or take any of the other acts referenced in this Section 3.20(a)
with respect to, any Mortgage Loan that would result in an Adverse REMIC
Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with
respect to either Grantor Trust Pool;
(v) subject to applicable law, the related Mortgage Loan Documents and
the Servicing Standard, neither the applicable Master Servicer nor the
applicable Special Servicer shall permit any modification, waiver or
amendment of any term of any Mortgage Loan unless all related fees and
expenses are paid by the Borrower;
(vi) the applicable Special Servicer shall not permit (or, in the case
of a Performing Mortgage Loan, consent to the applicable Master Servicer's
permitting) any Borrower to add or substitute any real estate collateral
for its Mortgage Loan unless the applicable Special Servicer shall have
first (A) determined in its reasonable judgment, based upon a Phase I
Environmental Assessment (and any additional environmental testing that the
applicable Special Servicer deems necessary and prudent) conducted by an
Independent Person who regularly conducts Phase I Environmental
Assessments, at the expense of the related Borrower, that such additional
or substitute collateral is in compliance with applicable environmental
laws and regulations and that
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there are no circumstances or conditions present with respect to such new
collateral relating to the use, management or disposal of any Hazardous
Materials for which investigation, testing, monitoring, containment,
clean-up or remediation would be required under any then applicable
environmental laws or regulations and (B) received, at the expense of the
related Borrower, written confirmation from each Rating Agency that such
addition or substitution of collateral will not, in and of itself, result
in an Adverse Rating Event with respect to any Class of Rated Certificates;
and
(vii) the applicable Special Servicer shall not release (or, in the
case of a Performing Mortgage Loan, consent to the applicable Master
Servicer's releasing), including in connection with a substitution
contemplated by clause (vi)above, any real property collateral securing an
outstanding Mortgage Loan, except as provided in Section 3.09(d), or except
where a Mortgage Loan (or, in the case of a Cross-Collateralized Group,
where such entire Cross-Collateralized Group) is satisfied, or except in
the case of a release where (A) the Rating Agencies have been notified in
writing, (B) either (1) the use of the collateral to be released will not,
in the reasonable judgment of the applicable Special Servicer, materially
and adversely affect the net operating income being generated by or the use
of the related Mortgaged Property, or (2) there is a corresponding
principal pay down of such Mortgage Loan in an amount at least equal to the
appraised value of the collateral to be released (or substitute real estate
collateral with an appraised value at least equal to that of the collateral
to be released, is delivered), (C) the remaining Mortgaged Property
(together with any substitute collateral) is, in the applicable Special
Servicer's good faith and reasonable judgment, adequate security for the
remaining Mortgage Loan and (D) if the collateral to be released has an
appraised value in excess of $1,500,000, such release would not, in and of
itself, result in an Adverse Rating Event with respect to any Class of
Rated Certificates (as confirmed in writing to the Trustee by each Rating
Agency);
provided that the limitations, conditions and restrictions set forth in clauses
(i) through (vii) above shall not apply to any act or event (including, without
limitation, a release, substitution or addition of collateral) in respect of any
Mortgage Loan that either occurs automatically, or results from the exercise of
a unilateral option by the related Borrower within the meaning of Treasury
regulations section 1.1001-3(c)(2)(iii), in any event under the terms of such
Mortgage Loan in effect on the Closing Date (or, in the case of a Replacement
Mortgage Loan, on the related date of substitution); and provided, further,
that, notwithstanding clauses (i) through (vii) above, neither the applicable
Master Servicer nor the applicable Special Servicer shall be required to oppose
the confirmation of a plan in any bankruptcy or similar proceeding involving a
Borrower if, in its reasonable judgment, such opposition would not ultimately
prevent the confirmation of such plan or one substantially similar; and
provided, further, that, notwithstanding clause (vii) above, neither the
applicable Master Servicer nor the applicable Special Servicer shall be required
to obtain any confirmation of the Certificate ratings from the Rating Agencies
in order to grant easements that do not materially affect the use or value of a
Mortgaged Property or the Borrower's ability to make any payments with respect
to the related Mortgage Loan.
(b) The applicable Special Servicer and applicable Master Servicer
shall not have any liability to the Trust, the Certificateholders or any other
Person if its analysis and determination that the modification, waiver,
amendment or other action contemplated by Section 3.20(a) is reasonably likely
to produce a greater recovery to Certificateholders on a present value basis
than would liquidation should prove to be wrong or incorrect, so long as the
analysis and determination were made on a reasonable
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basis by the applicable Special Servicer or the applicable Master Servicer and
consistent with the Servicing Standard.
(c) Any payment of interest, which is deferred pursuant to Section
3.20(a), shall not, for purposes of calculating monthly distributions and
reporting information to Certificateholders, be added to the unpaid principal
balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit or that such
interest may actually be capitalized; provided, however, that this sentence
shall not limit the rights of the applicable Master Servicer or the applicable
Special Servicer on behalf of the Trust to enforce any obligations of the
related Borrower under such Mortgage Loan.
(d) Each of the applicable Master Servicer and the applicable Special
Servicer may, as a condition to its granting any request by a Borrower for
consent, modification, waiver or indulgence or any other matter or thing, the
granting of which is within such Master Servicer's or Special Servicer's, as the
case may be, discretion pursuant to the terms of the related Mortgage Loan
Documents and is permitted by the terms of this Agreement, require that such
Borrower pay to it a reasonable or customary fee (which shall in no event exceed
1.0% of the unpaid principal balance of the related Mortgage Loan) for the
additional services performed in connection with such request, together with any
related costs and expenses incurred by it. All such fees collected by the
applicable Master Servicer and/or the applicable Special Servicer with respect
to any Mortgage Loan shall be allocable between such parties, as Additional
Master Servicing Compensation and Additional Special Servicing Compensation,
respectively, as provided in Section 3.11.
(e) All modifications, amendments, material waivers and other material
actions entered into or taken in respect of the Mortgage Loans pursuant to this
Section 3.20 (other than waivers of Default Charges) shall be in writing. Each
of the applicable Special Servicer and the applicable Master Servicer shall
notify the other such party, each Rating Agency, the Trustee and the Controlling
Class Representative, in writing, of any modification, waiver, amendment or
other action entered into or taken thereby in respect of any Mortgage Loan
pursuant to this Section 3.20 (other than waivers of Default Charges) and the
date thereof, and shall deliver to the Trustee or the related Custodian for
deposit in the related Mortgage File (with a copy to the other such party), an
original counterpart of the agreement relating to such modification, waiver,
amendment or other action, promptly (and in any event within ten Business Days)
following the execution thereof. In addition, following the execution of any
modification, waiver or amendment agreed to by the applicable Special Servicer,
or by the applicable Master Servicer with any required consent of the applicable
Special Servicer, pursuant to Section 3.20(a) above, the applicable Special
Servicer or the applicable Master Servicer, as applicable, shall deliver to the
other such party, the Trustee and the Rating Agencies an Officer's Certificate
certifying that all of the requirements of Section 3.20(a) have been met and, in
the case of the applicable Special Servicer, setting forth in reasonable detail
the basis of the determination made by it pursuant to Section 3.20(a)(ii);
provided that, if such modification, waiver or amendment involves an extension
of the maturity of any Mortgage Loan, such Officer's Certificate shall be so
delivered before the modification, waiver or amendment is agreed to.
(f) With respect to any ARD Mortgage Loan after its Anticipated
Repayment Date, the applicable Master Servicer shall be permitted, with the
consent of the Controlling Class Representative, to waive (such waiver to be in
writing addressed to the related Borrower, with a copy to the Trustee) all or
any portion of the accrued Post-ARD Additional Interest in respect of such ARD
Mortgage Loan if (i) such ARD Mortgage Loan is a Performing Mortgage Loan, (ii)
the related
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Borrower has requested the right to prepay such ARD Mortgage Loan in full
together with all payments required by the related Mortgage Loan Documents in
connection with such prepayment except for such accrued Post-ARD Additional
Interest, and (iii) the applicable Master Servicer has determined, in its
reasonable judgment, that waiving such Post-ARD Additional Interest is in
accordance with the Servicing Standard. The applicable Master Servicer shall
prepare all documents necessary and appropriate to effect any such waiver and
shall coordinate with the related Borrower for the execution and delivery of
such documents.
(g) Notwithstanding anything in this Section 3.20 or in Section 3.08 or
Section 3.24 to the contrary, the applicable Master Servicer shall not be
required to seek the consent of the applicable Special Servicer or any
Certificateholder or obtain any confirmation of the Certificate ratings from the
Rating Agencies in order to approve the following modifications, waivers or
amendments of the Mortgage Loans: (i) waivers of minor covenant defaults (other
than financial covenants), including late financial statements; (ii) waiver of
Default Charges, in accordance with Section 3.02, and permitting subordinate
debt with respect to Co-op Mortgage Loans as to which the NCB Subordinate Debt
Conditions have been satisfied, in accordance with Section 3.08; (iii) releases
of parcels of a Mortgaged Property (provided that any such releases are releases
as to which the related Mortgage Loan Documents expressly require the mortgagee
thereunder to make such releases upon the satisfaction of certain conditions and
such releases shall be made as required by the Mortgage Loan Documents); and
(iv) grants of easements or rights of way that do not materially affect the use
or value of a Mortgaged Property or the Borrower's ability to make any payments
with respect to the related Mortgage Loan; provided that any such modification,
waiver or amendment, or agreeing to any such modification, waiver or amendment,
(w) would not in any way affect a payment term of the Certificates, (x) would
not constitute a "significant modification" of such Mortgage Loan pursuant to
Treasury regulations section 1.860G-2(b) and would not otherwise constitute an
Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust
Event with respect to either Grantor Trust Pool, (y) would be consistent with
the Servicing Standard, and (z) shall not violate the terms, provisions or
limitations of this Agreement or any other document contemplated hereby.
(h) The applicable Master Servicer shall not terminate or replace, or
consent to the termination or replacement of, any property manager with respect
to any Mortgaged Property, and the applicable Master Servicer shall not
terminate or change or consent to the termination or change of the franchise for
any Mortgage Property operated as a hospitality property, in any event without
the prior written consent of the applicable Special Servicer (it being
understood and agreed that (A) the applicable Master Servicer shall promptly
provide the applicable Special Servicer with its analysis, recommendations and
all information that the applicable Special Servicer may reasonably request and
which information is in the possession of the applicable Master Servicer, in
order to withhold or grant any such consent, (B) the applicable Special Servicer
shall decide whether to withhold or grant such consent in accordance with the
Servicing Standard, (C) if any such consent has not been expressly denied within
ten Business Days of the applicable Special Servicer's receipt from the
applicable Master Servicer of such analysis, recommendation and all information
reasonably requested thereby in order to make an informed decision (or, if the
applicable Special Servicer did not request any information, within ten Business
Days from such notice), such consent shall be deemed to have been granted and
(D) such consent shall not be required with respect to Co-op Mortgage Loans that
are Performing Mortgage Loans).
(i) In connection with granting an extension of the maturity date of
any Mortgage Loan in accordance with Section 3.20(a), the applicable Special
Servicer, in the case of a Specially
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Serviced Mortgage Loan, and the applicable Master Servicer, in the case of a
Performing Mortgage Loan, shall each cause the related Borrower to agree, if it
has not already done so pursuant to the existing Mortgage Loan Documents, to
thereafter deliver to the applicable Special Servicer, the Trustee and the
Controlling Class Representative audited operating statements on a quarterly
basis with respect to the related Mortgaged Property, provided that the
applicable Special Servicer or the applicable Master Servicer, as the case may
be, may, in its sole discretion, waive the requirement that such statements be
audited.
(j) Notwithstanding anything in this Agreement, including this Section
3.20, to the contrary, for so long as the applicable Master Servicer and the
applicable Special Servicer are the same Person, the applicable Master Servicer
shall not be obligated to obtain the consent or approval of the applicable
Special Servicer as otherwise required in this Agreement but shall instead be
required to request the consent or approval of the Controlling Class
Representative (in respect of any matter as to which such consent is otherwise
required hereunder) to the extent, and on the same terms, subject to the same
limitations, restrictions and exclusions and within the same time periods as,
the applicable Special Servicer is required to request such consent or approval
of the Controlling Class Representative pursuant to Section 3.24 or any other
section or provision of this Agreement.
SECTION 3.21. Transfer of Servicing Between Applicable Master Servicer
and Applicable Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Mortgage Loan, the applicable Master Servicer shall immediately
give notice thereof to the Controlling Class Representative, and if the
applicable Master Servicer is not also the applicable Special Servicer, the
applicable Master Servicer shall immediately give notice thereof, and shall
deliver the related Servicing File, to the applicable Special Servicer and shall
use its best efforts to provide the applicable 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 and reasonably requested by the applicable Special Servicer to
enable it to assume its functions hereunder with respect thereto without acting
through a Sub-Servicer. To the extent such is in the possession of the
applicable Master Servicer or any Sub-Servicer thereof, the information,
documents and records to be delivered by the applicable Master Servicer to the
applicable Special Servicer pursuant to the prior sentence shall include, but
not be limited to, financial statements, appraisals, environmental/engineering
reports, leases, rent rolls (or, in the case of a residential cooperative
property, maintenance schedules), title insurance policies, UCC's and tenant
estoppels. The applicable Master Servicer shall use its best efforts to comply
with the preceding two sentences within five Business Days of the occurrence of
each related Servicing Transfer Event. No later than 30 Business Days before the
applicable Master Servicer is required to deliver a copy of the related
Servicing File to the applicable Special Servicer, it shall review such
Servicing File and request from the Trustee any material documents that it is
aware are missing from such Servicing File.
Upon determining that a Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan and if the applicable Master Servicer is not also the
applicable Special Servicer, the applicable Special Servicer shall immediately
give notice thereof, and shall return the related Servicing File within five
Business Days, to the applicable Master Servicer; and, upon giving such notice
and returning such Servicing File to the applicable Master Servicer, the
applicable Special Servicer's obligation to service such Mortgage Loan, and the
applicable Special Servicer's right to receive the
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Special Servicing Fee with respect to such Mortgage Loan, shall terminate, and
the obligations of the applicable Master Servicer to service and administer such
Mortgage Loan shall resume.
Notwithstanding anything herein to the contrary, in connection with the
transfer to the applicable 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 applicable Master
Servicer with respect to any such Mortgage Loan upon its becoming a Corrected
Mortgage Loan, the applicable Master Servicer and the applicable 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 Loan, the applicable
Special Servicer shall provide to the Trustee originals of documents
contemplated by the definition of "Mortgage File" and generated while such
Mortgage Loan is a Specially Serviced Mortgage Loan, for inclusion in the
related Mortgage File (with a copy of each such original to the applicable
Master Servicer), and copies of any additional related Mortgage Loan
information, including correspondence with the related Borrower generated while
such Mortgage Loan is a Specially Serviced Mortgage Loan.
(c) The applicable Master Servicer and the applicable Special Servicer
shall each furnish to the other, upon reasonable request, such reports,
documents, certifications and information in its possession, and access to such
books and records maintained thereby, as may relate to any Mortgage Loan or REO
Property and as shall be reasonably required by the requesting party in order to
perform its duties hereunder.
(d) In connection with the performance of its obligations hereunder
with respect to any Mortgage Loan or REO Property, each of the applicable Master
Servicer and the applicable Special Servicer shall be entitled to rely upon
written information provided to it by the other.
SECTION 3.22. Sub-Servicing Agreements.
(a) Each Master Servicer and, subject to Section 3.22(f), 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
(including the performance on a regular basis by third parties of discrete tasks
in respect of a discrete number of assets), provided that, in each case, the
Sub-Servicing Agreement, including any amendments thereto and modifications
thereof: (i) insofar as it affects the Trust, is consistent with this Agreement,
including Section 7.01(a), in all material respects and requires the subject
Sub-Servicer to comply in all material respects with all of the applicable
conditions of this Agreement; (ii) provides that if such Master Servicer or
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 or any other successor to such Master Servicer or Special Servicer,
as the case may be, may thereupon assume all of the rights and, except to the
extent they arose prior to the date of assumption, obligations of such Master
Servicer or Special Servicer, as the case may be, under such agreement or,
alternatively, may terminate such Sub-Servicing Agreement without cause and
without payment of any penalty or termination fee (provided, however, that a
Designated Sub-Servicer Agreement may not be terminated except for cause, which
will include the occurrence of any Adverse Rating Event resulting from the
subject Sub-Servicer's acting in such capacity); (iii) provides that the
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Trustee, for the benefit of the Certificateholders, shall be a third party
beneficiary under such agreement, but that (except to the extent the Trustee or
its designee assumes the obligations of such Master Servicer or Special
Servicer, as the case may be, thereunder as contemplated by the immediately
preceding clause (ii), and except with respect to the obligations of any
successor to such Master Servicer under the Designated Sub-Servicer Agreements)
none of the Trustee, any successor to such Master Servicer or Special Servicer,
as the case may be, or any Certificateholder shall have any duties under such
agreement or any liabilities arising therefrom except as explicitly set forth
herein; (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 subject Sub-Servicer to
foreclose on a Mortgaged Property or to enter into or consent to any
modification, waiver or amendment or otherwise take any action on behalf of such
Master Servicer or Special Servicer, as the case may be, contemplated by Section
3.09 and/or Section 3.20 hereof without the consent of such Master Servicer or
Special Servicer, as the case may be; provided, however, that the Sub-Servicing
Agreement shall not require a Designated Sub-Servicer (or any Sub-Servicer
otherwise approved in writing by the Controlling Class Representative) to seek
the consent of the applicable Master Servicer or Special Servicer (whichever
retained such Sub-Servicer) in order to approve (A) waivers of minor (in the
Sub-Servicer's reasonable judgment) covenant defaults (other than financial
covenants), (B) 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 such releases upon the
satisfaction of certain conditions shall be made as required by the Mortgage
Loan Documents), and (C) grants of easements that do not materially affect (in
the Sub-Servicer's reasonable judgment) the use or value of a Mortgaged Property
or the Borrower's ability to make any payment with respect to the related
Mortgage Loan, provided that any such modification, waiver, or amendment (W)
would not in any way affect a payment term of the subject Mortgage Loan or
materially and adversely affect the security for the subject Mortgage Loan, (X)
would not constitute a "significant modification" of the subject Mortgage Loan
pursuant to Treasury regulation section 1.860G-2(b) and would not otherwise
constitute an Adverse REMIC Event with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to either Grantor Trust Pool and (Y) would be
consistent with the Servicing Standard; and (vi) does not permit the subject
Sub-Servicer any rights of indemnification out of the Trust Fund except through
such Master Servicer or Special Servicer, as the case may be, pursuant to
Section 6.03; provided that the appointment by a Master Servicer or Special
Servicer of a third-party contractor for the purpose of performing discrete,
ministerial functions shall not be subject to this Section 3.22 (except that
such Master Servicer or Special Servicer, as the case may be, shall remain
responsible for the actions of such third-party contractors and shall pay all
fees and expenses of such third-party contractors, unless otherwise expressly
provided herein). No Sub-Servicing Agreement entered into by a Master Servicer
shall purport to delegate or effectively delegate to the related Sub-Servicer
any of the rights or obligations of a Special Servicer with respect to any
Specially Serviced Mortgage Loan or otherwise. Each Sub-Servicing Agreement
entered into by a Special Servicer shall relate only to Specially Serviced
Mortgage Loans and any REO Properties as to which such Special Servicer is the
applicable Special Servicer and shall not purport to delegate or effectively
delegate to the related Sub-Servicer any of the rights or obligations of a
Master Servicer with respect to any Mortgage Loan, including any Specially
Serviced Mortgage Loan. Each Master Servicer and Special Servicer shall notify
the Trustee and the Depositor in writing promptly of the appointment by it of
any Sub-Servicer. Each Master Servicer and Special Servicer shall deliver to the
Trustee copies of all Sub-Servicing Agreements, and 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 a Master Servicer or Special Servicer include actions taken or to be
taken by a Sub-Servicer on behalf of such Master Servicer or Special Servicer,
as the case may be; and, in connection therewith, all amounts
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advanced by any Sub-Servicer to satisfy the obligations of a Master Servicer or
Special Servicer hereunder to make Advances shall be deemed to have been
advanced by such Master Servicer or Special Servicer, as the case may be, out of
its own funds and, accordingly, such Advances shall be recoverable by such
Sub-Servicer in the same manner and out of the same funds as if such
Sub-Servicer were such Master Servicer or Special Servicer, as the case may be.
Such Advances shall accrue interest in accordance with Sections 3.11(g) and/or
4.03(d), such interest to be allocable between such Master Servicer or Special
Servicer, as the case may be, and such Sub-Servicer as they may agree. For
purposes of this Agreement, each Master Servicer and Special Servicer shall be
deemed to have received any payment when a Sub-Servicer retained by it receives
such payment.
(b) Each Sub-Servicer 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.
(c) Each Master Servicer and Special Servicer, for the benefit of the
Trustee and the Certificateholders, shall (at no expense to the other such party
or to the Trustee, the Certificateholders or the Trust) 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 such Master Servicer
or Special Servicer, as applicable, in its reasonable judgment, would require
were it the owner of the subject Mortgage Loans. Subject to the terms of the
related Sub-Servicing Agreement, including any provisions thereof limiting the
ability of a Master Servicer or Special Servicer, as applicable, to terminate a
Sub-Servicer, each Master Servicer and Special Servicer shall have the right to
remove a Sub-Servicer retained by it at any time it considers such removal to be
in the best interests of Certificateholders.
(d) If a Master Servicer or Special Servicer ceases to serve as such
under this Agreement for any reason (including by reason of an Event of
Default), then the Trustee or other successor to such Master Servicer or Special
Servicer, as the case may be, shall succeed to the rights and assume the
obligations of such Master Servicer or Special Servicer under any Sub-Servicing
Agreement to which such Master Servicer or Special Servicer, as the case may be,
are parties, unless the Trustee or other successor to such Master Servicer or
Special Servicer elects to terminate any such Sub-Servicing Agreement in
accordance with its terms and Section 3.22(a)(ii) hereof; provided that no
Designated Sub-Servicer Agreement may be so terminated except for cause, which
will include the occurrence of any Adverse Rating Event resulting from the
subject Sub-Servicer's acting in such capacity. In any event, if a Sub-Servicing
Agreement is to be assumed by the Trustee or other successor to a Master
Servicer or Special Servicer, then such Master Servicer or Special Servicer, as
applicable, at its expense shall, upon request of the Trustee, deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use reasonable efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding any Sub-Servicing Agreement entered into by it,
each Master Servicer and 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 it alone
were servicing and administering the Mortgage Loans or REO Properties for which
it is responsible. No
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appointment of a Sub-Servicer shall result in any additional expense to the
Trustee, the Certificateholders or the Trust other than those contemplated
herein.
(f) No Special Servicer shall enter into any Sub-Servicing Agreement
unless either: (i) the Rating Agencies have confirmed in writing that entering
into such agreement will not result in an Adverse Rating Event; or (ii) such
agreement relates to one or more Mortgage Loans (including any such Mortgage
Loan(s) previously sub-serviced in accordance with this Section 3.22) that
together represent less than 25% of the aggregate outstanding principal balance
of all Specially Serviced Mortgage Loans.
SECTION 3.23. Controlling Class Representative.
(a) The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class shall be entitled in accordance with
this Section 3.23 to select a representative (the "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 3.24) or to replace an existing
Controlling Class Representative. Upon (i) the receipt by the Trustee of written
requests for the selection of a Controlling Class Representative from the
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class, (ii) the resignation or removal of the Person acting as
Controlling Class Representative or (iii) a determination by the Trustee that
the Controlling Class has changed, the Trustee shall promptly notify the
Depositor and the Holders (and, in the case of Book-Entry Certificates, to the
extent actually known to a Responsible Officer of the Trustee or identified
thereto by the Depositary or the Depositary Participants, the Certificate
Owners) of the Controlling Class that they may select a Controlling Class
Representative. Such notice shall set forth the process established by the
Trustee for selecting a Controlling Class Representative, which process may
include the designation of the Controlling Class Representative by the Majority
Controlling Class Certificateholder by a writing delivered to the Trustee. No
appointment of any Person as a Controlling Class Representative shall be
effective until such Person provides the Trustee with (i) written confirmation
of its acceptance of such appointment, (ii) written confirmation of its
agreement to keep confidential, for so long as reports are required to be filed
with respect to the Trust under Section 15(d) of the Exchange Act, all
information received by it with respect to the Trust and its assets that has not
been filed with the Commission, (iii) an address and telecopy number for the
delivery of notices and other correspondence and (iv) a list of officers or
employees of such Person with whom the parties to this Agreement may deal
(including their names, titles, work addresses and telecopy numbers). Subject to
the preceding sentence, Allied Capital Corporation shall serve as the initial
Controlling Class Representative.
(b) Within ten Business Days (or as soon thereafter as practicable if
the Controlling Class consists of Book-Entry Certificates) of any change in the
identity of the Controlling Class Representative of which a Responsible Officer
of the Trustee has actual knowledge and otherwise promptly upon request from any
Master Servicer or Special Servicer, the Trustee shall deliver to each of the
Master Servicers and Special Servicers the identity of the Controlling Class
Representative and a list of each Holder (or, in the case of Book-Entry
Certificates, to the extent actually known to a Responsible Officer of the
Trustee or identified thereto by the Depositary or the Depositary Participants,
each Certificate Owner) of the Controlling Class, including, in each case, names
and addresses. With respect to such information, the Trustee shall be entitled
to conclusively rely on information provided to it by the Holders (or, in the
case of Book-Entry Certificates, subject to Section 5.06, by the Depositary or
the
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Certificate Owners) of such Certificates, and each of the Master Servicers
and Special Servicers shall be entitled to rely on such information provided by
the Trustee with respect to any obligation or right hereunder that such Master
Servicer or Special Servicer, as the case may be, may have to deliver
information or otherwise communicate with the Controlling Class Representative
or any of the Holders (or, if applicable, Certificate Owners) of the Controlling
Class. In addition to the foregoing, within two Business Days of the selection,
resignation or removal of a Controlling Class Representative, the Trustee shall
notify the other parties to this Agreement of such event.
(c) A Controlling Class Representative may at any time resign as such
by giving written notice to the Trustee, each Special Servicer, each Master
Servicer and each Holder (or, in the case of Book-Entry Certificates,
Certificate Owner) of the Controlling Class. The Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of Certificates representing
more than 50% of the Class Principal Balance of the Controlling Class shall be
entitled to remove any existing Controlling Class Representative by giving
written notice to the Trustee, each Special Servicer, each Master Servicer and
such existing Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected pursuant
to this Section 3.23, each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Controlling Class, by
aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Trustee and each other
party to this Agreement and each Holder (or, in the case of Book-Entry
Certificates, Certificate Owner) of the Controlling Class, in writing, of the
resignation or removal of such Controlling Class Representative.
(e) Any and all expenses of the Controlling Class Representative shall
be borne by the Holders (or, if applicable, the Certificate Owners) of
Certificates of the Controlling Class, pro rata according to their respective
Percentage Interests in such Class, and not by the Trust. Notwithstanding the
foregoing, if a claim is made against the Controlling Class Representative by a
Borrower with respect to this Agreement or any particular Mortgage Loan, the
Controlling Class Representative shall immediately notify the Trustee, the
applicable Master Servicer and the applicable Special Servicer, whereupon (if
such Special Servicer, such Master Servicer, the Trustee or the Trust are also
named parties to the same action and, in the sole judgment of the applicable
Special Servicer, (i) the Controlling Class Representative had acted in good
faith, without negligence or willful misfeasance, with regard to the particular
matter, and (ii) there is no potential for a Special Servicer, a Master
Servicer, the Trustee or the Trust to be an adverse party in such action as
regards the Controlling Class Representative) the applicable Special Servicer on
behalf of the Trust shall, subject to Section 6.03, assume the defense of any
such claim against the Controlling Class Representative. This provision shall
survive the termination of this Agreement and the termination or resignation of
the Controlling Class Representative.
SECTION 3.24. Certain Rights and Powers of the Controlling Class
Representative.
(a) The Controlling Class Representative will be entitled to advise the
applicable Special Servicer with respect to such Special Servicer's taking, or
consenting to the applicable Master Servicer's taking, any of the actions
identified in clauses (i) through (ix) of the following sentence. In addition,
notwithstanding anything in any other Section of this Agreement to the contrary,
but in all cases subject to Section 3.24(b), the applicable Special Servicer
will not be permitted to take, or consent
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to the applicable Master Servicer's taking, any of the actions identified in
clauses (i) through (ix) of this sentence, unless and until the applicable
Special Servicer has notified the Controlling Class Representative in writing of
the applicable Special Servicer's intent to take or permit the particular action
and the Controlling Class Representative has consented (or has failed to object)
thereto in writing within five Business Days of having been notified thereof in
writing and having been provided with all reasonably requested information with
respect thereto:
(i) any foreclosure upon or comparable conversion (which may include
acquisitions of an REO Property) of the ownership of the property or
properties securing any Specially Serviced Mortgage Loan as comes into and
continues in default;
(ii) any modification, amendment or waiver of a monetary term
(including a change in the timing of payments but excluding the waiver of
Default Charges) or any material non-monetary term (excluding the waiver of
any "due-on-sale" or "due-on-encumbrance" clause, which clauses are
addressed in clause (ix) below) of a Mortgage Loan;
(iii) any proposed sale of an REO Property (other than in connection
with the termination of the Trust Fund) for less than the Purchase Price;
(iv) any acceptance of a discounted payoff with respect to a Specially
Serviced Mortgage Loan;
(v) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(vi) any release of collateral for a Mortgage Loan (other than in
accordance with the terms of, or upon satisfaction of, such Mortgage Loan);
(vii) any acceptance of substitute or additional collateral for a
Specially Serviced Mortgage Loan (other than in accordance with the terms
of such Mortgage Loan);
(viii) any releases of Earn-Out Reserve Funds or related Letters of
Credit with respect to a Mortgaged Property; and
(ix) any waiver of a "due-on-sale" or "due-on-encumbrance" clause in
any Mortgage Loan (other than the waiver of a "due-on-encumbrance" clause
under a Co-op Mortgage Loan as to which the NCB Subordinate Debt Conditions
are satisfied);
provided that, in the event that the applicable Special Servicer determines that
immediate action is necessary to protect the interests of the Certificateholders
(as a collective whole), the applicable Special Servicer may take any such
action without waiting for the Controlling Class Representative's response.
In addition, subject to Section 3.24(b), the Controlling Class
Representative may direct each Special Servicer to take, or to refrain from
taking, such actions as the Controlling Class Representative may deem advisable
or as to which provision is otherwise made herein. Upon reasonable request, each
Special Servicer shall provide the Controlling Class Representative with any
information in such Special Servicer's possession with respect to such matters,
including, without limitation, its reasons for determining to take a proposed
action; provided that such information shall also be provided, in a written
format, to the Trustee, who shall make it available for review pursuant to
Section 8.12(b).
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The applicable Master Servicer or the applicable Special Servicer, as
applicable, shall notify the Controlling Class Representative of any release or
substitution of collateral for a Mortgage Loan even if such release or
substitution is in accordance with such Mortgage Loan.
(b) Notwithstanding anything herein to the contrary, (i) no Special
Servicer shall have any right or obligation to consult with or to seek and/or
obtain consent or approval from any Controlling Class Representative prior to
acting, and the provisions of this Agreement requiring such shall be of no
effect, during the period prior to the initial selection of a Controlling Class
Representative and, if any Controlling Class Representative resigns or is
removed, during the period following such resignation or removal until a
replacement is selected, and (ii) no advice, direction or objection from or by
the Controlling Class Representative, as contemplated by Section 3.24(a), may
(and each Special Servicer shall ignore and act without regard to any such
advice, direction or objection that such Special Servicer has determined, in its
reasonable, good faith judgment, would) (A) require or cause such Special
Servicer to violate applicable law, the terms of any Mortgage Loan or any other
Section of this Agreement, including such Special Servicer's obligation to act
in accordance with the Servicing Standard, (B) result in an Adverse REMIC Event
with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to
either Grantor Trust Pool, (C) expose the Trust, the Depositor, a Master
Servicer, a Special Servicer, any Fiscal Agent, the Trustee or any of their
respective Affiliates, members, managers, officers, directors, employees or
agents, to any material claim, suit or liability, or (D) expand the scope of a
Master Servicer's or Special Servicer's responsibilities under this Agreement.
(c) Each Certificateholder acknowledges and agrees, by its acceptance
of its Certificates, that: (i) the Controlling Class Representative may have
special relationships and interests that conflict with those of Holders of one
or more Classes of Certificates; (ii) the Controlling Class Representative may
act solely in the interests of the Holders of the Controlling Class; (iii) the
Controlling Class Representative does not have any duties to the Holders of any
Class of Certificates other than the Controlling Class; (iv) the Controlling
Class Representative may 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; and (v) 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 or any director,
officer, employee, agent or principal thereof for having so acted.
SECTION 3.25. Replacement of Special Servicers.
(a) Subject to Section 3.25(b), the Controlling Class Representative
may, upon not less than ten days' prior written notice to the respective parties
hereto, remove any existing Special Servicer hereunder (with or without cause)
and appoint a successor to such Special Servicer; provided that, if any such
removal is made without cause, then the costs of transferring the special
servicing responsibilities of the removed Special Servicer to a successor
thereto will be paid by the Certificateholders of the Controlling Class. In
addition, if a Special Servicer is terminated pursuant to Section 7.01, then,
also subject to Section 3.25(b), the Controlling Class Representative shall be
entitled to replace such terminated Special Servicer for 45 days following such
termination.
(b) No removal of a Special Servicer and/or appointment of a successor
thereto pursuant to Section 3.25(a) shall be effective until: (i) the Trustee
shall have received (A) written confirmation from each of the Rating Agencies
that such removal and/or appointment will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates, (B) an Acknowledgment of
Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed
by the Person designated
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to be the successor to such terminated Special Servicer, and (C) an Opinion of
Counsel (which shall not be an expense of the Trustee or the Trust)
substantially to the effect that (1) the removal of such terminated Special
Servicer and/or the appointment of the Person designated to serve as successor
thereto is in compliance with this Section 3.25, (2) such designated Person is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (3) the Acknowledgment of Proposed Special
Servicer, the form of which is attached hereto as Exhibit I-2, has been duly
authorized, executed and delivered by such designated Person and (4) upon the
execution and delivery of the Acknowledgment of Proposed Special Servicer, such
designated Person shall be bound by the terms of this Agreement and, subject to
customary bankruptcy and insolvency exceptions and customary equity exceptions,
this Agreement shall be enforceable against such designated Person in accordance
with its terms; and (ii) if such terminated Special Servicer has been removed by
the Controlling Class Representative without cause, the Certificateholders of
the Controlling Class have delivered to the Trustee and the terminated Special
Servicer such Certificateholders' joint and several undertaking to pay any
expenses incurred by the Trustee and such terminated Special Servicer in
connection with the transfer of special servicing responsibilities to a
successor Special Servicer.
(c) Any Special Servicer terminated pursuant to Section 3.25(a) shall
be deemed to have been so terminated simultaneously with the designated
successor's becoming such Special Servicer hereunder; provided that (i) the
terminated Special Servicer shall be entitled to receive, in connection with its
termination, payment out of the Collection Accounts of all of its accrued and
unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a),
and reimbursement from the successor to such terminated Special Servicer of all
outstanding Servicing Advances made by such terminated Special Servicer and all
unpaid Advance Interest accrued on such outstanding Servicing Advances (in which
case the successor to such terminated Special Servicer shall be deemed to have
made such Servicing Advances at the same time that such terminated Special
Servicer had actually made them), (ii) such terminated Special Servicer shall
thereafter be entitled to Workout Fees, as and to the extent expressly permitted
by Section 3.11(c), and (iii) such terminated Special Servicer shall continue to
be entitled to the benefits of Section 6.03, notwithstanding any such
termination; and provided, further, that such terminated Special Servicer shall
continue to be obligated to pay (and entitled to receive) all other amounts
accrued to (or owing by) it under this Agreement on or prior to the effective
date of such termination. Such terminated Special Servicer shall cooperate with
the Trustee and the replacement to such terminated Special Servicer in effecting
the transfer of such terminated Special Servicer's responsibilities and rights
hereunder to its successor, including the transfer within two Business Days of
its termination becoming effective pursuant to Section 3.25, to the replacement
to such terminated Special Servicer for administration by it of all cash amounts
that at the time are or should have been credited by such terminated Special
Servicer to its REO Account or to any Servicing Account or Reserve Account or
should have been delivered to the Master Servicers or that are thereafter
received by or on behalf of such terminated Special Servicer with respect to any
Mortgage Loan or REO Property.
SECTION 3.26. Application of Default Charges.
(a) Any and all Default Charges that are actually received by or on
behalf of the Trust with respect to any Mortgage Loan or REO Mortgage Loan,
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 any Fiscal Agent, the Trustee, either Master Servicer
or either Special Servicer, in that order, any Advance Interest due and
owing to such party on outstanding
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Advances made thereby with respect to such Mortgage Loan or REO Mortgage
Loan, as the case may be;
second, to reimburse the Trust for any Advance Interest paid to any
Fiscal Agent, the Trustee, either Master Servicer or either Special
Servicer since the Closing Date with respect to such Mortgage Loan or REO
Mortgage Loan, as the case may be, which interest was paid from a source
other than Default Charges on such Mortgage Loan or REO Mortgage Loan, as
the case may be;
third, to pay any other outstanding expense incurred with respect to
such Mortgage Loan or REO Mortgage Loan, as the case may be, that, if not
paid from Default Charges collected on such Mortgage Loan or REO Mortgage
Loan, as the case may be, will likely become an Additional Trust Fund
Expense;
fourth, to reimburse the Trust for any other Additional Trust Fund
Expenses incurred since the Closing Date with respect to such Mortgage Loan
or REO Mortgage Loan, as the case may be, and previously paid from a source
other than Default Charges on such Mortgage Loan or REO Mortgage Loan, as
the case may be; and
fifth, to pay any remaining portion of such Default Charges as
Additional Master Servicing Compensation to the applicable Master Servicer,
if such Default Charges accrued with respect to a Performing Mortgage Loan,
and otherwise to pay any remaining portion of such Default Charges as
Additional Special Servicing Compensation to the Special Servicer;
(b) Default Charges applied to reimburse the Trust pursuant to either
clause second or clause fourth of Section 3.26(a) are intended to be available
for distribution on the Certificates pursuant to Section 4.01(a) and Section
4.01(b), subject to application pursuant to Section 3.05(a) or 3.05(b) for any
items payable out of general collections on the Mortgage Pool. Default Charges
applied to reimburse the Trust pursuant to either clause second or clause fourth
of Section 3.26(a) shall be deemed to offset payments of Advance Interest or
other Additional Trust Fund Expenses (depending on which clause is applicable)
in the chronological order in which they were made or incurred with respect to
the subject Mortgage Loan or REO Mortgage Loan (whereupon such Advance Interest
or other Additional Trust Fund Expenses (depending on which clause is
applicable) shall thereafter be deemed to have been paid out of Default
Charges).
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Trustee shall apply amounts on
deposit in the Distribution Account for the following purposes and in the
following order of priority, in each case to the extent of the remaining portion
of the Standard Available Distribution Amount for such Distribution Date:
first, to make distributions of interest to the Holders of the Class
A-1 Certificates, the Holders of the Class A-2 Certificates, the Holders of
the Class A-3 Certificates, the Holders of the Class A-4 Certificates, the
Holders of the Class A-CP Certificates, the Holders of the Class A-X
Certificates and the Holders of the Class A-Y Certificates, up to, and pro
rata as among such Classes of Certificateholders based on, their respective
Current Interest Distribution Amounts for such Distribution Date;
second, to make distributions of interest to the Holders of the Class
A-1 Certificates, the Holders of the Class A-2 Certificates, the Holders of
the Class A-3 Certificates, the Holders of the Class A-4 Certificates, the
Holders of the Class A-CP Certificates, the Holders of the Class A-X
Certificates and the Holders of the Class A-Y Certificates, up to, and pro
rata as among such Classes of Certificateholders based on, their respective
Carryforward Interest Distribution Amounts for such Distribution Date;
third, to make distributions of principal to the Holders of the Class
A-1 Certificates, the Holders of the Class A-2 Certificates, the Holders of
the Class A-3 Certificates and/or the Holders of the Class A-4 Certificates
as follows--
(i) prior to the occurrence of the Final Distribution Date or any
Senior Principal Distribution Cross-Over Date, sequentially in the
following order:
(A) for so long as the Class A-1 Certificates are
outstanding, to the Holders of the Class A-1 Certificates and the
Holders of the Class A-2 Certificates, up to, and pro rata as
between such Classes of Certificateholders based on, the
respective following amounts--
(1) in the case of the Class A-1 Certificates, the
Principal Distribution Amount with respect to
such Class of Certificates for the subject
Distribution Date, and
(2) in the case of the Class A-2 Certificates, the
lesser of (x) the Principal Distribution Amount
with respect to such Class of Certificates for
the subject Distribution Date and (y) the excess,
if any, of the Class Principal Balance of the
Class A-2 Certificates outstanding immediately
prior to the subject Distribution Date, over the
Cross-Over Class Principal Balance for the Class
A-2 Certificates;
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(B) for so long as the Class A-2 and Class A-3 Certificates
are outstanding after the Class A-1 Certificates have been
retired, to the Holders of the Class A-2 Certificates and the
Holders of the Class A-3 Certificates, up to, and pro rata as
between such Classes of Certificateholders based on, the
respective following amounts--
(1) in the case of the Class A-2 Certificates, the
Principal Distribution Amount with respect to
such Class of Certificates for the subject
Distribution Date (reduced by any distributions
of principal made with respect to the Class A-2
Certificates on the subject Distribution Date
pursuant to clause (i)(A) above), and
-------------
(2) in the case of the Class A-3 Certificates, the
Principal Distribution Amount with respect to
such Class of Certificates for the subject
Distribution Date; and
(C) for so long as the Class A-4 Certificates are
outstanding after the Class A-1, Class A-2 and Class A-3
Certificates have been retired, to the Holders of the Class A-4
Certificates, up to their Principal Distribution Amount for such
Distribution Date;
(ii) on and after the occurrence of any Senior Principal
Distribution Cross-Over Date, and in any event on the Final
Distribution Date, to the Holders of the Class A-1 Certificates, the
Holders of the Class A-2 Certificates, the Holders of the Class A-3
Certificates and the Holders of the Class A-4 Certificates, up to, and
pro rata as among such Classes of Certificateholders based on, their
respective Principal Distribution Amounts for such Distribution Date;
and
fourth, to reimburse the Holders of the Class A-1 Certificates, the
Holders of the Class A-2 Certificates, the Holders of the Class A-3
Certificates and the Holders of the Class A-4 Certificates for any Unfunded
Principal Balance Reductions previously incurred thereby, up to, and pro
rata as among such Classes of Certificateholders based on, their respective
Loss Reimbursement Amounts for such Distribution Date.
Any distributions of interest made with respect to the Class A-CP
Certificates or the Class A-X Certificates on any Distribution Date pursuant to
clause first of the prior paragraph of this Section 4.01(a) shall be deemed
allocated among the respective Components of such Class of Certificates on a pro
rata basis in accordance with the respective Current Interest Distribution
Amounts of such Components for such Distribution Date. Any distributions of
interest made with respect to the Class A-CP Certificates or the Class A-X
Certificates on any Distribution Date pursuant to clause second of the prior
paragraph of this Section 4.01(a) shall be deemed allocated among the respective
Components of such Class of Certificates on a pro rata basis in accordance with
the respective Carryforward Interest Distribution Amounts of such Components for
such Distribution Date.
(b) On each Distribution Date, following the distributions on the
Senior Certificates to be made on such date pursuant to Section 4.01(a), the
Trustee shall apply any amounts remaining on deposit in the Distribution Account
to make distributions to the Holders of the respective Classes of the
Subordinate Principal Balance Certificates, in the following order and, in the
case of each such Class of
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Subordinate Principal Balance Certificates, up to the lesser of (i) the total of
the Current Interest Distribution Amount, the Carryforward Interest Distribution
Amount, the Principal Distribution Amount and the Loss Reimbursement Amount with
respect to such Class of Certificates for such Distribution Date and (ii) the
remaining portion of the Standard Available Distribution Amount for such
Distribution Date: first, to the Holders of the Class B Certificates; second, to
the Holders of the Class C Certificates; third, to the Holders of the Class D
Certificates; fourth, to the Holders of the Class E Certificates; fifth, to the
Holders of the F Certificates; sixth, to the Holders of the Class G
Certificates; seventh, to the Holders of the Class H Certificates; eighth, to
the Holders of the Class J Certificates; ninth, to the Holders of the Class K
Certificates; tenth, to the Holders of the Class L Certificates; eleventh, to
the Holders of the Class M Certificates; twelfth, to the Holders of the Class N
Certificates; thirteenth, to the Holders of the Class O Certificates; and,
fourteenth, to the Holders of the Class P Certificates. Amounts distributable to
the Holders of any Class of Subordinate Principal Balance Certificates on any
Distribution Date pursuant to this Section 4.01(b) shall be applied:
first, to make distributions of interest to the Holders of such Class
of Certificates, up to their Current Interest Distribution Amount for such
Distribution Date;
second, to make distributions of interest to the Holders of such Class
of Certificates, up to their Carryforward Interest Distribution Amount for
such Distribution Date;
third, to make distributions of principal to the Holders of such Class
of Certificates, up to their Principal Distribution Amount for such
Distribution Date; and
fourth, to reimburse the Holders of such Class of Certificates for any
Unfunded Principal Balance Reductions previously incurred thereby, up to
their Loss Reimbursement Amount for such Distribution Date.
(c) On each Distribution Date, following the distributions on the REMIC
III Regular Interest Certificates to be made on such date pursuant to Sections
4.01(a) and 4.01(b), the Trustee shall withdraw any portion of the Standard
Available Distribution Amount for such Distribution Date then remaining on
deposit in the Distribution Account and shall distribute the full amount of such
remaining funds to the Holders of the Class R Certificates.
(d) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account and apply, for the following purposes and in the following
order of priority, any amount then on deposit in the Distribution Account that
represents a Prepayment Premium or Yield Maintenance Charge collected with
respect to any Mortgage Loan or REO Mortgage Loan during the related Collection
Period:
first, to make distributions of additional interest to the Holders of
the respective Classes of the Yield Maintenance Certificates, up to, and
pro rata as among such Classes of Certificateholders based on, their
respective applicable Additional Yield Amounts; and
second, to make distributions of additional interest to the Holders of
the Class A-X Certificates, up to the remaining portion of such Prepayment
Premium or Yield Maintenance Charge, as the case may be.
For purposes of determining the portion of any Prepayment Premium that
is distributable to the Holders of any Class of Yield Maintenance Certificates
on any Distribution Date, the applicable
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"Additional Yield Amount" shall be an amount equal to the product of: (i) 25% of
the amount of such Prepayment Premium that is so distributable; multiplied by
(ii) a fraction (not greater than one or less than zero), the numerator of which
is equal to the Principal Distribution Amount with respect to such Class of
Yield Maintenance Certificates for such Distribution Date, and the denominator
of which is equal to the Total Principal Distribution Amount for such
Distribution Date.
For purposes of determining the portion of any Yield Maintenance Charge
that is distributable to the Holders of any Class of Yield Maintenance
Certificates on any Distribution Date, the applicable "Additional Yield Amount"
shall be an amount equal to the product of: (i) the amount of such Yield
Maintenance Charge that is so distributable; multiplied by (ii) a fraction (not
greater than one or less than zero), the numerator of which is equal to the
excess, if any, of (A) the Pass-Through Rate applicable to such Class of Yield
Maintenance Certificates for the corresponding Interest Accrual Period, over (B)
the relevant Discount Rate, and the denominator of which is equal to the excess,
if any, of (X) the Mortgage Rate for the Mortgage Loan in respect of which such
Yield Maintenance Charge was received, over (Y) the relevant Discount Rate;
multiplied by (iii) a fraction (not greater than one or less than zero), the
numerator of which is equal to the Principal Distribution Amount with respect to
such Class of Yield Maintenance Certificates for such Distribution Date, and the
denominator of which is equal to the Total Principal Distribution Amount for
such Distribution Date.
For purposes of determining the portion of any Yield Maintenance Charge
that is distributable to the Holders of any Class of Yield Maintenance
Certificates on any Distribution Date, the relevant "Discount Rate" shall be the
same discount rate (exclusive of any applicable spread) used to calculate such
Yield Maintenance Charge, with such discount rate (exclusive of any applicable
spread) converted to a monthly equivalent rate (regardless of whether any
similar conversion occurred at the loan level). The relevant Discount Rate shall
be provided promptly by the applicable Master Servicer to the Trustee.
Any distributions of additional interest, in the form of Prepayment
Premiums and Yield Maintenance Charges, made with respect to the Class A-X
Certificates on any Distribution Date pursuant to this Section 4.01(d) shall be
allocated among the respective Components of such Class of Certificates on a pro
rata basis in accordance with the relative amounts by which their respective
Component Notional Amounts declined as a result of deemed distributions of
principal on the REMIC II Regular Interests on such Distribution Date pursuant
to Section 4.01(k) (or, if there were no such declines, then on a pro rata basis
in accordance with the relative sizes of their respective Component Notional
Amounts).
(e) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account any amounts then on deposit in the Class V Sub-Account of
the Distribution Account that represent Post-ARD Additional Interest collected
in respect of the ARD Mortgage Loans during the related Collection Period and
shall distribute such amounts to the Holders of the Class V Certificates.
(f) All distributions made with respect to each Class of Certificates
on each Distribution Date shall be allocated pro rata among the Holders of such
Certificates based on their respective Percentage Interests. Except as otherwise
provided below, all such distributions made with respect to each Class of
Certificates on each Distribution Date shall be made to the Holders of such
Certificates of record at the close of business on the related Record Date and,
in the case of each such Holder, shall be made by wire transfer of immediately
available funds to the account thereof at a bank or other entity having
appropriate facilities therefor, if such Holder shall have provided the Trustee
with
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wiring instructions no later than the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
Distribution Dates), and otherwise shall be made by check mailed to the address
of such Holder 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 portion of a
previously incurred Unfunded Principal Balance Reduction allocable to such
Certificate) will be made in 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. Any distribution that is to be made with respect to a Principal
Balance Certificate in reimbursement of any portion of an Unfunded Principal
Balance Reduction allocable to such Certificate, 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 Holder that surrendered
such Certificate at the last address set forth for such Holder in the
Certificate Register or at any other address of which the Trustee was
subsequently notified in writing.
(g) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depositary, as Holder thereof, and the Depositary shall be
responsible for crediting the amount of such distribution to the accounts of its
Depositary Participants in accordance with its normal procedures. Each
Depositary 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 such indirect
participating brokerage firm shall be responsible for disbursing funds to the
related Certificate Owners that it represents. None of the parties hereto shall
have any responsibility therefor except as otherwise provided by this Agreement
or applicable law. The Trustee and the Depositor shall perform their respective
obligations under the Letters of Representations Among the Depositor, the
Trustee and the Initial Depositary, relating to the Class A-CP, Class A-X, Class
A-Y, 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 and Class L Certificates,
copies of which Letters of Representations are attached hereto as Exhibit C.
(h) The rights of the Certificateholders to receive distributions from
the proceeds of the Trust Fund in respect of their Certificates, and all rights
and interests of the Certificateholders in and to such distributions, shall be
as set forth in this Agreement. Neither the Holders of any Class of Certificates
nor any party hereto shall in any way be responsible or liable to the Holders of
any other Class of Certificates in respect of amounts previously distributed on
the Certificates in accordance with this Agreement.
(i) Except as otherwise provided in Section 9.01, whenever the Trustee
expects that the final distribution with respect to any Class of Certificates
will be made on the next Distribution Date (such final distribution to be
determined, in the case of a Class of Principal Balance Certificates, without
regard to any possible future reimbursement of any portion of a previously
incurred Unfunded Principal Balance Reduction in respect of such Class), the
Trustee shall, as promptly as possible (and, in any event, no later than three
Business Days) after the related Determination Date, mail to each Holder of such
Class of Certificates of record 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
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(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
credited to, and shall be held uninvested in trust in, 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(i) shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, then the Trustee, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust pursuant to this paragraph. If any Certificates as to which notice
has been given pursuant to this Section 4.01(i), shall not have been surrendered
for cancellation by the second anniversary of the delivery of the second notice,
then, subject to applicable escheat laws, the Trustee shall distribute to the
Class R Certificateholders all unclaimed funds.
(j) 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 payments or advances of interest or original issue
discount to any Certificateholder pursuant to federal withholding requirements,
the Trustee shall indicate the amount withheld to such Certificateholder.
(k) All distributions of current accrued interest made with respect to
the Class A-CP Certificates or the Class A-X Certificates on each Distribution
Date pursuant to clause first of Section 4.01(a), and allocable to any
particular Component of such Class of Certificates, shall be deemed to have
first been distributed from REMIC II to REMIC III on such Distribution Date as
current accrued interest with respect to such Component's Corresponding REMIC II
Regular Interest as part of such REMIC II Regular Interest's Current Interest
Distribution Amount for such Distribution Date. All distributions of past due
interest made with respect to the Class A-CP Certificates or the Class A-X
Certificates on each Distribution Date pursuant to clause second of Section
4.01(a), and allocable to any particular Component of such Class of
Certificates, shall be deemed to have first been distributed from REMIC II to
REMIC III on such Distribution Date as past due interest with respect to such
Component's Corresponding REMIC II Regular Interest as part of such REMIC II
Regular Interest's Carryforward Interest Distribution Amount for such
Distribution Date. In addition, all distributions of additional interest (in the
form of Prepayment Premiums and Yield Maintenance Charges) made with respect to
the Class A-CP Certificates or the Class A-X Certificates on each Distribution
Date pursuant to Section 4.01(d), and allocable to any particular Component of
such Class of Certificates shall be deemed to have first been distributed from
REMIC II to REMIC III on such Distribution Date as additional interest (in the
form of Prepayment Premiums and Yield Maintenance Charges) with respect to such
Component's Corresponding REMIC II Regular Interest. All distributions of
current accrued interest made with respect to the Class A-Y Certificates on each
Distribution Date pursuant to clause
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first of Section 4.01(a), shall be deemed to have first been distributed from
REMIC II to REMIC III on such Distribution Date as current accrued interest with
respect to REMIC II Regular Interest A-Y as part of such REMIC II Regular
Interest's Current Interest Distribution Amount for such Distribution Date. All
distributions of past due interest made with respect to the Class A-Y
Certificates on each Distribution Date pursuant to clause second of Section
4.01(a), shall be deemed to have first been distributed from REMIC II to REMIC
III on such Distribution Date as past due interest with respect to REMIC II
Regular Interest A-Y as part of such REMIC II Regular Interest's Carryforward
Interest Distribution Amount for such Distribution Date.
All distributions made with respect to each Class of Principal Balance
Certificates on each Distribution Date pursuant to Section 4.01(a), Section
4.01(b) or Section 4.01(d) shall be deemed to have first been distributed from
REMIC II to REMIC III on such Distribution Date with respect to the
Corresponding REMIC II Regular Interest(s) for such Class of Certificates. In
each case, if such distribution on any such Class of Principal Balance
Certificates was a distribution of current accrued interest (as part of the
related Current Interest Distribution Amount for the subject Distribution Date),
of past due interest (as part of the related Carryforward Interest Distribution
Amount for the subject Distribution Date), of principal, of additional interest
(in the form of Prepayment Premiums and Yield Maintenance Charges) or in
reimbursement of any related Unfunded Principal Balance Reductions with respect
to such Class of Certificates, then the corresponding distribution deemed to be
made on the Corresponding REMIC II Regular Interest(s) for such Class of
Certificates pursuant to the preceding sentence shall be deemed also to be a
distribution of current accrued interest (as part of the Current Interest
Distribution Amount(s) for such REMIC II Regular Interest(s) for the subject
Distribution Date), of past due interest (as part of the Carryforward Interest
Distribution Amount(s) for such REMIC II Regular Interest(s) for the subject
Distribution Date), of principal, of additional interest (in the form of
Prepayment Premiums and Yield Maintenance Charges) or in reimbursement of any
related Unfunded Principal Balance Reductions with respect to such REMIC II
Regular Interest(s).
Each Class of Principal Balance Certificates shall have one
Corresponding REMIC II Regular Interest, except for the Class A-4 Certificates,
which shall have two Corresponding REMIC II Regular Interests. Deemed
distributions of current accrued interest made on REMIC II Regular Interest
A-4-1 and REMIC II Regular Interest A-4-2 shall be allocated between those two
REMIC II Regular Interests on a pro rata basis in accordance with their
respective Current Interest Distribution Amounts for the subject Distribution
Date. Deemed distributions of past due interest made on REMIC II Regular
Interest A-4-1 and REMIC II Regular Interest A-4-2 shall be allocated between
those two REMIC II Regular Interests on a pro rata basis in accordance with
their respective Carryforward Interest Distribution Amounts for the subject
Distribution Date. Deemed distributions of principal made on REMIC II Regular
Interest A-4-1 and REMIC II Regular Interest A-4-2 shall be allocated first to
REMIC II Regular Interest A-4-1, until its Uncertificated Principal Balance is
reduced to zero, and then to REMIC II Regular Interest A-4-2. Deemed
distributions of additional interest (in the form of Prepayment Premiums and
Yield Maintenance Charges) made on REMIC II Regular Interest A-4-1 and REMIC II
Regular Interest A-4-2 shall be allocated entirely to REMIC II Regular Interest
A-4-1, for so long as its Uncertificated Principal Balance is greater than zero,
and then to REMIC II Regular Interest A-4-2. Deemed distributions in
reimbursement of Unfunded Principal Balance Reductions made on REMIC II Regular
Interest A-4-1 and REMIC II Regular Interest A-4-2 shall be allocated between
those two REMIC II Regular Interests on a pro rata basis in accordance with
their respective Loss Reimbursement Amounts for the subject Distribution Date.
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The actual distributions made by the Trustee on each Distribution Date
with respect to the Certificates pursuant to Section 4.01(a), Section 4.01(b),
Section 4.01(c) (to the extent such distributions relate to the REMIC III
Residual Interest) or Section 4.01(d), as applicable, shall be deemed to have
been so made from the amounts deemed distributed with respect to the REMIC II
Regular Interests on such Distribution Date pursuant to this Section 4.01(k).
Notwithstanding the deemed distributions on the REMIC II Regular Interests
described in this Section 4.01(k), actual distributions of funds from the
Distribution Account shall be made only in accordance with Section 4.01(a),
Section 4.01(b), Section 4.01(c), Section 4.01(d) or Section 4.01(e), as
applicable.
(l) On each Distribution Date, immediately prior to making any actual
distributions on the Certificates pursuant to Section 4.01(a), Section 4.01(b)
or Section 4.01(c), or the corresponding deemed distributions on the REMIC II
Regular Interests pursuant to Section 4.01(k), the Trustee shall be deemed to
have made out of the Standard Available Distribution Amount for such
Distribution Date, the following distributions to REMIC II in the following
order of priority, in each case to the extent of the remaining portion of such
Standard Available Distribution Amount:
first, distributions of current accrued interest with respect to all of
the REMIC I Regular Interests, up to, and pro rata as among the REMIC I
Regular Interests based on, their respective Current Interest Distribution
Amounts for such Distribution Date;
second, distributions of past due interest with respect to all of the
REMIC I Regular Interests, up to, and pro rata as among the REMIC I Regular
Interests based on, their respective Carryforward Interest Distribution
Amounts for such Distribution Date;
third, distributions of principal with respect to all of the REMIC I
Regular Interests, up to, and pro rata as among the REMIC I Regular
Interests based on, their respective Principal Distribution Amounts for
such Distribution Date; and
fourth, reimbursements of Unfunded Principal Balance Reductions with
respect to all of the REMIC I Regular Interests (including any REMIC I
Regular Interests whose Uncertificated Principal Balances have previously
been reduced to zero), up to, and pro rata as among the REMIC I Regular
Interests based on, their respective Loss Reimbursement Amounts for such
Distribution Date.
In addition, on each Distribution Date, immediately prior to making any
actual distributions on the REMIC III Regular Interest Certificates pursuant to
Section 4.01(d), or the corresponding deemed distributions on the REMIC II
Regular Interests pursuant to Section 4.01(k), the Trustee shall be deemed to
have distributed to REMIC II each Prepayment Premium and Yield Maintenance
Charge then on deposit in the Distribution Account that was received by or on
behalf of the Trust with respect to any Mortgage Loan or REO Mortgage Loan
during or prior to the related Collection Period, such distribution to be deemed
made with respect to the REMIC I Regular Interest that relates to such Mortgage
Loan or REO Mortgage Loan, as the case may be.
The distributions deemed made by the Trustee on each Distribution Date
with respect to the REMIC II Regular Interests pursuant to Section 4.01(k), as
well as the distributions actually made by the Trustee on each Distribution Date
with respect to the Certificates pursuant to Section 4.01(a), Section 4.01(b),
Section 4.01(c) (to the extent such distributions relate to the REMIC II
Residual Interest or the REMIC III Residual Interest) or Section 4.01(d), shall
be deemed to have been so made from the amounts deemed distributed with respect
to the REMIC I Regular Interests on such Distribution Date
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pursuant to this Section 4.01(l). Notwithstanding the deemed distributions on
the REMIC I Regular Interests described in this Section 4.01(l), actual
distributions of funds from the Distribution Account shall be made only in
accordance with Section 4.01(a), Section 4.01(b), Section 4.01(c), Section
4.01(d) or Section 4.01(e), as applicable.
SECTION 4.02. Statements to Certificateholders; Certain Other Reports.
(a) Based solely on information provided to the Trustee by the Master
Servicers and the Special Servicers pursuant to Sections 3.12, 4.02(b) and
4.02(c), the Trustee shall prepare (or cause to be prepared) and, on each
Distribution Date, provide or make available electronically (or, upon request,
by first class mail) to the Depositor, the Master Servicers, the Special
Servicers, the Underwriters, the Rating Agencies, the Controlling Class
Representative, each Certificateholder and, to the extent that the Trustee has
in accordance with Section 5.06(b) confirmed the Ownership Interest in the
Certificates held thereby, each Certificate Owner a statement substantially in
the form of, and containing the information set forth in, Exhibit E-1 hereto,
including the CMSA Bond Level File and the CMSA Collateral Summary File (the
"Trustee Report"), detailing the distributions on such Distribution Date and the
performance, both in the aggregate and individually to the extent available, of
the Mortgage Loans and the Mortgaged Properties; provided that the Trustee need
not deliver to the Depositor, the Master Servicers, the Special Servicers, the
Underwriters, the Rating Agencies or the Controlling Class Representative any
Trustee Report that has been made available to such Person via the Trustee's
Internet Website as provided below; and provided, further, that the Trustee has
no affirmative obligation to discover the identities of Certificate Owners and
need only react to Persons claiming to be Certificate Owners in accordance with
Section 5.06; and provided, further, that during any period that reports are
required to be filed with the Commission with respect to the Trust pursuant to
Section 15(d) of the Exchange Act, each recipient of the Trustee Report shall be
deemed to have agreed to keep confidential the information therein until such
Trustee Report is filed with the Commission, and the Trustee Report shall bear a
legend to such effect.
On each Distribution Date, the Trustee shall provide or make available
electronically (or, upon request, by first class mail) to the Depositor, the
Underwriters, the Master Servicers, the Special Servicers, the Rating Agencies,
the Controlling Class Representative, each Certificateholder and each
Certificate Owner to which a Trustee Report was forwarded or otherwise made
available on such Distribution Date, at the same time that the Trustee Report is
delivered or otherwise made available thereto, each file and report comprising
the CMSA Investor Reporting Package (excluding the CMSA Loan Setup File), to the
extent received by the Trustee since the prior Distribution Date (or, in the
case of the initial Distribution Date, since the Closing Date); provided that
during any period that reports are required to be filed with the Commission with
respect to the Trust pursuant to Section 15(d) of the Exchange Act, each
recipient of such files and reports shall be deemed to have agreed to keep
confidential the information in any such file or report until such particular
file or report is filed with the Commission, and each such file and report shall
bear a legend to such effect.
The Trustee shall have no obligation to provide the
information or reports described in this Section 4.02(a) until it has received
the requisite information or reports from the Master Servicers provided for
herein, and the Trustee shall not be in default hereunder due to a delay in
providing the Certificateholder Reports caused by a Master Servicer's or Special
Servicer's failure to timely deliver any information or reports hereunder. None
of the Master Servicers, the Special Servicers or the Trustee shall be
responsible for the accuracy or completeness of any information supplied to it
by a Borrower, each other or a third party, and accepted by it in good faith,
that is included in any reports, statements,
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materials or information prepared or provided by either Master Servicer, either
Special Servicer or the Trustee, as applicable. None of the Trustee, the Master
Servicers or the Special Servicers shall have any obligation to verify the
accuracy or completeness of any information provided by a Borrower, a third
party or each other.
The Trustee shall make available each month, to Certificateholders,
Certificate Owners, prospective investors and any other interested party, via
the Trustee's Internet Website, in a downloadable format, the Trustee Report,
Unrestricted Servicer Reports, CMSA Bond Level File, CMSA Collateral Summary
File (which, in each case, if applicable, will identify each Mortgage Loan by
loan number and property name) 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; provided that, unless (i) the
particular report or information has been filed with the Commission pursuant to
Section 8.14 or (ii) the Depositor has notified the Trustee that CSFB
Corporation has sold the Non-Registered Certificates to unaffiliated third
parties, access to such reports and information on the Trustee's Internet
Website will be protected to the same extent, and limited to the same Persons,
as the Restricted Servicer Reports. After the Trustee shall have received the
notice from the Depositor regarding the sale of the Non-Registered Certificates,
as described in the preceding sentence, the Trustee shall make the Trustee
Report available to any interested party via its fax-on-demand service. The
Trustee shall make the Restricted Servicer Reports available each month, via the
Trustee's Internet Website only, to any Certificateholder, Certificate Owner,
any Person identified by any Certificateholder or Certificate Owner as a
prospective transferee of a Certificate or interest therein, any party hereto,
the Controlling Class Representative, the Mortgage Loan Sellers, any
Underwriter, or any Rating Agency, upon receipt by the Trustee from such Person
of a certification substantially in the form of Exhibit K-1 or Exhibit K-2, as
applicable; provided, however, that the Trustee shall provide access to such
reports to each party hereto, the Controlling Class Representative, the Mortgage
Loan Sellers, each Underwriter and each Rating Agency without requiring such
certification. In addition, the Trustee is hereby directed and authorized to
make available, as a convenience to interested parties (and not in furtherance
of the distribution of the Prospectus or the Prospectus Supplement under the
securities laws), this Agreement, the Prospectus and the Prospectus Supplement
via the Trustee's Internet Website. The Trustee will make no representations or
warranties as to the accuracy or completeness of such documents and will assume
no responsibility therefor.
The Trustee's Internet Website shall be located at
"xxx.xxxxxxx.xxx/xxxx" or at such other address as shall be specified by the
Trustee from time to time in the Trustee Report 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 and fax on
demand servicer, the Trustee may require registration and the acceptance of a
disclaimer. The Trustee shall not be liable for the dissemination of information
in accordance with this Agreement. During any period that reports are required
to be filed with the Commission with respect to the Trust pursuant to Section
15(d) of the Exchange Act, access to information regarding the Trust on the
Trustee's Internet Website will be conditioned to the party attempting to gain
such access electronically agreeing to keep confidential any such information
that has not been filed with the Commission.
The Trustee shall be entitled to rely on but shall not be responsible
for the content or accuracy of any information provided by third parties for
purposes of preparing the Trustee Report and may affix thereto any disclaimer it
deems appropriate in its reasonable discretion (without suggesting liability on
the part of any other party hereto).
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(b) By 12:00 p.m. New York City time on the second Business Day
following each Determination Date, each Master Servicer shall, with respect to
the Mortgage Loans as to which it is the applicable Master Servicer, deliver to
the Trustee the CMSA Loan Periodic Update File, reflecting information as of the
close of business on the last day of the Collection Period, in a mutually
agreeable electronic format. Such CMSA Loan Periodic Update File and any written
information supplemental thereto shall include such information with respect to
the subject Mortgage Loans that is reasonably required by the Trustee for
purposes of making the calculations and preparing the reports for which the
Trustee is responsible pursuant to Section 4.01, this Section 4.02, Section 4.04
or any other section of this Agreement, as set forth in reasonable written
specifications or guidelines issued by the Trustee from time to time. Such
information may be delivered by each Master Servicer to the Trustee by telecopy
or in such electronic or other form as may be reasonably acceptable to the
Trustee and such Master Servicer.
Notwithstanding the foregoing, because the Master Servicers will not
receive the Servicing Files until the Closing Date and will not have sufficient
time to review and analyze such Servicing Files before the initial Distribution
Date, the parties agree that the CMSA Loan Periodic Update File required to be
delivered by each Master Servicer in December 2001 will be based solely upon
information generated from actual collections received by such Master Servicer
and from information the Depositor delivers or causes to be delivered to such
Master Servicer (including but not limited to information prepared by third
party servicers of the subject Mortgage Loans with respect to the period prior
to the Closing Date). Each Special Servicer shall from time to time (and, in any
event, upon request) provide each Master Servicer with such information in its
possession regarding the Specially Serviced Mortgage Loans and REO Properties as
may be necessary for such Master Servicer to prepare each report and any
supplemental information to be provided by such Master Servicer to the Trustee.
Notwithstanding the foregoing, the failure of a Master Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to Section 4.02(a), this Section 4.02(b) or Section 4.02(c) shall not
constitute a breach of Section 4.02(a), this Section 4.02(b) or Section 4.02(c)
to the extent that such Master Servicer or Special Servicer, as the case may be,
so fails because such disclosure, in the reasonable belief of such Master
Servicer or Special Servicer, as the case may be, would violate any applicable
law or any provision of a Mortgage Loan Document prohibiting disclosure of
information with respect to the Mortgage Loans or the Mortgaged Properties,
would constitute a waiver of the attorney-client privilege on behalf of the
Trust or would otherwise materially harm the Trust Fund. A Master Servicer or
Special Servicer may affix to any information provided by it any disclaimer it
deems appropriate in its reasonable discretion (without suggesting liability on
the part of any other party hereto).
(c) Within a reasonable period of time after the end of each calendar
year, the Trustee shall prepare, or cause to be prepared, and mail to each
Person who at any time during the calendar year was a Certificateholder (i) a
statement containing the aggregate information set forth on page 2 of Exhibit
E-1 hereto for such calendar year or applicable portion thereof during which
such person was a Certificateholder and (ii) such other customary information as
the Trustee deems necessary or desirable for Certificateholders to prepare their
federal, state and local income tax returns, including the amount of original
issue discount accrued on the Certificates, if applicable. The obligations of
the Trustee in the immediately preceding sentence shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code. As soon as
practicable following the request of any Certificateholder in writing, the
Trustee shall furnish to
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such Certificateholder such information regarding the Mortgage Loans and the
Mortgaged Properties as such Certificateholder may reasonably request and, as
has been furnished to, or may otherwise be in the possession of, the Trustee.
Each Master Servicer and Special Servicer shall promptly provide to the
Depositor and the Trustee such information regarding the Mortgage Loans and the
Mortgaged Properties as such party may reasonably request and that has been
furnished to, or may otherwise be in the possession of, such Master Servicer or
Special Servicer, as the case may be.
SECTION 4.03. P&I Advances.
(a) On or before 2:00 p.m., New York City time, on each P&I Advance
Date, each Master Servicer shall, subject Section 4.03(c), either (i) remit from
its own funds to the Trustee for deposit into the Distribution Account an amount
equal to the aggregate amount of P&I Advances, if any, to be made by such Master
Servicer in respect of the related Distribution Date, (ii) apply amounts held in
such Master Servicer's Collection Account for future distribution to
Certificateholders in subsequent months in discharge of any such obligation to
make P&I Advances, or (iii) make P&I Advances in the form of any combination of
(i) and (ii) aggregating the total amount of P&I Advances to be made by such
Master Servicer. Any amounts held in either Master Servicer's Collection Account
for future distribution and so used to make P&I Advances shall be appropriately
reflected in such Master Servicer's records and replaced by such Master Servicer
by deposit in its Collection Account prior to the next succeeding Master
Servicer Remittance 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 3:30 p.m., New York City time,
on any P&I Advance Date, either Master Servicer shall not have made any P&I
Advance required to be made by it on such date pursuant to this Section 4.03(a)
(and shall not have delivered to the Trustee the Officer's Certificate and other
documentation related to a determination of nonrecoverability of a P&I Advance
pursuant to Section 4.03(c)) or shall not have remitted any portion of the
Master Servicer Remittance Amount required to be remitted by such Master
Servicer on such date, then the Trustee shall provide notice of such failure to
such Master Servicer by facsimile transmission as soon as possible, but in any
event before 4:30 p.m., New York City time, on such P&I Advance Date. If after
such notice the Trustee does not receive the full amount of such P&I Advances by
6:00 p.m., New York City time, on such P&I Advance Date, then the Trustee shall
(not later than 11:00 a.m., New York City time, on the related Distribution
Date) make, and if the Trustee fails to do so, any Fiscal Agent shall (not later
than 12:00 noon, New York City time, on the related Distribution Date) make, the
portion of such P&I Advances that was required to be, but was not, made or
remitted, as the case may be, by such Master Servicer with respect to the
related Distribution Date.
(b) The aggregate amount of P&I Advances to be made by each Master
Servicer in respect of any Distribution Date, subject to Section 4.03(c) below,
shall equal the aggregate of all Monthly Payments (other than Balloon Payments)
and any Assumed Monthly Payments, in each case net of any related Master
Servicing Fees and 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) as to which such Master Servicer is the
applicable Master Servicer and any successor REO Mortgage Loans 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 Borrower or
otherwise collected by or on behalf of the Trust as of the close of business on
the related Determination Date; provided that, if an Appraisal Reduction Amount
exists with respect to any Required Appraisal Loan, then the interest portion of
any P&I Advance required to be made in respect of such Required Appraisal Loan
for the related Distribution Date shall be reduced (it being herein acknowledged
that there shall be no reduction
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in the principal portion of such P&I Advance) to equal the product of (i) the
amount of the interest portion of such P&I Advance that would otherwise be
required to be made in respect of such Required Appraisal Loan for such
Distribution Date without regard to this proviso, multiplied by (ii) a fraction,
expressed as a percentage, the numerator of which shall equal the Stated
Principal Balance of such Required Appraisal Loan immediately prior to such
Distribution Date, net of the related Appraisal Reduction Amount, and the
denominator of which shall equal the Stated Principal Balance of such Required
Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. The determination by a Master Servicer
(or, if applicable, the Trustee or any Fiscal Agent) that it has made a
Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would
constitute a Nonrecoverable P&I Advance, shall be made by such Person in its
reasonable judgment and shall be evidenced by an Officer's Certificate delivered
to the Depositor, to the applicable Special Servicer, to the Controlling Class
Representative and, if made by a Master Servicer, to the Trustee (on or before
the related P&I Advance Date in the case of a proposed P&I Advance), setting
forth the basis for such determination, accompanied by a copy of an Appraisal of
the related Mortgaged Property or REO Property performed within the 12 months
preceding such determination by a Qualified Appraiser, and further accompanied
by any other information, including engineers' reports, environmental surveys or
similar reports, that the Person making such determination may have obtained and
that support such determination. The Trustee and any Fiscal Agent shall be
entitled to conclusively rely on any nonrecoverability determination made by a
Master Servicer with respect to a particular P&I Advance. Each Special Servicer
shall promptly furnish any party required to make P&I Advances hereunder with
any information in its possession regarding the Specially Serviced Mortgage
Loans and REO Properties as such party required to make P&I Advances may
reasonably request.
(d) The Master Servicers, the Trustee and any Fiscal Agent shall each
be entitled to receive interest at the Reimbursement Rate in effect from time to
time, accrued on the amount of each P&I Advance made thereby (with its own
funds), for so long as such P&I Advance is outstanding (or, if such P&I Advance
was made prior to the end of any grace period applicable to the subject
delinquent Monthly Payment, for so long as such P&I Advance is outstanding
following the end of such grace period). Such interest with respect to any P&I
Advance shall be payable: (i) first, in accordance with Sections 3.05 and 3.26,
out of any Default Charges subsequently collected on the particular Mortgage
Loan or REO Mortgage Loan as to which such P&I Advance relates; and (ii) then,
after such P&I Advance is reimbursed, but only if and to the extent that such
Default Charges are insufficient to cover such Advance Interest, out of general
collections on the Mortgage Loans and REO Properties on deposit in the
applicable Master Servicer's Collection Account. The applicable Master Servicer
shall reimburse itself, the Trustee or any Fiscal Agent, as applicable, for any
outstanding P&I Advance made thereby with respect to any Mortgage Loan or REO
Mortgage Loan as soon as practicable after funds available for such purpose are
deposited in such Master Servicer's Collection Account, and in no event shall
interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to
which the corresponding Late Collection was received by or on behalf of the
Trust as of the related P&I Advance Date. A Master Servicer shall not be
entitled to Advance Interest on any particular P&I Advance made thereby to the
extent a payment is received but is being held by or on behalf of such Master
Servicer in suspense.
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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 Sections 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, until such excess is reduced to zero; provided
that, no such Class of Certificates shall have its Class Principal Balance
reduced unless and until the Class Principal Balance of each other Class of
Certificates, if any, listed in front of it has been reduced to zero; and
provided, further, that if after the foregoing reductions, the amount described
in clause (i) of the preceding sentence still exceeds the amount described in
clause (ii) of such sentence, then the respective Class Principal Balances of
the Class A-1, Class A-2, Class A-3 and Class A-4 Certificates shall be reduced
on a pro rata basis in accordance with the relative sizes of such Class
Principal Balances, until any such remaining excess is reduced to zero. All such
reductions in the Class Principal Balances of the respective Classes of the
Principal Balance Certificates shall constitute allocations of Realized Losses
and Additional Trust Fund Expenses.
(b) On each Distribution Date, following the deemed distributions to be
made in respect of the REMIC II Regular Interests on such date pursuant to
Section 4.01(k), the Trustee shall determine the amount, if any, by which (i)
the then aggregate Uncertificated Principal Balance of the REMIC II Regular
Interests, exceeds (ii) the aggregate Stated Principal Balance of the Mortgage
Pool that will be outstanding immediately following such Distribution Date. If
such excess does exist, then the Uncertificated Principal Balances of REMIC II
Regular Interest P, REMIC II Regular Interest O, REMIC II Regular Interest N,
REMIC II Regular Interest M, REMIC II Regular Interest L, REMIC II Regular
Interest K, REMIC II Regular Interest J, REMIC II Regular Interest H, REMIC II
Regular Interest G, REMIC II Regular Interest F, REMIC II Regular Interest E,
REMIC II Regular Interest D, REMIC II Regular Interest C and REMIC II Regular
Interest B, shall be reduced sequentially, in that order, until such excess is
reduced to zero; provided that, no such REMIC II Regular Interest shall have its
Uncertificated Principal Balance reduced unless and until the Uncertificated
Principal Balance of each other REMIC II Regular Interest, if any, listed in
front of it has been reduced to zero; and provided, further, that if after the
foregoing reductions, the amount described in clause (i) of the preceding
sentence still exceeds the amount described in clause (ii) of such sentence,
then the respective Uncertificated Principal Balances of (A) REMIC II Regular
Interest A-1, (B) REMIC II Regular Interest A-2, (C) REMIC II Regular Interest
A-3 and (D) REMIC II Regular Interest A-4-1 and REMIC II Regular Interest A-4-2
(as a collective matter in the order described in the next sentence), shall be
reduced on a pro rata basis in accordance with the relative sizes of such
Uncertificated Principal Balances, until any such remaining excess is reduced to
zero. Any reductions in the Uncertificated Principal Balances of REMIC II
Regular Interest A-4-1 and REMIC II Regular Interest A-4-2 pursuant to the prior
sentence shall be made: first, to the Uncertificated Principal Balance of REMIC
II Regular Interest A-4-1, until such Uncertificated Principal Balance is
reduced to zero; and second, to the Uncertificated Principal Balance of REMIC II
Regular Interest A-4-2. All such reductions in the Uncertificated Principal
Balances of the respective REMIC II Regular Interests shall be deemed to
constitute allocations of Realized Losses and Additional Trust Fund Expenses.
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(c) On each Distribution Date, following the deemed distributions to be
made in respect of the REMIC I Regular Interests pursuant to Section 4.01(l),
the Uncertificated Principal Balance of each REMIC I Regular Interest (after
taking account of such deemed distributions) shall be reduced to the extent
necessary to equal the Stated Principal Balance of the related Mortgage Loan or
REO Mortgage Loan, as the case may be (or, if applicable in cases involving the
substitution of multiple Replacement Mortgage Loans, the aggregate Stated
Principal Balance of each and every related Mortgage Loan and/or REO Mortgage
Loan, as the case may be), that will be outstanding immediately following such
Distribution Date. All such reductions in the Uncertificated Principal Balances
of the respective REMIC I Regular Interests shall be deemed to constitute
allocations of Realized Losses and Additional Trust Fund Expenses.
SECTION 4.05. Calculations.
Provided that the Trustee receives the necessary information from the
Master Servicers and/or the Special Servicers, the Trustee shall be responsible
for performing all calculations necessary in connection with the actual and
deemed distributions to be made pursuant to Section 4.01, the preparation of the
Trustee Reports pursuant to Section 4.02(a) 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 Standard Available
Distribution Amount for each Distribution Date and shall allocate such amount
among Certificateholders in accordance with this Agreement. Absent actual
knowledge of an error therein, the Trustee shall have no obligation to
recompute, recalculate or otherwise verify any information provided to it by a
Master Servicer. The calculations by the Trustee contemplated by this Section
4.05 shall, in the absence of manifest error, be presumptively deemed to be
correct for all purposes hereunder.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates shall consist of 23 Classes with the following
respective alphabetic or alphanumeric Class designations: "A-X", "A-Y", "A-CP",
"X-0", "X-0", "X-0", "X-0", "X", "C", "D", "E", "F", "G", "H", "J", "K", "L",
"M", "N", "O", "P", "R" and "V", respectively. Any reference in any other
section or subsection of this Agreement to any Certificate or Certificates
preceded by a Class designation shall be to a Certificate or Certificates of the
Class so designated in this Section 5.01(a).
(b) The Certificates will be substantially in the respective forms
attached hereto as Exhibits A-1 through A-6; provided, however, 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 Class A-X, Class A-Y, Class
A-CP, 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 and Class L Certificates
initially shall (and, at the option of the Depositor, following the Closing
Date, all or a portion of any other Class of Certificates may) be held and
transferred through the book-entry facilities of the Depositary. The Class A-X,
Class A-Y, Class A-CP, 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 and Class
L Certificates will be issuable only in denominations corresponding to initial
Certificate Principal Balances (or, in the case of the Interest Only
Certificates, initial Certificate Notional Amounts) as of the Closing Date of
not less than $10,000 and any whole dollar denomination in excess thereof. The
other REMIC III Regular Interest Certificates will be issuable only in
denominations corresponding to initial Certificate Principal Balances as of the
Closing Date of not less than $100,000 and any whole dollar denomination in
excess thereof. The Class R and Class V Certificates will be issuable only in
denominations representing Percentage Interests in the related Class of not less
than 10.0%.
(c) The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee in its capacity as trustee hereunder by an authorized
officer. Certificates bearing the manual or facsimile signatures of individuals
who were at any time the authorized signatory of the Trustee 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
Certificate Registrar 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.
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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
(located as of the Closing Date at Xxxxx Fargo Center, Sixth and Marquette, MAC#
X0000-000, Xxxxxxxxxxx, Xxxxxxxxx 55479-0113) 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 Trustee may
appoint, by a written instrument delivered to the other parties hereto, any
other bank or trust company to act as Certificate Registrar under such
conditions as the Trustee may prescribe, provided that the Trustee shall not be
relieved of any of its duties or responsibilities hereunder as Certificate
Registrar 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 predecessor's duties as Certificate Registrar. The Depositor, the
Master Servicers and the Special Servicers 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 Certificateholders make a written request to the
Trustee, and such request states that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and is accompanied by a copy of the
communication that such requesting Certificateholders 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
Certificateholders access during normal business hours to, or deliver to the
requesting Certificateholders a copy of, the most recent list of
Certificateholders held by the Certificate Registrar (which list shall be
current as of a date no earlier than 30 days prior to the Trustee's receipt of
such request). Every Certificateholder, by receiving such access, acknowledges
that neither the Certificate Registrar nor the Trustee will be held accountable
in any way by reason of the disclosure of any information as to the names and
addresses of any Certificateholder regardless of the source from which such
information was derived.
(b) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless that
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a transfer of any Non-Registered Certificate (other than a
Book-Entry Non-Registered Certificate) is to be made without registration under
the Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of such Non-Registered Certificate by the Depositor
or an Affiliate of the Depositor or, in the case of a Global Certificate, any
transfer of such Certificate to a successor Depository or, in the case of a
Definitive Certificate issued with respect to a Global Certificate, any transfer
of such Certificate to the applicable Certificate Owner in accordance with
Section 5.03(c)), 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-1A; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached hereto as Exhibit F-1B and a certificate from
such Certificateholder's prospective Transferee
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substantially in the form attached hereto either as Exhibit F-2A or as Exhibit
F-2B; or (iii) 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 or of the
Depositor, either Master Servicer, either Special Servicer, the Trustee, any
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.
Each Global Certificate shall be deposited with the Trustee as
custodian for the Depository and registered in the name of Cede & Co. as nominee
of the Depository.
If a transfer of an interest in any Rule 144A Global Certificate is to
be made without registration under the Securities Act (other than in connection
with the initial issuance of the Certificates or a transfer of an interest in
such Rule 144A Global Certificate by the Depositor or an Affiliate of the
Depositor), then (except as provided in the next succeeding paragraph or in the
penultimate paragraph of this Section 5.02(b)) the Certificate Owner desiring to
effect such transfer shall require from its prospective Transferee: (i) a
certificate substantially in the form attached as Exhibit F-2C hereto; or (ii)
an Opinion of Counsel to the effect that the prospective Transferee is a
Qualified Institutional Buyer and such transfer may be made without registration
under the Securities Act. Except as provided in the next succeeding paragraph or
in the penultimate paragraph of this Section 5.02(b), any interest in a Rule
144A Global Certificate shall not be transferred to any Person other than a
Qualified Institutional Buyer that takes delivery in the form of an interest in
such Rule 144A Global Certificate. If any Transferee of an interest in a Rule
144A Global Certificate does not, in connection with the subject transfer,
deliver to the Transferor the Opinion of Counsel or the certification described
in the second preceding sentence, then such Transferee shall be deemed to have
represented and warranted that all the certifications set forth in Exhibit F-2C
hereto are, with respect to the subject transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the Rule 144A
Global Certificate with respect to the Class A-X, Class A-CP, Class E, Class F,
Class G, Class H, Class J, Class K or Class L Certificates may be transferred
(without delivery of any certificate or Opinion of Counsel described in clauses
(i) and (ii) of the first sentence of the preceding paragraph) to any Person who
takes delivery in the form of a beneficial interest in the Regulation S Global
Certificate for the same Class as such Rule 144A Global Certificate upon
delivery to the Certificate Registrar and the Trustee of (i) a certificate from
the Certificate Owner desiring to effect such transfer substantially in the form
attached hereto as Exhibit F-1D and a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached hereto as Exhibit F-2D
and (ii) such written orders and instructions as are required under the
applicable procedures of the Depository, Clearstream and/or Euroclear to direct
the Trustee to debit the account of a Depository Participant by a denomination
of interests in such Rule 144A Global Certificate, and credit the account of a
Depository Participant by a denomination of interests in such Regulation S
Global Certificate, that is equal to the denomination of beneficial interests in
the Class A-X, Class A-CP, Class E, Class F, Class G, Class H, Class J, Class K
or Class L Certificates to be transferred. Upon delivery to the Trustee of such
certifications 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 with respect to the Class A-X,
Class A-CP, Class E, Class F, Class G, Class H, Class J, Class K or Class L
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.
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Except as provided in the next succeeding paragraph or in the
penultimate paragraph of this Section 5.02(b), beneficial interests in any
Regulation S Global Certificate shall not be transferred to any Person other
than a non-United States Securities Person that takes delivery in the form of a
beneficial interest in such Regulation S Global Certificate, and the Certificate
Owner desiring to effect such transfer shall be required to obtain from such
prospective Transferee a certification substantially in the form attached hereto
as Exhibit F-2D. On or prior to the Release Date, beneficial interests in any
Regulation S Global Certificate may be held only through Euroclear or
Clearstream.
Notwithstanding the preceding paragraph, following the Release Date,
any interest in the Regulation S Global Certificate with respect to the Class
A-X, Class A-CP, Class E, Class F, Class G, Class H, Class J, Class K or Class L
Certificates may be transferred (without delivery of any certificate described
in the first sentence of the preceding paragraph) to any Person who takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for the same Class as such Regulation S Global Certificate upon
delivery to the Certificate Registrar and the Trustee of (i) a certificate from
the Certificate Owner desiring to effect such transfer substantially in the form
attached hereto as Exhibit F-1C and a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached hereto as Exhibit F-2C
and (ii) such written orders and instructions as are required under the
applicable procedures of the Depository, Clearstream and/or Euroclear to direct
the Trustee to debit the account of a Depository Participant by a denomination
of interests in such Regulation S Global Certificate, and credit the account of
a Depository Participant by a denomination of interests in such Rule 144A Global
Certificate, that is equal to the denomination of beneficial interests in the
Class A-X, Class A-CP, Class E, Class F, Class G, Class H, Class J, Class K or
Class L Certificates to be transferred. Upon delivery to the Trustee of such
certifications 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 with respect to the Class
A-X, Class A-CP, Class E, Class F, Class G, Class H, Class J, Class K or Class L
Certificates, and increase the denomination of the Rule 144A Global Certificate
for such Class, by the denomination of the beneficial interest in such Class
specified in such orders and instructions.
Notwithstanding the foregoing, any interest in a Global Certificate
with respect to the Class A-X, Class A-Y, Class A-CP, Class E, Class F, Class G,
Class H, Class J, Class K or Class L Certificates may be transferred by any
Certificate Owner holding such interest to any Person who takes delivery in the
form of a Definitive Certificate of the same Class as such 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, Clearstream and/or
Euroclear to direct the Trustee to debit the account of a Depository Participant
by a denomination of interests in such 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 Global Certificate, and cause a Definitive
Certificate of the same Class as such Global Certificate, and in a denomination
equal to the reduction in the denomination of such Global Certificate, to be
executed, authenticated and delivered in accordance with this Agreement to the
applicable Transferee.
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, sale, pledge or other disposition of any Non-
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Registered Certificate or interest therein shall, and does hereby agree to,
indemnify the Depositor, CSFB Corporation, the Trustee, any Fiscal Agent, the
Master Servicers, the Special Servicers and the Certificate Registrar against
any liability that may result if such transfer, sale, pledge or other
disposition 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 any Certificate or interest therein shall be made to
any Plan or to any Person who is directly or indirectly purchasing such
Certificate on behalf of, as named fiduciary of, as trustee of, or with assets
of a Plan, if the purchase and holding of such Certificate or interest therein
by the prospective Transferee would result in a violation of Section 406 or 407
of ERISA or Section 4975 of the Code or would result in the imposition of an
excise tax under Section 4975 of the Code.
Except in connection with the initial issuance of the Certificates or
any transfer of a Non-Registered Certificate by the Depositor or an Affiliate of
the Depositor or, in the case of a Global Certificate, any transfer of such
Certificate to a successor Depositary or, in the case of a Definitive
Certificate issued with respect to a Global Certificate, any transfer of such
Certificate to the applicable Certificate Owner in accordance with Section
5.03(c), the Certificate Registrar shall refuse to register the transfer of a
Non-Registered Certificate unless it has received from the prospective
Transferee any of the following: (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) a certification to the
effect that the purchase and continued holding of such Certificate by such
prospective Transferee is exempt from the prohibited transaction provisions of
Section 406 and 407 of ERISA and Section 4975 of the Code by reason of Sections
I and III of Prohibited Transaction Class Exemption 95-60; or (iii) in the case
of a Non-Registered Certificate (other than a Class A-Y, Class R or Class V
Certificate) that is rated investment grade by at least one of the Rating
Agencies and is being acquired by or on behalf of a Plan in reliance on the
Underwriter Exemption, a certification to the effect that such Plan (X) is an
accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (Y) is not sponsored (within the meaning of Section 3(16)(B) of
ERISA) by the Trustee, any Exemption-Favored Party, the Depositor, any Mortgage
Loan Seller, either Master Servicer, either Special Servicer, any Sub-Servicer
or any Borrower with respect to Mortgage Loans constituting 5% of the aggregate
unamortized principal of all the Mortgage Loans determined as of the Closing
Date, or by any Affiliate of such Person, and (Z) agrees that it will obtain
from each of its Transferees a written representation that such Transferee, if a
Plan, satisfies the requirements of the immediately preceding clauses (iii)(X)
and (iii)(Y), together with a written agreement that such Transferee will obtain
from each of its Transferees that are Plans a similar written representation
regarding satisfaction of the requirements of the immediately preceding clauses
(iii)(X) and (iii)(Y); or (iv) a certification of facts and an Opinion of
Counsel (which Opinion of Counsel shall not be an expense of the Trustee, the
Certificate Registrar or the Trust) which otherwise establish to the reasonable
satisfaction of the Trustee that such transfer will not result in a violation of
Section 406 or 407 of ERISA or Section 4975 of the Code or result in the
imposition of an excise tax under Section 4975 of the Code. It is hereby
acknowledged that the form of certification attached hereto as Exhibit G-1 is
acceptable for purposes of the preceding sentence.
Except in connection with the initial issuance of the Certificates or
any transfer of an interest in a Book-Entry Non-Registered Certificate by the
Depositor or an Affiliate of the Depositor, the Certificate Owner desiring to
effect a transfer of an interest in a Book-Entry Non-Registered Certificate
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shall obtain from its prospective Transferee one of the following: (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing such interest in such Certificate 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 continued holding of an
interest in such Certificate by such prospective Transferee is exempt from the
prohibited transaction provisions of Sections 406 and 407 of ERISA and Section
4975 of the Code by reason of Sections I and III of Prohibited Transaction Class
Exemption 95-60; or (iii) if such Certificate is not a Class A-Y, Class R or
Class V Certificate, if such Certificate is rated investment grade by at least
one of the Rating Agencies and if the interest in such Certificate is being
acquired by or on behalf of a Plan in reliance on the Underwriter Exemption, a
certification to the effect that such Plan (X) is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act, (Y) is not
sponsored (within the meaning of Section 3(16)(B) of ERISA) by the Trustee, the
Depositor, any Mortgage Loan Seller, either Master Servicer, either Special
Servicer, any Sub-Servicer or any Borrower with respect to Mortgage Loans
constituting 5% of the aggregate unamortized principal of all the Mortgage Loans
determined as of the Closing Date, or by any Affiliate of such Person, and (Z)
agrees that it will obtain from each of its Transferees a written representation
that such Transferee, if a Plan, satisfies the requirements of the immediately
preceding clauses (ii)(X) and (ii)(Y), together with a written agreement that
such Transferee will obtain from each of its Transferees that are Plans a
similar written representation regarding satisfaction of the requirements of the
immediately preceding clauses (ii)(X) and (ii)(Y); or (iv) a certification of
facts and an Opinion of Counsel to the effect 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-2 is acceptable for purposes of the preceding sentence.
Each Transferee of any Registered Certificate or interest therein or of
an interest in any Book-Entry Non-Registered 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 continued holding of such Certificate or interest therein
by such Transferee is exempt from the prohibited transaction provisions of
Section 406 and 407 of ERISA and Section 4975 of the Code.
(d) (i) Each Person who has or acquires any Ownership Interest in a
Class R 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
(d)(ii) below to deliver payments to a Person other than such Person and,
further, to negotiate the terms of any mandatory disposition and to execute
all instruments of Transfer and do all other things necessary in connection
with any such disposition. The rights of each Person acquiring any
Ownership Interest in a Class R Certificate are expressly subject to the
following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall be a Permitted Transferee and shall
promptly notify 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 Class R Certificate, the Certificate Registrar
shall require delivery to it, and shall not register the
Transfer of any Class R Certificate until its
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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 Class R 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 Class R 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 Class R Certificate to such proposed Transferee
shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Class R 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
Class R Certificate and (2) not to transfer its Ownership
Interest in such Class R Certificate unless it provides to the
Certificate Registrar and the Trustee 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
Class R Certificate, by purchasing such Ownership Interest,
agrees to give the Trustee written notice that it is a
"pass-through interest holder" within the meaning of temporary
Treasury regulation section 1.67-3T(a)(2)(i)(A) immediately
upon acquiring an Ownership Interest in a Class R Certificate
if it is, or is holding an Ownership Interest in a Class R
Certificate on behalf of, a "pass-through interest holder".
(ii) If any purported Transferee shall become a Holder of a Class R
Certificate in violation of the provisions of this Section 5.02(d), then
the last preceding Holder of such Class R 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 Class R 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
Class R 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.
If any purported Transferee shall become a Holder of a Class R
Certificate in violation of the restrictions in this Section 5.02(d), then,
to the extent that retroactive restoration
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of the rights of the preceding Holder of such Class R Certificate as
described in the preceding paragraph of this clause (d)(ii) shall be
invalid, illegal or unenforceable, the Trustee shall have the right, but
not the obligation, to cause the transfer of such Class R 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 Class R Certificate or any other Person as a
result of its exercise of such discretion. Such purported Transferee shall
promptly endorse and deliver such Class R 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 Trustee 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 Class R Certificate to any
Person who is a Disqualified Organization, including the information
described in Treasury regulation sections 1.860D-1(b)(5) and 1.860E-2(a)(5)
with respect to the "excess inclusions" for the REMIC I Residual Interest,
the REMIC II Residual Interest and the REMIC III Residual Interest 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
Class R 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 Trustee all information in its possession
necessary for the Trustee to discharge such obligation. The Person holding
such Ownership Interest shall be responsible for the reasonable
compensation of the Trustee for providing such information.
(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 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 result in an Adverse Rating Event with respect to any
Class of Rated Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the
Trustee, 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 or the Trust), to
the effect that doing so will not (1) cause any REMIC Pool to
cease to qualify as a REMIC or be subject to an entity-level tax
caused by the Transfer of any Class R 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 Class R Certificate to a Person
that is not a Permitted Transferee.
(e) If a Person is acquiring any Non-Registered Certificate as a
fiduciary or agent for one or more accounts, such Person shall be required to
deliver to the Certificate Registrar a certification to the effect that, and
such other evidence as may be reasonably required by the Trustee 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/or agreements
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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 Trustee shall execute and
the Certificate Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of authorized
denominations of the same Class evidencing a like aggregate Percentage Interest.
(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, 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 Trustee
shall execute and the Certificate Registrar 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 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.
(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.
(k) The Certificate Registrar or the Trustee shall provide to each of
the other parties hereto, upon reasonable written request and at the expense of
the requesting party, an updated copy of the Certificate Register.
SECTION 5.03. Book-Entry Certificates.
(a) The Class A-X, Class A-Y, Class A-CP, 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 and Class L Certificates shall, in the case of each Class
thereof, initially be issued (and, at the option of the Depositor, subsequent to
the Closing Date, all or any portion of any other Class of Certificates may be
issued) as one or more Certificates registered in the name of the Depositary or
its nominee and, except as provided in Section 5.02(b) or Section 5.03(c),
transfer of such Certificates may not be registered by the Certificate Registrar
unless such transfer is to a successor Depositary that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and, subject to Section 5.02,
transfer their respective Ownership Interests in and to such Certificates
through the book-entry facilities of the Depositary and, except as provided in
Section 5.02(b) or Section 5.03(c) below, shall not be entitled to fully
registered, physical Certificates ("Definitive Certificates") in respect of such
Ownership Interests. All transfers by Certificate Owners of their respective
Ownership Interests in the Book-Entry Certificates shall be made in accordance
with the
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procedures established by the Depositary Participant or indirect participating
brokerage firm representing each such Certificate Owner. Each Depositary
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of indirect participating
brokerage firms for which it acts as agent in accordance with the Depositary's
normal procedures.
(b) Except as expressly provided to the contrary herein, the Depositor,
each Master Servicer, each Special Servicer, the Trustee, any Fiscal Agent and
the Certificate Registrar may for all purposes, including the making of payments
due on the Book-Entry Certificates, deal with the Depositary as the authorized
representative of the Certificate Owners with respect to such Certificates for
the purposes of exercising the rights of Certificateholders hereunder. Except as
expressly provided to the contrary herein, 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 Depositary
Participants and indirect participating brokerage firms representing such
Certificate Owners. Multiple requests and directions from, and votes of, the
Depositary 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 Depositary of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depositary is no longer willing or able to
discharge properly its responsibilities with respect to any Class of 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 Depositary with respect to all or any portion of any Class of Book-Entry
Certificates, the Certificate Registrar shall notify all affected Certificate
Owners, through the Depositary, 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 any Class of Book-Entry
Certificates (or any portion of any Class thereof) by the Depositary,
accompanied by registration instructions from the Depositary for registration of
transfer, the Trustee shall execute, and the Certificate Registrar shall
authenticate and deliver, the Definitive Certificates in respect of such Class
(or portion thereof) to the Certificate Owners identified in such instructions.
None of the Depositor, either Master Servicer, either Special Servicer, the
Trustee or the Certificate Registrar shall be liable for any delay in delivery
of such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Certificates for
purposes of evidencing ownership of any Book-Entry 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.
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 Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
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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 reasonable expenses (including the reasonable fees and expenses of the
Trustee and the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the Depositor,
each Master Servicer, each Special Servicer, the Trustee, any Fiscal Agent, 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, either Master Servicer, either
Special Servicer, the Trustee, any Fiscal Agent, the Certificate Registrar or
any agent of any of them shall be affected by notice to the contrary.
SECTION 5.06. Certification by Certificateholders and Certificate
Owners.
(a) Each Certificate Owner is hereby deemed by virtue of its
acquisition of an Ownership Interest in the Book-Entry Certificates to agree to
comply with the transfer requirements of Section 5.02.
(b) To the extent that under the terms of this Agreement, it is
necessary to determine whether any Person is a Certificateholder or a
Certificate Owner, the Trustee shall make such determination based on a
certificate of such Person which shall be substantially in the form of paragraph
1 of Exhibit K-1 hereto (or such other form as shall be reasonably acceptable to
the Trustee) and shall specify the Class and Certificate Principal Balance or
Certificate Notional Amount, as the case may be, of the Book-Entry Certificate
beneficially owned; provided, however, that the Trustee shall not knowingly
recognize such Person as a Certificate Owner if such Person, to the knowledge of
a Responsible Officer of the Trustee, acquired its Ownership Interest in a
Book-Entry Certificate in violation of Section 5.02, or if such Person's
certification that it is a Certificate Owner is in direct conflict with
information obtained by the Trustee from the Depositary, Depositary Participants
and/or indirect participating brokerage firms for which Depositary Participants
act as agents, with respect to the identity of a Certificate Owner. The Trustee
shall exercise its reasonable discretion in making any determination under this
Section 5.06(b) and shall afford any Person providing information with respect
to its beneficial ownership of any Book-Entry Certificate an opportunity to
resolve any discrepancies between the information provided and any other
information available to the Trustee.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS AND
THE SPECIAL SERVICERS
SECTION 6.01. Liability of the Depositor, the Master Servicers and the
Special Servicers.
The Depositor, the Master Servicers and the Special Servicers shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, each Master Servicer
and each Special Servicer.
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor, a
Master Servicer or a Special Servicer.
(a) Subject to Section 6.02(b), the Depositor, the Master Servicers and
the Special Servicers shall each keep in full effect its existence, rights and
franchises as a corporation, bank, trust company, partnership, limited liability
company, association or other legal entity under the laws of the jurisdiction
wherein it was organized, and each shall obtain and preserve its qualification
to do business as a foreign entity in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
(b) Each of the Depositor, the Master Servicers and the Special
Servicers may be merged or consolidated with or into any Person, or transfer all
or substantially all of its assets to any Person, in which case, any Person
resulting from any merger or consolidation to which the Depositor, a Master
Servicer or a Special Servicer shall be a party, or any Person succeeding to the
business of the Depositor, a Master Servicer, a Special Servicer, shall be the
successor of the Depositor, such Master Servicer or such 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 any Master Servicer or Special Servicer
unless (i) such succession will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee by each Rating Agency) and (ii) such successor or surviving Person makes
the applicable representations and warranties set forth in Section 2.05 (in the
case of a successor or surviving Person to the General Master Servicer), Section
2.06 (in the case of a successor or surviving Person to the General Special
Servicer), Section 2.07 (in the case of a successor or surviving Person to the
Co-op Master Servicer) or Section 2.08 (in the case of a successor or surviving
Person to the Co-op Special Servicer), as applicable.
SECTION 6.03. Limitation on Liability of the Depositor, the Master
Servicers and the Special Servicers.
Neither the Depositor nor any Master Servicer or Special Servicer shall
be under any liability to the Trust, 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, a Master Servicer or a Special Servicer against any liability to the
Trust, the Trustee or the Certificateholders for the breach of a representation
or warranty made by such party herein, or against any expense or liability
specifically required to be borne by such party without right of
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reimbursement pursuant to the terms hereof, or against any liability which would
otherwise be imposed by reason of misfeasance, bad faith or negligence in the
performance of, or negligent disregard of, such party's obligations or duties
hereunder. The Depositor, each Master Servicer, each Special Servicer and any
director, member, manager, officer, employee or agent of any such party 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, each Master Servicer, each Special Servicer and any director,
member, manager, officer, employee or agent of any such party, shall be
indemnified and held harmless by the Trust out of the relevant Collection
Account, as provided in Section 3.05(a), or the Distribution Account, as
provided in Section 3.05(b), against any loss, liability, cost or expense
(including reasonable legal expenses) incurred in connection with any legal
action or claim relating to this Agreement or the Certificates, other than any
loss, liability, cost or expense: (i) specifically required to be borne thereby
pursuant to the terms hereof; (ii) that constitutes (or, but for the failure of
the subject expense to be customary, reasonable or necessary, would constitute)
a Servicing Advance that is otherwise reimbursable under this Agreement; or
(iii) incurred in connection with any legal action or claim against such party
resulting from any breach of a representation or warranty made herein, any
misfeasance, bad faith or negligence in the performance of, or negligent
disregard of, obligations or duties hereunder or any willful or negligent
violation of applicable law. Neither the Depositor nor any Master Servicer or
Special Servicer shall be under any obligation to appear in, prosecute or defend
any legal action unless such action is related to its respective duties under
this Agreement and, except in the case of a legal action the costs of which such
party is specifically required hereunder to bear, in its opinion does not
involve it in any ultimate expense or liability for which it would not be
reimbursed hereunder; provided, however, that the Depositor, a Master Servicer
or a Special Servicer may in its discretion undertake any such action which it
may reasonably 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 hereunder. 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, and the Depositor, such Master
Servicer or such Special Servicer, as the case may be, shall be entitled to be
reimbursed therefor from the relevant Collection Account, as provided in Section
3.05(a), or the Distribution Account as provided in Section 3.05(b).
In addition, no Master Servicer or Special Servicer shall have any
liability with respect to, and each Master Servicer and Special Servicer shall
be entitled to rely as to the truth of the statements made and the correctness
of the opinions expressed therein on, any certificates or opinions furnished to
such Master Servicer or Special Servicer, as the case may be, and conforming to
the requirements of this Agreement. Each of the Master Servicers and Special
Servicers may rely in good faith on information provided to it by the others
(unless the provider and the recipient of such information are the same Person
or Affiliates) and by the Borrowers, and will have no duty to investigate or
verify the accuracy thereof.
SECTION 6.04. Resignation of Master Servicers and Special Servicers.
(a) Each of the Master Servicers and Special Servicers may 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 such Master Servicer or Special Servicer, as
the case may be, so causing such a conflict being of a type and nature carried
on by such Master Servicer or Special Servicer, as the case may be, at the date
of this Agreement). Any such determination requiring the resignation of a Master
Servicer or Special Servicer shall be evidenced by an Opinion of Counsel to
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such effect which shall be delivered to the Trustee. Unless applicable law
requires a Master Servicer's or Special Servicer's (as the case may be)
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 3.25 or Section 7.02 hereof; provided that, if no successor to such
Master Servicer or Special Servicer, as applicable, shall have been so appointed
and have accepted appointment within 90 days after such Master Servicer or
Special Servicer, as the case may be, has given notice of such resignation, the
resigning Master Servicer or Special Servicer, as applicable, may petition any
court of competent jurisdiction for the appointment of a successor thereto.
(b) In addition, each Master Servicer and Special Servicer shall each
have the right to resign at any other time, provided that (i) a willing
successor thereto (including any such successor proposed by the resigning party)
reasonably acceptable to the Depositor and the Trustee has been found (it being
hereby acknowledged that for purposes of this clause (i) NCB, FSB would be an
acceptable successor to NCB as Co-op Master Servicer), (ii) each of the Rating
Agencies confirms to the Trustee in writing that the successor's appointment
will not result in an Adverse Rating Event with respect to any Class of Rated
Certificates, (iii) the resigning party pays all costs and expenses in
connection with such transfer, and (iv) the successor accepts appointment prior
to the effectiveness of such resignation.
(c) No Master Servicer or Special Servicer shall be permitted to resign
except as contemplated in subsections (a) and (b) of this Section 6.04.
Consistent with the foregoing, no Master Servicer or Special Servicer shall
(except in connection with any resignation thereby permitted above in this
Section 6.04 or as otherwise expressly provided herein, including the provisions
of Section 3.22 and/or Section 6.02) assign or transfer any of its rights,
benefits or privileges hereunder to any other Person or delegate to, 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 a Master Servicer or Special Servicer are
transferred to a successor thereto, the entire amount of compensation payable to
such Master Servicer or Special Servicer, as the case may be, that accrues
pursuant hereto from and after the date of such transfer shall be payable to
such successor, except to the extent provided in Section 3.11(c).
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the
Master Servicers and the Special Servicers.
Each of the Master Servicers and Special Servicers shall afford the
Depositor, the Trustee, the Controlling Class Representative and each Rating
Agency, upon reasonable notice, during normal business hours access to all
records maintained by it in respect of its rights and obligations hereunder and
access to such of its officers as are responsible for such obligations. Upon
reasonable request, each of the Master Servicers and Special Servicers shall
furnish the Depositor and the Trustee with its most recent publicly available
annual audited financial statements (or, if not available, the most recent
publicly available audited annual financial statements of its corporate parent)
and such other information as is publicly available regarding its business,
affairs, property and condition, financial or otherwise; provided that neither
the Depositor nor the Trustee may disclose the contents of such financial
statements or other information to non-affiliated third parties (other than
accountants, attorneys, financial advisors and other representatives retained to
help it evaluate such financial statements or other information), unless it is
required to do so under applicable securities laws or is otherwise compelled to
do so as a matter of law. Each Master Servicer and Special Servicer may affix to
any such information described in this Section 6.05 provided by it any
disclaimer it deems appropriate
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in its reasonable discretion. The Depositor may, but is not obligated to,
enforce the obligations of any Master Servicer or Special Servicer hereunder and
may, but is not obligated to, perform, or cause a designee to perform, any
defaulted obligation of a Master Servicer or Special Servicer hereunder or
exercise the rights of a Master Servicer or Special Servicer hereunder;
provided, however, that no Master Servicer or Special Servicer shall be relieved
of any of its obligations hereunder by virtue of such performance by the
Depositor or its designee. The Depositor shall not have any responsibility or
liability for any action or failure to act by a Master Servicer or Special
Servicer and is not obligated to supervise the performance of any Master
Servicer or Special Servicer under this Agreement or otherwise.
SECTION 6.06. Master Servicers and Special Servicers May Own
Certificates.
Any Master Servicer, Special Servicer or Affiliate thereof 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
a Master Servicer, a Special Servicer or an Affiliate thereof. If, at any time
during which any Master Servicer, Special Servicer or Affiliate of a Master
Servicer or Special Servicer is the Holder of (or, in the case of a Book-Entry
Certificate, Certificate Owner with respect to) any Certificate, such Master
Servicer or Special Servicer, as the case may be, proposes to take any action
(including for this purpose, omitting to take a particular action) that is not
expressly prohibited by the terms hereof and would not, in such Master
Servicer's or Special Servicer's, as the case may be, reasonable, good faith
judgment, violate the Servicing Standard, but that, if taken, might nonetheless,
in such Master Servicer's or Special Servicer's, as the case may be, reasonable,
good faith judgment, be considered by other Persons to violate the Servicing
Standard, then such Master Servicer or Special Servicer, as the case may be, 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 6.06, (b) identifies the Percentage Interest in each
Class of Certificates beneficially owned by such Master Servicer or Special
Servicer, as the case may be, or by an Affiliate thereof and (c) describes in
reasonable detail the action that such Master Servicer or Special Servicer, as
the case may be, proposes to take. The Trustee, upon receipt of such notice,
shall forward it to the Certificateholders (other than such Master Servicer and
its Affiliates or such Special Servicer and its Affiliates, as appropriate),
together with a request for approval by the Certificateholders of each such
proposed action. 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 such Master Servicer or its Affiliates or
such Special Servicer or its Affiliates, as the case may be) shall have
consented in writing to the proposal described in the written notice, and if
such Master Servicer or Special Servicer, as the case may be, shall act as
proposed in the written notice, such action shall be deemed to comply with the
Servicing Standard. The Trustee shall be entitled to reimbursement from the
subject Master Servicer or 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 any Master Servicer or Special Servicer
be permitted to invoke the procedure set forth herein with respect to routine
servicing matters arising hereunder, but rather in the case of unusual
circumstances.
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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 a Master Servicer to deposit into its
Collection Account any amount required to be so deposited under this
Agreement, which failure continues unremedied for three Business Days
following the date on which such deposit was first required to be
made; or
(ii) any failure by a Special Servicer to deposit into its REO
Account or to deposit, or remit to the applicable Master Servicer for
deposit, into the applicable Master Servicer's Collection Account, any
amount required to be so deposited or remitted under this Agreement,
which failure continues unremedied for three Business Days following
the date on which such deposit or remittance, as the case may be, was
first required to be made; or
(iii) any failure by a Master Servicer to remit to the Trustee
for deposit into the Distribution Account, on any P&I Advance Date,
the full amount of P&I Advances required to be made by such Master
Servicer on such date or, on any Master Servicer Remittance Date, the
full amount of the Master Servicer Remittance Amount and any
Compensating Interest Payment required to be remitted by such Master
Servicer on such date, which failure continues unremedied until 6:00
p.m. (New York City time) on such P&I Advance Date or Master Servicer
Remittance Date, as the case may be; or
(iv) any failure by a Master 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 shall have been given to such Master Servicer
by the Trustee as provided in Section 3.11(f); or
(v) any failure by a Special Servicer to timely make (or request
the applicable Master Servicer to 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 has
been given to such Special Servicer by the Trustee as provided in
Section 3.11(f); or
(vi) any failure on the part of a Master Servicer or Special
Servicer duly to observe or perform in any material respect any other
of the covenants or agreements on the part of such Master Servicer or
Special Servicer, as the case may be, contained in this Agreement,
which failure continues unremedied for a period of 30 days (or, if
such Master Servicer or Special Servicer is diligently attempting to
remedy such failure, for a period of 60 days) after the date on which
written notice of such failure, requiring the same to be remedied,
shall have been given to such Master Servicer or Special Servicer, as
the case may be, by any other party hereto or to such Master Servicer
or Special Servicer, as the case may be, with a copy to each other
party hereto, by the Controlling Class Representative or the Holders
of Certificates entitled to at least 25% of the Voting Rights; or
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(vii) any breach on the part of a Master Servicer or Special
Servicer of any representation or warranty contained in this Agreement
that materially and adversely affects the interests of any Class of
Certificateholders and which continues unremedied for a period of 30
days (or, if such Master Servicer or Special Servicer is diligently
attempting to remedy such breach, for a period of 60 days) after the
date on which notice of such breach, requiring the same to be
remedied, shall have been given to such Master Servicer or Special
Servicer, as the case may be, by any other party hereto or to such
Master Servicer or Special Servicer, as the case may be, with a copy
to each other party hereto, by the Controlling Class Representative or
the Holders of Certificates entitled to at least 25% of the Voting
Rights; or
(viii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law for the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against a Master Servicer or Special Servicer
and such decree or order shall have remained in force undischarged,
undismissed or unstayed for a period of 60 days; or
(ix) a Master Servicer or Special Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to it or of or relating to all or substantially all of its
property; or
(x) a Master Servicer or 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
(xi) the Trustee shall have received written notice from Xxxxx'x
to the effect that the continuation of any Master Servicer or Special
Servicer in such capacity (A) would result in a qualification,
downgrade or withdrawal of one or more ratings assigned by Xxxxx'x to
the Certificates or (B) would result or has resulted in any rating
assigned by Xxxxx'x to the Certificates otherwise becoming the subject
of a "negative" credit watch, and in any event such circumstances
shall not have changed, as confirmed to the Trustee in writing by
Xxxxx'x, within 60 days following the date on which the Trustee first
received such notice; or
(xii) one or more ratings assigned by Xxxxx'x to the Certificates
shall have been qualified, downgraded or withdrawn as a result of any
Master Servicer or Special Servicer, as the case may be, acting in
such capacity; or
(xiii) a Master Servicer (other than NCB or NCB, FSB) is removed
from S&P's approved master servicer list or a Special Servicer (other
than NCB or NCB, FSB) is removed from S&P's approved special servicer
list, and such Master Servicer or Special Servicer, as the case may
be, is not restored to such list within 60 days after its removal
therefrom; or
(xiv) either Rating Agency has notified the Trustee in writing
that NCB or NCB, FSB, as applicable, is no longer an acceptable Master
Servicer or Special Servicer, as applicable, with respect to the Co-op
Mortgage Loans, and such Rating Agency has not, within 60 days
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thereafter, notified the Trustee in writing that NCB or NCB, FSB is
again acceptable to act in that capacity.
When a single entity acts as General Master Servicer, Co-op Master
Servicer, General Special Servicer and Co-op Special Servicer, or in any two or
more of the foregoing capacities, an Event of Default (other than an event
described in clauses (xi), (xii) and (xiii) above) in one capacity shall
constitute an Event of Default in both or all such capacities.
(b) If any Event of Default with respect to any Master Servicer or
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as the Event of Default shall not have been remedied, the
Depositor and Trustee each may, and at the written direction of the Holders of
Certificates entitled to not less than 25% of the Voting Rights, the Trustee
shall (subject to applicable bankruptcy or insolvency law in the case of clauses
(viii) through (x) of Section 7.01(a)), terminate, by notice in writing to the
Defaulting Party (with a copy of such notice to each other party hereto), all of
the rights and obligations (accruing from and after such notice) of the
Defaulting Party under this Agreement and in and to the Trust Fund (other than
as a Holder of any Certificate). From and after the receipt by the Defaulting
Party of such written notice, 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) or the Mortgage Loans 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 (provided, however, that each Master Servicer and Special Servicer
shall, if terminated pursuant to this Section 7.01(b), continue to be obligated
to pay and entitled to receive all amounts accrued or owing by or to it under
this Agreement on or prior to the date of such termination, whether in respect
of Advances or otherwise, and it and its members, managers, directors, officers,
employees and agents shall continue to be entitled to the benefits of Section
6.03 notwithstanding any such termination). Each Master Servicer and Special
Servicer agrees that, if it is terminated pursuant to this Section 7.01(b), it
shall promptly (and in any event no later than 20 days subsequent to its receipt
of the notice of termination) provide the Trustee with all documents and records
requested thereby to enable the Trustee to assume such Master Servicer's or
Special Servicer's, as the case may be, functions hereunder, and shall otherwise
cooperate with the Trustee in effecting the termination of such Master
Servicer's or Special Servicer's, as the case may be, responsibilities and
rights hereunder, including the transfer within five Business Days to the
Trustee for administration by it of all cash amounts that at the time are or
should have been credited by a Master Servicer to its Collection Account, the
Distribution Account or any Servicing Account or Reserve Account held by it (if
it is the Defaulting Party) or by a Special Servicer to its REO Account, a
Collection Account or any Servicing Account or Reserve Account held by it (if it
is the Defaulting Party) or that are thereafter received by or on behalf of it
with respect to any Mortgage Loan or REO Property (provided, however, that each
Master Servicer and Special Servicer shall, if terminated pursuant to this
Section 7.01(b), continue to be obligated to pay and entitled to receive all
amounts accrued or owing by or to it under this Agreement on or prior to the
date of such termination, whether in respect of Advances or otherwise, and it
and its members, managers, directors, officers, employees and agents shall
continue to be entitled to the benefits of Section 6.03 notwithstanding any such
termination). Any costs or expenses (including those of any other party hereto)
incurred in connection with any actions to be taken by a terminated Master
Servicer or Special Servicer pursuant to this
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paragraph shall be borne by such Master Servicer or Special Servicer, as the
case may be (and, in the case of the Trustee's costs and expenses, if not paid
within a reasonable time, shall be borne by the Trust out of the Collection
Account).
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time any Master Servicer or Special Servicer resigns
pursuant to Section 6.04(a) or receives a notice of termination pursuant to
Section 7.01, the Trustee shall, subject to Section 3.25, be the successor in
all respects to such Master Servicer or 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 be subject to all the responsibilities, duties and
liabilities relating thereto and arising thereafter placed on such Master
Servicer or Special Servicer, as the case may be, by the terms and provisions
hereof, including, if a Master Servicer is the resigning or terminated party,
such Master Servicer's obligation to make Advances; provided, however, that any
failure to perform such duties or responsibilities caused by a Master Servicer's
or Special Servicer's, as the case may be, failure to cooperate or to provide
information or monies as required by Section 7.01 shall not be considered a
default by the Trustee hereunder. Neither the Trustee nor any other successor
shall 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 or any other
successor 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 for future
services rendered if the resigning or terminated party had continued to act
hereunder. Notwithstanding the above, if it is unwilling to so act, the Trustee
may (and, if it is unable to so act, or if the Trustee is not approved as an
acceptable master servicer or special servicer, as the case may be, by each
Rating Agency, or if the Holders of Certificates entitled to a majority of all
the Voting Rights so request in writing, the Trustee shall), subject to Section
3.25, promptly appoint, or petition a court of competent jurisdiction to
appoint, any established and qualified institution as the successor to the
resigning or terminated Master Servicer or Special Servicer, as the case may be,
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of such Master Servicer or Special Servicer, as the case may be,
hereunder; provided, however, that such appointment does not result in an
Adverse Rating Event with respect to any Class of Rated Certificates (as
confirmed in writing to the Trustee by each Rating Agency). No appointment of a
successor to any Master Servicer or Special Servicer hereunder shall be
effective until the assumption by such successor of all its responsibilities,
duties and liabilities hereunder, and pending such appointment and assumption,
the Trustee shall act in such capacity as hereinabove provided. In connection
with any such appointment and assumption, the Trustee may make such arrangements
for the compensation of such successor out of payments on the Mortgage Loans or
otherwise 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. The Depositor, the Trustee, such successor and each other party
hereto shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession.
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SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of a Master Servicer or Special Servicer
pursuant to Section 6.04, any termination of a Master Servicer or Special
Servicer pursuant to Section 7.01, any appointment of a successor to a Master
Servicer or Special Servicer pursuant to Section 6.02, 6.04, 7.01(c) or 7.02 or
the effectiveness of any designation of a new Special Servicer pursuant to
Section 3.25, the Trustee shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register.
(b) Not later than the later of (i) 60 days after the occurrence of any
event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after a Responsible Officer of
the Trustee has actual knowledge of the occurrence of such an event, the Trustee
shall transmit by mail to the Depositor and all Certificateholders notice of
such occurrence, unless such default shall have been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders of Certificates 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 that an Event of Default
under clause (i), clause (ii), clause (iii), clause (xi), clause (xii), clause
(xiii) or clause (xiv) of Section 7.01(a) may be waived only by all of the
Certificateholders of the affected Classes. Upon any such waiver of an Event of
Default, and payment to the Trustee of all reasonable costs and expenses
incurred by the Trustee in connection with such default prior to its waiver
(which costs shall be paid by the party requesting such waiver), 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 the same Voting Rights with respect to the matters described
above as they would if registered in the name of any other Person.
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 (exercisable subject to Section
8.01(a)), 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.
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ARTICLE VIII
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. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) 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), the Trustee 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 or liable for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, a Master Servicer, a Special Servicer, any actual or
prospective Certificateholder or Certificate Owner or either Rating Agency, 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 willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this Agreement.
(ii) The Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts.
(iii) The Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of Holders of Certificates entitled to at least 25% (or, as to
any particular matter, any higher percentage as may be specifically
provided for hereunder) of the Voting Rights relating to the time, method
and place
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of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement.
(iv) The Trustee shall not be required to take action with respect to,
or be deemed to have notice or knowledge of, any default or Event of
Default (except an Event of Default under Section 7.01(a)(xi) or Section
7.01(a)(xii) or the Master Servicer's failure to deliver any monies,
including P&I Advances, or to provide any report, certificate or statement,
to the Trustee when required pursuant to this Agreement) unless a
Responsible Officer of the Trustee shall have received written notice or
otherwise have actual knowledge thereof. Otherwise, the Trustee may
conclusively assume that there is no such default or Event of Default.
(v) Subject to the other provisions of this Agreement and without
limiting the generality of this Section 8.01, the Trustee shall have no
duty, except as expressly provided in Section 2.01(c) or Section 2.01(e) or
in its capacity as a successor Master Servicer or successor Special
Servicer, (A) to cause any recording, filing, or depositing of this
Agreement or any agreement referred to herein or any financing statement or
continuation statement evidencing a security interest, or to cause the
maintenance of any such recording or filing or depositing or to any
rerecording, refiling or redepositing of any thereof, (B) to cause the
maintenance of any insurance, and (C) to confirm or verify the truth,
accuracy or contents of any reports or certificates of a Master Servicer, a
Special Servicer, any actual or prospective or any Certificateholder or
Certificate Owner or either Rating Agency, delivered to the Trustee
pursuant to this Agreement reasonably believed by the Trustee to be genuine
and without error and to have been signed or presented by the proper party
or parties.
(vi) For as long as the Person that serves as Trustee hereunder also
serves as a Custodian or as Certificate Registrar, the protections,
immunities and indemnities afforded to the Trustee hereunder shall also be
afforded to such Person in its capacity as Custodian and/or Certificate
Registrar, as the case may be.
SECTION 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be genuine and without error
and to have been signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and any written advice or
opinion of such 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 to institute, conduct or
defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, unless (in the Trustee's
reasonable opinion) 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; the Trustee shall not
be
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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; provided,
however, that nothing contained herein shall relieve the Trustee of the
obligation, upon the occurrence of an Event of Default which has not been
waived or 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) neither the Trustee nor any Fiscal Agent appointed thereby shall
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 and after the waiver
or curing of all Events of Default which may have occurred, the Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or other paper or
document, unless requested in writing to do so by Holders of Certificates
entitled to at least 25% of the Voting Rights; provided, however, that if
the payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require a reasonable indemnity against such expense or
liability as a condition to taking any such action;
(vi) except as contemplated by Section 8.06, the Trustee shall not be
required to give any bond or surety in respect of the execution of the
trusts created hereby or the powers granted hereunder;
(vii) the Trustee may execute any of the trusts or powers vested in it
by this Agreement or perform any of its duties hereunder either directly or
by or through agents or attorneys-in-fact, provided that the use of agents
or attorneys-in-fact shall not be deemed to relieve the Trustee of any of
its duties and obligations hereunder (except as expressly set forth
herein);
(viii) neither the Trustee nor any Fiscal Agent appointed thereby shall
be responsible for any act or omission of a Master Servicer or Special
Servicer (unless the Trustee is acting as such Master Servicer or Special
Servicer, as the case may be) or of the Depositor.
(ix) neither the Trustee nor the Certificate Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance with
any restriction on transfer imposed under Article V under this Agreement or
under applicable law with respect to any transfer of any Certificate or any
interest therein, other than to require delivery of the certification(s)
and/or Opinions of Counsel described in said Article applicable with
respect to changes in registration or record ownership of Certificates in
the Certificate Register and to examine the same to determine substantial
compliance with the express requirements of this Agreement; and the Trustee
and Certificate Registrar shall have no liability for transfers, including
transfers made through the book-entry facilities of the Depositary or
between or among Depositary Participants or beneficial owners of the
Certificates, made in violation of applicable restrictions except for its
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failure to perform its express duties in connection with changes in
registration or record ownership in the Certificate Register.
SECTION 8.03. Trustee and Fiscal Agent 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, and the representations and warranties of, the Trustee
and/or any Fiscal Agent in Article II, and the signature of the Trustee set
forth on each outstanding Certificate) shall not be taken as the statements of
the Trustee or any Fiscal Agent, and neither the Trustee nor any Fiscal Agent
assumes any responsibility for their correctness. Neither the Trustee nor any
Fiscal Agent makes any representation as to the validity or sufficiency of this
Agreement (except as regards the enforceability of this Agreement against it) or
of any Certificate (other than as to the signature of the Trustee set forth
thereon) or of any Mortgage Loan or related document. Neither the Trustee nor
any Fiscal Agent shall 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, or any funds
deposited in or withdrawn from a Collection Account or any other account by or
on behalf of the Depositor, a Master Servicer or a Special Servicer (in each
case, unless the Trustee is acting in such capacity). Neither the Trustee nor
any Fiscal Agent shall be responsible for the legality or validity of this
Agreement (other than insofar as it relates to the obligations of the Trustee or
such Fiscal Agent, as the case may be, hereunder) or the validity, priority,
perfection or sufficiency of any security, lien or security interest granted to
it hereunder or the filing of any financing statements or continuation
statements, except to the extent set forth in Section 2.01(c) and Section
2.01(e) or to the extent the Trustee is acting as a Master Servicer or Special
Servicer and such Master Servicer or Special Servicer, as the case may be, would
be so responsible hereunder. The Trustee shall not be required to record this
Agreement.
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
The Trustee (in its individual or any other capacity), any Fiscal Agent
or any Affiliate of either of them 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,
such Fiscal Agent or an Affiliate of either of them, as the case may be.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and by
Trustee and Fiscal Agent.
(a) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account, prior to any distributions to be made therefrom to
Certificateholders on such date, and pay to itself all earned but unpaid
Trustee's Fees in respect of the Mortgage Loans and any REO Mortgage Loans
through the end of the most recently ended calendar month, 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. As to each Mortgage Loan and REO Mortgage Loan, the
Trustee's Fee shall accrue during each calendar month, commencing with November
2001, at the Trustee's Fee Rate on a principal amount equal to the Stated
Principal Balance of such Mortgage Loan or REO Mortgage Loan immediately
following the Distribution Date in such calendar month (or, in the case of
November 2001, on a principal amount equal to the Cut-off Date Principal Balance
of the particular Mortgage Loan), whether or not interest is actually collected
on each
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Mortgage Loan and REO Mortgage Loan. With respect to each Mortgage Loan and REO
Mortgage Loan, the Trustee's Fee shall accrue from time to time on the same
Interest Accrual Basis as is applicable to such Mortgage Loan or REO Mortgage
Loan. Except as otherwise expressly provided herein, the Trustee's 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 and held harmless out of the Trust
Fund for and against any loss, liability, claim or expense (including 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, the Certificates, the Mortgage Loans (unless it incurs any such
expense or liability in the capacity of a successor Master Servicer or Special
Servicer, in which case such expense or liability will be reimbursable thereto
in the same manner as it would be for any other Person acting as such Master
Servicer or Special Servicer, as the case may be) or any act or omission of the
Trustee relating to the exercise and performance of any of the powers and duties
of the Trustee hereunder, if (but only if) such loss, liability, claim or
expense constitutes an "unanticipated expense" within the meaning of Treasury
regulation section 1.860G-1(b)(3)(ii); provided, however, 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) allocable overhead,
such as costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses and similar internal costs and expenses,
(2) any expense or liability specifically required to be borne thereby pursuant
to the terms hereof or (3) any loss, liability, claim or expense incurred by
reason of any breach on the part of the Trustee of any of its representations,
warranties or covenants contained herein or any willful misfeasance, bad faith
or negligence in the performance of, or reckless disregard of, the Trustee's
obligations and duties hereunder.
(c) Each Master Servicer and Special Servicer shall indemnify the
Trustee and any Fiscal Agent for and hold each of them harmless against any
loss, liability, claim or expense that is a result of such Master Servicer's or
Special Servicer's, as the case may be, negligent acts or omissions in
connection with this Agreement, including the negligent use by such Master
Servicer or Special Servicer, as the case may be, of any powers of attorney
delivered to it by the Trustee pursuant to the provisions hereof and the
Mortgage Loans serviced by such Master Servicer or Special Servicer, as the case
may be; provided, however, that, if the Trustee has been reimbursed for such
loss, liability, claim or expense pursuant to Section 8.05(b), or any Fiscal
Agent has been reimbursed for such loss, liability, claim or expense pursuant to
Section 8.13, then the indemnity in favor of such Person provided for in this
Section 8.05(c) with respect to such loss, liability, claim or expense shall be
for the benefit of the Trust.
(d) Each of the Trustee and any Fiscal Agent shall indemnify the Master
Servicers and the Special Servicers for and hold each of them harmless against
any loss, liability, claim or expense that is a result of the Trustee's or such
Fiscal Agent's, as the case may be, negligent acts or omissions in connection
with this Agreement; provided, however, that if a Master Servicer or Special
Servicer has been reimbursed for such loss, liability, claim or expense pursuant
to Section 6.03, then the indemnity in favor of such Person provided for in this
Section 8.05(d) with respect to such loss, liability, claim or expense shall be
for the benefit of the Trust.
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(e) This Section 8.05 shall survive the termination of this Agreement
or the resignation or removal of the Trustee, any Fiscal Agent, a Master
Servicer or a Special Servicer as regards rights and obligations prior to such
termination, resignation or removal.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation, bank, trust
company or association 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 authority. If such corporation, bank, trust company or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation,
bank, trust company or association shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. In
addition, the Trustee shall at all times meet the requirements of Section
26(a)(1) of the Investment Company Act. Furthermore, the Trustee shall at all
times maintain a long-term unsecured debt rating of no less than "Aa3" from
Xxxxx'x and "AA" from S&P (or, in the case of either Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect to any Class
of Rated Certificates, as confirmed in writing to the Trustee and the Depositor
by such Rating Agency); provided that the Trustee shall not cease to be eligible
to serve as such based on a failure to satisfy such rating requirements so long
as the Trustee maintains a long-term unsecured debt rating of no less than
"Baa2" from Xxxxx'x and "BBB" from S&P (or, in the case of either Rating Agency,
such lower rating as will not result in an Adverse Rating Event with respect to
any Class of Rated Certificates, as confirmed in writing to the Trustee and the
Depositor by such Rating Agency) and a Fiscal Agent meeting the requirements of
Section 8.13 has been appointed by the Trustee and is then currently serving in
such capacity. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 8.06, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07. The
corporation, bank, trust company or association serving as Trustee may have
normal banking and trust relationships with the Depositor, any Mortgage Loan
Seller, each Master Servicer, each Special Servicer and their respective
Affiliates; provided, however, that none of (i) the Depositor, (ii) any Person
involved in the organization or operation of the Depositor or the Trust, (iii)
any Master Servicer or Special Servicer (except during any period when the
Trustee has assumed the duties of such Master Servicer or Special Servicer, as
the case may be, pursuant to Section 7.02), (iv) any Mortgage Loan Seller or (v)
any Affiliate of any of them, may be the Trustee hereunder.
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 Servicers, the Special Servicers and all the Certificateholders. Upon
receiving such notice of resignation, the Depositor shall promptly appoint a
successor trustee meeting the eligibility requirements of Section 8.06 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 other parties hereto and to 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.
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(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 a Master Servicer or if at any time the
Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if the Trustee's continuing to act in such capacity would (as
confirmed in writing to any party hereto by either Rating Agency) result in an
Adverse Rating Event with respect to any Class of Rated Certificates, then the
Depositor may (and, if it fails to do so within ten Business Days, the General
Master Servicer shall as soon as practicable) remove the Trustee and appoint a
successor trustee 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 other parties hereto and to the
Certificateholders by the Depositor (or the General Master Servicer, as the case
may be).
(c) The Holders of Certificates entitled to not less than 51% of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Depositor (with copies to each Master Servicer and
Special Servicer), one complete set to the Trustee so removed and one complete
set to the successor so appointed. All expenses incurred by the Trustee in
connection with its transfer of the Mortgages Files to a successor trustee
following the removal of the Trustee without cause pursuant to this Section
8.07(c), shall be reimbursed to the removed Trustee within 30 days of demand
therefor, such reimbursement to be made by the Certificateholders that
terminated the Trustee. A copy of such instrument shall be delivered to the
other parties hereto and to the remaining Certificateholders by the successor so
appointed.
(d) 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 (i) acceptance of appointment by the successor
trustee as provided in Section 8.08 and (ii) if neither the successor trustee
nor any Fiscal Agent appointed by it has a long-term unsecured debt rating of at
least "Aa3" from Xxxxx'x and "AA" from S&P, the Trustee and the Depositor have
received written confirmation from each Rating Agency that has not so assigned
such a rating, to the effect that the appointment of such successor trustee
shall not result in an Adverse Rating Event with respect to any Class of Rated
Certificates.
SECTION 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor, each Master Servicer, each
Special Servicer and its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The predecessor trustee
shall deliver to the successor trustee all Mortgage Files and related documents
and statements held by it hereunder (other than any Mortgage Files at the time
held on its behalf by a Custodian, which Custodian shall become the agent of the
successor trustee), and the Depositor, each Master Servicer, each 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
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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 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 it may be consolidated or any entity resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any entity succeeding
to the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such entity shall be eligible under the provisions
of Section 8.06, 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
applicable Master Servicer and the Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
applicable Master Servicer and the Trustee may consider necessary or desirable.
If the applicable Master Servicer shall not have joined in such appointment
within 15 days after the receipt by it of a request to do so, or in case an
Event of Default in respect of the applicable Master Servicer shall have
occurred and be continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06, 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.
(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
when acting as a Master Servicer or 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.
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(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 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, upon prior written notice to the General Master
Servicer, General Special Servicer, Co-op Master Servicer and Co-op Special
Servicer, appoint at the Trustee's own expense one or more Custodians to hold
all or a portion of the Mortgage Files as agent for the Trustee; provided that
each Custodian shall be a depositary 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, shall not be the Depositor, any Mortgage Loan
Seller or any Affiliate of the Depositor or any Mortgage Loan Seller, and shall
have in place a fidelity bond and errors and omissions policy, each in such form
and amount as is customarily required of custodians acting on behalf of Xxxxxxx
Mac or Xxxxxx Mae. Each Custodian shall be subject to the same obligations,
standard of care, protection and indemnities as would be imposed on, or would
protect, the Trustee hereunder in connection with the retention of Mortgage
Files directly by the Trustee. 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.
SECTION 8.12. Access to Certain Information.
(a) The Trustee shall afford to the Depositor, each Master Servicer,
each Special Servicer the Controlling Class Representative and each Rating
Agency and to the OTS, the FDIC and any other banking or insurance regulatory
authority that may exercise authority over any Certificateholder or Certificate
Owner, access to any documentation regarding the Mortgage Loans or the other
assets of the Trust Fund that are in its possession or within its control. 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 at its offices and, upon reasonable
prior written request and during normal business hours, shall make available for
review by the Depositor, the Underwriters,
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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 (to the extent
such items were prepared by or delivered to the Trustee): (i) the Prospectus,
the Confidential Offering Circular and any other disclosure document relating to
the Certificates, in the form most recently provided to the Trustee by the
Depositor or by any Person designated by the Depositor; (ii) this Agreement,
each Sub-Servicing Agreement delivered to the Trustee since the Closing Date and
any amendments and exhibits hereto or thereto; (iii) all Trustee Reports and any
files and reports comprising the CMSA Investor Reporting Package actually
delivered or otherwise made available to Certificateholders pursuant to Section
4.02(a) since the Closing Date; (iv) all Annual Performance Certifications
delivered by the respective Master Servicers and the Special Servicers to the
Trustee since the Closing Date; (v) all Annual Accountants' Reports caused to be
delivered by the respective Master Servicers and Special Servicers to the
Trustee since the Closing Date; (vi) the most recent inspection report prepared
by any Master Servicer or Special Servicer and delivered to the Trustee in
respect of each Mortgaged Property pursuant to Section 3.12(a) or this Section
8.12(b); (vii) the most recent quarterly and annual operating statement and rent
roll (or, in the case of a residential cooperative property, maintenance
schedule) of each related Mortgaged Property and financial statements of the
related Borrower collected by any Master Servicer or Special Servicer and
delivered to the Trustee pursuant to Section 3.12(b) or this Section 8.12(b);
(viii) 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 neither of the conditions set forth in clauses (i)
and (ii) of the first sentence thereof was satisfied; (ix) each of the Mortgage
Files, including any and all modifications, waivers and amendments of the terms
of a Mortgage Loan entered into or consented to by the applicable Master
Servicer or the applicable Special Servicer and delivered to the Trustee
pursuant to Section 3.20; (x) the most recent Appraisal for each Mortgage Loan
and REO Property that has been delivered to the Trustee (all Appraisals of
Mortgaged Properties and/or REO Properties shall be delivered to the Trustee by
the respective Master Servicers and Special Servicers, in each case promptly
following the subject Appraisal's having been obtained or formulated); (xi) any
and all Officer's Certificates and other evidence delivered to or by the Trustee
to support its, a Master Servicer's, a Special Servicer's or any Fiscal Agent's,
as the case may be, determination that any Advance was (or, if made, would be) a
Nonrecoverable Advance; (xii) a current report from the Trustee listing all
outstanding exceptions to the Mortgage File review conducted pursuant to Section
2.02; and (xiii) any other information that may be necessary to satisfy the
requirements of subsection (d)(4)(i) of Rule 144A under the Securities Act. The
Trustee shall provide copies of any and all of the foregoing items upon 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. If necessary, the Trustee shall request from the applicable Master
Servicer, and within a reasonable period following its receipt of such request,
the applicable Master Servicer shall deliver, copies of the items listed in
clauses (vi) and (vii) above to the Trustee.
In connection with providing access to or copies of the items described
in the preceding paragraph pursuant to this Section 8.12(b), the Trustee shall
require: (a) in the case of Certificateholders or Certificate Owners, a written
confirmation executed by the requesting Person substantially in the form of
Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the
Trustee) generally to the effect that such Person is a holder or a beneficial
holder of Certificates and, subject to the last sentence of this paragraph, will
keep such information confidential, except that such Certificateholder or
Certificate Owner may provide such information to its auditors, legal counsel
and regulators and to any other Person that holds or is contemplating the
purchase of any Certificate or
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interest therein (provided that such other Person confirms in writing such
ownership interest or prospective ownership interest and agrees to keep such
information confidential); and (b) in the case of a prospective purchaser of a
Certificate or an interest therein, confirmation executed by the requesting
Person substantially in the form of Exhibit K-2 hereto (or such other form as
may be reasonably acceptable to the Trustee) generally to the effect that such
Person is a prospective purchaser of a Certificate or an interest therein, is
requesting the information for use in evaluating a possible investment in
Certificates and, subject to the last sentence of this paragraph, will otherwise
keep such information confidential. Notwithstanding the foregoing, no
Certificateholder, Certificate Owner or prospective Certificateholder or
Certificate Owner need keep confidential any information received from the
Trustee pursuant to this Section 8.12(b) that has previously been filed with the
Commission, and the Trustee shall not require either of the certifications
contemplated by the second preceding sentence in connection with providing any
information pursuant to this Section 8.12(b) that has previously been filed with
the Commission.
(c) Neither the Trustee nor any Master Servicer or Special Servicer
shall be liable for providing or disseminating information in accordance with
the terms of this Agreement.
SECTION 8.13. Appointment of Fiscal Agent.
(a) Insofar as the Trustee would not otherwise satisfy the rating
requirements of Section 8.06, the Trustee may appoint, at the Trustee's own
expense, a Fiscal Agent for purposes of making Advances hereunder that are
otherwise required to be made by the Trustee. Any Fiscal Agent shall at all
times maintain a long-term unsecured debt rating of no less than "Aa3" from
Xxxxx'x and "AA" from S&P (or, in the case of either Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect to any Class
of Rated Certificates (as confirmed in writing to the Trustee and the Depositor
by such Rating Agency)). Any Person so appointed by the Trustee pursuant to this
Section 8.13(a) shall become the Fiscal Agent on the date as of which the
Trustee and the Depositor have received: (i) if the long-term unsecured debt of
the designated Person is not rated at least "Aa3" by Xxxxx'x and "AA" by S&P,
written confirmation from each Rating Agency that the appointment of such
designated Person will not result in an Adverse Rating Event with respect to any
Class of Rated Certificates; (ii) a written agreement whereby the designated
Person is appointed as, and agrees to assume and perform the duties of, Fiscal
Agent hereunder, executed by such designated Person and the Trustee (such
agreement, the "Fiscal Agent Agreement"); and (iii) an Opinion of Counsel (which
shall be paid for by the designated Person or the Trustee) substantially to the
effect that (A) the appointment of the designated Person to serve as Fiscal
Agent is in compliance with this Section 8.13, (B) the designated Person is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (C) the related Fiscal Agent Agreement has
been duly authorized, executed and delivered by the designated Person and (D)
upon execution and delivery of the related Fiscal Agent Agreement, the
designated Person shall be bound by the terms of this Agreement and, subject to
customary bankruptcy and insolvency exceptions and customary equity exceptions,
that this Agreement shall be enforceable against the designated Person in
accordance with its terms. Any Person that acts as Fiscal Agent shall, for so
long as it so acts, be deemed a party to this Agreement for all purposes hereof.
Pursuant to the related Fiscal Agent Agreement, each Fiscal Agent, if any, shall
make representations and warranties with respect to itself that are comparable
to those made by the Trustee pursuant to Section 2.09. Notwithstanding anything
contained in this Agreement to the contrary, any Fiscal Agent shall be entitled
to all limitations on liability, rights of reimbursement and indemnities to
which the Trustee is entitled hereunder (including pursuant to Sections 8.05(b)
and 8.05(c)) as if it were the Trustee.
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(b) To the extent that the Trustee is required, pursuant to the terms
of this Agreement, to make any Advance, whether as a successor Master Servicer
or otherwise, and has failed to do so in accordance with the terms hereof, the
Fiscal Agent (if any) shall make such Advance when and as required by the terms
of this Agreement on behalf the Trustee as if such Fiscal Agent were the Trustee
hereunder. To the extent that the Fiscal Agent (if any) makes an Advance
pursuant to this Section 8.13 or otherwise pursuant to this Agreement, the
obligations of the Trustee under this Agreement in respect of such Advance shall
be satisfied.
(c) Notwithstanding anything contained in this Agreement to the
contrary, any Fiscal Agent shall be entitled to all limitations on liability,
rights of reimbursement and indemnities to which the Trustee is entitled
hereunder (including pursuant to Sections 8.05(b) and 8.05(c)) as if it were the
Trustee, except that all fees and expenses of any Fiscal Agent (other than
interest owed to such Fiscal Agent in respect of unreimbursed Advances) incurred
by such Fiscal Agent in connection with the transactions contemplated by this
Agreement shall be borne by the Trustee, and neither the Trustee nor such Fiscal
Agent shall be entitled to reimbursement therefor from any of the Trust, the
Depositor or any Master Servicer or Special Servicer.
(d) The obligations of any Fiscal Agent set forth in this Section 8.13
or otherwise pursuant to this Agreement shall exist only for so long as the
Trustee that appointed it shall act as Trustee hereunder. Any Fiscal Agent may
resign or be removed by the Trustee only if and when the existence of such
Fiscal Agent is no longer necessary for such Trustee to satisfy the eligibility
requirements of Section 8.06; provided that any Fiscal Agent shall be deemed to
have resigned at such time as the Trustee that appointed it resigns or is
removed as Trustee hereunder (in which case the responsibility for appointing a
successor Fiscal Agent in accordance with this Section 8.13(a) shall belong to
the successor Trustee insofar as such appointment is necessary for such
successor Trustee to satisfy the eligibility requirements of Section 8.06).
(e) The Trustee shall promptly notify the other parties hereto and the
Certificateholders in writing of the appointment, resignation or removal of any
Fiscal Agent.
SECTION 8.14. Filings with the Securities and Exchange Commission.
(a) With respect to the Trust's fiscal year 2001 (and, if as of the
beginning of any other fiscal year for the Trust, the Registered Certificates
are held (directly or, in the case of Registered Certificates held in book-entry
form, through the Depositary) by at least 300 Holders and/or Depositary
Participants having accounts with the Depositary), the Trustee shall:
(i) during such fiscal year, in accordance with the Exchange Act, the
rules and regulations promulgated thereunder and applicable "no-action
letters" issued by the Commission, prepare for filing, execute and properly
file with the Commission monthly, with respect to the Trust, a Current
Report on Form 8-K with copies of the Trustee Reports, the CMSA Delinquent
Loan Status Report, the CMSA Historical Loan Modification Report, the CMSA
Historical Liquidation Report and the CMSA REO Status Report attached as
exhibits;
(ii) during such fiscal year, (A) monitor for and promptly notify the
Depositor of the occurrence or existence of any of the matters identified
in Section 11.09(a) and/or Section 8.14(b) (in each case to the extent that
a Responsible Officer of the Trustee has actual knowledge thereof), (B)
cooperate with the Depositor in obtaining all necessary information in
order to enable the Depositor to prepare a Current Report on Form 8-K
reporting any such matter in
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accordance with the Exchange Act, the rules and regulations promulgated
thereunder and applicable "no-action letters" issued by the Commission, and
(C) execute and promptly file with the Commission any such Current Report
on Form 8-K prepared by or on behalf of the Depositor and delivered to the
Trustee; and
(iii) within 90 days following the end of such fiscal year, prepare,
execute and properly file with the Commission, with respect to the Trust,
an Annual Report on Form 10-K which complies in all material respects with
the requirements of the Exchange Act, the rules and regulations promulgated
thereunder and applicable "no-action letters" issued by the Commission;
provided that (x) the Trustee shall not have any responsibility to file any
items (other than those generated by it) that have not been received in a format
suitable for electronic filing via the XXXXX system (or in "ASCII", "Microsoft
Word", "Microsoft Excel" or another format reasonably acceptable to the Trustee)
and shall not have any responsibility to convert any such items to such format
(other than those items generated by it and those items delivered to it in a
format readily convertible to a format suitable for electronic filing via the
XXXXX system) and (y) the Depositor shall be responsible for preparing,
executing and filing (via the XXXXX system within 15 days following the Closing
Date) a Current Report on Form 8-K reporting the establishment of the Trust and
whereby this Agreement is filed as an exhibit. Each of the other parties to this
Agreement shall deliver to the Trustee or the applicable Master Servicer, as
appropriate, in a format suitable for electronic filing via the XXXXX system (or
in "ASCII", "Microsoft Word", "Microsoft Excel" or another format reasonably
acceptable to the Trustee) any and all items contemplated to be filed with the
Commission pursuant to this Section 8.14(a), to the extent it is otherwise
required to deliver such items to the Trustee or such Master Servicer, as
applicable.
(b) At all times during the Trust's fiscal year 2001 (and, if as of the
beginning of any other fiscal year for the Trust, the Registered Certificates
are held (directly or, in the case of Registered Certificates held in book-entry
form, through the Depositary) by at least 300 Holders and/or Depositary
Participants having accounts with the Depositary, at all times during such other
fiscal year), the Trustee shall monitor for and promptly notify the Depositor of
the occurrence or existence of any of the following matters of which a
Responsible Officer of the Trustee has actual knowledge:
(i) any failure of the Trustee to make any monthly distributions to the
Holders of any Class of Certificates, which failure is not otherwise
reflected in the Certificateholder Reports filed with the Commission or has
not otherwise been reported to the Depositor pursuant to any other Section
of this Agreement;
(ii) any acquisition or disposition by the Trust of a Mortgage Loan or
an REO Property, which acquisition or disposition has not otherwise been
reflected in the Certificateholder Reports filed with the Commission or has
not otherwise been reported to the Depositor pursuant to any other Section
of this Agreement;
(iii) any other acquisition or disposition by the Trust of a
significant amount of assets (other than Permitted Investments, Mortgage
Loans and REO Properties), other than in the normal course of business;
(iv) any change in the fiscal year of the Trust;
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(v) any material legal proceedings, other than ordinary routine
litigation incidental to the business of the Trust, to which the Trust (or
any party to this Agreement on behalf of the Trust) is a party or of which
any property included in the Trust Fund is subject, or any threat by a
governmental authority to bring any such legal proceedings;
(vi) any event of bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings in respect of
or pertaining to the Trust or any party to this Agreement, or any actions
by or on behalf of the Trust or any party to this Agreement indicating its
bankruptcy, insolvency or inability to pay its obligations; and
(vii) any change in the rating or ratings assigned to any Class
of Certificates not otherwise reflected in the Certificateholder Reports
filed with the Commission;
provided that (x) the actual knowledge of a Responsible Officer of the Trustee
of any material legal proceedings of which property included in the Trust Fund
is subject or of any material legal proceedings threatened by a governmental
authority is limited to circumstances where it would be reasonable for the
Trustee to identify such property as an asset of, or as securing an asset of,
the Trust or such threatened proceedings as concerning the Trust and (y) no
Responsible Officer of the Trustee shall be deemed to have actual knowledge of
the matters described in clauses (vi) and (vii) of this Section 8.14(b) unless
such Responsible Officer was notified in writing.
(c) If as of the beginning of any fiscal year for the Trust (other than
fiscal year 2001), the Registered Certificates are held (directly or, in the
case of Registered Certificates held in book-entry form, through the Depositary)
by less than 300 Holders and/or Depositary Participants having accounts with the
Depositary, the Trustee shall, in accordance with the Exchange Act and the rules
and regulations promulgated thereunder, timely file a Form 15 with respect to
the Trust.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
(a) Subject to Section 9.02, the Trust and the respective obligations
and responsibilities under this Agreement of the parties hereto (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) 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: (i) the purchase by the Co-op Master
Servicer, the Co-op Special Servicer, the General Master Servicer, the General
Special Servicer, or any single Controlling Class Certificateholder or group of
Controlling Class Certificateholders of all Mortgage Loans and each REO Property
remaining in the Trust Fund at a price (the "Termination Price") equal to (A)
the aggregate Purchase Price of all the Mortgage Loans remaining in the Trust
Fund (exclusive of any REO Mortgage Loan(s)), plus (B) the appraised value of
each REO Property, if any, included in the Trust Fund, such appraisal to be
conducted by a Qualified Appraiser selected by the applicable Special Servicer
and approved by the Trustee and the applicable Master Servicer, minus (C) if the
purchaser is a Master Servicer or Special Servicer, the aggregate amount of
unreimbursed Advances made by such Person, together with any unpaid Advance
Interest in respect of such unreimbursed Advances and any unpaid servicing
compensation payable to such Person (which items shall be deemed to have been
paid or reimbursed to such Master Servicer or Special Servicer, as the case may
be, in connection with such purchase); (ii) the exchange by the Sole
Certificateholder(s) of all the Certificates for all Mortgage Loans and each REO
Property remaining in the Trust Fund; and (iii) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan or
REO Property remaining in the Trust Fund; provided, however, that in no event
shall the Trust continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of
the United States to the Court of St. Xxxxx, living on the date hereof.
(b) The Co-op Master Servicer, the Co-op Special Servicer, any single
Controlling Class Certificateholder or group of Controlling Class
Certificateholders, the General Master Servicer or the General Special Servicer,
in that order of preference, may at its option elect to purchase all the
Mortgage Loans and each REO Property remaining in the Trust Fund as contemplated
by clause (i) of Section 9.01(a) by giving written notice to the other parties
hereto (and, in the case of an election by a Master Servicer or Special
Servicer, to the Holders of the Controlling Class) no later than 60 days prior
to the anticipated date of purchase; provided, however, that the aggregate
Stated Principal Balance of the Mortgage Pool at the time of such election is
less than 1.0% of the Initial Pool Balance; and provided, further, that within
30 days after written notice of such election is so given, no Person with a
higher right of priority to make such an election does so; and provided,
further, that if more than one Controlling Class Certificateholder or group of
Controlling Class Certificateholders desire to purchase all of the Mortgage
Loans and any REO Properties, preference shall be given to the Controlling Class
Certificateholder or group of Controlling Class Certificateholders with the
largest Percentage Interest in the Controlling Class. If the Trust is to be
terminated in connection with the purchase of all the Mortgage Loans and each
REO Property remaining in the Trust Fund by a Master Servicer, a Special
Servicer or any Controlling Class Certificateholder(s), such Person(s) shall:
(i) deposit, or deliver to each of the Master Servicers for deposit in the
Master Servicers' respective Collection Accounts (after
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the Determination Date, and prior to the Master Servicer Remittance Date,
relating to the anticipated Final Distribution Date) an amount in immediately
available funds equal to the Termination Price (the portion thereof allocable to
all the Trust Assets (other than the Co-op Trust Assets) to be deposited in the
General Master Servicer's Collection Account and the portion thereof allocable
to the Co-op Trust Assets to be deposited in the Co-op Master Servicer's
Collection Account); and (ii) shall reimburse all of the parties hereto (other
than itself, if applicable) for all reasonable out-of-pocket costs and expenses
incurred by such parties in connection with such purchase. On the Master
Servicer Remittance Date for the Final Distribution Date, each Master Servicer
shall transfer to the Distribution Account all amounts required to be
transferred by it to such account on such Master Servicer Remittance Date from
such Master Servicer's Collection Account pursuant to the first paragraph of
Section 3.04(b), together with any other amounts on deposit in such Collection
Account that would otherwise be held for future distribution. Upon confirmation
that the deposit of the Termination Price has been made to the Collection
Account(s) and the reimbursement contemplated by the second preceding sentence
has been made to the parties hereto, the Trustee shall release or cause to be
released to the purchasing party (or its designee) the Mortgage Files for the
remaining Mortgage Loans and shall execute all assignments, endorsements and
other instruments furnished to it by the purchasing party as shall be necessary
to effectuate transfer of the Mortgage Loans and REO Properties to the
purchasing party (or its designee).
Following the date on which the aggregate Certificate Principal Balance
of the Registered Certificates is reduced to zero, the Sole Certificateholder(s)
shall have the right to exchange all of the Certificates for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund as contemplated by
clause (ii) of Section 9.01(a) by giving written notice to all the parties
hereto no later than 60 days prior to the anticipated date of exchange. In the
event that the Sole Certificateholder(s) elect(s) to exchange all of the
Certificates for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund in accordance with the preceding sentence, such Sole
Certificateholder(s), not later than the Distribution Date on which the final
distribution on the Certificates is to occur, shall deposit in each Collection
Account an amount in immediately available funds equal to all amounts then due
and owing to the Depositor, a Master Servicer, a Special Servicer, the Trustee
and/or any Fiscal Agent hereunder that may be withdrawn from such Collection
Account, 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 Collection Account. In addition,
each Master Servicer shall transfer to the Distribution Account all amounts
required to be transferred by it to such account on such Master Servicer
Remittance Date from such Master Servicer's Collection Account pursuant to the
first paragraph of Section 3.04(b). Upon confirmation that such final deposits
have been made and following the surrender of all the Certificates on the Final
Distribution Date, the Trustee shall release or cause to be released to the Sole
Certificateholder(s) or any designee thereof, the Mortgage Files for the
remaining Mortgage Loans and shall execute all assignments, endorsements and
other instruments furnished to it by the Sole Certificateholder(s) as shall be
necessary to effectuate transfer of the Mortgage Loans and REO Properties
remaining in the Trust Fund.
(c) Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders mailed (x) if such notice is given in connection
with the purchase of all the Mortgage Loans and each REO Property remaining in
the Trust Fund by a Master Servicer, a Special Servicer or any Controlling Class
Certificateholder(s), 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 and (y) otherwise during the month of such final distribution on or
before the Master Servicer Remittance Date in such month, in any event
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment on the Certificates will be made, (ii) the amount of any such
final payment in respect of
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each Class of Certificates and (iii) that the Record Date otherwise applicable
to such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Certificates at the office or agency of the
Trustee therein designated. The Trustee shall give such notice to the other
parties hereto at the time such notice is given to Certificateholders.
(d) 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 on
deposit in the Distribution Account that is allocable to payments on the
relevant Class in accordance with Section 4.01. Any funds not distributed to any
Holder or Holders of Certificates of any Class on the Final 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 escheat laws, the
Trustee shall distribute to the Class R Certificateholders all unclaimed funds
and other assets which remain subject hereto.
SECTION 9.02. Additional Termination Requirements.
(a) If a Master Servicer, a Special Servicer or a Controlling Class
Certificateholder purchases or the Sole Certificateholder(s) exchange all of the
Certificates for, all the Mortgage Loans and each REO Property remaining in the
Trust Fund as provided in Section 9.01, the Trust and each REMIC Pool shall be
terminated in accordance with the following additional requirements, unless the
purchasing party obtains at its own expense and delivers to the Trustee an
Opinion of Counsel, addressed to the Trustee, to the effect that the failure of
the Trust to comply with the requirements of this Section 9.02 will not result
in an Adverse REMIC Event with respect to any REMIC Pool:
(i) the Trustee 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 regulation section 1.860F-1 and shall satisfy all
requirements of a qualified liquidation under Section 860F of the Code and
any regulations thereunder (as evidenced by an Opinion of Counsel to such
effect delivered on behalf and at the expense of the purchasing party);
(ii) during such 90-day liquidation period and at or prior to the time
of making the final payment on the Certificates, the Trustee shall sell or
otherwise transfer all the Mortgage Loans and each REO Property to the
applicable Person, in exchange for cash and/or Certificates in accordance
with Section 9.01; and
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(iii) immediately following the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the Class R Certificates all
remaining 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 hereby authorize
the Trustee to prepare and adopt, on behalf of the Trust, a plan of complete
liquidation of each REMIC Pool in accordance with the terms and conditions of
this Agreement, which authorization shall be binding upon all successor
Certificateholders.
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ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. Tax Administration.
(a) The Trustee shall elect to treat each REMIC Pool as a REMIC under
the Code and, if necessary, under applicable state law. Each such election will
be made on IRS Form 1066 or other appropriate federal tax or information return
or any appropriate state Tax Returns for the taxable year ending on the last day
of the calendar year in which the Certificates are issued.
(b) The Plurality Class R Certificateholder is hereby designated as the
Tax Matters Person of each REMIC Pool and, in such capacity, shall be
responsible to act on behalf of such REMIC Pool in relation to any tax matter or
controversy, to represent such REMIC Pool in any administrative or judicial
proceeding relating to an examination or audit by any governmental taxing
authority, to request an administrative adjustment as to any taxable year of
such REMIC Pool, to enter into settlement agreements with any governmental
taxing agency with respect to such REMIC Pool, to extend any statute of
limitations relating to any tax item of such REMIC Pool and otherwise to act on
behalf of such REMIC Pool in relation to any tax matter or controversy involving
such REMIC Pool; provided that the Trustee is hereby irrevocably appointed and
agrees to 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. The legal expenses and costs of any
action described in this Section 10.01(b) and any liability resulting therefrom
shall be expenses, costs and liabilities of the Trust payable out of amounts on
deposit in the Distribution Account as provided by Section 3.05(b) unless such
legal expenses and costs are incurred by reason of a Tax Matters Person's or the
Trustee's misfeasance, bad faith or negligence in the performance of, or such
Person's reckless disregard of, its obligations or are expressly provided by
this Agreement to be borne by any party hereto.
(c) The Trustee shall prepare or cause to be prepared, execute and file
all of the Tax Returns in respect of each REMIC Pool (other than Tax Returns
required to be filed by a Master Servicer and/or a Special Servicer pursuant to
Section 3.09(g)) and all of the applicable income tax and other information
returns for each Grantor Trust Pool. The expenses of preparing and filing such
returns shall be borne by the Trustee without any right of reimbursement
therefor.
(d) The Trustee shall perform on behalf of each REMIC Pool all
reporting and other tax compliance duties that are the responsibility of such
REMIC Pool under the Code, the REMIC Provisions or other compliance guidance
issued by the IRS or any state or local taxing authority. Included among such
duties, the Trustee shall provide: (i) to any Transferor of a Class R
Certificate, such information as is necessary for the application of any tax
relating to the transfer of a Class R Certificate to any Person who is not a
Permitted Transferee; (ii) to 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); and (iii) to the IRS, the name,
title, address and telephone number of the Person who will serve as the
representative of each REMIC Pool.
(e) The Trustee shall take such action and shall cause each REMIC Pool
to take such action as shall be necessary to create or maintain the status
thereof as a REMIC under the REMIC Provisions (and the other parties hereto
shall assist it, to the extent reasonably requested by the Trustee),
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to the extent that the Trustee has actual knowledge that any particular action
is required; provided that the Trustee shall be deemed to have knowledge of
relevant tax laws. The Trustee shall not knowingly take or fail to take any
action, or cause any REMIC Pool to take or fail to take any action, that under
the REMIC Provisions, if taken or not taken, as the case may be, could result in
an Adverse REMIC Event in respect of any REMIC Pool or an Adverse Grantor Trust
Event with respect to either Grantor Trust Pool, unless the Trustee has received
an Opinion of Counsel to the effect that the contemplated action or non-action,
as the case may be, will not result in an Adverse REMIC Event or an Adverse
Grantor Trust Event. None of the other parties hereto shall take or fail to take
any action (whether or not authorized hereunder) as to which the Trustee has
advised it in writing that it has received an Opinion of Counsel to the effect
that an Adverse REMIC Event or an Adverse Grantor Trust Event could occur with
respect to such action. In addition, prior to taking any action with respect to
any REMIC Pool or the assets thereof, or causing any REMIC Pool to take any
action, which is not contemplated by the terms of this Agreement, each of the
other parties hereto will consult with the Trustee, in writing, with respect to
whether such action could cause an Adverse REMIC Event or an Adverse Grantor
Trust Event to occur, and no such other party shall take any such action or
cause any REMIC Pool to take any such action as to which the Trustee has advised
it in writing that an Adverse REMIC Event or an Adverse Grantor Trust Event
could occur. The Trustee 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.
(f) If any tax is imposed on any REMIC Pool, including "prohibited
transactions" taxes as defined in Section 860F(a)(2) of the Code, any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the
Code, any taxes on contributions to any REMIC Pool after the Startup Day
pursuant to Section 860G(d) of the Code, and any other tax imposed by the Code
or any applicable provisions of state or local tax laws (other than any tax
permitted to be incurred by a Special Servicer on behalf of the Trust pursuant
to Section 3.17(a)), then such tax, together with all incidental costs and
expenses (including penalties and reasonable attorneys' fees), shall be charged
to and paid by: (i) the Trustee, if such tax arises out of or results from a
breach of any of its obligations under Article IV, Article VIII or this Article
X; (ii) any Fiscal Agent, if such tax arises out of or results from a breach of
any of its obligations under Article IV or this Article X; (iii) a Master
Servicer, if such tax arises out of or results from a breach by such Master
Servicer of any of its obligations under Article III or this Article X; (iv) a
Special Servicer, if such tax arises out of or results from a breach by such
Special Servicer of any of its obligations under Article III or this Article X;
or (v) the Trust, out of the Trust Fund (exclusive of the Grantor Trust Pools),
in all other instances. If any tax is imposed on either Grantor Trust Pool, such
tax, together with all incidental costs and expenses (including, without
limitation, penalties and reasonable attorneys' fees), shall be charged to and
paid by: (i) a Special Servicer, if such tax arises out of or results from a
breach by such Special Servicer of any of its obligations under Article III or
this Article X; (ii) a Master Servicer, if such tax arises out of or results
from a breach by such Master Servicer of any of its obligations under Article
III or this Article X; (iii) 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 Article X; (iv) any Fiscal Agent, if such tax arises out of or
results from a breach of any of its obligations under Article IV or this Article
X; or (v) the Trust, out of the portion of the Trust Fund constituting such
Grantor Trust Pool, in all other instances. Consistent with the foregoing, any
tax permitted to be incurred by a Special Servicer pursuant to Section 3.17(a)
shall be charged to and paid by the Trust. Any such amounts payable by the Trust
in respect of taxes shall be paid by the Trustee out of amounts on deposit in
the Distribution Account.
(g) The Trustee and, to the extent that records are maintained thereby
in the normal course of its business, each of the other parties hereto shall,
for federal income tax purposes, maintain
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books and records with respect to each REMIC Pool and each Grantor Trust Pool on
a calendar year and an accrual basis.
(h) Following the Startup Day for each REMIC Pool, the Trustee shall
not (except as contemplated by Section 2.03) accept any contributions of assets
to any REMIC Pool unless it shall have received an Opinion of Counsel (at the
expense of the party seeking to cause such contribution) to the effect that the
inclusion of such assets in such REMIC Pool will not result in an Adverse REMIC
Event in respect of such REMIC Pool or an Adverse Grantor Trust Event with
respect to either Grantor Trust Pool.
(i) None of the Master Servicers, the Special Servicers, the Trustee or
any Fiscal Agent shall consent to or, to the extent it is within the control of
such Person, permit: (i) the sale or disposition of any Mortgage Loan (except in
connection with (A) a breach of any representation or warranty regarding any
Mortgage Loan set forth in or made pursuant to the related Mortgage Loan
Purchase Agreement, (B) the foreclosure, default or reasonably foreseeable
material default of a Mortgage Loan, including the sale or other disposition of
a Mortgaged Property acquired by foreclosure, deed in lieu of foreclosure or
otherwise, (C) the bankruptcy of any REMIC Pool, or (D) the termination of the
Trust pursuant to Article IX of this Agreement); (ii) the sale or disposition of
any investments in any Investment Account for gain; or (iii) the acquisition of
any assets for the Trust (other than a Mortgaged Property acquired through
foreclosure, deed in lieu of foreclosure or otherwise in respect of a defaulted
Mortgage Loan, other than a Replacement Mortgage Loan substituted for a Deleted
Mortgage Loan and other than Permitted Investments acquired in connection with
the investment of funds in an Investment Account or an interest in a single
member limited liability company, as provided in Section 3.16); in any event
unless it has received an Opinion of Counsel (at the expense of the party
seeking to cause such sale, disposition, or acquisition) to the effect that such
sale, disposition, or acquisition will not result in an Adverse REMIC Event in
respect of any REMIC Pool or an Adverse Grantor Trust Event with respect to
either Grantor Trust Pool.
(j) Except as otherwise permitted by Section 3.17(a), none of the
Master Servicers, the Special Servicers or the Trustee shall enter into any
arrangement by which any REMIC Pool will receive a fee or other compensation for
services or, to the extent it is within the control of such Person, permit any
REMIC Pool to receive any income from assets other than "qualified mortgages" as
defined in Section 860G(a)(3) of the Code or "permitted investments" as defined
in Section 860G(a)(5) of the Code. At all times as may be required by the Code,
each of the respective parties hereto (to the extent it is within its control)
shall 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.
(k) Within 30 days after the related Startup Day, the Trustee shall
prepare and file with the IRS, with respect to each REMIC Pool, IRS Form 8811
"Information Return for Real Estate Mortgage Investment Conduits (REMICs) and
Issuers of Collateralized Debt Obligations".
(l) The parties intend that the portion of the Trust Fund consisting of
Post-ARD Additional Interest on the ARD Mortgage Loans and the Class V
Sub-Account shall constitute, and that the affairs of such portion of the Trust
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Fund shall be conducted so as to qualify as, a Grantor Trust, and the provisions
hereof shall be interpreted consistently with this intention. In addition, the
parties intend that the portion of the Trust Fund consisting of the REMIC I
Residual Interest, the REMIC II Residual Interest and the REMIC III Residual
Interest shall constitute, and the affairs of such portion of the Trust Fund
shall be conducted so as to qualify as, a Grantor Trust, and the provisions
hereof shall be interpreted consistently with this intention. The Trustee shall
also perform on behalf of each Grantor Trust Pool all reporting and other tax
compliance duties that are the responsibility of such Grantor Trust Pool under
the Code or any compliance guidance issued by the IRS or any state or local
taxing authorities. The expenses of preparing and filing such returns shall be
borne by the Trustee.
SECTION 10.02. Depositor, Master Servicers, Special Servicers and
Fiscal Agent to Cooperate with Trustee.
(a) The Depositor shall provide or cause to be provided to the Trustee,
within 10 days after the Closing Date, all information or data that the Trustee
reasonably determines to be relevant for tax purposes as to the valuations and
issue prices of the Certificates, including the price, yield, prepayment
assumption and projected cash flow of the Certificates.
(b) The Master Servicers, the Special Servicers and any Fiscal Agent
each shall furnish such reports, certifications and information in its
possession, and access to such books and records maintained thereby, as may
relate to the Certificates or the Trust Fund and as shall be reasonably
requested by the Trustee in order to enable it to perform its duties under this
Article X.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the mutual agreement of
the parties hereto, without the consent of any of the Certificateholders, (i) to
cure any ambiguity, (ii) to correct, modify or supplement any provision herein
which may be inconsistent with any other provision herein or to correct any
error, (iii) to make any other provisions with respect to matters or questions
arising hereunder which shall not be inconsistent with the then existing
provisions hereof, (iv) as evidenced by an Opinion of Counsel delivered to the
Trustee, the Master Servicers and the Special Servicers, to relax or eliminate
(A) any requirement hereunder imposed by the REMIC Provisions (if the REMIC
Provisions are amended or clarified such that any such requirement may be
relaxed or eliminated) or (B) any transfer restriction imposed on the
Certificates pursuant to Section 5.02(b) or Section 5.02(c) (if applicable law
is amended or clarified such that any such restriction may be relaxed or
eliminated), (v) as evidenced by an Opinion of Counsel delivered to the Trustee,
either (X) to comply with any requirements imposed by the Code or any successor
or amendatory statute or any temporary or final regulation, revenue ruling,
revenue procedure or other written official announcement or interpretation
relating to federal income tax laws or any such proposed action which, if made
effective, would apply retroactively to any REMIC Pool or either Grantor Trust
Pool at least from the effective date of such amendment, or (Y) to avoid the
occurrence of a prohibited transaction or to reduce the incidence of any tax
that would arise from any actions taken with respect to the operation of any
REMIC Pool or either Grantor Trust Pool, (vi) subject to Section 5.02(d)(iv), to
modify, add to or eliminate any of the provisions of Section 5.02(d)(i), (ii) or
(iii), or (vii) to avoid an Adverse Rating Event with respect to any Class of
Rated Certificates; provided that any such amendment shall not substantially
change the activities of the Trust; and provided, further, that any such
amendment for the specific purposes described in clause (iii), (iv) or (vii)
above shall not adversely affect in any material respect the interests of any
Certificateholder or any third-party beneficiary to this Agreement or any
provision hereof, as evidenced by the Trustee's receipt of an Opinion of Counsel
or, in the case of a Class of Rated 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 any Class of Rated Certificates.
(b) This Agreement may also be amended from time to time by the mutual
agreement of the parties hereto, with the consent of the Holders of Certificates
entitled to not less than 51% of the Voting Rights allocated to all of the
Classes that are materially affected by the amendment, 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 and/or REO Properties 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 clause (i) above,
without the consent of the Holders of all Certificates of such Class, (iii)
modify the provisions of this Section 11.01 or the definition of "Servicing
Standard", without the consent of the Holders of all Certificates then
outstanding, (iv) substantially change the activities of the Trust, without the
consent of the Holders of Certificates entitled to not less than 51% of all the
Voting Rights (not taking into account Certificates held by the Depositor or any
of its Affiliates or agents), or (v) adversely affect in any material respect
the interests of any third-party beneficiary to this Agreement
-228-
or any provision herein, without the consent of such third-party beneficiary.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 11.01, Certificates
registered in the name of the Depositor or any Affiliate of the Depositor shall
be entitled to the same Voting Rights with respect to the matters described
above as they would if registered in the name of any other Person.
(c) Notwithstanding any contrary provision of this Agreement, the
Trustee, the Master Servicers and the Special Servicers shall not consent to any
amendment to this Agreement unless each of them shall first have obtained or
been furnished with an Opinion of Counsel to the effect that neither such
amendment nor the exercise of any power granted to any party hereto in
accordance with such amendment will result in an Adverse REMIC Event with
respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to
either Grantor Trust Pool.
(d) Promptly after the execution and delivery of any amendment by all
parties thereto, the Trustee shall send a copy thereof to each Certificateholder
and to each Rating Agency.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization, execution and delivery thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) The Trustee may but shall not be obligated to enter into any
amendment pursuant to this Section 11.01 that affects its rights, duties and
immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Trustee requests any amendment of this Agreement
that it reasonably believes protects or is in furtherance of the rights and
interests of Certificateholders, the cost of any Opinion of Counsel required in
connection therewith pursuant to Section 11.01(a) or (c) shall be payable out of
the Distribution Account.
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Trustee at the expense of the Trust (payable out of the
Distribution Account), but only if (i) a Master Servicer or Special Servicer, as
applicable, determines in its reasonable good faith judgment, that such
recordation materially and beneficially affects the interests of the
Certificateholders and so informs the Trustee in writing and (ii) the
Controlling Class Representative consents.
(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.
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SECTION 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust, 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, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of 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 any other Holders of 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 11.03, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 11.04. Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the substantive laws of the State of New York applicable to agreements made
and to be performed entirely in said State, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws. The parties hereto intend that the provisions of Section 5-1401 of the New
York General Obligations Law shall apply to this Agreement.
SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall be in
writing (including by telecopy) and, unless otherwise expressly provided herein,
shall be deemed to have been duly given when delivered to or, in the case of
telecopy notice, when received: (i) in the case of the Depositor, Credit Suisse
First Boston Mortgage Securities Corp., 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxx Xxxxx, telecopy number: (000) 000-0000; (ii) in
the case of the General
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Master Servicer and the General Special Servicer, KeyCorp Real Estate Capital
Markets, Inc. d/b/a Key Commercial Mortgage, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx
Xxxx, Xxxxxxxx 00000, telecopy number: (000) 000-0000, Attention: X.X. Xxxxx
(with a copy to Xxxxxx X. Xxxxx, KeyBank National Association, 000 Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxxx 00000, telecopy: (000) 000-0000); (iii) in the case of
the Trustee, Xxxxx Xxxxx Xxxx Xxxxxxxxx, X.X., 00000 Broken Xxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust Administration (CMBS)
- Credit Suisse First Boston Mortgage Securities Corp. Series 2001-CKN5,
telecopy number (000) 000-0000; (iv) in the case of the Co-op Master Servicer,
the Co-op Special Servicer and the NCBCC Performance Guarantor, National
Consumer Cooperative Bank, 0000 Xxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000,
Attention: Xxxxxx Xxxxxxxx, telecopy number: 000-000-0000; (v) in the case of
the Rating Agencies, (A) Xxxxx'x Investors Services Inc., 00 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Commercial MBS Monitoring Department, telecopy
number (000) 000-0000, and (B) Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: CMBS Surveillance Department, telecopy number: (000) 000-0000; (vi)
in the case of any Mortgage Loan Seller, the address for notices to such
Mortgage Loan Seller under the related Mortgage Loan Purchase Agreement; (vii)
in the case of the Column Performance Guarantor, the address for notices to the
Column Performance Guarantor under the Column Performance Guarantee; and (viii)
in the case of the initial Controlling Class Representative, Allied Capital
Corporation, 0000 Xxxxxxxxxxxx Xxxxxx X.X., 0xx Xxxxx, Xxxxxxxxxx, X.X. 00000,
Attention: Xxxx Xxxxxxxx, telecopy number: 000- 000-0000; or as to each such
Person such other address and/or telecopy number as may hereafter be furnished
by such Person to the parties hereto in writing. Any communication required or
permitted to be delivered to a Certificateholder shall be deemed to have been
duly given when mailed first class, postage prepaid, to the address of such
Holder as shown in the Certificate Register.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenant(s), agreement(s), provision(s) or term(s) shall be deemed severable
from the remaining covenants, agreements, provisions or terms of this Agreement
and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Certificates or the rights of the Holders
thereof.
SECTION 11.07. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto, their respective successors and assigns and, as
third party beneficiaries (with all right to enforce the obligations hereunder
intended for their benefit as if a party hereto), the Underwriters, the
Designated Sub-Servicers and the non-parties referred to in Sections 6.03 and
8.05, and all such provisions shall inure to the benefit of the
Certificateholders. No other person, including any Borrower, shall be entitled
to any benefit or equitable right, remedy or claim under this Agreement.
SECTION 11.08. 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.
-231-
SECTION 11.09. Notices to and from the Rating Agencies and the
Depositor.
(a) The Trustee shall promptly provide notice to each Rating Agency and
the Depositor with respect to each of the following of which a Responsible
Officer of the Trustee 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, termination, merger or consolidation of a
Master Servicer or Special Servicer and the appointment of a
successor;
(iv) the appointment, resignation or removal of a Fiscal Agent;
(v) any change in the location of the Distribution Account, the
Interest Reserve Account or the Excess Liquidation Proceeds
Account;
(vi) any repurchase or substitution of a Mortgage Loan by a Mortgage
Loan Seller, the Column Performance Guarantor or the NCBCC
Performance Guarantor as contemplated by Section 2.03; and
(vii) the final payment to any Class of Certificateholders (or, in the
case of S&P, on all the Certificates).
(b) Each Master Servicer shall promptly provide notice to each
Rating Agency and the Depositor with respect to each of the following of which
it has actual knowledge:
(i) the resignation or removal of the Trustee and the appointment of
a successor; and
(ii) any change in the location of its Collection Account.
(c) Each of the Master Servicers and Special Servicers shall furnish
each Rating Agency such information with respect to the Mortgage Loans as such
Rating Agency shall reasonably request and which such Master Servicer or Special
Servicer, as the case may be, can reasonably provide to the extent consistent
with applicable law and the related Mortgage Loan Documents and without waiving
any attorney-client privilege relating to such information. In any event, each
Master Servicer and Special Servicer shall notify each Rating Agency with
respect to each of the following events of which it has actual knowledge and
which involves a Mortgage Loan as to which it is the applicable Master Servicer
or Special Servicer, as the case may be:
(i) any change in the lien priority of the Mortgage securing any
Mortgage Loan;
(ii) any change in the identity of the anchor tenant (i.e., a tenant
representing more than 20% of the total net rentable square feet
of space) at any Mortgaged Property used for retail purposes or
any change in the term of the lease for an anchor tenant at any
such Mortgaged Property; and
-232-
(iii) any assumption of, or release or substitution of collateral for,
a Mortgage Loan that represents greater than 2% of the then
aggregate Stated Principal Balance of the Mortgage Pool;
(iv) any defeasance of a Mortgage Loan or material damage to a
Mortgaged Property;
(v) any change in a franchise;
(vi) any Borrower subject to bankruptcy proceedings; and
(vii) any release of a Letter of Credit or debt service reserve with
respect to any Mortgage Loan.
(d) Each of the Master Servicers and Special Servicers shall
promptly furnish (in hard copy format or through use of a Master Servicer's
Internet Website), to each Rating Agency copies of the following items (in each
case, at or about the same time that it delivers or causes the delivery of such
item to the Trustee):
(i) each of its Annual Performance Certifications;
(ii) each of its Annual Accountants' Reports; and
(iii) each report prepared pursuant to Section 3.09(e).
(e) The Trustee shall promptly deliver or otherwise make available
to each Rating Agency (in hard copy format or through use of the Trustee's
Internet Website) a copy of each Certificateholder Report forwarded to the
Holders of the Certificates (in each case, at or about the same time that it
delivers such Certificateholder Report to such Holders). Any Restricted Servicer
Reports delivered electronically as aforesaid shall be accessible on the
Trustee's Internet Website only with the use of a password, which shall be
provided by the Trustee to each Rating Agency.
(f) The parties intend that each Rating Agency provide to the
Trustee, upon request, a listing of the then-current rating (if any) assigned by
such Rating Agency to each Class of Certificates then outstanding.
SECTION 11.10. Notices to Controlling Class Representative.
The Trustee, the Master Servicers and the Special Servicers shall each
deliver to the Controlling Class Representative a copy of each notice or other
item of information such Person is required to deliver to the Rating Agencies
pursuant to Section 11.09, in each case simultaneously with the delivery thereof
to the Rating Agencies, to the extent not already delivered pursuant to this
Agreement.
SECTION 11.11. Complete Agreement.
This Agreement embodies the complete agreement among the parties and
may not be varied or terminated except by a written agreement conforming to the
provisions of Section 11.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
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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.
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Depositor
By:
--------------------------------------
Name:
Title:
KEYCORP REAL ESTATE CAPITAL MARKETS, INC.
d/b/a KEY COMMERCIAL MORTGAGE
General Master Servicer and General Special Servicer
By:
--------------------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA, N.A.
Solely in its capacity as Trustee
By:
--------------------------------------
Name:
Title:
NATIONAL CONSUMER COOPERATIVE BANK
Co-op Master Servicer and Co-op Special Servicer
By:
--------------------------------------
Name:
Title:
STATE OF ___________________ )
) ss.:
COUNTY OF __________________ )
On the ______ day of ______ 2001, before me, a notary public in and for
said State, personally appeared __________________, personally known to me to be
a _________________ of CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES 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
[Notarial Seal]
STATE OF ___________________ )
)ss.:
COUNTY OF __________________ )
On the ______ day of ______ 2001, before me, a notary public in and for
said State, personally appeared X.X. Xxxxx, known to me to be a Senior Vice
President of KEYCORP REAL ESTATE CAPITAL MARKETS, INC. d/b/a KEY COMMERCIAL
MORTGAGE, 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 ______ 2001, before me, a notary public in and for
said State, personally appeared ___________________, known to me to be a
____________________ of XXXXX FARGO BANK MINNESOTA, N.A., 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 ______ 2001, before me, a notary public in and for
said State, personally appeared ___________________, known to me to be a
____________________ of NATIONAL CONSUMER COOPERATIVE BANK, 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]
EXHIBIT A-1
FORM OF CLASS [A-X] [A-CP] [A-Y] CERTIFICATES
CLASS [A-X] [A-CP] [A-Y] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2001-CKN5
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 fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by:
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Pass-Through Rate: Variable Class Notional Amount of the Class [A-X]
[A-CP] [A-Y] Certificates as of the
Closing Date: $________________
Closing Date: November 13, 2001 Initial Certificate Notional Amount of
this Certificate as of the Closing Date:
First Distribution Date: December 17, 2001 $________________
General Master Servicer and Aggregate Stated Principal Balance of the
General Special Servicer: Mortgage Loans as of the Closing Date
KeyCorp Real Estate Capital Markets, Inc. d/b/a ("Initial Pool Balance"):
Key Commercial Mortgage $1,072,782,114
Co-op Master Servicer and Co-op Special Servicer: Trustee:
National Consumer Cooperative Bank Xxxxx Fargo Bank Minnesota, N.A.
Certificate No. [A-X] [A-CP] [A-Y]-__ CUSIP No.: _____________
Common Code: _____________
ISIN No.: _____________
A-1-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE 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 (A) TO 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, AS AMENDED (THE "CODE"), OR
(B) TO 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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., XXXXX FARGO BANK MINNESOTA, N.A.,
KEYCORP REAL ESTATE CAPITAL MARKETS, INC. D/B/A KEY COMMERCIAL MORTGAGE,
NATIONAL CONSUMER COOPERATIVE BANK, OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS 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, AS AMENDED (THE "CODE").
A-1-2
THE OUTSTANDING CERTIFICATE NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE. THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL
BALANCE AND WILL NOT ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
[LEGEND FOR REGULATION S GLOBAL CERTIFICATE -- PRIOR TO THE DATE THAT IS 40 DAYS
AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE CERTIFICATES AND
(B) _____________, 2001, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF
1933, AS AMENDED. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF PRINCIPAL OR INTEREST 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 amount of this Certificate (its "Certificate Notional Amount") as of
the Closing Date by the aggregate notional amount of all the Class [A-X] [A-CP]
[A-Y] Certificates (their "Class Notional Amount") as of the Closing Date) in
that certain beneficial ownership interest in the Trust Fund evidenced by all
the Class [A-X] [A-CP] [A-Y] Certificates. The Trust Fund was created and the
Certificates were issued pursuant to a Pooling and Servicing Agreement, dated as
of November 12, 2001 (the "Agreement"), among Credit Suisse First Boston
Mortgage Securities Corp. as depositor (the "Depositor", which term includes any
successor entity under the Agreement), KeyCorp Real Estate Capital Markets, Inc.
d/b/a Key Commercial Mortgage as general master servicer and general special
servicer (in such capacities, the "General Master Servicer" and the "General
Special Servicer", respectively, which terms include any successor entities
under the Agreement), National Consumer Cooperative Bank as co-op master
servicer and co-op special servicer (in such capacities, the "Co-op Master
Servicer" and the "Co-op Special Servicer", respectively, which terms include
any successor entities under the Agreement), and Xxxxx Fargo Bank Minnesota,
N.A. 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, capitalized terms used herein
have the respective meanings assigned thereto 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 its
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the fourth Business Day following the
Determination Date in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class [A-X] [A-CP] [A-Y] Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on this
Certificate will be made by the Trustee by wire transfer of 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
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the Trustee with wiring instructions no later than the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
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 Distribution Account, the Collection Accounts
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.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is 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.
No transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act, then (except under limited circumstances specified in the
Agreement) 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-1A to the Agreement; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Certificate Registrar 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 or of the
Depositor, the General Master Servicer, the Co-op Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee, any Fiscal Agent or
the Certificate Registrar in their respective capacities as such), together with
the written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
If this Certificate constitutes a Rule 144A Global Certificate and a
transfer of any interest in this Certificate is to be made without registration
under the Securities Act, then (except under limited circumstances specified in
the Agreement) the Certificate Owner desiring to effect such transfer shall be
required to obtain either (i) a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached as Exhibit F-2C to the
Agreement, or (ii) an Opinion of Counsel to the effect that such prospective
Transferee is a Qualified Institutional Buyer and such transfer may be made
without registration under the Securities Act. Except as discussed below, if
this Certificate constitutes a
A-1-4
Rule 144A Global Certificate, then interests herein shall not be transferred to
any Person who takes delivery in the form of an interest in one of those two
Global Certificates.
[FOR CLASS A-X AND CLASS A-CP CERTIFICATES: Notwithstanding the preceding
paragraph, if this Certificate constitutes a Rule 144A Global Certificate, then
interests herein may be transferred (without delivery of any certificate or
Opinion of Counsel described in the preceding paragraph) to any Person who takes
delivery in the form of a beneficial interest in the Regulation S Global
Certificate of the same Class as this Rule 144A Global Certificate upon delivery
to the Certificate Registrar of (x) a certificate from the Certificate Owner
desiring to effect such transfer substantially in the form attached as Exhibit
F-1D to the Agreement and a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached as Exhibit F-2D to the
Agreement and (y) such written orders and instructions as are required under the
applicable procedures of DTC, Clearstream and/or Euroclear to direct the Trustee
to debit the account of a Depository Participant by a denomination of interests
in this 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 such
Class to be transferred. Upon delivery to the Certificate Registrar of such
certifications and such orders and instructions, the Trustee, subject to and in
accordance with the applicable procedures of DTC, shall reduce the denomination
of this Rule 144A Global Certificate, and increase the denomination of the
related Regulation S Global Certificate, by the denomination of the beneficial
interest in such Class specified in such orders and instructions.]
[FOR CLASS A-X AND CLASS A-CP CERTIFICATES: Except as discussed below, if
this Certificate constitutes a Regulation S Global Certificate, then beneficial
interests in this Certificate shall not be transferred to any Person other than
a non-United States Securities Person who takes delivery other than in the form
of a beneficial interest in this Certificate, and the Certificate Owner desiring
to effect such transfer shall be required to obtain from such Certificate
Owner's prospective Transferee a certification substantially in the form
attached as Exhibit F-2D to the Agreement. On or prior to the Release Date,
beneficial interests in any Regulation S Global Certificate may be held only
through Euroclear or Clearstream. After the Release Date, beneficial interests
in any Regulation S Global Certificate may be held through Euroclear,
Clearstream or any other direct account holder at DTC.]
[FOR CLASS A-X AND CLASS A-CP CERTIFICATES: Notwithstanding the preceding
paragraph, if this Certificate constitutes a Regulation S Global Certificate,
then following the Release Date, interests in this Certificate may be
transferred (without delivery of any certificate described in the preceding
paragraph) to any Person who takes delivery in the form of a beneficial interest
in the Rule 144A Global Certificate for the same Class as this Regulation S
Global Certificate upon delivery to the Certificate Registrar and the Trustee of
(i) a certificate from the Certificate Owner desiring to effect such transfer
substantially in the form attached as Exhibit F-1C to the Agreement and a
certificate from such Certificate Owner's prospective Transferee substantially
in the form attached as Exhibit F-2C to the Agreement and (ii) such written
orders and instructions as are required under the applicable procedures of the
Depository, Clearstream and/or Euroclear to direct the Trustee to debit the
account of a Depository Participant by a denomination of interests in this
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 to be transferred.
Upon delivery to the Trustee of such certifications and such orders and
instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of
A-1-5
this Regulation S Global Certificate, and increase the denomination of the
related Rule 144A Global Certificate, by the denomination of the beneficial
interest in such Class specified in such orders and instructions.]
Notwithstanding the foregoing, any interest in a Global Certificate may
be transferred by any Certificate Owner holding such interest to any Person who
takes delivery in the form of a Definitive Certificate of the same Class as such
Global Certificate upon delivery to the Certificate Registrar and the Trustee of
(i) such certifications and/or opinions as are contemplated above with respect
to transfers of this Certificate in definitive form and (ii) such written orders
and instructions as are required under the applicable procedures of the
Depository, Clearstream and/or Euroclear to direct the Trustee to debit the
account of a Depository Participant by a denomination of interests in such
Global Certificate. Upon delivery to the Certificate Registrar of the
certifications and/or opinions contemplated above with respect to transfers of
this Certificate in definitive form, the Trustee, subject to and in accordance
with the applicable procedures of the Depository, shall reduce the denomination
of the subject Global Certificate, and cause a Definitive Certificate of the
same Class as such Global Certificate, and in a denomination equal to the
reduction in the denomination of such Global Certificate, to be executed,
authenticated and delivered in accordance with this Agreement to the applicable
Transferee.
The Global Certificates shall be deposited with the Trustee as custodian
for DTC and registered in the name of Cede & Co. as nominee of DTC.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class [A-X] [A-CP] [A-Y] Certificates 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 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
CSFB Corporation, the Depositor, the Trustee, the General Master Servicer, the
Co-op Master Servicer, the General Special Servicer, the Co-op Special Servicer,
any Fiscal Agent and the Certificate Registrar against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws or the provisions described in the preceding paragraphs.
No transfer of this Certificate or any interest herein shall be made (A)
to any retirement plan or other employee benefit plan or arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to 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 a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in limited circumstances, the
Certificate Registrar shall refuse to register the transfer of this Certificate
(and, if applicable, any Certificate Owner shall refuse to transfer an interest
in this 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 this Certificate on behalf
of, as named fiduciary of, as trustee of, or with assets of a Plan; or (ii) [FOR
CLASS A-X AND CLASS A-CP ONLY: a certification to the effect that the purchase
and holding of this Certificate by such prospective Transferee is exempt from
the prohibited transaction provisions of Sections 406 and 407 of ERISA and
A-1-6
Section 4975 of the Code by reason of Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (iii) if this Certificate is rated
investment grade by at least one of the Rating Agencies and is being acquired
by, on behalf of or with assets of a Plan in reliance Prohibited Transaction
Exemption 89-90, a certification to the effect that such Plan (X) is an
accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (Y) is not sponsored (within the meaning of Section 3(16)(B) of
ERISA) by the Trustee, the Depositor, any Fiscal Agent, any Mortgage Loan
Seller, any Exemption-Favored Party, the General Master Servicer, the Co-op
Master Servicer, the General Special Servicer, the Co-op Special Servicer, any
Sub-Servicer or any Borrower with respect to Mortgage Loans constituting 5% of
the aggregate unamortized principal of all the Mortgage Loans determined as of
the Closing Date, or by an Affiliate of any such Person, and (Z) agrees that it
will obtain from each of its Transferees a written representation that such
Transferee, if a Plan, satisfies the requirements of the immediately preceding
clauses (iii)(X) and (iii)(Y), together with a written agreement that such
Transferee will obtain from each of its Transferees that are Plans a similar
written representation regarding satisfaction of the requirements of the
immediately preceding clauses (iii)(X) and (iii)(Y); or (iv)] a certification of
facts and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Certificate Registrar (or, if applicable, the Certificate
Owner effecting the transfer) 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 a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
acknowledgments, representations, warranties, certifications and/or agreements
with respect to each such account as described above in this Certificate.
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 this Certificate, 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 this
Certificate.
[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, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.]
The Depositor, the General Master Servicer, the Co-op Master Servicer,
the General Special Servicer, the Co-op Special Servicer, the Trustee, any
Fiscal Agent, the Certificate Registrar and any agent of the Depositor, the
General Master Servicer, the Co-op Master Servicer, the General Special
A-1-7
Servicer, the Co-op Special Servicer, the Trustee, any Fiscal Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
General Master Servicer, the Co-op Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any 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 Fund 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
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, (ii) the purchase by the
General Master Servicer, the Co-op Master Servicer, the General Special
Servicer, the Co-op Special Servicer, or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund and (iii) the acquisition by the Sole
Certificateholder(s) of all the Mortgage Loans and each REO Property remaining
in the Trust Fund in exchange for all of the Certificates. The Agreement
permits, but does not require, the General Master Servicer, the Co-op Master
Servicer, the General Special Servicer, the Co-op Special Servicer, or any
single Controlling Class Certificateholder or group of Controlling Class
Certificateholders to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may 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 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the General Master Servicer, the Co-op Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee and any Fiscal Agent
and the rights of the Certificateholders under the Agreement at any time by the
Depositor, the General Master Servicer, the Co-op Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee and any Fiscal Agent
with the consent of the Holders of Certificates entitled to not less than 51% of
the Voting Rights allocated to all of the Classes materially affected by the
amendment. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, including any amendment necessary to maintain the
status of any REMIC Pool as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
A-1-8
This Certificate shall be 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, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-1-9
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
XXXXX FARGO BANK MINNESOTA, N.A.
as Trustee
By:
-----------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-X] [A-CP] [A-Y] Certificates referred to in
the within-mentioned Agreement.
Dated:
XXXXX FARGO BANK MINNESOTA, N.A.
as Certificate Registrar
By:
-----------------------------
Authorized Representative
A-1-10
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 Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such 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.
X-0-00
XXXXXXX X-0
FORM OF CLASS A-1, CLASS A-2, CLASS A-3, CLASS A-4,
CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES
CLASS [A-1] [A-2] [A-3] [A-4] [B] [C] [D] [E] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2001-CKN5
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 fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Pass-Through Rate: ____% per annum Class Principal Balance of the Class [A-1] [A-2]
[A-3] [A-4] [B] [C] [D] [E] Certificates as of
the Closing Date:
$_________________
Closing Date: November 13, 2001 Initial Certificate Principal Balance of this
Certificate as of the Closing Date:
First Distribution Date: December 17, 2001 $_________________
General Master Servicer and Aggregate Stated Principal Balance of the
General Special Servicer: Mortgage Loans as of the Closing Date ("Initial
KeyCorp Real Estate Capital Markets, Inc. d/b/a Mortgage Balance"):
Key Commercial Mortgage $1,072,782,114
Co-op Master Servicer and Co-op Special Servicer: Trustee:
National Consumer Cooperative Bank Xxxxx Fargo Bank Minnesota, N.A.
Certificate No. [A-1] [A-2] [A-3] [A-4] [B] [C] CUSIP No.: _____________
[D] [E]-___ Common Code: _____________
ISIN No.: _____________
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE 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 (A) TO 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, AS AMENDED (THE "CODE"), OR
(B) TO 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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., XXXXX FARGO BANK MINNESOTA, N.A.,
KEYCORP REAL ESTATE CAPITAL MARKETS, INC. D/B/A KEY COMMERCIAL MORTGAGE,
NATIONAL CONSUMER COOPERATIVE BANK, OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS 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, AS AMENDED (THE "CODE").
[FOR CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES: THIS CERTIFICATE IS
SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES AS AND TO
THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
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 amount of this Certificate (its "Certificate Principal Balance") as of
the Closing Date by the aggregate principal amount of all the Class [A-1] [A-2]
[A-3] [A-4] [B] [C] [D] [E] Certificates (their "Class Principal Balance") as of
the
A-2-2
Closing Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Class [A-1] [A-2] [A-3] [A-4] [B] [C] [D] [E] Certificates.
The Trust Fund was created and the Certificates were issued pursuant to a
Pooling and Servicing Agreement, dated as of November 12, 2001 (the
"Agreement"), among Credit Suisse First Boston Mortgage Securities Corp. as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial
Mortgage as general master servicer and general special servicer (in such
capacities, the "General Master Servicer" and the "General Special Servicer",
respectively, which terms include any successor entities under the Agreement),
National Consumer Cooperative Bank as co-op master servicer and co-op special
servicer (in such capacities, the "Co-op Master Servicer" and the "Co-op Special
Servicer", respectively, which terms include any successor entities under the
Agreement), and Xxxxx Fargo Bank Minnesota, N.A. 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, capitalized terms used herein have the respective
meanings assigned thereto 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 its acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the fourth Business Day following the
Determination Date in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class [A-1] [A-2] [A-3] [A-4] [B] [C] [D] [E] Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on this Certificate will be made by the Trustee by wire transfer of
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 wiring instructions no
later than the related Record Date (which wiring instructions may be in the form
of a standing order applicable to all subsequent distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any portion of an Unfunded Principal Balance Reduction in respect of this
Certificate) will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution.
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 Distribution Account, the Collection Accounts
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.
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
A-2-3
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.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is 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.
No transfer of this Certificate or any interest herein shall be made (A)
to any retirement plan or other employee benefit plan or arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to 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 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.
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 this Certificate, 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 this
Certificate.
[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, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.]
The Depositor, the General Master Servicer, the Co-op Master Servicer,
the General Special Servicer, the Co-op Special Servicer, the Trustee, any
Fiscal Agent, the Certificate Registrar and any agent of the Depositor, the
General Master Servicer, the Co-op Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any Fiscal Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
General Master Servicer, the Co-op Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any 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 Fund 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
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them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, (ii) the purchase by the
General Master Servicer, the Co-op Master Servicer, the General Special
Servicer, the Co-op Special Servicer, or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund and (iii) the acquisition by the Sole
Certificateholder(s) of all the Mortgage Loans and each REO Property remaining
in the Trust Fund in exchange for all the Certificates. The Agreement permits,
but does not require, the General Master Servicer, the Co-op Master Servicer,
the General Special Servicer, the Co-op Special Servicer, or any single
Controlling Class Certificateholder or group of Controlling Class
Certificateholders to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may 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 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the General Master Servicer, the Co-op Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee and any Fiscal Agent
and the rights of the Certificateholders under the Agreement at any time by the
Depositor, the General Master Servicer, the Co-op Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee and any Fiscal Agent
with the consent of the Holders of Certificates entitled to not less than 51% of
the Voting Rights allocated to all of the Classes materially affected by the
amendment. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, including any amendment necessary to maintain the
status of any REMIC Pool as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be 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, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
XXXXX FARGO BANK MINNESOTA, N.A.
as Trustee
By:
----------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1] [A-2] [A-3] [A-4] [B] [C] [D] [E]
Certificates referred to in the within-mentioned Agreement.
Dated:
XXXXX FARGO BANK MINNESOTA, N.A.
as Certificate Registrar
By:
----------------------------
Authorized Representative
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such 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.
X-0-0
XXXXXXX X-0
FORM OF CLASS F, CLASS G, CLASS H, CLASS J, CLASS K
AND CLASS L CERTIFICATES
CLASS [F] [G] [H] [J] [K] [L] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2001-CKN5
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 fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Pass-Through Rate: [FOR CLASS F, CLASS J, Class Principal Balance of the Class [F] [G] [H]
CLASS K AND CLASS L: ____% per annum] [J] [K] [L] Certificates as of the Closing Date:
[FOR CLASS G AND CLASS H: Variable] $_________________
Closing Date: November 13, 2001 Initial Certificate Principal Balance of this
Certificate as of the Closing Date:
First Distribution Date: December 17, 2001 $_________________
General Master Servicer and Aggregate Stated Principal Balance of the
General Special Servicer: Mortgage Loans as of the Closing Date: ("Initial
KeyCorp Real Estate Capital Markets, Inc. d/b/a Pool Balance"):
Key Commercial Mortgage $1,072,782,114
Co-op Master Servicer and Co-op Special Servicer: Trustee:
National Consumer Cooperative Bank Xxxxx Fargo Bank Minnesota, N.A.
Certificate No. [F] [G] [H] [J] [K] [L]-___ CUSIP No.: _____________
Common Code: _____________
ISIN No.: _____________
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE 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 (A) TO 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, AS AMENDED (THE "CODE"), OR
(B) TO 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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., XXXXX FARGO BANK MINNESOTA, N.A.,
KEYCORP REAL ESTATE CAPITAL MARKETS, INC. D/B/A KEY COMMERCIAL MORTGAGE,
NATIONAL CONSUMER COOPERATIVE BANK, OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
A-3-2
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 CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
[LEGEND FOR REGULATION S GLOBAL CERTIFICATE -- PRIOR TO THE DATE THAT IS 40 DAYS
AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE CERTIFICATES AND
(B) _____________, 2001, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF
1933, AS AMENDED. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.]
This certifies that [CEDE & CO.] is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal amount of this Certificate (its "Certificate Principal Balance") as of
the Closing Date by the aggregate principal amount of all the Class [F] [G] [H]
[J] [K] [L] Certificates (their "Class Principal Balance") as of the Closing
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Class [F] [G] [H] [J] [K] [L] Certificates. The Trust Fund was
created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as of November 12, 2001 (the "Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp. as depositor (the "Depositor", which term
includes any successor entity under the Agreement), KeyCorp Real Estate Capital
Markets, Inc. d/b/a Key Commercial Mortgage as general master servicer and
general special servicer (in such capacities, the "General Master Servicer" and
the "General Special Servicer", respectively, which terms include any successor
entities under the Agreement), National Consumer Cooperative Bank as co-op
master servicer and co-op special servicer (in such capacities, the "Co-op
Master Servicer" and the "Co-op Special Servicer", respectively, which terms
include any successor entities under the Agreement), and Xxxxx Fargo Bank
Minnesota, N.A. 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, capitalized
terms used herein have the respective meanings assigned thereto 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 its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the fourth Business Day following the
Determination Date in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class [F] [G] [H] [J] [K] [L] Certificates on the applicable Distribution Date
pursuant to
A-3-3
the Agreement. All distributions made under the Agreement on this Certificate
will be made by the Trustee by wire transfer of 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 wiring instructions no later than the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any portion
of an Unfunded Principal Balance Reduction in respect of this Certificate) will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
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 Distribution Account, the Collection Accounts
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.
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.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is 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.
No transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act, then (except under limited circumstances specified in the
Agreement) 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-1A to the Agreement; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Certificate Registrar 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 or of the
Depositor, the General Master Servicer, the Co-op Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee, any Fiscal Agent or
the Certificate Registrar in their respective capacities as such), together with
the written certification(s) as to
A-3-4
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective Transferee on
which such Opinion of Counsel is based.
If this Certificate constitutes a Rule 144A Global Certificate and a
transfer of any interest in this Certificate is to be made without registration
under the Securities Act, then (except under limited circumstances specified in
the Agreement) the Certificate Owner desiring to effect such transfer shall be
required to obtain either (i) a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached as Exhibit F-2C to the
Agreement, or (ii) an Opinion of Counsel to the effect that such prospective
Transferee is a Qualified Institutional Buyer and such transfer may be made
without registration under the Securities Act. Except as discussed below, if
this Certificate constitutes a Rule 144A Global Certificate, then interests
herein shall not be transferred to any Person who takes delivery other than in
the form of an interest in one of those two Global Certificates.
Notwithstanding the preceding paragraph, if this Certificate constitutes
a Rule 144A Global Certificate, then interests herein may be transferred
(without delivery of any certificate or Opinion of Counsel described in the
preceding paragraph) to any Person who takes delivery in the form of a
beneficial interest in the Regulation S Global Certificate of the same Class as
this Rule 144A Global Certificate upon delivery to the Certificate Registrar of
(x) a certificate from the Certificate Owner desiring to effect such transfer
substantially in the form attached as Exhibit F-1D to the Agreement and a
certificate from such Certificate Owner's prospective Transferee substantially
in the form attached as Exhibit F-2D to the Agreement and (y) such written
orders and instructions as are required under the applicable procedures of DTC,
Clearstream and/or Euroclear to direct the Trustee to debit the account of a
Depository Participant by a denomination of interests in this 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 such Class to be transferred.
Upon delivery to the Certificate Registrar of such certifications and such
orders and instructions, the Trustee, subject to and in accordance with the
applicable procedures of DTC, shall reduce the denomination of this Rule 144A
Global Certificate, and increase the denomination of the related Regulation S
Global Certificate, by the denomination of the beneficial interest in such Class
specified in such orders and instructions.
Except as discussed below, if this Certificate constitutes a Regulation S
Global Certificate, then beneficial interests in this Certificate shall not be
transferred to any Person other than a non-United States Securities Person who
takes delivery in the form of a beneficial interest in this Certificate, and the
Certificate Owner desiring to effect such transfer shall be required to obtain
from such Certificate Owner's prospective Transferee a certification
substantially in the form attached as Exhibit F-2D to the Agreement. On or prior
to the Release Date, beneficial interests in any Regulation S Global Certificate
may be held only through Euroclear or Clearstream. After the Release Date,
beneficial interests in any Regulation S Global Certificate may be held through
Euroclear, Clearstream or any other direct account holder at DTC.
Notwithstanding the preceding paragraph, if this Certificate constitutes
a Regulation S Global Certificate, then following the Release Date, interests in
this Certificate may be transferred (without delivery of any certificate
described in the preceding paragraph) to any Person who takes delivery in the
form of a beneficial interest in the Rule 144A Global Certificate for the same
Class as this Regulation S Global Certificate upon delivery to the Certificate
Registrar and the Trustee of (i) a certificate from the Certificate Owner
desiring to effect such transfer substantially in the form attached
A-3-5
as Exhibit F-1C to the Agreement and a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached as Exhibit F-2C to the
Agreement and (ii) such written orders and instructions as are required under
the applicable procedures of the Depository, Clearstream and/or Euroclear to
direct the Trustee to debit the account of a Depository Participant by a
denomination of interests in this 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 to be transferred. Upon delivery to the Trustee of such certifications
and such orders and instructions, the Trustee, subject to and in accordance with
the applicable procedures of the Depository, shall reduce the denomination of
this Regulation S Global Certificate, and increase the denomination of the
related Rule 144A Global Certificate, by the denomination of the beneficial
interest in such Class specified in such orders and instructions.
Notwithstanding the foregoing, any interest in a Global Certificate may
be transferred by any Certificate Owner holding such interest to any Person who
takes delivery in the form of a Definitive Certificate of the same Class as such
Global Certificate upon delivery to the Certificate Registrar and the Trustee of
(i) such certifications and/or opinions as are contemplated above with respect
to transfers of this Certificate in definitive form and (ii) such written orders
and instructions as are required under the applicable procedures of the
Depository, Clearstream and/or Euroclear to direct the Trustee to debit the
account of a Depository Participant by a denomination of interests in such
Global Certificate. Upon delivery to the Certificate Registrar of the
certifications and/or opinions contemplated above with respect to transfers of
this Certificate in definitive form, the Trustee, subject to and in accordance
with the applicable procedures of the Depository, shall reduce the denomination
of the subject Global Certificate, and cause a Definitive Certificate of the
same Class as such Global Certificate, and in a denomination equal to the
reduction in the denomination of such Global Certificate, to be executed,
authenticated and delivered in accordance with this Agreement to the applicable
Transferee.
The Global Certificates shall be deposited with the Trustee as custodian
for DTC and registered in the name of Cede & Co. as nominee of DTC.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class [F] [G] [H] [J] [K] [L] Certificates
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 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, CSFB Corporation, the Trustee, the General Master Servicer, the
Co-op Master Servicer, the General Special Servicer, the Co-op Special Servicer,
any Fiscal Agent and the Certificate Registrar against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws or the provisions described in the preceding paragraphs.
No transfer of this Certificate or any interest herein shall be made (A)
to any retirement plan or other employee benefit plan or arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to 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 a
Plan, if the purchase and holding of this Certificate or such interest herein by
the
A-3-6
prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in limited circumstances, the
Certificate Registrar shall refuse to register the transfer of this Certificate
(and, if applicable, any Certificate Owner shall refuse to transfer an interest
in this 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 this Certificate 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 by
such prospective Transferee is exempt from the prohibited transaction provisions
of Section 406 and 407 of ERISA and Section 4975 of the Code by reason of
Sections I and III of Prohibited Transaction Class Exemption 95-60; or (iii) if
this Certificate is rated investment grade by at least one of the Rating
Agencies and is being acquired by, on behalf of or with assets of a Plan in
reliance upon Prohibited Transaction Exemption 89-90, a certification to the
effect that such Plan (X) is an accredited investor as defined in Rule 501(a)(1)
of Regulation D of the Securities Act, (Y) is not sponsored (within the meaning
of Section 3(16)(B) of ERISA) by the Trustee, the Depositor, any Fiscal Agent,
any Mortgage Loan Seller, any Exemption-Favored Party, the General Master
Servicer, the Co-op Master Servicer, the General Special Servicer, the Co-op
Special Servicer, any Sub-Servicer or any Borrower with respect to Mortgage
Loans constituting 5% of the aggregate unamortized principal of all the Mortgage
Loans determined as of the Closing Date, or by an Affiliate of any such Person,
and (Z) agrees that it will obtain from each of its Transferees a written
representation that such Transferee, if a Plan, satisfies the requirements of
the immediately preceding clauses (iii)(X) and (iii)(Y), together with a written
agreement that such Transferee will obtain from each of its Transferees that are
Plans a similar written representation regarding satisfaction of the
requirements of the immediately preceding clauses (iii)(X) and (iii)(Y); or (iv)
a certification of facts and an Opinion of Counsel which otherwise establish to
the reasonable satisfaction of the Certificate Registrar (or, if applicable, the
Certificate Owner effecting the transfer) 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 a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
acknowledgments, representations, warranties, certifications and/or agreements
with respect to each such account described above in this Certificate.
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 this Certificate, 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 this
Certificate.
A-3-7
[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, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.]
The Depositor, the General Master Servicer, the Co-op Master Servicer,
the General Special Servicer, the Co-op Special Servicer, the Trustee, any
Fiscal Agent, the Certificate Registrar and any agent of the Depositor, the
General Master Servicer, the Co-op Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any Fiscal Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
General Master Servicer, the Co-op Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any 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 Fund 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
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, (ii) the purchase by the
General Master Servicer, the Co-op Master Servicer, the General Special
Servicer, the Co-op Special Servicer, or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund and (iii) the acquisition by the Sole
Certificateholder(s) of all the Mortgage Loans and each REO Property remaining
in the Trust in exchange for all the Certificates. The Agreement permits, but
does not require, the General Master Servicer, the Co-op Master Servicer, the
General Special Servicer, the Co-op Special Servicer, or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may 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
1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the General Master Servicer, the Co-op Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee and any Fiscal Agent
and the rights of the Certificateholders under the Agreement at any time by the
Depositor, the General Master Servicer, the Co-op Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee and any Fiscal Agent
with the consent of the Holders of Certificates entitled to not less than 51% of
the Voting Rights allocated to all of the Classes materially affected by the
amendment. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, including any amendment necessary to maintain the
status of any REMIC Pool as a REMIC, without the consent of the Holders of any
of the Certificates.
A-3-8
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the laws of the
State of New York applicable to agreements negotiated, made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-3-9
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
XXXXX FARGO BANK MINNESOTA, N.A.
as Trustee
By:
-----------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [F] [G] [H] [J] [K] [L] Certificates referred to
in the within-mentioned Agreement.
Dated:
XXXXX FARGO BANK MINNESOTA, N.A.
as Certificate Registrar
By:
-----------------------------
Authorized Representative
A-3-10
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 Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such 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.
X-0-00
XXXXXXX X-0
FORM OF CLASS M, CLASS N, CLASS O AND CLASS P CERTIFICATES
CLASS [M] [N] [O] [P] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2001-CKN5
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 fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Pass-Through Rate: ___% per annum Class Principal Balance of the Class [M] [N] [O]
[P] Certificates as of the Closing Date:
$____________________
Closing Date: November 13, 2001 Initial Certificate Principal Balance of this
Certificate as of the Closing Date:
First Distribution Date: December 17, 2001 $_________________
General Master Servicer and Aggregate Stated Principal Balance of the
General Special Servicer: Mortgage Loans as of the Closing Date ("Initial
KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Pool Balance"):
Commercial Mortgage $1,072,782,114
Co-op Master Servicer and Co-op Special Servicer: Trustee:
National Consumer Cooperative Bank Xxxxx Fargo Bank Minnesota, N.A.
Certificate No. [M] [N] [O] [P] - ___ 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 (A) TO 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, AS AMENDED (THE "CODE"), OR
(B) TO 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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., XXXXX FARGO BANK MINNESOTA, N.A.,
KEYCORP REAL ESTATE CAPITAL MARKETS, INC. D/B/A KEY COMMERCIAL MORTGAGE,
NATIONAL CONSUMER COOPERATIVE BANK, OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED 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 CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal amount of this Certificate (its "Certificate Principal Balance") as of
the Closing Date by the aggregate principal amount of all the Class [M] [N] [O]
[P] Certificates (their "Class Principal Balance") as of the Closing Date) in
that certain beneficial ownership interest in the Trust Fund evidenced by all
the Class [M] [N] [O] [P] Certificates. The Trust Fund was created and the
Certificates were issued pursuant to a Pooling and Servicing Agreement, dated as
of November 12, 2001 (the "Agreement"), among Credit Suisse First
A-4-2
Boston Mortgage Securities Corp. as depositor (the "Depositor", which term
includes any successor entity under the Agreement), KeyCorp Real Estate Capital
Markets, Inc. d/b/a Key Commercial Mortgage as general master servicer and
general special servicer (in such capacities, the "General Master Servicer" and
the "General Special Servicer", respectively, which terms include any successor
entities under the Agreement), National Consumer Cooperative Bank as co-op
master servicer and co-op special servicer (in such capacities, the "Co-op
Master Servicer" and the "Co-op Special Servicer", respectively, which terms
include any successor entities under the Agreement), and Xxxxx Fargo Bank
Minnesota, N.A. 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, capitalized
terms used herein have the respective meanings assigned thereto 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 its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the fourth Business Day following the
Determination Date in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class [M] [N] [O] [P] Certificates on the applicable Distribution Date pursuant
to the Agreement. All distributions made under the Agreement on this Certificate
will be made by the Trustee by wire transfer of 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 wiring instructions no later than the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any portion
of an Unfunded Principal Balance Reduction in respect of this Certificate) will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
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 Distribution Account, the Collection Accounts
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.
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.
A-4-3
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is 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.
No transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws.
If a transfer of this Certificate is to be made without registration
under the Securities Act, then (except under the limited circumstances specified
in the Agreement) 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-1A to the Agreement; or
(ii) a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) 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 or of the Depositor, the
General Master Servicer, the Co-op Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any 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.
Any Certificateholder desiring to effect a transfer, sale, pledge or
other disposition of this Certificate or any interest herein shall, and does
hereby agree to, indemnify the Depositor, Credit Suisse First Boston
Corporation, the Trustee, any Fiscal Agent, the General Master Servicer, the
Co-op Master Servicer, the General Special Servicer, the Co-op Special Servicer,
and the Certificate Registrar against any liability that may result if such
transfer, sale, pledge or other disposition 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 (A)
to any retirement plan or other employee benefit plan or arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to 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 a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in limited circumstances, the
Certificate Registrar shall refuse to register the transfer of this Certificate
(and, if applicable, any Certificate Owner shall refuse to transfer an interest
in this 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 this Certificate on behalf
of, as
A-4-4
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 by
such prospective Transferee is exempt from the prohibited transaction provisions
of Sections 406 and 407 of ERISA and Section 4975 of the Code by reason of
Sections I and III of Prohibited Transaction Class Exemption 95-60; or (iii) if
this Certificate is rated investment grade by at least one of the Rating
Agencies and is being acquired by, on behalf of or with assets of a Plan in
reliance Prohibited Transaction Exemption 89-90, a certification to the effect
that such Plan (X) is an accredited investor as defined in Rule 501(a)(1) of
Regulation D of the Securities Act, (Y) is not sponsored (within the meaning of
Section 3(16)(B) of ERISA) by the Trustee, the Depositor, any Fiscal Agent, any
Mortgage Loan Seller, any Exemption-Favored Party, the General Master Servicer,
the Co-op Master Servicer, the General Special Servicer, the Co-op Special
Servicer, any Sub-Servicer or any Borrower with respect to Mortgage Loans
constituting 5% of the aggregate unamortized principal of all the Mortgage Loans
determined as of the Closing Date, or by an Affiliate of any such Person, and
(Z) agrees that it will obtain from each of its Transferees a written
representation that such Transferee, if a Plan, satisfies the requirements of
the immediately preceding clauses (iii)(X) and (iii)(Y), together with a written
agreement that such Transferee will obtain from each of its Transferees that are
Plans a similar written representation regarding satisfaction of the
requirements of the immediately preceding clauses (iii)(X) and (iii)(Y); or (iv)
a certification of facts and an Opinion of Counsel which otherwise establish to
the reasonable satisfaction of the Certificate Registrar (or, if applicable, the
Certificate Owner effecting the transfer) 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 a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
acknowledgments, representations, warranties, certifications and/or agreements
with respect to each such account described above in this Certificate.
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 this Certificate, 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 this
Certificate.
The Depositor, the General Master Servicer, the Co-op Master Servicer,
the General Special Servicer, the Co-op Special Servicer, the Trustee, any
Fiscal Agent, the Certificate Registrar and any agent of the Depositor, the
General Master Servicer, the Co-op Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any Fiscal Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of
A-4-5
the Depositor, the General Master Servicer, the Co-op Master Servicer, the
General Special Servicer, the Co-op Special Servicer, the Trustee, any 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 Fund 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
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, (ii) the purchase by the
General Master Servicer, the Co-op Master Servicer, the General Special
Servicer, the Co-op Special Servicer, or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund and (iii) the acquisition by the Sole
Certificateholder(s) of all the Mortgage Loans and each REO Property remaining
in the Trust Fund in exchange for all of the Certificates. The Agreement
permits, but does not require, the General Master Servicer, the Co-op Master
Servicer, the General Special Servicer, the Co-op Special Servicer, or any
single Controlling Class Certificateholder or group of Controlling Class
Certificateholders to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may 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 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the General Master Servicer, the Co-op Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee and any Fiscal Agent
and the rights of the Certificateholders under the Agreement at any time by the
Depositor, the General Master Servicer, the Co-op Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee and any Fiscal Agent
with the consent of the Holders of Certificates entitled to not less than 51% of
the Voting Rights allocated to all of the Classes materially affected by the
amendment. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, including any amendment necessary to maintain the
status of any REMIC Pool as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be 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, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-4-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
XXXXX FARGO BANK MINNESOTA, N.A.
as Trustee
By:
----------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [M] [N] [O] [P] Certificates referred to in the
within-mentioned Agreement.
Dated:
XXXXX FARGO BANK MINNESOTA, N.A.
as Certificate Registrar
By:
----------------------------
Authorized Representative
A-4-7
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 Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such 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.
X-0-0
XXXXXXX X-0
FORM OF CLASS V CERTIFICATES
CLASS V COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2001-CKN5
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 fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Closing Date: November 13, 2001 Percentage Interest evidenced by this Class V
Certificate: ______%
First Distribution Date: December 17, 2001
General Master Servicer and Aggregate Stated Principal Balance of the
General Special Servicer: Mortgage Loans as of the Closing Date ("Initial
KeyCorp Real Estate Capital Markets, Inc. d/b/a Pool Balance"):
Key Commercial Mortgage $1,072,782,114
Co-op Master Servicer and Co-op Special Servicer: Trustee:
National Consumer Cooperative Bank Xxxxx Fargo Bank Minnesota, N.A.
Certificate No. V-___ 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 (A) TO 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, AS AMENDED (THE "CODE"), OR
(B) TO 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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., XXXXX FARGO BANK MINNESOTA, N.A.,
KEYCORP REAL ESTATE CAPITAL MARKETS, INC. D/B/A KEY COMMERCIAL MORTGAGE,
NATIONAL CONSUMER COOPERATIVE BANK, OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS ENTITLED ONLY TO CERTAIN ADDITIONAL INTEREST (IF ANY)
RECEIVED IN RESPECT OF THE ARD LOANS, SUBJECT TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class V Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of November 12,
2001 (the "Agreement"), among Credit Suisse First Boston Mortgage Securities
Corp. as depositor (the "Depositor", which term includes any successor entity
under the Agreement), KeyCorp Real Estate Capital Markets, Inc. d/b/a Key
Commercial Mortgage as general master servicer and general special servicer (in
such capacities, the "General Master Servicer" and the "General Special
Servicer", respectively, which terms include any successor entities under the
Agreement), National Consumer Cooperative Bank as co-op master servicer and
co-op special servicer (in such capacities, the "Co-op Master Servicer" and the
"Co-op Special Servicer", respectively, which terms include any successor
entities under the Agreement), and Xxxxx Fargo Bank Minnesota, N.A. 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, capitalized terms used herein
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have the respective meanings assigned thereto 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 its
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the fourth Business Day following the
Determination Date in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class V Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Certificate will
be made by the Trustee by wire transfer of 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 wiring instructions no later than the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
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 Distribution Account, the Collection Accounts
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.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is 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.
No transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act, then (except under the limited circumstances specified in the
Agreement) 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-1A to the Agreement; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) 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
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expense of the Trust or of the Depositor, the General Master Servicer, the Co-op
Master Servicer, the General Special Servicer, the Co-op Special Servicer, the
Trustee, any 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. Any Certificateholder desiring to effect a
transfer, sale, pledge or other disposition of this Certificate or any interest
herein shall, and does hereby agree to, indemnify the Depositor, Credit Suisse
First Boston Corporation, the Trustee, any Fiscal Agent, the General Master
Servicer, the Co-op Master Servicer, the General Special Servicer, the Co-op
Special Servicer, and the Certificate Registrar against any liability that may
result if such transfer, sale, pledge or other disposition 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
except to a Qualified Institutional Buyer or an Institutional Accredited
Investor. The Certificate Registrar shall refuse to register the transfer of
this Certificate unless it has received from the prospective Transferee a
certification to the effect that such prospective Transferee is a Qualified
Institutional Buyer or an Institutional Accredited Investor.
No transfer of this Certificate or any interest herein shall be made (A)
to any retirement plan or other employee benefit plan or arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to 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 a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in limited circumstances, the
Certificate Registrar shall refuse to register the transfer of this 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 this Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) a certification
of facts and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Trustee that such transfer will not result in a violation of
Section 406 or 407 of ERISA or Section 4975 of the Code or result in the
imposition of an excise tax under Section 4975 of the Code.
If a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
acknowledgments, representations, warranties, certifications and/or agreements
with respect to each such account described above in this Certificate.
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
A-5-4
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 this Certificate, 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 this
Certificate.
The Depositor, the General Master Servicer, the Co-op Master Servicer,
the General Special Servicer, the Co-op Special Servicer, the Trustee, any
Fiscal Agent, the Certificate Registrar and any agent of the Depositor, the
General Master Servicer, the Co-op Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any Fiscal Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
General Master Servicer, the Co-op Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any 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 Fund 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
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, (ii) the purchase by the
General Master Servicer, the Co-op Master Servicer, the General Special
Servicer, the Co-op Special Servicer, or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund and (iii) the acquisition by the Sole
Certificateholder(s) of all the Mortgage Loans and each REO Property remaining
in the Trust Fund in exchange for all the Certificates. The Agreement permits,
but does not require, the General Master Servicer, the Co-op Master Servicer,
the General Special Servicer, the Co-op Special Servicer, or any single
Controlling Class Certificateholder or group of Controlling Class
Certificateholders to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may 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 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the General Master Servicer, the Co-op Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee and any Fiscal Agent
and the rights of the Certificateholders under the Agreement at any time by the
Depositor, the General Master Servicer, the Co-op Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee and any Fiscal Agent
with the consent of the Holders of Certificates entitled to not less than 51% of
the Voting Rights allocated to all of the Classes materially affected by the
amendment. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, including any
A-5-5
amendment necessary to maintain the status of any REMIC Pool as a REMIC, without
the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be 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, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
XXXXX FARGO BANK MINNESOTA, N.A.
as Trustee
By:
----------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class V Certificates referred to in the
within-mentioned Agreement.
Dated:
XXXXX FARGO BANK MINNESOTA, N.A.
as Certificate Registrar
By:
----------------------------
Authorized Representative
A-5-7
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 Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such 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.
X-0-0
XXXXXXX X-0
FORM OF CLASS R CERTIFICATES
CLASS R COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2001-CKN5
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 fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Closing Date: November 13, 2001 Percentage Interest evidenced by this Class R
Certificate: ___%
First Distribution Date: December 17, 2001
General Master Servicer and Aggregate Stated Principal Balance of the
General Special Servicer: Mortgage Loans as of the Closing Date ("Initial
KeyCorp Real Estate Capital Markets, Inc. d/b/a Pool Balance"):
Key Commercial Mortgage $1,072,782,114
Co-op Master Servicer and Co-op Special Servicer: Trustee:
National Consumer Cooperative Bank Xxxxx Fargo Bank Minnesota, N.A.
Certificate No. R-___ 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 (A) TO 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, AS AMENDED (THE "CODE"), OR
(B) TO 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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., XXXXX FARGO BANK MINNESOTA, N.A.,
KEYCORP REAL ESTATE CAPITAL MARKETS, INC. D/B/A KEY COMMERCIAL MORTGAGE,
NATIONAL CONSUMER COOPERATIVE BANK, OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES
OWNERSHIP OF THE "RESIDUAL INTEREST" IN MULTIPLE "REAL ESTATE MORTGAGE
INVESTMENT CONDUITS" (EACH A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTIONS 860G AND 860D OF THE CODE. CONSEQUENTLY, 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, IF ANY, ON THIS CERTIFICATE.
A-6-2
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 Fund evidenced by all the
Class R Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of November 12,
2001 (the "Agreement"), among Credit Suisse First Boston Mortgage Securities
Corp. as depositor (the "Depositor", which term includes any successor entity
under the Agreement), KeyCorp Real Estate Capital Markets, Inc. d/b/a Key
Commercial Mortgage as general master servicer and general special servicer (in
such capacities, the "General Master Servicer" and the "General Special
Servicer", respectively, which terms include any successor entities under the
Agreement), National Consumer Cooperative Bank as co-op master servicer and
co-op special servicer (in such capacities, the "Co-op Master Servicer" and the
"Co-op Special Servicer", respectively, which terms include any successor
entities under the Agreement), and Xxxxx Fargo Bank Minnesota, N.A. 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, capitalized terms used herein have the
respective meanings assigned thereto 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 its
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the fourth Business Day following the
Determination Date in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class R Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Certificate will
be made by the Trustee by wire transfer of 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 wiring instructions no later than the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
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 Distribution Account, the Collection Accounts
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.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is 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.
A-6-3
No transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act, then (except under the limited circumstances specified in the
Agreement) 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-1A to the Agreement; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) 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 or of the Depositor, the
General Master Servicer, the Co-op Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any 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. Any Certificateholder desiring to effect a transfer, sale, pledge or
other disposition of this Certificate or any interest herein shall, and does
hereby agree to, indemnify the Depositor, Credit Suisse First Boston
Corporation, the Trustee, any Fiscal Agent, the General Master Servicer, the
Co-op Master Servicer, the General Special Servicer, the Co-op Special Servicer,
and the Certificate Registrar against any liability that may result if such
transfer, sale, pledge or other disposition 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
except to a Qualified Institutional Buyer. The Certificate Registrar shall
refuse to register the transfer of this Certificate unless it has received from
the prospective Transferee a certification to the effect that such prospective
Transferee is a Qualified Institutional Buyer.
No transfer of this Certificate or any interest herein shall be made (A)
to any retirement plan or other employee benefit plan or arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to 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 a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in limited circumstances, the
Certificate Registrar shall refuse to register the transfer of this 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 this Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) a certification
of facts and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Trustee that such transfer will not result in a violation of
Section 406 or 407 of ERISA or Section 4975 of the Code or result in the
imposition of an excise tax under Section 4975 of the Code.
A-6-4
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by its 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 (i) to deliver payments to a Person other
than such Person and (ii) to negotiate the terms of any mandatory disposition,
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 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 a Responsible Officer of either the
Certificate Registrar or Trustee has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest
in this Certificate to such proposed Transferee shall be effected. In connection
therewith, 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 written notice that
it is a "pass-through interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership
Interest, if it is, or is holding such Ownership Interest on behalf of, a
"pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified, added
to or eliminated, provided that there shall have been delivered to the Trustee
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
result in an Adverse Rating Event with respect to any Class of Rated
Certificates; and (b) an Opinion of Counsel, in form and substance satisfactory
to the Trustee, to the effect that such modification of, addition to or
elimination of such provisions will not cause any REMIC Pool to cease to qualify
as a REMIC or be subject to an entity-level tax caused by the Transfer of a
Class R Certificate to a Person that is not a Permitted Transferee, or cause a
Person other than the prospective Transferee to be subject to a REMIC-related
tax caused by the Transfer of a Class R Certificate to a Person that is not a
Permitted Transferee.
A-6-5
A "Permitted Transferee" is any Transferee other than a "Disqualified
Organization" and a "Non-United States Person". In addition, if such Transferee
is classified as a partnership under the Code, such Transferee can only be a
"Permitted Transferee" if, among other things, all of its beneficial owners are
United States Persons.
A "Disqualified Organization" is any of (i) the United States or a
possession thereof, any State or political subdivision thereof or any agency or
instrumentality of any of the foregoing (other than an instrumentality which is
a corporation if all of its activities are subject to tax and, except for
Xxxxxxx Mac, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, international organization, or
any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (unless such
organization is subject to the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code and (v) any other Person so
designated by the Trustee based upon an Opinion of Counsel that the holding of
an Ownership Interest in a Class R Certificate by such Person may cause the
Trust or any Person having an Ownership Interest in any Class of Certificates
(other than such Person) to incur a liability for any federal tax imposed under
the Code that would not otherwise be imposed but for the Transfer of an
Ownership Interest in a Class R 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 "Non-United States Person" is any Person other than a United States
Person. A "United States 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 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 United States
persons have the authority to control all substantial decisions of the trust,
all within the meaning of Section 7701(a)(30) of the Code.
If a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
acknowledgments, representations, warranties, certifications and/or agreements
with respect to each such account described above in this Certificate.
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.
A-6-6
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, 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 this
Certificate.
The Depositor, the General Master Servicer, the Co-op Master Servicer,
the General Special Servicer, the Co-op Special Servicer, the Trustee, any
Fiscal Agent, the Certificate Registrar and any agent of the Depositor, the
General Master Servicer, the Co-op Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any Fiscal Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
General Master Servicer, the Co-op Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any 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 Fund 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
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, (ii) the purchase by the
General Master Servicer, the Co-op Master Servicer, the General Special
Servicer, the Co-op Special Servicer, or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund and (iii) the acquisition by the Sole
Certificateholder(s) of all the Mortgage Loans and each REO Property remaining
in the Trust Fund in exchange for all of the Certificates. The Agreement
permits, but does not require, the General Master Servicer, the Co-op Master
Servicer, the General Special Servicer, the Co-op Special Servicer, or any
single Controlling Class Certificateholder or group of Controlling Class
Certificateholders to purchase from the Trust Fund all the Mortgage Loans and
each REO Property 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 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the General Master Servicer, the Co-op Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee and any Fiscal Agent
and the rights of the Certificateholders under the Agreement at any time by the
Depositor, the General Master Servicer, the Co-op Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee and any Fiscal Agent
with the consent of the Holders of Certificates entitled to not less than 51% of
the Voting Rights allocated to all of the Classes materially affected by the
amendment. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, including any amendment necessary to maintain the
status of any REMIC Pool as a REMIC, without the consent of the Holders of any
of the Certificates.
A-6-7
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the laws of the
State of New York applicable to agreements negotiated, made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-6-8
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
XXXXX FARGO BANK MINNESOTA, N.A.
as Trustee
By:
-----------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
Dated:
XXXXX FARGO BANK MINNESOTA, N.A.
as Certificate Registrar
By:
-----------------------------
Authorized Representative
A-6-9
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 Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such 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.
A-6-10
EXHIBIT B-1A
SCHEDULE OF COLUMN MORTGAGE LOANS
[See Attached Schedule]
ZIP MORTGAGE
# PROPERTY NAME ADDRESS CITY STATE CODE ORIGINATOR
----- ------------------------------------- ------------------------------- --------------- ----- ------ ----------
2 Xxxxx Xxxxx/Alliance GT-4 Portfolio Column
2A Sonterra Apartments 0000 Xxxxx Xxxxxxx Xxxxxx Xxx Xxxxx XX 00000 Column
0X Xxxxxxxxx Xxxxx Apartments 00000 Xxxxxxxxxx Xxxx Xxxxxxx XX 00000 Column
2C Xxxx Arbor Apartments 0000 Xxxxx Xxxxxxxx Xxxx Xxxxxx XX 00000 Column
2D Broadmoor Apartments 00000 Xxxxxxxx Xxxxxx Xxxxxxx XX 00000 Column
0X Xx. Xxxxxxx Xxxxxxxxxx 0000 Xx. Xxxxxxx Xxxx Xxxxxxxx XX 00000 Column
2F Windsor Harbor Apartments 0000 Xxxxxxxx Xxxxx Xxxxxxxxx XX 00000 Column
2G Xxxxxxxxx Crossing Apartments 0000 Xxxxxxx Xxxxx Xxxxxxx XX 00000 Column
2H Rutland Ridge Apartments 000 Xxxxxxxx Xxxxx Xxxxxxxxxx XX 00000 Column
2I Ravenwood Apartments 0000 Xxxxxx Xxxxxx Xxxx Xxxxxxxx XX 00000 Column
2J Brookhaven Townhomes 0000 Xxxxxxxxxx Xxxx Xxxxx XX 00000 Column
3 Macomb Mall 00000 Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000 Column
4 One Sugar Creek Place 00000 Xxxxxxxxx Xxxxxxx Xxxxx Xxxx XX 00000 Column
10 Xxxxx Xxxxx/Alliance GT-3 Portfolio Column
10A Oasis Heights Apartments 0000 Xxxx Xxxxxxxxx Xxxxxx Xxx Xxxxx XX 00000 Column
10B Wolf Creek Apartments 00000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxx XX 00000 Column
00X Xxxxxxxxx Xxxxx Xxxxxxxxxx 000 Xxxxxxxxx Xxxx Xxxxxxxx XX 00000 Column
10D Northcrest Apartments 000 Xxxxxxx Xxxx Xxxxxx Xxxxxx XX 00000 Column
00 Xxxxxxxxxx Xxxxxxx Xxxxxx Portfolio 11025-11075 Xxxxxxx Xxxxxx Xxx Xxxxx XX 00000 CSFBMC
00 Xxxxxxxxx Xxx Xxxxxxxxx-Xxxxxxx 0000 Xxxxx Xxx Xxxxxx Xxxxxxx XX 00000 Column
15 Courtyard by Marriott - Washington
ZIP MORTGAGE
# PROPERTY NAME ADDRESS CITY STATE CODE ORIGINATOR
----- ------------------------------------- ------------------------------- --------------- ----- ------ ----------
Convention Center 000 X Xxxxxx, XX Xxxxxxxxxx XX 00000 Column
16 000-000 Xxxxxxxxxx Xxxxxx Office
Buildings 000-000 Xxxxxxxxxx Xxxxxx Xxxxxx XX 00000 Column
18 Xxx Xxxxxxxxxx Xxxxxx Xxx Xxxxxxxxxx Xxxxxx Xxx Xxxxxxxxx XX 00000 CSFBMC
00 Xxxxxxxxx Xxx Xxxxxxxxx Xxxxx 0000 Xxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxx XX 00000 Column
20 Capitol Centre 0000 X Xxxxxx Xxxxxxxxxx XX 00000 CSFBMC
21 Windsor Wichita Portfolio Column
21A Windsor at Xxxxxxx Apartments 000 Xxxx Xxxxxxx Xxxxxxx XX 00000 Column
21B Windsor at Woodgate Apartments 0000 Xxxx 00xx Xxxxxx Xxxxx Xxxxxxx XX 00000 Column
21C Windsor at Eastborough Apartments 0000 Xxxx Xxxxxxx Xxxxxxx XX 00000 Column
22 Xxxxxxxx Executive Park 3000, 3010 & 0000 Xxxxxxxxxxx
Xxxxxx Xxxxxxxx XX 00000 Column
00 Xxxxxxxxx Xxxxxxx 0000 Xxxxxxxx Xxxx Xxxxxxxxx XX 00000 Column
28 Richardson Industrial Portfolio Column
00X Xxxxxxxx Xxxxxx I 0000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Column
00X Xxxxxxx Xxxxxxxxx Service Center 0000 Xxxx Xxxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000 Column
28C Industrial Center II 0000-0000 Xxxxx Xxxxx Xxxx Xxxxxxxxxx XX 00000 Column
28D Park East Service Center 0000-0000 Xxxxx Xxxxx Xxxx Xxxxxxxxxx XX 00000 Column
28E Industrial Center III 0000-0000 Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxxx XX 00000 Column
29 Residence Inn Xxxxxx Xxxxxx 0000 X Xxxxxx, XX Xxxxxxxxxx XX 00000 Column
00 XXX Xxxxxxxxx Xxxxxx
00X XXX Comet East, Inc. 0 Xxxxxx Xxxx Xxxxxxxxxx XX 00000 Column
30B WNA Xxxxxx Plastics Facility 0000 Xxxxxx Xxxxx Xxxxxxxx XX 00000 Column
30C WNA Comet West 0000-0000 Xxxxxxxxx Xxxxxx Xxxx xx Xxxxxxxx XX 00000 Column
30D WNA Office/Warehouse 0000 Xxxx Xxxxxxxx Xxxxx Xxxxxxxxx XX 00000 Column
32 Walnut Xxxx Apartments 0000 Xxxxxxxx Xxxxxxx Xxxxxxxx XX 00000 Column
00 Xxxx Xxxx Xxxxx 222-266 East Main Street (U.S.
Route 20) Xxxxxxxxxxx XX 00000 Column
35 The Copper Creek Apartments 00000 Xxxxxxxxxx Xxxx Xxxxxxx XX 00000 Column
ZIP MORTGAGE
# PROPERTY NAME ADDRESS CITY STATE CODE ORIGINATOR
----- ------------------------------------- ------------------------------- --------------- ----- ------ ----------
36 Richardson Portfolio Column
00X Xxxxxxxx Xxxxxx II 0000-0000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Column
00X Xxxxxx Xxxxx Xxxxxxxx Xxxxxx 0000 Xxxxx Xxxxx Xxxx Xxxxxxxxxx XX 00000 Column
37 12820 & 00000 Xxxxxxxxxx Xxxxxxx 12820 & 00000 Xxxxxxxxxx Xxxxxxx
Xxxxx Xxxxx Xxxx xx Xxxxxxxx XX 00000 Column
38 Raytheon Office Complex 6221 & 0000 Xxxxx Xxxx
Xxxxx Xxxxxxxxx Xxxxxx XX 00000 Union Capital
39 0000 Xxxxxxxxxxx Xxxxxxxxx 0000 Xxxxxxxxxxx Xxxxxxxxx Xxxxx Xxxxxx XX 00000 CSFBMC
00 XXX Xxxxx xxx Xxxxx Xxxxxx
00X Xxxxxx Regional Clinic North 0000 Xxxxxx Xxxxxx Xxxxxxxxx Xxxxxx XX 00000 Column
40B Austin Regional Clinic South 0000 Xxxxx Xxxxx Xxxxxx Xxxxxx XX 00000 Column
41 Fairmeadows Apartments 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000 Column
00 Xxxxx Xxxx Xxxxxxx Apartments 0000 Xxxx Xxxx Xxxxxx XX 00000 Column
45 0000 Xxx Xxxxxx 0000 Xxx Xxxxxx Xxxxxxxx XX 00000 Column
46 Crossroads Shopping Center 0000 Xxxxx Xxxx Xxxxxxxxxxx XX 00000 Column
47 Xxxxxx Xxxx Apartments 0000 Xxxxxxx Xxxx Xxxx Xxxxxxxxxxxx XX 00000 Union Capital
00 Xxxxxxxx Xxxxx Xxxxxxxxxx (0X) 0000 Xxxxxxx Xxxx Xxxxxxx XX 00000 Column
00 Xxxxxxxxxx Xxxxxxxxxx (0X) 00000 & 00000 Xxxxxxxxxx Xxxx Xxxxxxx XX 00000 Column
00 Xxx Xxxxx Xxxxxxxxxx (0X) 0000 Xxxxxxxx Xxxx Xxxxxxx XX 00000 Column
51 Elmira Apartments (1A) 00000 Xxxxxxx Xxxx Xxxxxxx XX 00000 Column
00 Xxxxxxxxx Xxxxx 000 Xxxx Xxxxxxxxx Xxxxxxxxx Xxxxxx XX 00000 Column
55 Lake North Apartments 0000 Xxxx Xxxxxx Xxxx Xxxxxx XX 00000 Column
00 Xxxxxxx Xxxxx 0000, 4215, 4225, 0000 Xxxxx
Xxxx Xxxxxxx Xxxxxxx Xxxxxxx XX 00000 Column
59 Generation Plaza 0000 Xxxx Xxxxx Xxxxxxxx Xxxxxxx
00 Xxxxxx XX 00000 Column
00 Xxxxx Xxxxx Apartments 41,61 and 00-000 Xxxxx Xxxx Xxxx Xxxxxxxx XX 00000 Column
61 Country View Village Manufactured
Housing Community 000 Xxxxxx Xxxx 000 Xxxxxxxxx XX 00000 Union Capital
00 Xxx Xxxxx xx Xxxxxx Xxxx Apartments 000 Xxxxx Xxxxxx Xxxxxx Xxxxxx XX 00000 Column
65 Techniplex Business Center 00000-00000 Xxxx Xxx Xxxxxxxxx Xxxxxxx XX 00000 Column
ZIP MORTGAGE
# PROPERTY NAME ADDRESS CITY STATE CODE ORIGINATOR
----- ------------------------------------- ------------------------------- --------------- ----- ------ ----------
00 Xxxxxxxxxx Xxxxx 000 XxXxxx Xxxxxx Xxxxxxxxx XX 00000 CSFBMC
71 XxXxxxxx Station Apartments 00000 Xxxxx XxXxxxxx Xxxxxx Xxx Xxxxxx XX 00000 Column
00 Xxxxxxx Xxxx Xxxxx Office Building 0000 Xxxx Xxxx Xxxx Xxxxxxx XX 00000 Column
74 0000 Xxxxxxxxxxx Xxxx 0000 Xxxxxxxxxxx Xxxx Xxxxxxx Xxxxx XX 00000 Column
76 0000 Xxxxxx Xx Costa 0000 Xxxxxx Xx Xxxxx Xxxxxx XX 00000 Column
79 Riatta Ranch Apartments 0000 Xxxxxx Xxxx Xxxxxxx XX 00000 Column
82 Willowbrook Shopping Center 00000 Xxxxx Xxxxxxx 000 Xxxxxxx XX 00000 Column
00 Xxxxxxx Xxxxx xx Xxxxxx Xxxxxx
Xxxxx X 0000, 0000 & 0000 Xxxxxxx Xxxx Xxxxxxxxxx XX 00000 Column
86 00000 Xxxxxxxxxx Xxxxxxx South 00000 Xxxxxxxxxx Xxxxxxx Xxxxx Xxxx xx Xxxxxxxx XX 00000 Column
91 Los Gatos Office Building 00000 Xxx Xxxxx Xxxxxxxxx Xxx Xxxxx XX 00000 CSFBMC
92 0000-0000 Xxxxxx Xxxxxx 0000-0000 Xxxxxx Xxxxxx Xxx Xxxx XX 00000 Column
97 Fleetwood Village Apartments 000 Xxxxxxx Xxxxx Xxxxxxxxxx XX 00000 Column
101 0000 Xxxxx Xxxxxx Office Building 0000 Xxxxx Xxxxxx Xxx Xxxxx XX 00000 Column
102 Xxxxxx Crossing Medical 0000 Xxxxxxxxx Xxxxxx Xxxxxx XX 00000 Column
103 Jack's Alley 000 Xxxxxx Xxxxxx Xxxxxxxxxxx XX 00000 Column
000 Xxxxx Xxxxxx Xxxxxx 0000 XX 000xx Xxxxxx Xxxxx XX 00000 Column
114 Terrace Hills Apartments 0000 Xxxx Xxxxxxxxx Xxxxx Xxxxxx XX 00000 Column
115 InSite Downers Grove 0000 00xx Xxxxxx Xxxxxxx Xxxxx XX 00000 Column
000 Xxxxxx Xxxx Commercial Center 0000 Xxxxxx Xxxx Xxxx Xxxxx XX 00000 Column
000 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx 0000-0000 Xxxxxx Xxxxxxx Xxxxxxx XX 00000 Column
000 Xxxxxx Xxxx Apartments 0000-0000 Xxxx Xxxxxx Xxxxxxxxxxxx XX 00000 Column
125 Bay Bluff Apartments 00000 Xxxxxxx Xxxx Xxxxxx Xxxxxxx XX 00000 Column
131 Timberwood Apartments 0000 Xxxx 00xx Xxxxxx Xxxxxx XX 00000 Column
132 InSite Palm Beach - Blockbuster Video 00000 Xxxxxx Xxxx Xxxx Xxxxx XX 00000 Column
135 InSite Chicago/Halstead 11101-11109 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxx XX 00000 Column
000 Xxxxxxx Xxxxxx Shopping Center 00000 Xxxxxxx Xxxx Xxxxx Xxxxx XX 00000 Column
000 Xx Xxxxxx Xxxxxxxxxx 0000 Xxxxxxxxx Xxxxx Xxxxxx XX 00000 Column
139 Normandy Apartments 0000 Xxxxxx Xxxxx Xxxxxxxx XX 00000 Column
ZIP MORTGAGE
# PROPERTY NAME ADDRESS CITY STATE CODE ORIGINATOR
----- ------------------------------------- ------------------------------- --------------- ----- ------ ----------
140 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 00000 Column
000 Xxxxxxxx Xxxx Xxxxxx Xxxxxxx 00000 Xxxx Xxxx Xxxxxxxx XX 00000 Column
145 Xxxxxxx Apartments 000-000 Xxxxxx Xxxxxx & 000-000
Xxxxxx Xxxxxx Xxxxxx XX 00000 Column
146 Insite Chicago - Blockbuster Video 10909-10911 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx XX 00000 Column
147 InSite Saginaw (Blockbuster Building) 0000 Xxxxxxxx Xxxx Xxxxxxx XX 00000 Column
000 Xxxxxxxxx Xxxxxxxx Xxxxxx 0000-0000 Xxxxxx Xxxxx Xxxxxxxx XX 00000 Column
150 0000 Xxxxxxx Xxxx Xxxxx 0000 Xxxxxxx Xxxx Xxxxx Xxxxxxx Xxxxx XX 00000 Column
000 Xxxx Xxx Xxxxxxxxxx 00 Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 Column
000 Xxxxxxxx Professional Center 0000 Xxxxx Xxxx Xxx Xxxx XX 00000 CSFBMC
153 Knell's Ridge Plaza 000 Xxxxxxxxxxx Xxxxxxxxx Xxxxx Xxxxxxxxxx XX 00000 Column
154 0000 XX 00xx Xxxxxx 0000 XX 00xx Xxxxxx Xxxxxxxxxx Xxxxx XX 00000 Column
159 Lulen Apartments 0000 Xxxxx Xxxx Xxxxxx XX 00000 Column
160 0000 Xxxxxxx Xxxx Xxxxx 0000 Xxxxxxx Xxxx Xxxxx Xxxxxxx Xxxxx XX 00000 Column
162 Westchester Apartments 000-000 Xxxxx Xxxxxxxxx Xxxxxxx XX 00000 Column
163 Northstream Manor Apartments 0000 Xxxxxxxxx Xxxxxxx XX 00000 Column
164 0000-0000 Xxxxx Xxxxxxx Xxxxxx 0000-0000 Xxxxx Xxxxxxx Xxxxxx Xxxxx Xxx XX 00000 CSFBMC
166 Tomshir Apartments 0-00X Xxxxxxxxx Xxxxx Xxxx Xxxxxxxx XX 00000 Column
000 Xxxx Xxxx Xxxxxxxxxx 0000 Xxxxxxx Xxxx Xxxxxx XX 00000 Column
000 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx 00000 Xxxxx Xxxxxxx 000 Xxxxxxx XX 00000 Column
INITIAL ORIG REM.
MORTGAGE INTEREST ORIG REM. TERM TO TERM TO
LOAN FEE/ ORIGINAL CUT-OFF ONLY AMORT. AMORT. MATURITY MATURITY INTEREST
# SELLER LEASEHOLD BALANCE BALANCE (2) TERM TERM TERM (3) (3) RATE
---- -------- --------- ----------- ----------- -------- ----- ----- -------- -------- ----------------
2 Column $70,054,090 $69,586,157 0 360 347 120 107 8.5400%
2A Column Fee
2B Column Fee
2C Column Fee
2D Column Fee
2E Column Fee
2F Column Fee
2G Column Fee
2H Column Fee
2I Column Fee
2J Column Fee
3 Column Fee $47,300,000 $47,194,776 0 360 356 120 116 7.7100%
4 Column Fee $46,000,000 $45,897,971 0 360 356 120 116 7.7200%
10 Column $26,759,263 $26,730,996 0 351 349 109 107 8.5400%
10A Column Fee
10B Column Fee
10C Column Fee
10D Column Fee
11 Column Fee $24,100,000 $24,047,022 0 360 356 120 116 7.7500%
14 Column Fee $21,300,000 $21,231,352 0 300 296 120 116 8.4700%
15 Column Fee $21,000,000 $20,927,014 0 300 296 120 116 8.1300%
INITIAL ORIG REM.
MORTGAGE INTEREST ORIG REM. TERM TO TERM TO
LOAN FEE/ ORIGINAL CUT-OFF ONLY AMORT. AMORT. MATURITY MATURITY INTEREST
# SELLER LEASEHOLD BALANCE BALANCE (2) TERM TERM TERM (3) (3) RATE
---- -------- --------- ----------- ----------- -------- ----- ----- -------- -------- ----------------
16 Column Fee $19,750,000 $19,691,000 0 360 355 120 115 7.6700%
18 Column Fee $19,000,000 $19,000,000 60 IO IO 60 55 8.3000%
19 Column Fee $17,500,000 $17,433,455 0 300 295 120 115 8.9600%
20 Column Fee $17,000,000 $16,971,626 0 360 357 120 117 7.8100%
21 Column $16,600,000 $16,538,611 0 360 354 120 114 7.4800%
21A Column Fee
21B Column Fee
21C Column Fee
22
Column Fee $16,400,000 $16,341,165 0 360 354 120 114 7.5900%
24 Column Fee $15,000,000 $14,950,289 0 360 354 120 114 7.8700%
28 Column $13,650,000 $13,610,537 0 360 355 120 115 7.7900%
28A Column Fee
28B Column Fee
28C Column Fee
28D Column Fee
28E Column Fee
29 Column Fee $12,600,000 $12,558,561 0 300 296 120 116 8.3800%
30 Column $11,125,000 $11,085,315 0 300 296 120 116 8.0100%
30A Column Fee
30B Column Fee
30C Column Fee
30D Column Fee
32 Column Fee $10,000,000 $9,970,942 0 360 356 120 116 6.7500%
33
Column Fee $10,000,000 $9,970,127 0 360 355 120 115 7.6700%
35 Column Fee $8,650,000 $8,624,439 0 360 355 120 115 7.7100%
INITIAL ORIG REM.
MORTGAGE INTEREST ORIG REM. TERM TO TERM TO
LOAN FEE/ ORIGINAL CUT-OFF ONLY AMORT. AMORT. MATURITY MATURITY INTEREST
# SELLER LEASEHOLD BALANCE BALANCE (2) TERM TERM TERM (3) (3) RATE
---- -------- --------- ----------- ----------- -------- ----- ----- -------- -------- ----------------
36 Column $8,575,000 $8,555,065 0 360 356 120 116 7.5600%
36A Column Fee
36B Column Fee
37 Column Fee $7,800,000 $7,765,306 0 360 352 120 112 7.9300%
38 Column Fee $7,300,000 $7,284,897 0 360 356 120 116 7.9500%
39 Column Fee $7,050,000 $7,034,548 0 360 356 120 116 7.7600%
40 Column $6,950,000 $6,934,722 0 360 356 120 116 7.7500%
40A Column Fee
40B Column Fee
41 Column Fee $6,500,000 $6,484,133 0 360 356 120 116 7.3900%
42 Column Fee $6,480,000 $6,464,182 0 360 356 120 116 7.3900%
45 Column Fee $5,275,000 $5,252,019 0 360 353 120 113 7.5800%
46 Column Fee $5,250,000 $5,235,886 0 360 355 120 115 8.0500%
47 Column Fee $5,250,000 $5,233,409 0 360 355 120 115 7.4600%
48 Column Fee $1,570,000 $1,566,371 0 360 356 120 116 7.5800%
49 Column Fee $1,365,000 $1,361,845 0 360 356 120 116 7.5800%
50 Column Fee $1,305,000 $1,301,984 0 360 356 120 116 7.5800%
51 Column Fee $760,000 $758,243 0 360 356 120 116 7.5800%
54 Column Fee $4,800,000 $4,789,003 0 360 356 120 116 7.6100%
55 Column Fee $4,600,000 $4,577,702 0 360 352 120 112 7.6200%
56 Column Fee $4,575,000 $4,565,063 0 360 356 120 116 7.7900%
59 Column Fee $4,200,000 $4,185,978 0 360 355 120 115 7.2500%
60 Column Fee $4,170,000 $4,153,540 0 300 296 120 116 7.5300%
61 Column Fee $4,150,000 $4,137,366 0 360 355 120 115 7.6000%
63 Column Fee $4,100,000 $4,090,302 0 360 356 120 116 7.5000%
65 Column Fee $4,000,000 $3,988,180 0 360 355 120 115 7.7100%
INITIAL ORIG REM.
MORTGAGE INTEREST ORIG REM. TERM TO TERM TO
LOAN FEE/ ORIGINAL CUT-OFF ONLY AMORT. AMORT. MATURITY MATURITY INTEREST
# SELLER LEASEHOLD BALANCE BALANCE (2) TERM TERM TERM (3) (3) RATE
---- -------- --------- ----------- ----------- -------- ----- ----- -------- -------- ----------------
70 Column Fee $3,700,000 $3,690,610 0 360 355 120 115 8.2500%
71 Column Fee $3,600,000 $3,592,063 0 360 356 120 116 7.7400%
72 Column Fee $3,450,000 $3,428,519 0 360 351 120 111 7.5000%
74 Column Fee $3,325,000 $3,317,248 0 360 356 120 116 7.5500%
76 Column Fee $3,300,000 $3,294,282 0 360 356 60 56 8.5000%
79 Column Fee $3,100,000 $3,089,186 0 360 354 120 114 7.6900%
82 Column Fee $3,060,000 $3,039,317 0 360 350 120 110 7.5200%
84 Column Fee $3,000,000 $2,990,399 0 360 354 120 114 7.9900%
86 Column Fee $2,950,000 $2,936,878 0 360 352 120 112 7.9300%
91 Column Fee $2,750,000 $2,742,180 0 360 355 120 115 7.8500%
92 Column Fee $2,750,000 $2,733,843 0 360 351 120 111 7.7500%
97 Column Fee $2,375,000 $2,369,543 0 360 356 120 116 7.6000%
101 Column Fee $2,200,000 $2,194,086 0 360 355 120 115 8.0500%
102 Column Fee $2,200,000 $2,193,410 0 360 355 120 115 7.6600%
103 Column Fee $2,200,000 $2,184,183 0 300 293 120 113 7.5700%
105 Column Fee $2,050,000 $2,046,351 0 360 356 120 116 8.4200%
114 Column Fee $1,800,000 $1,791,137 0 300 295 120 115 7.7200%
115 Column Fee $1,775,000 $1,771,583 0 360 356 120 116 8.1800%
118 Column Fee $1,650,000 $1,640,521 0 300 294 120 114 7.8000%
121 Column Fee $1,620,000 $1,613,434 0 360 353 120 113 7.8500%
124 Column Fee $1,600,000 $1,593,814 0 300 296 120 116 7.6300%
125 Column Fee $1,512,000 $1,508,536 0 360 356 120 116 7.6100%
131 Column Fee $1,270,000 $1,267,048 0 360 356 120 116 7.5600%
132 Column Fee $1,165,000 $1,162,757 0 360 356 120 116 8.1800%
135 Column Fee $1,116,000 $1,113,852 0 360 356 120 116 8.1800%
136 Column Fee $1,115,000 $1,112,874 0 360 356 120 116 8.2100%
138 Column Fee $1,100,000 $1,097,060 0 360 355 120 115 8.0700%
139 Column Fee $1,100,000 $1,096,958 0 360 355 120 115 7.9500%
INITIAL ORIG REM.
MORTGAGE INTEREST ORIG REM. TERM TO TERM TO
LOAN FEE/ ORIGINAL CUT-OFF ONLY AMORT. AMORT. MATURITY MATURITY INTEREST
# SELLER LEASEHOLD BALANCE BALANCE (2) TERM TERM TERM (3) (3) RATE
---- -------- --------- ----------- ----------- -------- ----- ----- -------- -------- ----------------
140 Column Fee $1,080,000 $1,071,136 0 240 235 120 115 7.7600%
144 Column Fee $975,000 $972,349 0 360 355 120 115 8.0100%
145 Column Fee $960,000 $957,890 0 360 356 120 116 7.7500%
146 Column Fee $951,000 $949,169 0 360 356 120 116 8.1800%
147 Column Fee $915,000 $913,239 0 360 356 120 116 8.1800%
149 Column Fee $900,000 $898,229 0 360 356 120 116 8.1100%
150 Column Fee $880,000 $878,246 0 360 356 120 116 8.0700%
151 Column Fee $880,000 $876,626 0 300 296 120 116 7.6700%
152 Column Fee $860,000 $858,010 0 360 355 120 115 8.5600%
153 Column Fee $855,000 $852,157 0 300 296 120 116 8.3300%
154 Column Fee $840,000 $838,326 0 360 356 120 116 8.0700%
159 Column Fee $740,000 $737,440 0 360 354 120 114 7.7200%
160 Column Fee $720,000 $718,565 0 360 356 120 116 8.0700%
162 Column Fee $700,000 $696,587 0 300 295 120 115 7.7700%
163 Column Fee $630,000 $628,330 0 360 355 120 115 8.1000%
164 Column Fee $627,000 $625,020 0 300 296 120 116 8.5600%
166 Column Fee $600,000 $597,395 0 300 295 120 115 8.3400%
169 Column Fee $500,000 $498,920 0 360 356 120 116 7.8100%
171 Column Fee $500,000 $496,826 0 300 293 120 113 8.2000%
INTEREST SERVICING
CALCULATION FIRST AND
(30/360/ MONTHLY PAYMENT DEFEASANCE TRUSTEE
# ACTUAL/360) PAYMENT DATE ARD(4) DEFEASANCE PROVISION FEES
---- ----------- ------- ------- ------ ---------- ------------------- ---------
2 Actual/360 540,643 11/01/2000 N/A Yes Lock/37_Def/77_0%/6 0.0525%
2A
2B
2C
2D
2E
2F
2G
2H
2I
2J
3 Actual/360 337,556 08/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0725%
4 Actual/360 328,597 08/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
10 Actual/360 207,681 10/01/2001 N/A Yes Lock/26_Def/77_0%/6 0.0525%
10A
10B
10C
10D
11 Actual/360 172,655 08/11/2001 7/11/2011 Yes Lock/28_Def/88_0%/4 0.0525%
14 Actual/360 171,083 08/11/2001 7/11/2011 Yes Lock/28_Def/85_0%/7 0.0525%
15 Actual/360 163,894 08/11/2001 7/11/2011 Yes Lock/28_Def/85_0%/7 0.0525%
INTEREST SERVICING
CALCULATION FIRST AND
(30/360/ MONTHLY PAYMENT DEFEASANCE TRUSTEE
# ACTUAL/360) PAYMENT DATE ARD(4) DEFEASANCE PROVISION FEES
---- ----------- ------- ------- ------ ---------- ------------------- ---------
16 Actual/360 140,401 07/11/2001 N/A Yes Lock/29_Def/88_0%/3 0.0525%
18 Actual/360 133,242 07/11/2001 6/11/2006 Yes Lock/29_Def/28_0%/3 0.0525%
19 Actual/360 146,380 07/11/2001 6/11/2011 Yes Lock/29_Def/87_0%/4 0.0525%
20 Actual/360 122,496 09/11/2001 8/11/2011 Yes Lock/27_Def/88_0%/5 0.0525%
21 Actual/360 115,842 06/11/2001 N/A Yes Lock/30_Def/84_0%/6 0.0525%
21A
21B
21C
22 Actual/360 115,684 06/11/2001 5/11/2011 Yes Lock/30_Def/88_0%/2 0.0525%
24 Actual/360 108,708 06/11/2001 5/11/2011 Yes Lock/30_Def/84_0%/6 0.0525%
28 Actual/360 98,168 07/11/2001 6/11/2011 Yes Lock/29_Def/85_0%/6 0.0525%
28A
28B
28C
28D
28E
29 Actual/360 100,442 08/11/2001 7/11/2011 Yes Lock/28_Def/85_0%/7 0.0525%
30 Actual/360 85,938 08/11/2001 7/11/2011 Yes Lock/28_Def/88_0%/4 0.0525%
30A
30B
30C
30D
32 Actual/360 64,860 08/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
33 Actual/360 71,089 07/11/2001 N/A Yes Lock/29_Def/88_0%/3 0.0525%
35 Actual/360 61,731 07/11/2001 N/A Yes Lock/29_Def/88_0%/3 0.0525%
INTEREST SERVICING
CALCULATION FIRST AND
(30/360/ MONTHLY PAYMENT DEFEASANCE TRUSTEE
# ACTUAL/360) PAYMENT DATE ARD(4) DEFEASANCE PROVISION FEES
---- ----------- ------- ------- ------ ---------- ------------------- ---------
36 Actual/360 60,310 08/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
36A
36B
37 Actual/360 56,853 04/11/2001 N/A Yes Lock/32_Def/82_0%/6 0.0525%
38 Actual/360 53,311 08/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
39 Actual/360 50,556 08/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
40 Actual/360 49,791 08/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
40A
40B
41 Actual/360 44,960 08/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
42 Actual/360 44,822 08/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
45 Actual/360 37,173 05/11/2001 N/A Yes Lock/31_Def83_0%/6 0.0525%
46 Actual/360 38,706 07/11/2001 N/A Yes Lock/29_Def/88_0%/3 0.0525%
47 Actual/360 36,565 07/11/2001 N/A Yes Lock/29_Def/88_0%/3 0.0525%
48 Actual/360 11,064 08/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
49 Actual/360 9,619 08/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
50 Actual/360 9,196 08/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
51 Actual/360 5,356 08/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
54 Actual/360 33,925 08/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
55 Actual/360 32,543 04/11/2001 N/A Yes Lock/32_Def/82_0%/6 0.0525%
56 Actual/360 32,902 08/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
59 Actual/360 28,651 07/11/2001 N/A Yes Lock/29_Def/88_0%/3 0.0525%
60 Actual/360 30,897 08/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
61 Actual/360 29,302 07/11/2001 N/A Yes Lock/29_Def/88_0%/3 0.0525%
63 Actual/360 28,668 08/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
65 Actual/360 28,546 07/11/2001 N/A Yes Lock/29_Def/88_0%/3 0.0525%
INTEREST SERVICING
CALCULATION FIRST AND
(30/360/ MONTHLY PAYMENT DEFEASANCE TRUSTEE
# ACTUAL/360) PAYMENT DATE ARD(4) DEFEASANCE PROVISION FEES
--- ----------- ------- ------- ------ ---------- ------------------- ---------
70 Actual/360 27,797 07/11/2001 N/A Yes Lock/29_Def/88_0%/3 0.0525%
71 Actual/360 25,766 08/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.1225%
72 Actual/360 24,123 03/11/2001 N/A Yes Lock/33_Def/81_0%/6 0.0525%
74 Actual/360 23,363 08/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
76 Actual/360 25,374 08/11/2001 7/11/2006 Yes Lock/28_Def/26_0%/6 0.0525%
79 Actual/360 22,080 06/11/2001 N/A Yes Lock/30_Def/84_0%/6 0.0525%
82 Actual/360 21,438 02/11/2001 N/A Yes Lock/34_Def/80_0%/6 0.0525%
84 Actual/360 21,992 06/11/2001 N/A Yes Lock/30_Def/87_0%/3 0.0525%
86 Actual/360 21,502 04/11/2001 N/A Yes Lock/32_Def/82_0%/6 0.0525%
91 Actual/360 19,892 07/11/2001 N/A Yes Lock/29_Def/88_0%/3 0.0525%
92 Actual/360 19,701 03/11/2001 N/A Yes Lock/33_Def/81_0%/6 0.0525%
97 Actual/360 16,769 08/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
101 Actual/360 16,220 07/11/2001 N/A Yes Lock/29_Def/85_0%/6 0.0525%
102 Actual/360 15,624 07/11/2001 N/A Yes Lock/29_Def/88_0%/3 0.0725%
103 Actual/360 16,358 05/11/2001 N/A Yes Lock/31_Def/86_0%/3 0.0525%
105 Actual/360 15,647 08/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
114 Actual/360 13,560 07/11/2001 N/A Yes Lock/29_Def/85_0%/6 0.0525%
115 Actual/360 13,248 08/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
118 Actual/360 12,517 06/11/2001 N/A Yes Lock/30_Def/84_0%/6 0.0525%
121 Actual/360 11,718 05/11/2001 N/A Yes Lock/31_Def/83_0%/6 0.0525%
124 Actual/360 11,959 08/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
125 Actual/360 10,686 08/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
131 Actual/360 8,932 08/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
132 Actual/360 8,695 08/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
135 Actual/360 8,329 08/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
136 Actual/360 8,345 08/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
138 Actual/360 8,125 07/11/2001 N/A Yes Lock/29_Def/85_0%/6 0.0525%
139 Actual/360 8,033 07/11/2001 N/A Yes Lock/29_Def/85_0%/6 0.0525%
INTEREST SERVICING
CALCULATION FIRST AND
(30/360/ MONTHLY PAYMENT DEFEASANCE TRUSTEE
# ACTUAL/360) PAYMENT DATE ARD(4) DEFEASANCE PROVISION FEES
---- ----------- ------- ------- ------ ---------- ------------------- ---------
140 Actual/360 8,873 07/11/2001 N/A Yes Lock/29_Def/85_0%/6 0.0525%
144 Actual/360 7,161 07/11/2001 N/A Yes Lock/29_Def/85_0%/6 0.0525%
145 Actual/360 6,878 08/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
146 Actual/360 7,098 08/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
147 Actual/360 6,829 08/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
149 Actual/360 6,673 08/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
150 Actual/360 6,500 08/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
151 Actual/360 6,601 08/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
152 Actual/360 6,649 07/11/2001 N/A Yes Lock/29_Def/85_0%/6 0.0525%
153 Actual/360 6,787 08/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
154 Actual/360 6,205 08/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
159 Actual/360 5,286 06/11/2001 N/A Yes Lock/30_Def/84_0%/6 0.0525%
160 Actual/360 5,318 08/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
162 Actual/360 5,297 07/11/2001 N/A Yes Lock/29_Def/85_0%/6 0.0525%
163 Actual/360 4,667 07/11/2001 N/A Yes Lock/29_Def/85_0%/6 0.0525%
164 Actual/360 5,074 08/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
166 Actual/360 4,767 07/11/2001 N/A Yes Lock/29_Def/85_0%/6 0.0525%
169 Actual/360 3,603 08/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
171 Actual/360 3,926 05/11/2001 N/A Yes Lock/31_Def/83_0%/6 0.0525%
(1A) The Underlying Mortgage Loans secured by Coldwater Crossing, Kings Mall I &
II, and Eastgate Marketplace are cross-collateralized and cross-defaulted,
respectively.
(2) Assumes a Cut-off Date of November, 2001.
(3) In the case of the ARD Loans, the anticipated repayment date is assumed to
be the maturity date for the purposes of the indicated column.
(4) Anticipated Repayment Date.
EXHIBIT B-1B
SCHEDULE OF KEYBANK MORTGAGE LOANS
[See Attached Schedule]
MORTGAGE
ZIP MORTGAGE LOAN
# PROPERTY NAME ADDRESS CITY STATE CODE ORIGINATOR SELLER
------- ----------------------- --------------------- ---------- ----- ----- ---------- --------
5 Coldwater Crossing (1A) 5300 - 0000 Xxxxxxxxx Xxxx Xxxxx IN 00000 Xxx Xxx
Xxxx
N/S of Fields Xxxxx
6 Kings Mall I & II (1A) Road at Xxxxx Xxxx Xxxxxxxxxx XX 00000 Key Key
Xxxxx Xxxx
0 Xxxxxxxx Xxxxxxxxxxx 000 Xxxxxxxx Xxxxx Xxxxx Xxxxxxxxxx XX 00000 Xxx Xxx
(0X)
0 Xxxxxxxx Xxxx 0000 Xxxxxxxx Xxxxxx XX 00000 Key Key
9 3111-3151 Coronado 3111, 3141 and 3151 Xxxxx Xxxxx XX 00000 Key Key
Avenue Coronado Avenue
S/W/C of Fields Xxxxx
12 Governor's Plaza (1B) Road and Union Cemetary Xxxxxxxxxx XX 00000 Key Key
Road
13 Tri-County Marketplace 11741-11755 Xxxxxxxxx Xxxxxxxxxx XX 00000 Key Key
(1B) Pike
17 000 Xxxxxxxx Xxxxx 000 Xxxxxxxx Xxxxx Xxxxxxxxx XX 00000 Key Key
00 Xxxxxxxxxxx Xxxxx XX 00 (Xxxxx Xxxx Xxxxxx OH 43065 Key Key
Street) Township
25 Sterling University 0000 Xxxxxxxx Xxx Xxxxx XX 00000 First Union Key
Xxxxxxx Pleasant
00 00-000 Xxxxxxx Xxxxxx 00-000 Xxxxxxx Xxxxxx Xxxxxx XX 00000 Key Key
27 Sterling University - 0000 Xxx Xxxxxxxxxx Xxxx Xxxxxxxxxxx XX 00000 First Union Key
Grove
34 Signal Butte Marketplace 10623-10745 Xxxx Xxxxxx Xxxx XX 00000 Key Key
Trail
43 Woodside Self Storage 000 Xxxxxxxxx Xxxxxx Xxxxxxx Xxxx XX 00000 Key Key
44 Timberleaf Apartments 0000 Xxxxxxxxxx Xxxxx Xxxxxx XX 00000 Key Key
52 Walgreens-Xxxx City 0000 Xxxxxxx Xxxxxx Xxxx Xxxx XX 00000 Key Key
00 Xxxxxx Xxxxxx Shopping 0000-0000 Xxxx Xxxxxx Xxxxxxxxxxx XX 00000 Key Key
Center
58 Stantec Engineering 0000 Xxxxxxx Xxxx Xxx Xxxxxxxxxx XX 00000 Key Key
Building
The Northeast Corner of
62 Walgreen's Drug Xxxxxx Xxxxx xxx Xxx Xxxxx XX 00000 Key Key
Store-Las Vegas Washington Avenue
66 Sahara Vista II 0000 Xxxx Xxxxxx Xxxxxx Xxx Xxxxx XX 00000 Key Key
67 Midtown Apartments 0000-0000 Xxxxxxxx Xxxxx Xxxxxxx XX 00000 Key Key
Station
73 Square 74 Retail 000 Xxxxx Xxxxxxxx Xxxxxxxxxxxx XX 00000 Key Key
Street
00 Xxxxxx'x Xxxxxx Xxxxxxxx 0000 Xxxxxx Xxxxxx Xxxxx XX 00000 Key Key
Xxx Xxxxxxx Xxxx
00 Xxxxxxxxxx Xxxxxx-Xxxxx 0000 Xxxxx Xxxxx xxx Xxx Xxxxx XX 00000 Key Key
II 0000-0000 Xxxxxxxx Xxxxx
81 Walgreen's Drug 0000 Xxxxxx Xxxxxx Xxxx Xxxxx XX 00000 Key Key
Store-Fort Xxxxx
85 Walgreen's Drug 000 X. Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000 Key Key
Store-Amarillo
MORTGAGE
ZIP MORTGAGE LOAN
# PROPERTY NAME ADDRESS CITY STATE CODE ORIGINATOR SELLER
------- ----------------------- --------------------- ---------- ----- ----- ---------- --------
89 Compass Bank Building 5275-5285 McWhinney Loveland CO 00000 Xxx Xxx
Xxxxxxxxx
93 The Park Row Business 00000-00000 Xxxx Xxx Xxxxxxx XX 00000 Key Key
Center Boulevard
94 Shurgard - Red Bug Lake 0000 Xxx Xxx Xxxx Xxxx Xxxxxx XX 00000 Key Key
Road Springs
96 0000 Xxxxxxxx Xxxxxx 0000 Xxxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000 Key Key
99 Shurgard-West Town 000 Xxxxx XX 000 Xxxxxxxxx XX 00000 Key Key
Springs
000 Xxxxxxx Xxxxxx 0000 Xxxxxxx 00 Xxxxx Xxxxx XX 00000 Key Key
Superstore
111 Flowserve Corporation 0000 Xxxxx Xxxxx Xxxx Xxxxxxx XX 00000 Key Key
112 CVS Pharmacy 000 Xxxxxx Xxxxxx Xxxx Xxxxx XX 00000 Key Key
119 Greenville Crossing Xxxxxx xx XX 0000 xxx Xxxxxxxxxx XX 00000 Key Key
Shopping Center Xxxxxx
128 Oakridge Shopping Center 0000-0000 Xxxx Xxxx Xxxx Xxxxxxx XX 00000 Key Key
130 Best Storage 0000 Xxxxxxx 00 Xxxxxxx XX 00000 Key Key
165 0000 00xx Xxxxxx 0000 00xx Xxxxxx Xxxxx Xxxxxx XX 00000 Key Key
INITIAL
INTEREST ORIG REM. ORIG REM.
FEE/ ORIGINAL CUT-OFF ONLY AMORT. AMORT. TERM TO TERM TO
# LEASEHOLD BALANCE BALANCE (2) TERM TERM TERM MATURITY (3) MATURITY (3)
------- --------- ----------- ----------- --------- ------ ------ ------------ ------------
5 Fee $14,400,000 $14,380,363 0 360 358 84 82
6 Fee $11,840,000 $11,823,854 0 360 358 84 82
7 Fee $8,880,000 $8,867,891 0 360 358 84 82
8 Fee/Leasehold $34,300,000 $34,245,033 0 360 358 120 118
9 Fee $27,400,000 $27,334,812 0 360 356 120 116
12 Fee $12,800,000 $12,783,017 0 360 358 120 118
13 Fee $9,120,000 $9,107,900 0 360 358 120 118
17 Fee $19,500,000 $19,444,857 0 360 356 120 116
23 Fee $16,000,000 $15,956,495 0 360 356 120 116
25 Fee $14,660,000 $14,660,000 24 360 360 120 114
26 Fee $14,550,000 $14,360,811 0 300 287 120 107
27 Fee $14,240,000 $14,240,000 24 360 360 120 114
34 Fee $9,800,000 $9,782,249 0 360 357 120 117
43 Fee $5,400,000 $5,389,153 0 300 298 120 118
44 Fee $5,360,000 $5,352,191 0 360 358 120 118
52 Fee $4,972,500 $4,963,418 0 360 357 120 117
53 Fee $4,850,000 $4,841,552 0 360 357 120 117
58 Fee $4,372,000 $4,364,870 0 360 357 120 117
62 Fee $4,104,000 $4,096,587 0 360 357 120 117
66 Fee $3,900,000 $3,889,456 0 360 355 120 115
67 Fee $3,900,000 $3,888,223 0 360 355 120 115
73 Leasehold $3,400,000 $3,387,845 0 300 296 120 116
78 Fee $3,250,000 $3,239,999 0 300 297 120 117
80 Fee $3,093,000 $3,084,033 0 360 355 120 115
81 Fee $3,079,000 $3,072,211 0 360 356 120 116
85 Fee $2,958,000 $2,951,439 0 360 356 120 116
INITIAL
INTEREST ORIG REM. ORIG REM.
FEE/ ORIGINAL CUT-OFF ONLY AMORT. AMORT. TERM TO TERM TO
# LEASEHOLD BALANCE BALANCE (2) TERM TERM TERM MATURITY (3) MATURITY (3)
------- --------- ----------- ----------- --------- ------ ------ ------------ ------------
89 Fee $2,850,000 $2,843,622 0 360 356 120 116
93 Fee $2,700,000 $2,694,065 0 360 356 84 80
94 Fee $2,700,000 $2,689,841 0 300 296 120 116
96 Fee $2,460,000 $2,452,908 0 360 355 132 127
99 Fee $2,300,000 $2,291,346 0 300 296 120 116
106 Fee $2,025,000 $2,019,134 0 300 297 120 117
111 Fee $1,950,000 $1,946,064 0 360 356 120 116
112 Fee/Leasehold $1,880,000 $1,875,428 0 324 321 120 117
119 Fee $1,631,200 $1,627,024 0 360 355 120 115
128 Fee $1,406,000 $1,321,487 0 300 254 120 74
130 Fee $1,300,000 $1,285,551 0 180 176 120 116
165 Fee $620,000 $618,673 0 360 356 120 116
INTEREST SERVICING
CALCULATION FIRST AND
INTEREST (30/360/ MONTHLY PAYMENT DEFEASANCE TRUSTEE
# RATE ACTUAL/360) PAYMENT DATE ARD (4) DEFEASANCE PROVISION FEES
------- -------- ----------- ------- ---------- ------- ---------- ---------- ----------
5 7.2500% Actual/360 98,233 10/01/2001 N/A Yes Lock/26_Def 0.0525%
/55_0%/3
6 7.2500% Actual/360 80,770 10/01/2001 N/A Yes Lock/26_Def 0.0525%
/55_0%/3
7 7.2500% Actual/360 60,577 10/01/2001 N/A Yes Lock/26_Def 0.0525%
/55_0%/3
8 7.1300% 30/360 231,201 10/01/2001 9/1/2011 Yes Lock/26_Def 0.0525%
/90_0%/4
9 7.4800% Actual/360 191,210 08/01/2001 N/A Yes Lock/28_Def 0.0525%
/89_0%/3
12 7.3600% Actual/360 88,276 10/01/2001 N/A Yes Lock/26_Def 0.0525%
/91_0%/3
13 7.3600% Actual/360 62,896 10/01/2001 N/A Yes Lock/26_Def 0.0525%
/91_0%/3
17 7.7900% 30/360 140,240 08/01/2001 N/A No N/A 0.1025%
23 7.0000% Actual/360 106,448 08/01/2001 N/A Yes Lock/28_Def 0.0525%
/89_0%/3
25 7.4400% Actual/360 101,903 06/01/2001 N/A Yes Lock/48_Def 0.0525%
/69_0%/3
26 7.9400% Actual/360 111,722 11/01/2000 10/1/2010 Yes Lock/37_Def 0.0525%
/79_0%/4
27 7.4400% Actual/360 98,984 06/01/2001 N/A Yes Lock/48_Def 0.0525%
/69_0%/3
34 7.5200% Actual/360 68,657 09/01/2001 N/A No N/A 0.0525%
43 7.6800% Actual/360 40,540 10/01/2001 N/A Yes Lock/26_Def 0.0525%
/91_0%/3
44 6.9800% Actual/360 35,588 10/01/2001 N/A Yes Lock/26_Def 0.0525%
/91_0%/3
52 7.4900% Actual/360 34,734 09/01/2001 8/1/2011 Yes Lock/27_Def 0.0525%
/89_0%/4
53 7.6600% Actual/360 34,445 09/01/2001 N/A Yes Lock/27_Def 0.0525%
/89_0%/4
58 7.8900% Actual/360 31,746 09/01/2001 8/1/2011 Yes Lock/27_Def 0.0525%
/89_0%/4
62 7.5300% Actual/360 28,780 09/01/2001 8/1/2011 Yes Lock/27_Def 0.0525%
/89_0%/4
66 8.0300% Actual/360 28,698 07/01/2001 N/A Yes Lock/29_Def 0.0525%
/88_0%/3
67 7.6300% Actual/360 27,617 07/01/2001 N/A No N/A 0.0525%
73 8.0000% Actual/360 26,242 08/01/2001 N/A Yes Lock/28_Def 0.0525%
/89_0%/3
78 7.4100% Actual/360 23,827 09/01/2001 N/A Yes Lock/27_Def 0.0525%
/90_0%/3
80 7.7800% Actual/360 22,223 07/01/2001 N/A Yes Lock/29_Def 0.0525%
/88_0%/3
81 7.7400% Actual/360 22,037 08/01/2001 7/1/2011 Yes Lock/28_Def 0.0525%
/88_0%/4
85 7.7200% Actual/360 21,130 08/01/2001 7/1/2011 Yes Lock/28_Def 0.0525%
/88_0%/4
INTEREST SERVICING
CALCULATION FIRST AND
INTEREST (30/360/ MONTHLY PAYMENT DEFEASANCE TRUSTEE
# RATE ACTUAL/360) PAYMENT DATE ARD (4) DEFEASANCE PROVISION FEES
------- -------- ----------- ------- ---------- ------- ---------- ---------- ----------
89 7.6900% Actual/360 20,300 08/01/2001 N/A Yes Lock/28_Def 0.0525%
/89_0%/3
93 7.7500% Actual/360 19,343 08/01/2001 N/A No N/A 0.0525%
94 7.7600% Actual/360 20,412 08/01/2001 N/A Yes Lock/28_Def 0.0525%
/89_0%/3
96 7.8000% Actual/360 17,709 07/01/2001 N/A Yes Lock/29_Def 0.0525%
/100_0%/3
99 7.7600% Actual/360 17,388 08/01/2001 N/A Yes Lock/28_Def 0.0525%
/89_0%/3
106 7.7100% Actual/360 15,242 09/01/2001 8/1/2011 Yes Lock/27_Def 0.0525%
/89_0%/4
111 8.0300% Actual/360 14,349 08/01/2001 7/1/2011 No N/A 0.0525%
112 7.5700% Actual/360 13,637 09/01/2001 8/1/2011 Yes Lock/27_Def 0.0525%
/89_0%/4
119 8.2200% Actual/360 12,220 07/01/2001 N/A No N/A 0.0525%
128 7.5500% 30/360 10,436 02/01/1998 N/A No N/A 0.0525%
130 7.9000% Actual/360 12,349 08/01/2001 N/A No N/A 0.0525%
165 7.8400% Actual/360 4,480 08/01/2001 N/A No N/A 0.0525%
EXHIBIT B-1C
SCHEDULE OF NCB MORTGAGE LOANS
[See Attached Schedule]
MORTGAGE
ZIP MORTGAGE LOAN
# PROPERTY NAME ADDRESS CITY STATE CODE ORIGINATOR SELLER
-------- ------------------------- ------------------------- ------------ ----- ----- ---------- --------
1 Ocean Towers 000 Xxxxx Xxxxxx Xxxxx Xxxxxx XX 00000 NCB NCB
57 Minneola, LLC 00 Xxxxx Xxxxxx Xxx Xxxx XX 00000 NCB NCB
88 000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx Xxx Xxxx XX 00000 NCB NCB
and 00-00 Xxxxxxx Xxxxxx
90 Sprain Associates 000-000 Xxxxxxxx Xxxx Xxxxxxx XX 00000 NCB NCB
95 0 Xxxxxxxx Xxxxx 0 Xxxxxxxx Xxxxx Xxxxxxx XX 00000 NCB NCB
110 000 Xxxx Xxx Xxxxxx 000 Xxxx Xxx Xxxxxx Xxx Xxxx XX 00000 NCB NCB
Corporation
116 XxXxxxx Hardware 00000 Xxxxxxxxxx Xxxxxxx Xxxxxxx Xxxxx XX 00000 NCB NCB
120 Xx Xxxxx Family Trust 00000 Xxx Xxxxxx Xxxxxx Xxx Xxxx XX 00000 NCB NCB
Capistrano
143 0000 Xxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxx Xxxxx XX 00000 NCB NCB
155 Foursome Associates, LLC 00-00 Xxxx Xxxxxx Xxxxx Xxxxxx XX 00000 NCB NCB
000 Xxxxxxx Xxxxxx Xxxxxxxxx 000 Xxxxxx Xxxxxx Xxxxxxxxxxx XX 00000 NCB NCB
Owners Corporation
176 West 82 Tenants Realty 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 NCB NCB
Corporation
177 City Studios, Inc. 000 Xxxxxxxxx Xxxxxx Xxx Xxxx XX 00000 NCB NCB
178 000 0xx Xxxxxx Corporation 000 0xx Xxxxxx Xxxxxxxx XX 00000 NCB NCB
179 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 00000 NCB NCB
Housing Corporation
180 107-38 Owners Corporation 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 NCB NCB
181 226 West 11th Owners 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 NCB NCB
Corporation
183 Main Xxxxx Owners 000-000 Xxxxx Xxxxxx Xxx Xxxx XX 00000 NCB NCB
Corporation
186 000 Xxxxxxx Xxxxxx Owners 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 00000 NCB NCB
Corporation
187 000 Xxxxx Xxxxxx Housing 000 Xxxxx Xxxxxx Xxxxxxxx XX 00000 NCB NCB
Corporation
188 264 President Apartment 000 Xxxxxxxxx Xxxxxx Xxxxxxxx XX 00000 NCB NCB
Corporation
189 233 Court Housing 000 Xxxxx Xxxxxx Xxxxxxxx XX 00000 NCB NCB
Corporation
190 659 XxXxxx Housing 000 XxXxxx Xxxxxx Xxxxxxxx XX 00000 NCB NCB
Corporation
191 279 Prospect Housing 000 Xxxxxxxx Xxxxx Xxxxxxxx XX 00000 NCB NCB
Corporation
192 397 7th Housing 000 0xx Xxxxxx Xxxxxxxx XX 00000 NCB NCB
Corporation
MORTGAGE
ZIP MORTGAGE LOAN
# PROPERTY NAME ADDRESS CITY STATE CODE ORIGINATOR SELLER
-------- ------------------------- ------------------------- ------------ ----- ----- ---------- --------
194 90 Sterling Place Owners 00 Xxxxxxxx Xxxxx Xxxxxxxx XX 00000 NCB NCB
Corporation
195 193 Xxxxx Housing 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 00000 NCB NCB
Corporation
INITIAL
INTEREST ORIG REM. ORIG REM.
FEE/ ORIGINAL CUT-OFF ONLY AMORT. AMORT. TERM TO TERM TO
# LEASEHOLD BALANCE BALANCE (2) TERM TERM TERM MATURITY (3) MATURITY (3)
-------- --------- ------------ ----------- -------- ------ ------ ------------ ------------
1 Fee $70,000,000 $69,935,028 0 480 475 120 115
57 Fee $4,500,000 $4,493,316 0 360 358 120 118
88 Fee $3,000,000 $2,889,989 0 240 218 120 98
90 Fee $2,800,000 $2,780,572 0 360 350 120 110
95 Fee $2,625,000 $2,620,324 0 360 357 120 117
110 Fee $2,000,000 $1,992,205 0 240 238 120 118
116 Fee $2,000,000 $1,707,227 0 180 135 180 135
120 Fee $1,700,000 $1,622,030 0 300 260 120 80
143 Fee $1,000,000 $993,061 0 360 350 120 110
155 Fee $850,000 $805,850 0 300 259 120 79
175 Fee $385,000 $377,972 0 180 174 180 174
176 Fee $330,000 $329,454 0 360 358 120 118
177 Fee $300,000 $293,100 0 120 116 120 116
178 Fee $280,000 $277,391 0 180 177 180 177
179 Fee $275,000 $267,635 0 180 171 180 171
180 Fee $260,000 $259,213 0 360 356 120 116
181 Fee $258,000 $257,070 0 300 297 120 117
183 Fee $224,000 $218,985 0 120 116 120 116
186 Fee $195,000 $194,229 0 360 355 120 115
187 Fee $165,000 $164,375 0 360 355 120 115
188 Fee $155,000 $152,616 0 180 175 180 175
189 Fee $150,000 $149,751 0 360 358 120 118
190 Fee $130,000 $129,504 0 360 355 120 115
191 Fee $120,000 $116,029 0 180 169 180 169
192 Fee $105,000 $103,039 0 180 174 180 174
INITIAL
INTEREST ORIG REM. ORIG REM.
FEE/ ORIGINAL CUT-OFF ONLY AMORT. AMORT. TERM TO TERM TO
# LEASEHOLD BALANCE BALANCE (2) TERM TERM TERM MATURITY (3) MATURITY (3)
-------- --------- ------------ ----------- -------- ------ ------ ------------ ------------
194 Fee $94,000 $92,552 0 180 175 180 175
195 Fee $90,000 $88,797 0 180 175 180 175
INTEREST SERVICING
CALCULATION FIRST AND
INTEREST (30/360/ MONTHLY PAYMENT DEFEASANCE TRUSTEE
# RATE ACTUAL/360) PAYMENT DATE ARD (4) DEFEASANCE PROVISION FEES
-------- -------- ----------- ------- ---------- ------- ---------- ------------------- ----------
1 7.7100% Actual/360 471,550 07/11/2001 N/A Yes Lock/29_Def/87_0%/4 0.1025%
57 6.9000% Actual/360 29,637 10/01/2001 N/A Yes Lock/48_Def/68_0%/4 0.1025%
88 8.6000% Actual/360 26,453 02/01/2000 N/A Yes Lock/46_Def/70_0%/4 0.1025%
90 7.9100% Actual/360 20,584 02/01/2001 N/A Yes Lock/47_Def/69_0%/4 0.1025%
95 7.5800% Actual/360 18,498 09/01/2001 N/A Yes Lock/45_Def/71_0%/4 0.1025%
110 6.9000% 30/360 15,386 10/01/2001 N/A Yes Lock/48_Def/68_0%/4 0.1025%
116 8.0200% Actual/360 19,136 03/01/1998 N/A No N/A 0.1025%
120 7.6700% Actual/360 12,751 08/01/1998 N/A No N/A 0.1025%
143 7.9100% Actual/360 7,352 02/01/2001 N/A Yes Lock/47_Def/69_0%/4 0.1025%
155 7.4900% Actual/360 6,334 07/01/1998 N/A No N/A 0.1025%
175 7.3000% Actual/360 3,547 06/01/2001 N/A Yes Lock/48_Def/128_0%/4 0.1025%
176 6.9700% 30/360 2,189 10/01/2001 N/A Yes Lock/48_Def/68_0%/4 0.1025%
177 7.2500% 30/360 3,522 08/01/2001 N/A Yes Lock/48_Def/68_0%/4 0.1025%
178 7.2500% 30/360 2,556 09/01/2001 N/A Yes Lock/48_Def/128_0%/4 0.1025%
179 7.9700% 30/360 2,623 03/01/2001 N/A Yes Lock/48_Def/128_0%/4 0.1025%
180 7.4500% 30/360 1,809 08/01/2001 N/A Yes Lock/48_Def/68_0%/4 0.1025%
181 7.2100% 30/360 1,858 09/01/2001 N/A Yes Lock/48_Def/68_0%/4 0.1025%
183 7.7500% 30/360 2,688 08/01/2001 N/A Yes Lock/48_Def/68_0%/4 0.1025%
186 7.2400% 30/360 1,329 07/01/2001 N/A Yes Lock/48_Def/68_0%/4 0.1025%
187 7.4600% 30/360 1,149 07/01/2001 N/A Yes Lock/48_Def/68_0%/4 0.1025%
188 7.4300% 30/360 1,431 07/01/2001 N/A Yes Lock/48_Def/128_0%/4 0.1025%
189 6.9600% 30/360 994 10/01/2001 N/A Yes Lock/48_Def/68_0%/4 0.1025%
190 7.4200% 30/360 902 07/01/2001 N/A Yes Lock/48_Def/68_0%/4 0.1025%
191 7.9200% 30/360 1,141 01/01/2001 N/A Yes Lock/48_Def/128_0%/4 0.1025%
192 7.3300% 30/360 963 06/01/2001 N/A Yes Lock/48_Def/128_0%/4 0.1025%
INTEREST SERVICING
CALCULATION FIRST AND
INTEREST (30/360/ MONTHLY PAYMENT DEFEASANCE TRUSTEE
# RATE ACTUAL/360) PAYMENT DATE ARD (4) DEFEASANCE PROVISION FEES
-------- -------- ----------- ------- ---------- ------- ---------- ------------------- ----------
194 7.4100% 30/360 867 07/01/2001 N/A Yes Lock/48_Def/128_0%/4 0.1025%
195 8.7300% Actual/360 905 07/01/2001 N/A Yes Lock/48_Def/128_0%/4 0.1025%
(1) Assumes a Cut-off Date of November, 2001.
(2) In the case of the ARD Loans, the anticipated repayment date is assumed to
be the maturity date for the purposes of the indicated column.
EXHIBIT B-1D
SCHEDULE OF NCBCC MORTGAGE LOANS
[See Attached Schedule]
MORTGAGE
ZIP MORTGAGE LOAN
# PROPERTY NAME ADDRESS CITY STATE CODE ORIGINATOR SELLER
-------- --------------------- -------------------- ---------- ----- ----- ----------- -----------
31 000 Xxxx 00xx Xxxxxx 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 NCB Capital NCB Capital
Corporation Corporation Corporation
64 Xxxxxx Point North, 00 Xxxxxx Xxxxx Xxxxx Xxx Xxxx XX 00000 NCB Capital NCB Capital
Inc. Corporation Corporation
68 000 Xxxx 00xx Xxxxxx 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 NCB Capital NCB Capital
Apartment Corporation Corporation Corporation
69 Long Beach Owners 000 Xxxxx Xxxx Xxxx Xxxxx XX 00000 NCB Capital NCB Capital
Corporation Corporation Corporation
75 000 Xxxx Xxx Xxxxxx 000 Xxxx Xxx Xxxxxx Xxx Xxxx XX 00000 NCB Capital NCB Capital
Corporation Corporation Corporation
77 000 Xxxx 00xx Xxxxxx 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 NCB Capital NCB Capital
Owners, Inc. Corporation Corporation
83 Forest Hills Chateau 00-00 Xxxxxxxx Xxxxxx Xxxxxx XX 00000 NCB Capital NCB Capital
Corporation Corporation Corporation
87 2940-2950 Ocean 0000-0000 Xxxxx Xxxxxx Xxxxxxxx XX 00000 NCB Capital NCB Capital
Apartments, Inc. Corporation Corporation
98 Larchmont Gables 1440-1456 Boston Post Xxxxxxxxx XX 00000 NCB Capital NCB Capital
Apartment Corporation Road Corporation Corporation
100 0000 Xxxx 00xx Xxxxxx 0000 Xxxx 00xx Xxxxxx Xxxxxxxx XX 00000 NCB Capital NCB Capital
Corporation Corporation Corporation
104 00 Xxxxx Xxxxx Xxxx 00 Xxxxx Xxxxx Xxxx Xxxxxxx XX 00000 NCB Capital NCB Capital
Owners Corporation Corporation Corporation
107 00 Xxxxx Xxxxxx Owners 00 Xxxxx Xxxxxx Xxx Xxxx XX 00000 NCB Capital NCB Capital
Corporation Corporation Corporation
000 Xxxxxx Xxxxxxx 00-00 Xxxxxx Xxxx Xxxxxxxx XX 00000 NCB Capital NCB Capital
Corporation Corporation
109 000 Xxxx 000xx Xxxxxx 000 Xxxx 000xx Xxxxxx Xxx Xxxx XX 00000 NCB Capital NCB Capital
Housing Corporation Corporation Corporation
113 155 Tenants Corporation 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 NCB Capital NCB Capital
Corporation Corporation
117 Lafayette Owners 00-00 Xxxxxxxxxxx Xxxxxx Xxxxx XX 00000 NCB Capital NCB Capital
Corporation Boulevard Corporation Corporation
122 000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxx XX 00000 NCB Capital NCB Capital
Corporation Corporation Corporation
123 000 Xxxx 00xx Xxxxxx 000-000 Xxxx 00 Xxxxxx Xxx Xxxx XX 00000 NCB Capital NCB Capital
Housing Corporation Corporation Corporation
126 000 Xxxx Xxx Xxxxxx 000 Xxxx Xxx Xxxxxx Xxx Xxxx XX 00000 NCB Capital NCB Capital
Corporation Corporation Corporation
000 Xxxxxx Xxxx Owners 00-00 Xxxx Xxxxxx Xxxxxxxx XX 00000 NCB Capital NCB Capital
Corporation Corporation Corporation
129 67-87 & 68-09 Booth 67-87 and 00-00 Xxxxx Xxxxxx Xxxxx XX 00000 NCB Capital NCB Capital
Owners Corporation Street Corporation Corporation
133 190 East Mosholu 000 Xxxx Xxxxxxx Xxxxx XX 00000 NCB Capital NCB Capital
Parkway Owners Parkway South Corporation Corporation
Corporation
134 Tudor Arms Apartments 000 Xxxx Xxxxxxxxxx Xxxxxxxxx XX 00000 NCB Capital NCB Capital
Inc. Parkway Corporation Corporation
137 Xxxxx Apartments 00-00 Xxxxx Xxxxxx Xxxx Xxxx XX 00000 NCB Capital NCB Capital
Corporation Corporation Corporation
141 000 Xxxx 000xx Xxxxxx 000 Xxxx 000xx Xxxxxx Xxx Xxxx XX 00000 NCB Capital NCB Capital
Owners Corporation Corporation Corporation
142 101 West 80th Owners 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 NCB Capital NCB Capital
Corporation Corporation Corporation
MORTGAGE
ZIP MORTGAGE LOAN
# PROPERTY NAME ADDRESS CITY STATE CODE ORIGINATOR SELLER
-------- --------------------- -------------------- ---------- ----- ----- ----------- -----------
148 00-00 000xx Xxxxxx 00-00 000xx Xxxxxx Xxxxxx Xxxxx XX 00000 NCB Capital NCB Capital
Owners Corporation Corporation Corporation
156 184 Columbia Heights 000 Xxxxxxxx Xxxxxxx Xxxxxxxx XX 00000 NCB Capital NCB Capital
Inc. Corporation Corporation
157 000 Xxxx 00xx Xxxxxx 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 NCB Capital NCB Capital
Tenants Corporaton Corporation Corporation
158 Yorkville 87 Housing 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 NCB Capital NCB Capital
Corporation Corporation Corporation
161 98-100 Suffolk Realty 00-000 Xxxxxxx Xxxxxx Xxx Xxxx XX 00000 NCB Capital NCB Capital
Corporation Corporation Corporation
167 000 Xxxx 0xx Xxxxxx 000 Xxxx 0xx Xxxxxx Xxx Xxxx XX 00000 NCB Capital NCB Capital
Owners Corporation Corporation Corporation
000 Xxxxx Xxxxxxxx 000 Xxxxx Xxxxxxxx Xxxxxxx XX 00000 NCB Capital NCB Capital
Estates, Ltd. Corporation Corporation
170 Greenestreet 00 Xxxxxx Xxxxxx Xxx Xxxx XX 00000 NCB Capital NCB Capital
Associates, Inc. Corporation Corporation
172 000 Xxxx 00xx Xxxxxx 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 NCB Capital NCB Capital
Owners Corporation Corporation Corporation
173 253-259 Owners 000-000 Xxxxxxxx Xxxxx Xxxxxxxx XX 00000 NCB Capital NCB Capital
Corporation Corporation Corporation
174 186 East 2nd Owners 000 Xxxx 0xx Xxxxxx Xxx Xxxx XX 00000 NCB Capital NCB Capital
Corporation Corporation Corporation
182 Xxxxx Xxxx 000-000 Xxxx Xxxxxxxx Xxx Xxxx XX 00000 NCB Capital NCB Capital
Cooperative, Inc. Corporation Corporation
184 Xxxxxxxx Studios 00 Xxxxxxxx Xxxxxx Xxx Xxxx XX 00000 NCB Capital NCB Capital
Corporation Corporation Corporation
185 Heights Owners 000 Xxxxx Xxxxxx Xxxxxxxx XX 00000 NCB Capital NCB Capital
Corporation Corporation Corporation
INITIAL ORIG
INTEREST ORIG REM. TERM TO REM.
FEE/ ORIGINAL CUT-OFF ONLY AMORT. AMORT. MATURITY TERM TO
# LEASEHOLD BALANCE BALANCE (2) TERM TERM TERM (3) MATURITY (3)
------- --------- ----------- ----------- --------- ------ ------ --------- ------------
31 Fee $10,000,000 $10,000,000 120 IO IO 120 117
64 Fee $4,000,000 $4,000,000 120 IO IO 120 115
68 Fee $3,750,000 $3,738,192 0 360 356 120 116
69 Fee $3,700,000 $3,696,814 0 360 359 120 119
75 Fee $3,300,000 $3,294,540 0 360 358 120 118
77 Fee $3,300,000 $3,290,156 0 360 356 120 116
83 Fee $3,000,000 $2,993,099 0 360 357 120 117
87 Fee $2,900,000 $2,892,817 0 480 473 120 113
98 Fee $2,300,000 $2,296,237 0 480 475 120 115
100 Fee $2,200,000 $2,197,475 0 480 476 120 116
104 Fee $2,050,000 $2,048,083 0 480 477 120 117
107 Fee $2,000,000 $2,000,000 120 IO IO 120 118
108 Fee $2,000,000 $1,996,486 0 480 475 120 115
109 Fee $2,000,000 $1,993,446 0 480 469 120 109
113 Fee $1,850,000 $1,843,291 0 300 297 120 117
117 Fee $1,700,000 $1,697,430 0 480 476 120 116
122 Fee $1,600,000 $1,595,590 0 360 356 120 116
123 Fee $1,600,000 $1,594,831 0 360 356 120 116
126 Fee $1,500,000 $1,500,000 120 IO IO 120 119
127 Fee $1,500,000 $1,497,771 0 360 358 120 118
129 Fee $1,300,000 $1,298,505 0 480 477 120 117
133 Fee $1,150,000 $1,144,350 0 360 354 120 114
134 Fee $1,148,000 $1,140,131 0 300 294 120 114
137 Fee $1,100,000 $1,098,199 0 360 358 120 118
141 Fee $1,025,000 $1,016,957 0 360 349 120 109
142 Fee $1,000,000 $999,310 0 480 478 120 118
INITIAL ORIG
INTEREST ORIG REM. TERM TO REM.
FEE/ ORIGINAL CUT-OFF ONLY AMORT. AMORT. MATURITY TERM TO
# LEASEHOLD BALANCE BALANCE (2) TERM TERM TERM (3) MATURITY (3)
-------- --------- ----------- ----------- --------- ------ ------ --------- ------------
148 Fee $900,000 $898,547 0 360 358 120 118
156 Fee $800,000 $799,679 0 720 715 120 115
157 Fee $800,000 $797,646 0 360 356 120 116
158 Fee $765,000 $764,402 0 480 478 120 118
161 Fee $715,000 $711,818 0 300 296 120 116
167 Fee $600,000 $596,754 0 360 353 120 113
168 Fee $570,000 $568,198 0 360 356 120 116
170 Fee $500,000 $498,785 0 360 357 120 117
172 Fee $495,000 $491,952 0 300 295 120 115
173 Fee $400,000 $398,713 0 360 356 120 116
174 Fee $400,000 $398,523 0 480 464 120 104
182 Fee $240,000 $237,502 0 360 344 120 104
184 Fee $220,000 $209,804 0 180 164 180 164
185 Fee $216,000 $207,157 0 180 166 180 166
INTEREST SERVICING
CALCULATION FIRST AND
INTEREST (30/360/ MONTHLY PAYMENT DEFEASANCE TRUSTEE
# RATE ACTUAL/360) PAYMENT DATE ARD (4) DEFEASANCE PROVISION FEES
------- -------- ----------- ------- ---------- ------- ---------- ----------- ----------
31 6.9000% Actual/360 58,299 09/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
64 7.2200% 30/360 24,067 07/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
68 7.2500% 30/360 25,582 08/01/2001 N/A No N/A 0.1025%
69 6.7500% 30/360 23,998 11/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
75 6.7800% Actual/360 21,677 10/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
77 7.0000% Actual/360 22,171 08/01/2001 N/A No N/A 0.1025%
83 6.9600% Actual/360 20,073 09/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
87 6.9400% Actual/360 18,098 05/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
98 7.1100% Actual/360 14,643 07/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
100 7.1900% Actual/360 14,137 08/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
104 7.1100% Actual/360 13,051 09/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
107 6.9000% 30/360 11,500 10/01/2001 N/A No N/A 0.1025%
108 7.3300% 30/360 12,911 07/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
109 7.9800% 30/360 13,876 01/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
113 7.1700% 30/360 13,277 09/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
117 7.0600% 30/360 10,639 08/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
122 7.3400% Actual/360 11,124 08/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
123 7.1200% 30/360 10,774 08/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
126 6.9000% 30/360 8,625 11/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
127 7.5100% 30/360 10,498 10/01/2001 N/A No N/A 0.1025%
129 7.0000% 30/360 8,079 09/01/2001 N/A Yes Lock/47_Def 0.1025%
/69_0%/4
133 7.0800% 30/360 7,713 06/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
134 7.2100% Actual/360 8,342 06/01/2001 N/A No N/A 0.1025%
137 6.8300% Actual/360 7,263 10/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
141 7.8600% 30/360 7,421 01/01/2001 N/A Yes Lock/47_Def 0.1025%
/69_0%/4
142 7.3600% 30/360 6,477 10/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
INTEREST SERVICING
CALCULATION FIRST AND
INTEREST (30/360/ MONTHLY PAYMENT DEFEASANCE TRUSTEE
# RATE ACTUAL/360) PAYMENT DATE ARD (4) DEFEASANCE PROVISION FEES
------- -------- ----------- ------- ---------- ------- ---------- ----------- ----------
148 6.9000% Actual/360 5,985 10/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
156 7.2700% 30/360 4,910 07/01/2001 N/A Yes Lock/49_Def 0.1025%
/67_0%/4
157 7.0600% Actual/360 5,408 08/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
158 6.9200% 30/360 4,710 10/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
161 7.2400% Actual/360 5,210 08/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
167 7.3900% 30/360 4,150 05/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
168 7.2300% 30/360 3,881 08/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
170 7.0900% 30/360 3,357 09/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
172 7.0900% 30/360 3,527 07/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
173 7.1400% 30/360 2,699 08/01/2001 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
174 8.9300% 30/360 3,064 08/01/2000 N/A Yes Lock/48_Def 0.1025%
/68_0%/4
182 8.4100% 30/360 1,830 08/01/2000 N/A Yes Lock/47_Def 0.1025%
/69_0%/4
184 8.5800% 30/360 2,177 08/01/2000 N/A Yes Lock/48_Def 0.1025%
/128_0%/4
185 8.3800% 30/360 2,112 10/01/2000 N/A Yes Lock/47_Def 0.1025%
/129_0%/4
(1) Assumes a Cut-off Date of November, 2001.
(2) In the case of the ARD Loans, the anticipated repayment date is assumed to
be the maturity date for the purposes of the indicated column.
(3) Anticipated Repayment Date.
EXHIBIT B-2
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
PROPERTY NAME EXCEPTION DESCRIPTION
------------- ---------------------
Xxxxxxxxxx Portfolio MISSING LETTER OF CREDIT
0000 Xxx Xxxxxx XXXXXXX LETTER OF CREDIT
Xxxxx Xxxxx / Alliance GT-4 Portfolio MISSING PROMISSORY NOTE
Xxxxx Xxxxx / Alliance GT-4 Portfolio MISSING ALLONGE
Xxxxx Xxxxx / Alliance GT-3 Portfolio MISSING PROMISSORY NOTE
Xxxxx Xxxxx / Alliance GT-3 Portfolio MISSING ALLONGE
Country View Village Manufactured Housing Community LOAN AMOUNT (ALPHA & NUMERIC) DO NOT AGREE
Country View Village Manufactured Housing Community ENDORSEMENT(S) IS MISSING/INCORRECT
Country View Village Manufactured Housing Community ENDORSEMENT(S) IS MISSING/INCORRECT
Northstream Manor Apartments ENDORSEMENT(S) IS MISSING/INCORRECT
B-2-1
EXHIBIT B-3
FORM OF CUSTODIAL CERTIFICATION
[date]
Credit Suisse First Boston KeyBank National Association
Mortgage Securities Corp. 000 Xxxxxx Xxxxxx
00 Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
KeyCorp Real Estate Capital Markets, Inc. Column Financial, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000 0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxx Xxxx, Xxxxxxxx 00000 Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
National Consumer Cooperative Bank NCB Capital Corporation
0000 Xxx Xxxxxx, X.X. 0000 Xxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000 Xxxxxxxxxx, X.X. 00000
[CONTROLLING CLASS REPRESENTATIVE]
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement
dated as of November 12, 2001 and related to the above-referenced Certificates
(the "Agreement"), Xxxxx Fargo Bank Minnesota, N.A. as trustee (the
"Trustee"), hereby certifies as to each Original Mortgage Loan subject to the
Agreement (except as to any LOC Cash Reserve and except as specifically
identified in the exception report attached hereto) that: (i) the original
Mortgage Note specified in clause (i) of the definition of "Mortgage File" and
all allonges thereto, if any (or a copy of such Mortgage Note, together with a
lost note affidavit certifying that the original of such Mortgage Note has
been lost), the original or copy of documents specified in clauses (ii)
through (v) and (vii) of the definition of "Mortgage File" and, in the case of
a hospitality property, the documents specified in clause (viii) of the
definition of "Mortgage File" (without regard to the parenthetical), and any
other Specially Designated Mortgage Loan Documents, have been received by it
or a Custodian on its behalf; (ii) if such report is due more than 180 days
after the Closing Date, the recordation/filing contemplated by Section 2.01(e)
of the Agreement has been completed (based solely on receipt by the Trustee of
the particular recorded/filed documents or an appropriate receipt of
recording/filing therefor); (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 Borrower), (B) appear to have been executed and (C) purport
to relate to such Mortgage Loan; and (iv) based on the examinations referred
to in Section 2.02(a) and Section 2.02(b) of the Agreement and only as to the
foregoing documents, the information set forth in
B-3-1
the Mortgage Loan Schedule with respect to the items specified in clause
(iii)(a) of the definition of "Mortgage Loan Schedule" accurately reflects the
information set forth in the related Mortgage File.
None of the Trustee, the General Master Servicer, the Co-op Master
Servicer, the General Special Servicer, the Co-op 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 General Master Servicer, the
Co-op Master Servicer, the General Special Servicer, the Co-op 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.
In performing the reviews contemplated by Sections 2.02(a) and
2.02(b) of the Agreement, the Trustee may conclusively rely on the purported
genuineness of any such document and any signature thereon. It is understood
that the scope of the Trustee's review of the Mortgage Files is limited solely
to confirming that the documents specified in clauses (i), through (v), in
clause (vii) and, in the case of any Mortgage Loan secured by a Mortgage on a
hospitality property, in clause (viii) of the definition of "Mortgage File"
and any other Specially Designated Mortgage Loan Documents, have been received
and such additional information as will be necessary for delivering the
certifications required by the Agreement.
Further, with respect to UCC filings, absent actual knowledge or
copies of UCC filings in the Mortgage File indicating otherwise, the Trustee
shall assume for purposes of the certifications delivered pursuant to Section
2.02 of the Agreement, that one local UCC filing for each relating Mortgaged
Property and one state-level UCC filing for each related Borrower were made.
Capitalized terms used herein and not otherwise defined shall have
the respective meanings assigned to them in the Agreement.
Respectfully,
XXXXX FARGO BANK MINNESOTA,
as Trustee
By:___________________________________
Name:
Title:
X-0-0
XXXXXXX X-0
SCHEDULE OF MORTGAGE LOANS COVERED BY
ENVIRONMENTAL INSURANCE
0000 Xxxxxxx Xxxx Xxxxx
1060 Crystal Lake Drive
0000-0000 Xxxxx Xxxxxxx Xxxxxx
0000-0000 Xxxxxx Xxxxxx
0000 XX 00xx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx Commercial Center
Bay Bluff Apartments
Beacon Hill Apartments
Brookside Business Center
Country Square Shopping Center
East End Apartments
Fair Oaks Apartments
Xxxxx Court Apartments
Insite Chicago - Blockbuster Video
InSite Chicago/Xxxxxxxx
InSite Downers Grove
InSite Palm Beach - Blockbuster Video
InSite Saginaw (Blockbuster Building)
Kings Meadow Center
Knell's Ridge Plaza
La Maison Apartments
Lulen Apartments
Mountain View Mobile Estates
Normandy Apartments
Northstream Manor Apartments
Xxxxxxx Apartments
Sherwood Forest Shopping Center
Sulphur Plaza Shopping Center
Terrace Hills Apartments
Timberwood Apartments
Tomshir Apartments
Westchester Apartments
Westgate Professional Center
Xxxx Xxxx Xxxxx
0000-0000 Xxxxxxxx Avenue
00-000 Xxxxxxx Xxxxxx
Xxxxxx Xxxxxx Shopping Center
Walgreen's Drug Store-Las Vegas
B-4-1
EXHIBIT B-5
SCHEDULE OF INITIAL LTV CO-OP BASIS
CO-OP BASIS
# PROPERTY NAME LTV
----------------------------------------------------------------------------
1 Ocean Towers 30.4%
31 000 Xxxx 00xx Xxxxxx Corporation 7.6%
00 Xxxxxx Xxxxx Xxxxx, Inc. 1.9%
68 000 Xxxx 00xx Xxxxxx Apartment Corporation 9.1%
69 Long Beach Owners Corporation 25.8%
75 000 Xxxx Xxx Xxxxxx Corporation 9.0%
77 000 Xxxx 00xx Xxxxxx Owners, Inc. 10.0%
00 Xxxxxx Xxxxx Xxxxxxx Corporation 28.3%
87 2940-2950 Ocean Apartments, Inc. 33.4%
00 Xxxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxxx 36.4%
100 0000 Xxxx 00xx Xxxxxx Corporation 29.1%
104 00 Xxxxx Xxxxx Xxxx Owners Corporation 30.3%
107 00 Xxxxx Xxxxxx Owners Corporation 5.0%
000 Xxxxxx Xxxxxxx 33.4%
109 000 Xxxx 000xx Xxxxxx Housing Corporation 13.4%
110 000 Xxxx Xxx Xxxxxx Corporation 2.6%
113 155 Tenants Corporation 7.9%
117 Lafayette Owners Corporation 12.7%
122 000 Xxxxxxxx Xxxxxx Corporation 36.3%
123 000 Xxxx 00xx Xxxxxx Housing Corporation 7.4%
126 000 Xxxx Xxx Xxxxxx Corporation 3.1%
000 Xxxxxx Xxxx Owners Corporation 34.4%
129 67-87 & 68-09 Booth Owners Corporation 11.0%
133 000 Xxxx Xxxxxxx Xxxxxxx Owners Corporation 28.4%
134 Tudor Arms Apartments Inc. 27.8%
000 Xxxxx Xxxxxxxxxx Xxxxxxxxxxx 29.1%
141 000 Xxxx 000xx Xxxxxx Owners Corporation 14.2%
142 101 West 80th Owners Corporation 7.3%
148 00-00 000xx Xxxxxx Owners Corporation 17.8%
156 184 Columbia Heights Inc. 7.0%
157 000 Xxxx 00xx Xxxxxx Tenants Corporaton 17.3%
158 Yorkville 87 Housing Corporation 21.3%
161 00-000 Xxxxxxx Realty Corporation 11.7%
167 000 Xxxx 0xx Xxxxxx Owners Corporation 15.3%
000 Xxxxx Xxxxxxxx Xxxxxxx, Ltd. 21.3%
000 Xxxxxxxxxxxx Associates, Inc. 6.2%
172 000 Xxxx 00xx Xxxxxx Owners Corporation 17.6%
173 253-259 Owners Corporation 5.2%
174 186 East 2nd Owners Corporation 20.4%
000 Xxxxxxx Xxxxxx Xxxxxxxxx Owners Corporation 22.4%
176 West 82 Tenants Realty Corporation 7.9%
177 City Studios, Inc. 4.0%
178 000 0xx Xxxxxx Corporation 9.3%
B-5-1
179 000 Xxxxxxx Xxxxxx Housing Corporation 8.7%
180 107-38 Owners Corporation 8.6%
181 226 West 11th Owners Corporation 9.5%
182 Xxxxx Xxxx Cooperative, Inc. 3.2%
183 Main Xxxxx Owners Corporation 1.7%
184 Xxxxxxxx Studios Corporation 3.4%
185 Heights Owners Corporation 16.4%
186 000 Xxxxxxx Xxxxxx Owners Corporation 16.6%
187 000 Xxxxx Xxxxxx Housing Corporation 12.2%
188 264 President Apartment Corporation 10.9%
189 233 Court Housing Corporation 10.9%
190 659 XxXxxx Housing Corporation 16.6%
191 279 Prospect Housing Corporation 18.1%
192 397 7th Housing Corporation 8.0%
193 Three Twenty-Five Cooperative, Inc. 0.6%
194 90 Sterling Place Owners Corporation 7.1%
195 193 Xxxxx Housing Corporation 4.8%
B-5-2
EXHIBIT C
LETTERS OF REPRESENTATIONS AMONG DEPOSITOR,
TRUSTEE AND INITIAL DEPOSITARY
[See Attached]
C-1
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
Xxxxx Fargo Bank Minnesota, N.A.
000 Xxxxxx Xxxxxx, Xxxxx XXX
Xxxxxxxxxxx, XX 00000
Attention: Mortgage Document Custody (CMBS)
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5
In connection with the administration of the Mortgage Files held by
or on behalf of you as trustee under a certain Pooling and Servicing
Agreement, dated as of November 12, 2001 (the "Pooling and Servicing
Agreement"), among Credit Suisse First Boston Mortgage Securities Corp. as
depositor, the undersigned as [general] [co-op] master servicer (the
"[General] [Co-op] Master Servicer"), National Consumer Cooperative Bank as
[co-op master servicer and] co-op special servicer, KeyCorp Real Estate
Capital Markets, Inc. d/b/a Key Commercial Mortgage as [general master
servicer and] general special servicer and you as trustee (in such capacity,
the "Trustee"), the undersigned as [General] [Co-op] Master Servicer hereby
requests a release of the Mortgage File (or the portion thereof specified
below) held by or on behalf of you as Trustee with respect to the following
described Mortgage Loan for the reason indicated below.
Property Name:
Address:
Prospectus No.:
If only particular documents in the Mortgage File are requested, please
specify which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. Mortgage Loan paid in full. The undersigned hereby certifies that
all amounts received in connection with the Mortgage Loan that are
required to be credited to the Collection 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 days of our receipt thereof, unless the
D-1-1
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.
------------------------------------------------
as [General] [Co-op] Master Servicer
By:
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
Xxxxx Fargo Bank Minnesota, N.A.
000 Xxxxxx Xxxxxx, Xxxxx XXX
Xxxxxxxxxxx, XX 00000
Attention: Mortgage Document Custody (CMBS)
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5
In connection with the administration of the Mortgage Files held by
or on behalf of you as trustee under a certain Pooling and Servicing
Agreement, dated as of November 12, 2001 (the "Pooling and Servicing
Agreement"), among Credit Suisse First Boston Mortgage Securities Corp. as
depositor, KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial
Mortgage as general master servicer [and as general special servicer], the
undersigned as [general] [co-op] special servicer (the "[General] [Co-op]
Special Servicer"), National Consumer Cooperative Bank as co-op master
servicer [and co-op special servicer] and you as trustee (in such capacity,
the "Trustee"), the undersigned as [General] [Co-op] Special Servicer hereby
requests a release of the Mortgage File (or the portion thereof specified
below) held by or on behalf of you as Trustee with respect to the following
described Mortgage Loan for the reason indicated below.
Property Name:
Address:
Prospectus No.:
If only particular documents in the Mortgage File are requested, please
specify which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. The Mortgage Loan is being foreclosed.
______ 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 days of our receipt thereof, unless the
Mortgage Loan is being foreclosed, in which case the Mortgage File (or such
portion thereof) will be returned when no longer required by us for such
purpose.
D-2-1
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
------------------------------------------------
as [General][Co-op] Special Servicer
By:
Name:
Title:
D-2-2
EXHIBIT E-1
FORM OF TRUSTEE REPORT
E-1-1
EXHIBIT E-2A
FORM OF CMSA SERVICER WATCH LIST
STANDARD WATCHLIST CRITERIA (DRAFTED BY CMSA WATCHLIST SUB-COMMITTEE)
PROPERTY TYPE: GENERAL
------------------------------------------------------------------------------------------------------------------------------
REFERENCE
------------------------------------------------------------------------------------------------------------------------------
CODE CRITERIA TRIGGER LEVEL ON TRIGGER LEVEL OFF
------------------------------------------------------------------------------------------------------------------------------
FINANCIAL CONDITIONS
------------------------------------------------------------------------------------------------------------------------------
1 A Delinquent Payments 2 payments 3 payments received
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
1 B Delinquent Taxes (Amount, Uncured x days, etc.) 30 days after Taxes paid in full by the
delinquent due borrower
date
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
1 C Delinquent or Forced Placed Insurance Delinquent-Day Insurance is paid in full
after Due and FP by the borrower
is immediately
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
1 D Outstanding servicing advances (excludes P & I) (greater than) 30 No outstanding servicing
days advances
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
1 E DSCR Level+C10 (less than or (greater than) 1.10x [Lodging
equal to) 1.10x and Healthcare would be
(other than CTLs, (greater than) 1.20x] (CTLs
(less than) 1.0x) (greater than or equal to)
[Lodging and 1.0x)
Healthcare would be
(less than or
equal to) 1.20x]
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
1 F DSCR decrease from Origination (less than or equal (greater than) 85% of UW DSCR
to) 1.50x and (less
than or equal to)
85% of UW DSCR
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
1 G Defaulted or matured senior lien Immediately Cured
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
1 H Any unplanned draw on a Letter of Credit or any draw on a Immediately Letter of Credit or debt
reserve to pay debt service unless the draw on the Letter if service reserve is restored
Credit or reserve is permitted due to the seasonal nature of (if applicable) and the
the related property. borrower has made three
consecutive payments.
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
BORROWER ISSUES
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
2 A Required repairs not finished by due date 30 Days after Completion of required
due Date repairs
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
2 B O & M plan deficiencies Immediately Cure deficiencies
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
2 C Occurrence of trigger event in documents Immediately Cure of the event that
required action under the
mortgage loan documents, or
satisfying such mortgage
loan provisions or after 6
consecutive monthly payments
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
2 D Failure to remit operating statements or rent rolls 60 days after the Statement received or next
time period statement frequency
provided in the received that covers period
loan documents of missing statement.
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
2 E Ground lease default Immediately Cured
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
2 F Expiration of groundlease within 6 months Immediately New lease or option has
been exercised
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
2 G Franchise default or operating license default Immediately New franchise or license in
place
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
2 H Material Violations Survey for Skilled Care or Assisted Immediately Cured
Living Facility
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
PROPERTY CONDITION ISSUES
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
4 A Prohibited collateral inspection access Immediately Site inspection is completed
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
4 B Inspection reveals below average, poor or unsatisfactory Immediately Cure problem indicated by
condition the inspection
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
4 C Inspection reveals potentially harmful environmental issue Immediately Cure problem indicated by
the inspection
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
4 D Property affected by major casualty or condemnation Immediately Cured (transferred to SS or
proceeding affecting future cashflows payoff)
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
LEASE ROLLOVER, TENANT ISSUES AND VACANCY
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
5 A Physical Occupancy (relative basis) (greater than or (greater than) 85% of
equal to) 15% less occupancy at Origination
than at origination
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
5 B EGI from Origination (For Hotel use REV PAR) (greater than or (greater than) 85% of EGI or
equal to) 15% less REV PAR for Hotel
than at Origination
& (less than or
equal to) 1.50
DSCR [For Lodging,
use Rev Par]
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
5 C Leases expiring within next 12 months (greater than or Tenant spaces have been
equal to) 20% of leased
net rentable area
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
5 D Bankruptcy of major tenant (if Healthcare include Master (greater than or The existing tenant comes out
Lease or of Management Company) equal to) 20% of of bankruptcy or a new tenant
net rentable area is in place.
E-2A-1
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
5 E Tenant lease is in default, terminated or is dark (greater than or New lease signed
equal to) 20% of
net rentable area
------------- -------------------------------------------------------------- ------------------- -----------------------------
MATURITY:
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
6 A Pending loan maturity (less than or Loan is extended or paid
equal to) 90 days off in full
-------- ---- -------------------------------------------------------------- ------------------- -----------------------------
------------------------------------------------------------------------------------------------------------------------------
ASSUMPTIONS:
------------------------------------------------------------------------------------------------------------------------------
1 Major Tenants include top 5 tenants and or tenants representing (greater than or equal to) 20%NRA
-------- ---- ----------------------------------------------------------------------------------------------------------------
2 All Servicers will use TTM or Annual or Normalized Annualized (if YTD statements)
-------- ---- ----------------------------------------------------------------------------------------------------------------
No YTD or Quarterly will be used for Watch List purposes.
-------- ---- ----------------------------------------------------------------------------------------------------------------
E-2A-2
EXHIBIT E-2B
CMSA SERVICER WATCH LIST FOR CO-OP MORTGAGE LOANS
(i) A loan that has a then current debt service coverage ratio
that is less than 0.9x;
(ii) A loan as to which any required inspection of the related
property conducted by the Co-op Master Servicer indicates, or
the Co-op Master Servicer otherwise has actual knowledge of, a
problem that the Co-op Master Servicer determines can
reasonably be expected to materially adversely affect the cash
flow generated by such property;
(iii) A loan as to which the Co-op Master Servicer has actual
knowledge of material damage or waste at the related property;
(iv) A loan as to which it has come to the Co-op Master Servicer's
attention in the performance of its duties that any tenant or
tenants occupying 25% or more of the space in, or responsible
for 20% or more of total rental revenue from, the related
property (A) has or have vacated such space (without being
replaced by a comparable tenant and lease) or (B) has or have
declared bankruptcy;
(v) A loan that is at least 60 days delinquent in payment (without
regard to any grace period);
(vi) A loan as to which the net operating income or net cash flow,
as applicable, as stated in the most recent twelve-month
operating statement has decreased 25% or more from the net
operating income or net cash flow, as the case may be, at
origination;
(vii) A loan that is within 60 days of maturity;
(viii) A loan as to which the Co-op Master Servicer has determined,
consistent with the Servicing Standard, that a payment default
is reasonably likely to occur because the annual maintenance
on the related property is more than 5% in arrears, such
arrearage has continued for four or more months and the
related borrower has less than 10% of the annual maintenance
in reserve; and
(ix) A loan as to which any material deferred maintenance is
identified by the Co-op Master Servicer at the related
property and such deferred maintenance is not cured within 120
days of the identification thereof.
For purposes of item "(i)" above, debt service coverage ratio shall mean, as of
the date of any determination, the net operating income for the trailing 12
month period for the related property (based on actual receipt of maintenance
payments from tenant-shareholders less actual operating expenses for the related
period, all as set forth in the most recent annual financial statement submitted
by the borrower) divided by the actual aggregate mortgage payments for such
period.
E-2B-1
EXHIBIT F-1A
FORM I OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Fargo Center
Sixth and Xxxxxxxxx
XXX # X0000-000
Xxxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services (CMBS)
[OR OTHER CERTIFICATE REGISTRAR]
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5, Class ______
Certificates [having an initial aggregate Certificate [Principal
Balance] [Notional Amount] as of November 13, 2001 (the "Closing
Date") of $__________] [evidencing a ____% Percentage Interest in the
related Class] (the "Transferred Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
of the Transferred Certificates pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
November 12, 2001 among Credit Suisse First Boston Mortgage Securities Corp.
as Depositor, KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial
Mortgage as General Master Servicer and General Special Servicer, National
Consumer Cooperative Bank as Co-op Master Servicer and Co-op Special Servicer,
and Xxxxx Fargo Bank Minnesota, N.A. 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, 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
F-1A-1
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"), or 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.
3. The Transferor and any person acting on behalf of the Transferor
in this matter reasonably believe that the Transferee is a "qualified
institutional buyer" as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act (a "Qualified Institutional Buyer") purchasing for its own
account or for the account of another person that is itself a Qualified
Institutional Buyer. In determining whether the Transferee is a Qualified
Institutional Buyer, the Transferor and any person acting on behalf of the
Transferor in this matter has relied upon the following method(s) of
establishing the Transferee's ownership and discretionary investments of
securities (check one or more):
_______ (a) The Transferee's most recent publicly available financial
statements, which statements present the information as of a
date within 16 months preceding the date of sale of the
Transferred Certificates in the case of a U.S. purchaser and
within 18 months preceding such date of sale in the case of a
foreign purchaser; or
_______ (b) The most recent publicly available information appearing
in documents filed by the Transferee with the Securities and
Exchange Commission or another United States federal, state,
or local governmental agency or self-regulatory organization,
or with a foreign governmental agency or self-regulatory
organization, which information is as of a date within 16
months preceding the date of sale of the Transferred
Certificates in the case of a U.S. purchaser and within 18
months preceding such date of sale in the case of a foreign
purchaser; or
_______ (c) The most recent publicly available information appearing
in a recognized securities manual, which information is as of
a date within 16 months preceding the date of sale of the
Transferred Certificates in the case of a U.S. purchaser and
within 18 months preceding such date of sale in the case of a
foreign purchaser; or
_______ (d) A certification by the chief financial officer, a person
fulfilling an equivalent function, or other executive officer
of the Transferee, specifying the amount of securities owned
and invested on a discretionary basis by the Transferee as of
a specific date on or since the close of the Transferee's most
recent fiscal year, or, in the case of a Transferee that is a
member of a "family of investment companies", as that term is
defined in Rule 144A, a certification by an executive officer
of the investment adviser specifying the amount of securities
owned by the "family of investment companies" as of a specific
date on or since the close of the Transferee's most recent
fiscal year.
_______ (e) Other. (Please specify brief description of method)
F-1A-2
4. The Transferor and any person acting on behalf of the Transferor
understand that in determining the aggregate amount of securities owned and
invested on a discretionary basis by an entity for purposes of establishing
whether such entity is a Qualified Institutional Buyer:
(a) the following instruments and interests shall be excluded:
securities of issuers that are affiliated with such entity; securities
that are part of an unsold allotment to or subscription by such entity,
if such entity is a dealer; securities of issuers that are part of such
entity's "family of investment companies", if such entity is a
registered investment company; bank deposit notes and certificates of
deposit; loan participations; repurchase agreements; securities owned
but subject to a repurchase agreement; and currency, interest rate and
commodity swaps;
(b) the aggregate value of the securities shall be the cost of
such securities, except where the entity 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 may be
valued at market; and
(c) securities owned by subsidiaries of the entity that are
consolidated with the entity in its financial statements prepared in
accordance with generally accepted accounting principles may be
included if the investments of such subsidiaries are managed under the
direction of the entity, except that, unless the entity is a reporting
company under Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, securities owned by such subsidiaries may not be
included if the entity itself is a majority-owned subsidiary that would
be included in the consolidated financial statements of another
enterprise.
5. The Transferor or a person acting on its behalf has taken
reasonable steps to ensure that the Transferee is aware that the Transferor is
relying on the exemption from the provisions of Section 5 of the Securities
Act provided by Rule 144A.
6. The Transferor or a person acting on its behalf has furnished, or
caused to be furnished, to the Transferee 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 (e) all related matters, that the Transferee has
requested.
Very truly yours,
_______________________________
(Transferor)
By:
Name:
Title:
F-1A-3
EXHIBIT F-1B
FORM II OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Fargo Center
Sixth and Xxxxxxxxx
XXX # X0000-000
Xxxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services (CMBS)
[OR OTHER CERTIFICATE REGISTRAR]
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5, Class ______
Certificates [having an initial aggregate Certificate [Principal
Balance] [Notional Amount] as of November 13, 2001 (the "Closing
Date") of $__________] [evidencing a ____% Percentage Interest in the
related Class] (the "Transferred Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
of the Transferred Certificates pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
November 12, 2001 among Credit Suisse First Boston Mortgage Securities Corp.
as Depositor, KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial
Mortgage as General Master Servicer and General Special Servicer, National
Consumer Cooperative Bank as Co-op Master Servicer and Co-op Special Servicer,
and Xxxxx Fargo Bank Minnesota, N.A. 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, 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
F-1B-1
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:
F-1B-2
EXHIBIT F-1C
FORM I OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF INTERESTS IN GLOBAL CERTIFICATES
FOR CLASSES OF NON-REGISTERED CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Fargo Center
Sixth and Marquette
MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5, Class ____,
having an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of November 13, 2001 (the "Issue
Date") of $__________ (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
______________________ (the "Transferor") to ______________________ (the
"Transferee") through our respective Depository Participants of the
Transferor's beneficial ownership interest (currently maintained on the books
and records of The Depository Trust Company ("DTC") and the Depository
Participants) in the Transferred Certificates. The Certificates, including the
Transferred Certificates, were issued pursuant to the Pooling and Servicing
Agreement, dated as of November 12, 2001 (the "Pooling and Servicing
Agreement"), among Credit Suisse First Boston Mortgage Securities Corp., as
depositor (the "Depositor"), KeyCorp Real Estate Capital Markets, Inc. d/b/a
Key Commercial Mortgage, as master servicer and special servicer of certain of
the subject mortgage loans, and National Consumer Cooperative Bank, as master
servicer and special servicer of the remaining subject mortgage loans, and
Xxxxx Fargo Bank Minnesota, N.A., as trustee (the "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 and agrees with you, as Certificate
Registrar, and for the benefit of the Depositor and the Trustee, 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
F-1C-1
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:
F-1C-2
EXHIBIT F-1D
FORM II OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF INTERESTS IN GLOBAL CERTIFICATES
FOR CLASSES OF NON-REGISTERED CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Fargo Center
Sixth and Marquette
MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5, Class ____,
having an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of November __, 2001 (the "Issue
Date") of $__________ (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
______________________ (the "Transferor") to ______________________ (the
"Transferee") through our respective Depository Participants of the
Transferor's beneficial ownership interest (currently maintained on the books
and records of The Depository Trust Company ("DTC") and the Depository
Participants) in the Transferred Certificates. The Certificates, including the
Transferred Certificates, were issued pursuant to the Pooling and Servicing
Agreement, dated as of November 12, 2001 (the "Pooling and Servicing
Agreement"), among Credit Suisse First Boston Mortgage Securities Corp., as
depositor (the "Depositor"), KeyCorp Real Estate Capital Markets, Inc. d/b/a
Key Commercial Mortgage, as master servicer and special servicer of certain of
the subject mortgage loans, and National Consumer Cooperative Bank, as master
servicer and special servicer of the remaining subject mortgage loans, and
Xxxxx Fargo Bank Minnesota, N.A., as trustee (the "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 and agrees with you, as Certificate
Registrar, and for the benefit of the Depositor and the Trustee, 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. At the time the buy order was originated, the Transferor
reasonably believed that the Transferee was outside the United States,
its territories and possessions.
F-1D-1
3. If the Transferor is a distributor (within the meaning of
Rule 902(d) under the Securities Act of 1933, as amended (the "Securities
Act")) with respect to the Transferred Certificates, or an affiliate of
such a distributor or of the Depositor, or a person acting on behalf of
such a distributor, the Depositor or any affiliate of such distributor or
of the Depositor, then:
(a) the sale of the Transferred Certificates by the
Transferor to the Transferee will be executed in, on or through a
physical trading floor of an established foreign securities exchange
that is located outside the United States, its territories and
possessions;
(b) no directed selling efforts (within the meaning of
Rule 902(c) under the Securities Act) have been made in the United
States, its territories and possessions, with respect to the
Transferred Certificates by the Transferor, any of its affiliates, or
any person acting on behalf of any of the foregoing;
(c) all offers and sales, if any, of the Transferred
Certificates by or on behalf of the Transferor prior to the
expiration of the distribution compliance period specified in
category 2 or 3 (paragraph (b)(2) or (b)(3)) in Rule 903 under the
Securities Act, as applicable, have been and will be made only in
accordance with the provisions of Rule 903 or Rule 904 under the
Securities Act, pursuant to registration of the Transferred
Certificates under the Securities Act, or pursuant to an available
exemption from the registration requirements of the Securities Act;
(d) all offering materials and documents (other than
press releases), if any, used in connection with offers and sales of
the Transferred Certificates by or on behalf of the Transferor prior
to the expiration of the distribution compliance period specified in
category 2 or 3 (paragraph (b)(2) or (b)(3)) in Rule 903 under the
Securities Act, as applicable, complied with the requirements of Rule
902(g)(2) under the Securities Act; and
(e) if the Transferee is a distributor, a dealer or a
person receiving a selling concession, a fee or other remuneration
and the offer or sale of the Transferred Certificates thereto occurs
prior to the expiration of the applicable 40-day distribution
compliance period, the Transferor has sent a confirmation or other
notice to the Transferee that the Transferee is subject to the same
restrictions on offers and sales that apply to a distributor.
4. If the Transferor is not a distributor with respect to
the Transferred Certificates or an affiliate of such a distributor or of
the Depositor or acting on behalf of such a distributor, the Depositor or
any affiliate of such a distributor or of the Depositor, then:
(a) the sale of the Transferred Certificates by the
Transferor to the Transferee will be executed in, on or through the
facilities of a designated offshore securities market described in
paragraph (b) of Rule 902 under the Securities Act, and neither the
Transferor nor anyone acting on its behalf knows that such
transaction has been prearranged with a buyer in the United States,
its territories and possessions;
F-1D-2
(b) no directed selling efforts (within the meaning of
Rule 902(c) under the Securities Act) have been made in the United
States, its territories and possessions, with respect to the
Transferred Certificates by the Transferor, any of its affiliates, or
any person acting on behalf of any of the foregoing;
(c) if the Transferee is a dealer or a person receiving a
selling concession, a fee or other remuneration and the offer or sale
of the Transferred Certificates thereto occurs prior to the
expiration of the applicable 40-day distribution compliance period,
the Transferor has sent a confirmation or other notice to the
Transferee stating that the Transferred Certificates may be offered
and sold during the distribution compliance period only in accordance
with the provisions of Regulation S under the Securities Act,
pursuant to registration of the Transferred Certificates under the
Securities Act or pursuant to an available exemption from the
registration requirements of the Securities Act.
Very truly yours,
_________________________________
(Transferor)
By:
Name:
Title:
F-1D-3
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF
NON-REGISTERED CERTIFICATES HELD IN PHYSICAL FORM
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Fargo Center
Sixth and Xxxxxxxxx
XXX # X0000-000
Xxxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services (CMBS)
[OR OTHER CERTIFICATE REGISTRAR]
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5, Class ______
Certificates [having an initial aggregate Certificate [Principal
Balance] [Notional Amount] as of November 13, 2001 (the "Closing
Date") of $__________] [evidencing a ____% Percentage Interest in the
related Class] (the "Transferred Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
of the Transferred Certificates pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
November 12, 2001 among Credit Suisse First Boston Mortgage Securities Corp.
as Depositor, KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial
Mortgage as General Master Servicer, and General Special Servicer, National
Consumer Cooperative Bank as Co-op Master Servicer and Co-op Special Servicer,
and Xxxxx Fargo Bank Minnesota, N.A. 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, 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.
F-2A-1
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions thereon,
(c) the nature, performance and servicing of the Mortgage Loans, (d) the
Pooling and Servicing Agreement and the Trust Fund created pursuant thereto,
and (e) all related matters, that it has requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
_________________________________
(Transferee)
By:
Name:
Title:
F-2A-2
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial
owner thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
(Nominee)
_________________________________
By:
Name:
Title:
F-2A-3
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 being
transferred (the "Transferred Certificates") as described in the Transferee
certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificates (the
"Transferee").
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 the Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A) and (ii) the Transferee satisfies the criteria
in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
___ 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.
-----------
(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.
F-2A-4
savings and loan association, and not more than 18 months
preceding such date of sale in the case of a foreign savings
and loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act of
1934, as amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the
writing of insurance or the reinsuring of risks underwritten
by insurance companies and which is subject to supervision
by the insurance commissioner or a similar official or
agency of a State, U.S. territory or the District of
Columbia.
___ State or Local Plan. The Transferee is a plan established
and maintained by a State, its political subdivisions, or
any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan
within the meaning of Title I of the Employee Retirement
Income Security Act of 1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as
amended.
___ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule
144A.
___ Other. (Please supply a brief description of the entity and
a cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it
qualifies. Note that registered investment companies should
complete Annex 2 rather than this Annex 1.)
3. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by any Person, the
Transferee did not include (i) securities of issuers that are affiliated with
such Person, (ii) securities that are part of an unsold allotment to or
subscription by such Person, if such Person is a dealer, (iii) bank deposit
notes and certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by any Person, the
Transferee used the cost of such securities to such Person, unless such Person
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of
those securities has been published, in which case the securities were valued
at market. Further, in determining such aggregate amount, the Transferee may
have included securities owned by subsidiaries of such Person, but only if
such subsidiaries are consolidated with such Person in its financial
statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under such
Person's direction. However, such securities were not included if such Person
is a majority-owned,
F-2A-5
consolidated subsidiary of another enterprise and such Person is not itself a
reporting company under the Securities Exchange Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands
that the Transferor and other parties related to the Transferred Certificates
are relying and will continue to rely on the statements made herein because
one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
8. Capitalized terms used but not defined herein have the
respective meanings ascribed thereto in the Pooling and Servicing Agreement
pursuant to which the Transferred Certificates were issued.
Print Name of Transferee
_________________________________
By:
Name:
Title:
Date:
F-2A-6
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 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, 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)
F-2A-7
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:
IF AN ADVISER:
Print Name of Transferee
Date:
F-2A-8
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF
NON-REGISTERED CERTIFICATES HELD IN PHYSICAL FORM
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Fargo Center
Sixth and Xxxxxxxxx
XXX # X0000-000
Xxxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services (CMBS)
[OR OTHER CERTIFICATE REGISTRAR]
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5, Class ______
Certificates [having an initial aggregate Certificate [Principal
Balance] [Notional Amount] as of November 13, 2001 (the "Closing
Date") of $__________] [evidencing a ____% Percentage Interest in the
related Class] (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_______________________ (the "Transferor") to _______________________________
(the "Transferee") of the Transferred Certificates pursuant to Section 5.02 of
the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of November 12, 2001 among Credit Suisse First Boston Mortgage
Securities Corp. as Depositor, KeyCorp Real Estate Capital Markets, Inc. d/b/a
Key Commercial Mortgage as General Master Servicer and General Special
Servicer, National Consumer Cooperative Bank as Co-op Master Servicer and
Co-op Special Servicer, and Xxxxx Fargo Bank Minnesota, N.A. 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, that:
1. 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. 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) neither the
Depositor nor the Trustee is obligated so to register or qualify the
Transferred Certificates, and (c) neither the Transferred Certificates 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
F-2B-1
registered or qualified pursuant to any applicable state securities laws or (ii)
sold or transferred in a transaction which is exempt from such registration and
qualification and the Certificate Registrar has received (A) a certificate from
the prospective transferor substantially in the form attached as Exhibit F-1A to
the Pooling and Servicing Agreement; (B) a certificate from the prospective
transferor substantially in the form attached as Exhibit F-1B to the Pooling and
Servicing Agreement and a certificate from the prospective transferee
substantially in the form attached either as Exhibit F-2A or as Exhibit F-2B to
the Pooling and Servicing Agreement; or (C) an Opinion of Counsel satisfactory
to the Certificate Registrar that the transfer may be made without registration
under the Securities Act, together with the written certification(s) as to the
facts surrounding the transfer from the prospective transferor and/or
prospective transferee upon which such Opinion of Counsel is based.
3. The Transferee understands that it may not sell or otherwise
transfer the Transferred Certificates, any security issued in exchange
therefor or in lieu thereof or any interest in the foregoing 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 legends substantially to the following
effect:
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 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 SECTION 406 OR 407 OF 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) TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, 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
F-2B-2
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 by
means of general advertising or in any other manner, or (e) taken any other
action, that (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 nor will it authorize any person to act, in any manner set
forth in the foregoing sentence with respect to the Transferred Certificates,
any interest in the Transferred Certificates 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) 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.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities Act or an
entity in which all the equity owners come within such paragraphs and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the 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 an 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
Acknowledgment below.
Very truly yours,
By:_______________________________
(Transferee)
Name:
Title:
F-2B-3
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial
owner thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
__________________________________
(Nominee)
By:______________________________
Name:
Title:
F-2B-4
EXHIBIT F-2C
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN GLOBAL CERTIFICATES
FOR CLASSES OF NON-REGISTERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5, Class ______
Certificates [having an initial aggregate Certificate [Principal
Balance] [Notional Amount] as of November 13, 2001 (the "Closing
Date") of $__________] (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
through our respective Depository Participants of the Transferor's beneficial
ownership interest (currently maintained on the books and records of The
Depository Trust Corporation ("DTC") and the Depository Participants) in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement,
dated as of November 12, 2001 (the "Pooling and Servicing Agreement"), among
Credit Suisse First Boston Mortgage Securities Corp. as depositor (the
"Depositor"), KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial
Mortgage as general master servicer and general special servicer, National
Consumer Cooperative Bank as co-op master servicer and co-op special servicer
and Xxxxx Fargo Bank Minnesota, N.A. as trustee (the "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, the Trustee and the Certificate
Registrar, that:
1. The Transferee is a "qualified institutional
buyer" (a "Qualified Institutional Buyer") as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended
(the "Securities Act") and has completed one of the forms of
certification to that effect attached hereto as Annex 1 and Annex 2.
The Transferee is aware that the 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 a
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) neither the Depositor nor the
Trustee is obligated so to register or qualify the Transferred
Certificates, and (c) neither the Transferred Certificates 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 any applicable
F-2C-1
state securities laws or (ii) sold or transferred in transactions
which are exempt from such registration and qualification.
3. The Transferee understands that it may not sell
or otherwise transfer any Transferred Certificate, any security
issued in exchange therefor or in lieu thereof or any interest in the
foregoing 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 (A) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO SECTION 406 OR 407 OF 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) TO 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 EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
F-2C-2
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 (e) all related matters, that it has requested.
Very truly yours,
(Transferee)
By:________________________________
Name:
Title:
F-2C-3
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 Credit Suisse First Boston Mortgage
Securities 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 the Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A) and (ii) the Transferee satisfies the criteria
in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
___ 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 for a foreign bank or equivalent
institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and
-----------
(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.
F-2C-4
(b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy of which is attached hereto, as of a date not more
than 16 months preceding the date of sale of the
Transferred Certificates in the case of a U.S. savings and
loan association, and not more than 18 months preceding
such date of sale in the case of a foreign savings and loan
association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
State, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established
and maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as
amended.
___ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule
144A.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
3. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, 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 such 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
F-2C-5
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 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 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:
F-2C-6
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 Credit Suisse First Boston Mortgage
Securities 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") 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)
F-2C-7
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 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 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:
IF AN ADVISER:
---------------------------------
Print Name of Transferee
Date:
F-2C-8
EXHIBIT F-2D
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN GLOBAL CERTIFICATES
FOR CLASSES OF NON-REGISTERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5, Class ______
Certificates [having an initial aggregate Certificate [Principal
Balance] [Notional Amount] as of November 13, 2001 (the "Closing
Date") of $__________] (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
through our respective Depository Participants of the Transferor's beneficial
ownership interest (currently maintained on the books and records of The
Depository Trust Corporation ("DTC") and the Depository Participants) in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of November 12, 2001 (the "Pooling and Servicing Agreement"), among Credit
Suisse First Boston Mortgage Securities Corp. as depositor (the "Depositor"),
KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage as
general master servicer and general special servicer, National Consumer
Cooperative Bank as co-op master servicer and co-op special servicer and Xxxxx
Fargo Bank Minnesota, N.A. 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, the
Trustee and the Certificate Registrar, that:
1. 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 so
settler 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
F-2D-1
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 organization, their agencies, affiliates and
pension plans shall not constitute United States Securities Persons.
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)
neither the Depositor nor the Trustee is obligated so to register or
qualify the Transferred Certificates, and (c) neither the Transferred
Certificates 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 any applicable
state securities laws, or (ii) is sold or transferred in transactions which
are exempt from such registration and qualification.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate, any security issued in exchange
therefor or in lieu thereof or any interest in the foregoing 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 (A)
TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS
SUBJECT TO
F-2D-2
SECTION 406 OR 407 OF 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) TO 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 EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT
IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
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 authorized you to produce this certification to any interested
party in such proceedings.
Dated: __________, ____
By: ____________________________________
As, or agent for, the beneficial owner(s) of the
Certificates to which this certificate relates
F-2D-3
EXHIBIT G-1
FORM OF TRANSFEREE CERTIFICATE IN CONNECTION WITH ERISA
(NON-REGISTERED CERTIFICATES AND NON-INVESTMENT GRADE
CERTIFICATES HELD IN FULLY REGISTERED, CERTIFICATED FORM)
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Fargo Center
Sixth and Xxxxxxxxx
XXX # X0000-000
Xxxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services (CMBS)
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5, Class ______
Certificates [having an initial aggregate Certificate [Principal
Balance] [Notional Amount] as of November 13, 2001 (the "Closing
Date") of $__________] [evidencing a ____% Percentage Interest in the
related Class] (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Transferred Certificates pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
November 12, 2001 among Credit Suisse First Boston Mortgage Securities Corp. as
Depositor, KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial
Mortgage as general master servicer and general special servicer, National
Consumer Cooperative Bank as co-op master servicer and co-op special servicer
and Xxxxx Fargo Bank Minnesota, N.A. as trustee (the "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 you as Certificate Registrar, as follows
(check the applicable paragraph):
___ The Transferee is neither (A) a retirement plan or other employee
benefit plan or arrangement, including an individual retirement
account or annuity, a Xxxxx plan or a collective investment fund or
separate account in which such plans, accounts or arrangements are
invested, including an insurance company general account, that is
subject to ERISA or Section 4975 of the Code (each, a "Plan"), nor (B)
a Person who is directly or indirectly purchasing the Transferred
Certificates on behalf of, as named fiduciary of, as trustee of, or
with assets of a Plan; or
G-1-1
___ The Transferee is using funds from an insurance company general
account to acquire the Transferred Certificates, however, the purchase
and holding of such Certificates by such Person is exempt from the
prohibited transaction provisions of Section 406 of ERISA and Section
4975 of the Code by reason of Sections I and III of Prohibited
Transaction Class Exemption 95-60.
___ The Transferred Certificates are Class ___ Certificates, an interest
in which is being acquired by or on behalf of a Plan in reliance on
the individual prohibited transaction exemption issued by the U.S.
Department of Labor to Credit Suisse First Boston Corporation (PTE
89-90), and such Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, (Y) is not sponsored
(within the meaning of Section 3(16)(B) of ERISA) by the Trustee, the
Depositor, any Fiscal Agent, any of the Mortgage Loan Sellers, the
General Master Servicer, the Co-op Master Servicer, the General
Special Servicer, the Co-op Special Servicer, any Exemption-Favored
Party, any Sub-Servicer or any Borrower with respect to any Mortgage
Loan or group of Mortgage Loans that represents more than 5% of the
aggregate unamortized principal balance of the Mortgage Loans
determined on the date of the initial issuance of the Certificates, or
by an Affiliate of any such Person, and (Z) agrees that it will obtain
from each of its Transferees to which it transfers an interest in the
Transferred Certificates, a written representation that such
Transferee, if a Plan, satisfies the requirements of the immediately
preceding clauses (X) and (Y), together with a written agreement that
such Transferee will obtain from each of its Transferees that are
Plans a similar written representation regarding satisfaction of the
requirements of the immediately preceding clauses (X) and (Y).
Very truly yours,
[TRANSFEREE]
By:
------------------------
Name:
Title:
G-1-2
EXHIBIT G-2
FORM OF TRANSFEREE CERTIFICATE IN CONNECTION WITH ERISA
(NON-REGISTERED CERTIFICATES HELD IN BOOK ENTRY FORM)
[Date]
[TRANSFEROR]
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5, Class ______
Certificates [having an initial aggregate Certificate [Principal
Balance] [Notional Amount] as of November 13, 2001 (the "Closing
Date") of $__________] [evidencing a ____% Percentage Interest in the
related Class] (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
______________________ (the "Transferor") to _________________ (the
"Transferee") through our respective DTC Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Corporation ("DTC") and the Depository Participants) in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of November 12, 2001 (the "Pooling and Servicing Agreement"), among Credit
Suisse First Boston Mortgage Securities Corp. as depositor (the "Depositor"),
KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage as
general master servicer and general special servicer, National Consumer
Cooperative Bank as co-op master servicer and co-op special servicer and Xxxxx
Fargo Bank Minnesota, N.A. as trustee (the "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 you as follows (check the applicable paragraph):
___ The Transferee is neither (A) a retirement plan, an employee benefit
plan or other retirement arrangement, including an individual
retirement account or annuity, a Xxxxx plan or a collective investment
fund or separate account in which such plans, accounts or arrangements
are invested, including an insurance company general account, that is
subject to Section 406 of ERISA or Section 4975 of the Code (each, a
"Plan"), nor (B) a Person who is directly or indirectly purchasing an
interest in the Transferred Certificates on behalf of, as named
fiduciary of, as trustee of, or with assets of, a Plan;
___ The Transferee is using funds from an insurance company general
account to acquire an interest in the Transferred Certificates,
however, the purchase and holding of such interest by such Person is
exempt from the prohibited transaction provisions of Section 406 of
ERISA and Section 4975 of the Code by reason of Sections I and III of
Prohibited Transaction Class Exemption 95-60; or
G-2-1
___ The Transferred Certificates are Class ____ Certificates, an interest
in which is being acquired by or on behalf of a Plan in reliance on
the individual prohibited transaction exemption issued by the U.S.
Department of Labor to Credit Suisse First Boston Corporation (PTE
89-90), and such Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, (Y) is not sponsored
(within the meaning of Section 3(16)(B) of ERISA) by the Trustee, the
Depositor, any Fiscal Agent, any of the Mortgage Loan Sellers, the
General Master Servicer, the Co-op Master Servicer, the General
Special Servicer, the Co-op Special Servicer, any Exemption-Favored
Party, any Sub-Servicer or any Borrower with respect to any Mortgage
Loan or group of Mortgage Loans that represents more than 5% of the
aggregate unamortized principal balance of the Mortgage Loans
determined on the date of the initial issuance of the Certificates, or
by an Affiliate of any such Person, and (Z) agrees that it will obtain
from each of its Transferees to which it transfers an interest in the
Transferred Certificates, a written representation that such
Transferee, if a Plan, satisfies the requirements of the immediately
preceding clauses (X) and (Y), together with a written agreement that
such Transferee will obtain from each of its Transferees that are
Plans a similar written representation regarding satisfaction of the
requirements of the immediately preceding clauses (X) and (Y).
[TRANSFEREE]
By:
------------------------------
Name:
Title:
G-2-2
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF CLASS R CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2001-CKN5, Class R, evidencing a ___% Percentage Interest in such Class (the
"Residual Interest Certificates")), a _________________ duly organized and
validly existing under the laws of ____________________, on behalf of which
he/she makes this affidavit. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement pursuant to which the Residual Interest Certificates were
issued (the "Pooling and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificates, and (ii) is acquiring the
Residual Certificates for its own account or for the account of another
prospective transferee from which it has received an affidavit in substantially
the same form as this affidavit. A "Permitted Transferee" is any Person other
than a Disqualified Organization, a possession of the United States, Non-United
States Tax Person or domestic partnership whose beneficial interests are not all
held by United States Person. (For this purpose, a "Disqualified Organization"
means the United States, any state or political subdivision thereof, any agency
or instrumentality of any of the foregoing (other than an instrumentality, all
of the activities of which are subject to tax and, except for the Federal Home
Loan Mortgage Corporation, a majority of whose board of directors is not
selected by any such governmental entity) or any foreign government,
international organization or any agency or instrumentality of such foreign
government or organization, any rural electric or telephone cooperative, or any
organization (other than certain farmers' cooperatives) that is generally exempt
from federal income tax unless such organization is subject to the tax on
unrelated business taxable income).
3. The Transferee is aware (i) of the tax that would be imposed under the
Code on transfers of the Residual Interest Certificates to non-Permitted
Transferees; (ii) that such tax would be on the transferor or, if such transfer
is through an agent (which Person includes a broker, nominee or middleman) for a
non-Permitted Transferee, on the agent; (iii) that the Person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such Person an affidavit that the transferee is a Permitted
Transferee and, at the time of transfer, such Person does not have actual
knowledge that the affidavit is false; and (iv) that the Residual Interest
Certificates may be a "noneconomic residual interest" within the meaning of
Treasury regulation Section 1.860E-1(c) and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
is to enable the transferor to impede the assessment or collection of tax.
H-1-1
4. The Transferee is aware of the tax imposed on a "pass-through entity"
holding the Residual Interest Certificates if at any time during the taxable
year of the pass-through entity a non-Permitted Transferee is the record holder
of an interest in such entity. (For this purpose, a "pass-through entity"
includes a regulated investment company, a real estate investment trust or
common trust fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not register
any transfer of the Residual Interest Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
6. The Transferee consents to any additional restrictions or arrangements
that shall be deemed necessary upon advice of counsel to constitute a reasonable
arrangement to ensure that the Residual Interest Certificates will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is _________________.
8. The Transferee has reviewed the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement, a description of which provisions is set forth
in the Residual Interest Certificates (in particular, clause (ii)(A) of Section
5.02(d) which authorizes the Trustee to deliver payments on the Residual
Interest Certificates to a Person other than the Transferee and clause (ii)(B)
of Section 5.02(d) which authorizes the Trustee to negotiate a mandatory sale of
the Residual Interest Certificates, in either case, in the event that the
Transferee holds such Residual Interest Certificates in violation of Section
5.02(d)); and the Transferee expressly agrees to be bound by and to comply with
such provisions.
9. No purpose of the Transferee relating to its purchase or any sale of the
Residual Certificates is or will be to impede the assessment or collection of
any tax and either (check the one that applies):
(a) The consideration paid to the Transferee for accepting the Class R
Certificates is greater than the present value of the anticipated net federal
income taxes and tax benefits ("Tax Liability Present Value") associated with
owning such Certificates, with such present value computed using a discount rate
equal to the "applicable federal rate" prescribed by Section 1274 of the Code as
of the date hereof (with all applicable computations done in accordance with
Revenue Procedure 2001-12 (December 8, 2000)) or, to the extent it is not, the
Transferee has regularly borrowed, in the ordinary course of its trade or
business, substantial funds from unrelated third parties at a lower interest
rate than such applicable federal rate and the consideration paid to the
Transferee is greater than the Tax Liability Present Value using such lower
interest rate as the discount rate and the transactions in question with
unrelated third party lenders, the interest rate or rates, the date or dates of
such transactions, and the maturity dates or, in the case of adjustable rate
debt instruments, the relevant adjustment dates or periods, with respect to such
borrowings, are accurately reflected in Exhibit A to this letter;
H-1-2
or
(b) the Transferee (i) is an "eligible corporation" as defined in Section
860L(a)(2) of the Code, as to which the income of Class R Certificates will only
be subject to taxation in the United States, (ii) has, and has had in each of
its two preceding fiscal years, gross assets for financial reporting
purposes(excluding any obligation of a person related to the transferee within
the meaning of Section 860L of the Code) in excess of $100 million and net
assets of $10 million, and (iii) hereby agrees only to transfer the Certificate
to another corporation meeting the criteria set forth in this letter. _______
10. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Certificates as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Residual
Certificates.
11. The Transferee 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, an estate whose
income from sources without the United States is includible in gross income for
United States federal income tax purposes regardless of its connection with the
conduct of a trade or business within the United States or a trust as to which
(i) a court in the United States is able to exercise primary supervision over
the administration of the trust and (ii) one or more United States fiduciaries
have the right to control all substantial decisions of the trust.
H-1-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ____________________ and its corporate seal to be hereunto attached,
attested by its [Assistant] Secretary, this ______ day of ______________.
[TRANSFEREE]
By:
----------------------------
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
---------------------------------
[Assistant] Secretary
Personally appeared before me the above-named ____________________, known
or proved to me to be the same person who executed the foregoing instrument and
to be the ____________________ of the Transferee, and acknowledged to me that
he/she executed the same as his/her free act and deed and the free act and deed
of the Transferee
Subscribed and sworn before me this ______ day of __________________,
________.
-----------------------------
NOTARY PUBLIC
COUNTY OF ____________________
STATE OF ______________________
My Commission expires the _________ day of ___________, 20__.
X-0-0
XXXXXXX X-0
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
CLASS R CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Fargo Center
Sixth and Xxxxxxxxx
XXX # X0000-000
Xxxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services (CMBS)
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5, Class R
Certificates, evidencing a ____% Percentage Interest in such Class
(the "Residual Interest Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Residual Interest Certificates, pursuant to the Pooling and Servicing
Agreement, dated as of November 12, 2001 (the "Pooling and Servicing
Agreement"), among Credit Suisse First Boston Mortgage Securities Corp. as
Depositor, KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial
Mortgage as General Master Servicer and General Special Servicer, National
Consumer Cooperative Bank as Co-op Master Servicer and Co-op Special Servicer
and Xxxxx Fargo Bank Minnesota, N.A. 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 the Transferee 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
X-0-0
Xxxxxx Xxxxxx 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:
---------------------------------
(Transferor)
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF NOTICE AND ACKNOWLEDGMENT
CONCERNING REPLACEMENT OF SPECIAL SERVICERS
[Date]
Xxxxx'x Investors Service
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: __________________
Standard & Poor's Ratings Services 00 Xxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx
Xxxx 00000 Attention: __________________
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 3.25 of the Pooling and
Servicing Agreement, dated as of November 12, 2001 (the "Agreement"), among
Credit Suisse First Boston Mortgage Securities Corp. as Depositor, KeyCorp Real
Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage as General Master
Servicer and General Special Servicer, National Consumer Cooperative Bank as
Co-op Master Servicer and Co-op Special Servicer and the undersigned as Trustee,
and relating to Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5 (the "Certificates").
Capitalized terms used but not otherwise defined herein shall have respective
meanings assigned to them in the Agreement.
Notice is hereby given that the Controlling Class Representative has
designated ________________________ to serve as the [General] [Co-op] Special
Servicer under the Agreement.
The designation of ____________________________ as [General] [Co-op]
Special Servicer will become final if certain conditions are met and each Rating
Agency delivers to Xxxxx Fargo Bank Minnesota, N.A., the trustee under the
Agreement (the "Trustee"), written confirmation that if the person designated to
become the [General] [Co-op] Special Servicer were to serve as such, such event
would not result in an Adverse Rating Event with respect to any Class of the
Certificates. Accordingly, such confirmation is hereby requested as soon as
possible.
I-1A-1
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,
-----------------------------------
-----------------------------------
Name:
Title:
Receipt acknowledged:
XXXXX'X INVESTORS SERVICE, INC.
By: ________________________________
Name:
Title:
Date:
STANDARD & POOR'S RATINGS SERVICES
By: ________________________________
Name:
Title:
Date:
I-1A-2
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[GENERAL MASTER SERVICER]
[CO-OP MASTER SERVICER]
[GENERAL SPECIAL SERVICER]
[CO-OP SPECIAL SERVICER]
[DEPOSITOR]
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5
Ladies and Gentlemen:
Pursuant to Section 3.25 of the Pooling and Servicing Agreement, dated as
of November 12, 2001, relating to Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2001-CKN5 (the
"Agreement"), the undersigned hereby agrees with all the other parties to the
Agreement that the undersigned shall serve as [General] [Co-op] Special Servicer
under, and as defined in, the Agreement. The undersigned hereby acknowledges and
agrees 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
[General] [Co-op] Special Servicer. The undersigned hereby makes, as of the date
hereof, the representations and warranties set forth in [Section 2.06] [Section
2.08] of the Agreement, with the following corrections with respect to type of
entity and jurisdiction of organization: ____________________.
---------------------------------------
By:
------------------------------------
Name:
Title:
I-2A-1
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
DEBTOR:
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
SECURED PARTY:
Xxxxx Fargo Bank Minnesota, N.A.*
as Trustee for the registered holders of
Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates,
Series 2001-CKN5
000 Xxxxxx Xxxxxx, Xxxxx XXX
Xxxxxxxxxxx, XX 00000
Attention: Mortgage Document Custody (CMBS)
TEXT:
See Exhibit I Attached Hereto
----------------------------
* Notices to the Secured Party should be sent to 00000 Xxxxxx Xxxx Xxxxxxx,
Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust Administration (CMBS)
- Credit Suisse First Boston Mortgage Securities Corp., Series 2001-CKN5.
J-1
EXHIBIT I TO EXHIBIT J
----------------------
This Exhibit I is attached to and incorporated in a financing statement
pertaining to Credit Suisse First Boston Mortgage Securities Corp., as debtor
(referred to as the "Debtor" for the purpose of this financing statement only),
and Xxxxx Fargo Bank Minnesota, N.A. as trustee for the holders of the Series
2001-CKN5 Certificates (referred to as the "Secured Party" for purposes of this
financing statement only), under that certain Pooling and Servicing Agreement,
dated as of November 12, 2001 (the "Pooling and Servicing Agreement"), among the
Debtor as depositor, the Secured Party as trustee, KeyCorp Real Estate Capital
Markets, Inc. d/b/a Key Commercial Mortgage as general master servicer (in such
capacity, the "General Master Servicer"), as general special servicer (in such
capacity, the "General Special Servicer"), National Consumer Cooperative Bank as
co-op master servicer (in such capacity, the "Co-op Master Servicer") and co-op
special servicer (in such capacity, the "Co-op Special Servicer"), relating to
the issuance of the Debtor's Commercial Mortgage Pass-Through Certificates,
Series 0000-XXX0 (xxxxxxxxxxxx, the "Series 0000-XXX0 Xxxxxxxxxxxx").
Capitalized terms used herein and not defined shall have the respective meanings
given to them in the Pooling and Servicing Agreement. The attached financing
statement covers all of the Debtor's right (including the power to convey title
thereto), title and interest in and to the Trust Fund created pursuant to the
Pooling and Servicing Agreement, consisting of the following:
1. The mortgage notes or other evidence of indebtedness of a borrower
(the "Mortgage Notes") with respect to the mortgage loans (the
"Mortgage Loans") listed on the Schedule of Mortgage Loans to the
Pooling and Servicing Agreement, which Schedule of Mortgage Loans is
attached hereto as Exhibit A;
2. The related mortgages, deeds of trust or other similar instruments
securing such Mortgage Notes (the "Mortgages");
3. With respect to each Mortgage Note and each Mortgage, each other
legal, credit and servicing document related to such Mortgage Note and
Mortgage (collectively, with such related Mortgage Note and Mortgage,
the "Mortgage Loan Documents");
4. (a) the respective Collection Accounts maintained by the General
Master Servicer and Co-op Master Servicer pursuant to the Pooling and
Servicing Agreement, (b) all funds from time to time on deposit in
such Collection Accounts, (c) the investments of any such funds
consisting of securities, instruments or other obligations, and (d)
the general intangibles consisting of the contractual right to
payment, including, without limitation, the right to payments of
principal and interest and the right to enforce the related payment
obligations, arising from or under any such investments;
5. All REO Property;
6. (a) the respective REO Accounts required to be maintained by the
General Special Servicer and Co-op Special Servicer pursuant to the
Pooling and Servicing Agreement, (b) all funds from time to time on
deposit in such REO Accounts, (c) the investments of any such funds
consisting of securities, instruments or other obligations, and (d)
the general intangibles consisting of the contractual right to
payment, including, without
J-2
limitation, the right to payments of principal and interest and the
right to enforce the related payment obligations, arising from or
under any such investments;
7. (a) the respective Servicing Accounts and Reserve Accounts required to
be maintained by the General Master Servicer and Co-op Master Servicer
pursuant to the Pooling and Servicing Agreement, and (b) all funds
from time to time on deposit in the Servicing Account(s) and Reserve
Account(s);
8. (a) the Distribution Account required to be maintained by the Secured
Party pursuant to the Pooling and Servicing Agreement, (b) all funds
from time to time on deposit in the Distribution Account, (c) the
investments of any such funds consisting of securities, instruments or
other obligations, and (d) the general intangibles consisting of the
contractual right to payment, including, without limitation, the right
to payments of principal and interest and the right to enforce the
related payment obligations, arising from or under any such
investments;
9. The Mortgage Loan Purchase Agreements and all rights of the Debtor
thereunder.
10. All insurance policies, including the right to payments thereunder,
with respect to the Mortgage Loans required to be maintained pursuant
to the Mortgage Loan Documents and the Pooling and Servicing
Agreement, transferred to the Trust and to be serviced by the General
Master Servicer, Co-op Master Servicer, General Special Servicer or
Co-op Special Servicer; and
11. All income, payments, products and proceeds of any of the foregoing,
together with any additions thereto or substitutions therefor.
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY THE
POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF THE INTEREST IN THE
MORTGAGE NOTES, THE RELATED MORTGAGES AND THE OTHER MORTGAGE LOAN DOCUMENTS, AND
THIS FILING SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT A SALE HAS NOT
OCCURRED. THE REFERENCES HEREIN TO MORTGAGE NOTES SHOULD NOT BE CONSTRUED AS A
CONCLUSION THAT ANY MORTGAGE NOTE IS NOT AN INSTRUMENT WITHIN THE MEANING OF THE
UNIFORM COMMERCIAL CODE OR THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP
OR SECURITY INTEREST OF THE SECURED PARTY IN ANY MORTGAGE NOTE, MORTGAGE OR
OTHER MORTGAGE LOAN DOCUMENT. IN ADDITION, THE REFERENCES HEREIN TO SECURITIES,
INSTRUMENTS AND OTHER OBLIGATIONS SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT
ANY SUCH SECURITY, INSTRUMENT OR OTHER OBLIGATION IS NOT AN INSTRUMENT, A
CERTIFICATED SECURITY OR AN UNCERTIFICATED SECURITY WITHIN THE MEANING OF THE
UNIFORM COMMERCIAL CODE, AS IN EFFECT IN ANY APPLICABLE JURISDICTION, NOR SHOULD
THIS FINANCING STATEMENT BE CONSTRUED AS A CONCLUSION THAT A FILING IS NECESSARY
TO PERFECT THE OWNERSHIP OR SECURITY INTEREST OF THE SECURED PARTY IN THE
CONTRACTUAL RIGHT TO PAYMENT, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO
PAYMENTS OF PRINCIPAL AND INTEREST AND THE RIGHT TO ENFORCE THE RELATED PAYMENT
OBLIGATIONS, ARISING FROM OR UNDER ANY SUCH SECURITY, INSTRUMENT OR OTHER
OBLIGATION (INCLUDING, WITHOUT LIMITATION, ANY
J-3
PERMITTED INVESTMENT). WITH RESPECT TO THE FOREGOING, THIS FILING IS MADE ONLY
IN THE EVENT OF CONTRARY ASSERTIONS BY THIRD PARTIES.
J-4
EXHIBIT A TO EXHIBIT I TO EXHIBIT J
SCHEDULE OF MORTGAGE LOANS
[See Attached Schedule]
J-5
EXHIBIT K-1
INFORMATION REQUEST FROM CERTIFICATEHOLDER
OR CERTIFICATE OWNER
[Date]
Xxxxx Fargo Bank Minnesota, N.A.
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services (CMBS)
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5
In accordance with the Pooling and Servicing Agreement, dated as of
November 12, 2001 (the "Pooling and Servicing Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp. as depositor (the "Depositor"), KeyCorp
Real Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage as general
master servicer and general special servicer, National Consumer Cooperative Bank
as co-op master servicer and co-op special servicer and Xxxxx Fargo Bank
Minnesota, N.A. as trustee (the "Trustee"), with respect to the Credit Suisse
First Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through
Certificates, Series 2001-CKN5 (the "Certificates"), the undersigned hereby
certifies and agrees as follows:
1. The undersigned is a [holder] [beneficial holder] of [$___________
aggregate [Certificate Principal Balance/Certificate Notional Amount]
of] [a ___% Percentage Interest in] the Class ____ Certificates.
2. The undersigned is requesting access to the following information (the
"Information"):
___ The information on the [General] [Co-op] Master Servicer's
Internet Website pursuant to Section 3.12(d) of the Pooling and
Servicing Agreement.
___ The information on the Trustee's Internet Website pursuant to
Section 4.02(a) of the Pooling and Servicing
Agreement.
___ The information identified on the schedule attached hereto
pursuant to Section 8.12(b) of the Pooling and Servicing
Agreement.
3. In consideration of the Trustee's disclosure to the undersigned of the
Information, the undersigned will keep the Information confidential
(except from such outside persons as are assisting it in evaluating
the Information), and such Information will not, without the prior
written consent of the Trustee, be disclosed by the undersigned or by
its officers, directors, partners employees, agents or
K-1-1
representatives (collectively, the "Representatives") in any manner
whatsoever, in whole or in part; provided that the undersigned may
provide all or any part of the Information to any other person or
entity that holds or is contemplating the purchase of any Certificate
or interest therein, but only if such person or entity confirms in
writing such ownership interest or prospective ownership interest and
agrees to keep it confidential; and provided that the undersigned may
provide all or any part of the Information to its auditors, legal
counsel and regulators.
4. The undersigned will not use or disclose the Information in any manner
which could result in a violation of any provision of the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities
Exchange Act of 1934, as amended, or would require registration of any
Non-Registered Certificate (as defined in the Pooling and Servicing
Agreement) pursuant to Section 5 of the Securities Act.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto
by its duly authorized officer, as of the day and year written above.
--------------------------------------------------------
[CERTIFICATEHOLDER] [BENEFICIAL HOLDER OF A CERTIFICATE]
By:
-----------------------------------------------------
Name:
Title:
Telephone No.:
K-1-2
EXHIBIT K-2
INFORMATION REQUEST FROM PROSPECTIVE INVESTOR
[Date]
Xxxxx Fargo Bank Minnesota, N.A.
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services (CMBS)
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5
In accordance with the Pooling and Servicing Agreement, dated as of
November 12, 2001 (the "Pooling and Servicing Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp. as depositor (the "Depositor"), KeyCorp
Real Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage as general
master servicer and general special servicer, National Consumer Cooperative Bank
as co-op master servicer and co-op special servicer and Xxxxx Fargo Bank
Minnesota, N.A. as trustee (the "Trustee"), with respect to the Credit Suisse
First Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through
Certificates, Series 2001-CKN5 (the "Certificates"), the undersigned hereby
certifies and agrees as follows:
1. The undersigned is contemplating an investment in the Class ____
Certificates.
2. The undersigned is requesting access to the following information (the
"Information") for use in evaluating such possible investment:
___ The information on the [General] [Co-op] Master Servicer's
Internet Website pursuant to Section 3.12(d) of the Pooling and
Servicing Agreement.
___ The information on the Trustee's Internet Website pursuant to
Section 4.02(a) of the Pooling and Servicing Agreement.
___ The information identified on the schedule attached hereto
pursuant to Section 8.12(b) of the Pooling and Servicing
Agreement.
3. In consideration of the Trustee's disclosure to the undersigned of the
Information, the undersigned will keep the Information confidential
(except from such outside persons as are assisting it in making the
investment decision described in paragraphs 1 and 2), and such
Information will not, without the prior written consent of the
Trustee, be disclosed by the undersigned or by its officers,
directors, partners employees, agents or representatives
(collectively, the "Representatives") in any manner whatsoever, in
whole or in part; provided that in the event the undersigned purchases
any Certificate or any interest in any
K-2-1
Certificate, the undersigned may provide all or any part of the
Information to any other person or entity that holds or is
contemplating the purchase of any Certificate or interest therein, but
only if such person or entity confirms in writing such ownership
interest or prospective ownership interest and agrees to keep it
confidential; and provided that the undersigned may provide all or any
part of the Information to its auditors, legal counsel and regulators.
4. The undersigned will not use or disclose the Information in any manner
which could result in a violation of any provision of the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities
Exchange Act of 1934, as amended, or would require registration of any
Non-Registered Certificate (as defined in the Pooling and Servicing
Agreement) pursuant to Section 5 of the Securities Act.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto
by its duly authorized officer, as of the day and year written above.
[PROSPECTIVE PURCHASER]
By:
---------------------------------
Name:
Title:
Telephone No.:
K-2-2
EXHIBIT L
SCHEDULE OF DESIGNATED SUB-SERVICERS
National Consumer Cooperative Bank, a federally chartered corporation
Mid North Financial Services, Inc., an Illinois corporation
Xxxxxxx Financial Corporation, a Michigan corporation
L-1
EXHIBIT M
FORM OF SUBORDINATION AGREEMENT FOR NCB SUBORDINATE DEBT
THIS Agreement made this _____ day of ___, 20__, between [_______], a
____________ having an address at __________ (the "Subordinate Mortgagee"), and
___________, a ___________, having an office at ____________ (the "Superior
Mortgagee").
W I T N E S S E T H:
WHEREAS, Superior Mortgagee is the owner of a certain $__________ mortgage
and note secured thereby, dated ________ __, ____, made by
__________________________________ (the "Borrower") to Subordinate Mortgagee
(the "Superior Mortgage") covering the premises located at
____________________________________________ more particularly described in the
Superior Mortgage and Schedule "A" attached hereto (the "Premises"); and
WHEREAS, Subordinate Mortgagee is the holder of a certain $____________
mortgage and the note secured thereby, dated ________ __, ____, made by the
Borrower to Subordinate Mortgagee (the "Subordinate Mortgage") covering the
Premises; and
WHEREAS, the Superior Mortgagee has purchased the Superior Mortgage from
Subordinate Mortgagee and as a condition thereto has required that the
Subordinate Mortgage be fully subordinated to the Superior Mortgage.
NOW, THEREFORE, the parties hereto agree as follows:
The Subordinate Mortgagee hereby covenants and agrees that (i) the
Subordinate Mortgage and all of its terms and provisions and the loan it secures
are and shall remain in all respects subject and subordinate to the Superior
Mortgage, its lien and all of its terms and provisions and to the loan it
secures and to any modifications, consolidations, extension or renewals thereof
and to any increases therein resulting from advances to protect or preserve the
lien of the Superior Mortgage on the Premises encumbered thereby but not any
other increases therein; (ii) no tenant under any lease of any portion of the
Premises, other than tenant shareholders under proprietary leases, will be made
a party defendant in any foreclosure of the Subordinate Mortgage, nor will any
other action be taken in connection with such foreclosure which would have the
effect of terminating any such lease; (iii) no portion of the accounts, accounts
receivable, rents, issues and profits of the Premises shall be collected in
connection with the foreclosure of the Subordinate Mortgage or any other
enforcement action except through a receiver appointed by the court in which
such foreclosure action is brought, after due notice of the application of the
appointment of such receiver shall have been given to the Superior Mortgagee;
(iv) the accounts, accounts receivable, rents, issues and profits collected by
any such receiver (or which shall under any circumstances come into possession
of the holder of the Subordinate Mortgage at a time when Subordinate Mortgagee
has received written notice of a default under the Superior Mortgage) shall be
applied first to the payment of taxes, maintenance and operating charges and
disbursements incurred in connection with the operation and maintenance of the
Premises, and next to the payment of principal and interest due under the
Superior Mortgage at the time of such application, before any portion of such
accounts, accounts receivable, rents, issues and profits shall be applied to the
Subordinate Mortgage; (v) during the pendency of any such foreclosure action, if
an action shall be brought for the foreclosure of
M-1
the Superior Mortgage and an application shall be made for an extension of such
receivership for the benefit of the Superior Mortgagee, the Subordinate
Mortgagee shall consent to the extension of such receivership and all accounts,
accounts receivable, rents, issues and profits held by such receiver as of the
date of such application shall be applied by the receiver solely for the benefit
of the Superior Mortgagee, and the Subordinate Mortgagee in their respective
order of priority; (vi) due notice of the commencement of any foreclosure of the
Subordinate Mortgage shall be given to the Superior Mortgagee and true copies of
all papers served or entered in such action will be delivered to the Superior
Mortgagee upon such service or entry; (vii) no payments shall be made to the
holder of the Subordinate Mortgage during the period in which any default exists
under the Superior Mortgage in respect of any monthly payment or balloon payment
due thereunder beyond any applicable grace period, provided that the Subordinate
Mortgagee has received written notice of such default and all payments otherwise
payable to the Subordinate Mortgagee during such period shall be paid to the
Superior Mortgagee and, if any such payments are received by the Subordinate
Mortgagee at any time after which the Subordinate Mortgagee has received written
notice of the existence of such default, they shall be held in trust for the
Superior Mortgagee and turned over to the Superior Mortgagee on demand; (viii)
any distributions made or to be made to the Subordinate Mortgagee pursuant to
any bankruptcy or insolvency proceeding of the borrower representing amounts due
under the Superior Mortgagee shall be paid by the borrower, or, if such payments
are nonetheless received by the Subordinate Mortgagee, by the Subordinate
Mortgagee immediately upon their receipt, to the Superior Mortgagee for
application against the principal amounts due under the Superior Mortgage in
reverse order of maturity; and (ix) all condemnation, casualty or similar
payments with respect to the premises shall be applied, for so long as the
Superior Mortgage remains outstanding, in accordance with the Superior Mortgage.
This Agreement is governed by and is to be construed under the laws of the
State of New York.
This Agreement shall not be amended or modified except by an agreement in
writing, signed by the party against whom enforcement is sought.
Except for notices in a foreclosure action, which shall be given as
provided by applicable rule of court, all notices hereunder shall be given to
each party in the same manner as provided in its mortgage or, if there are no
such notice provisions, at the address set forth above by personal delivery or
first class, certified mail, return receipt requested. Notices shall be deemed
to have been given when received. Either party may change its address for
notices hereunder by written notice to the other party.
This Agreement shall be binding upon the parties hereto and their
respective heirs, successors and assigns. Any assignee of the Subordinate
Mortgage shall be deemed by acceptance thereof to have assumed the obligations
of Subordinate Mortgagee hereunder. Subordinate Mortgagee hereby agrees to have
such assignee execute a formal assumption agreement upon such assignment but no
failure of an assignee to execute an assumption agreement shall affect such
assignee's assumption of the obligations of the Subordinate Mortgagee.
M-2
IN WITNESS WHEREOF, the parties hereto have duly executed this
Subordination Agreement the day and year first above written.
[Subordinate Mortgagee]
By:_______________________________
Name:
Title:
[Superior Mortgagee]
By:_______________________________
Name:
Title:
M-3
SCHEDULE "A"
(METES AND BOUNDS DESCRIPTION)
M-4
EXHIBIT N
FORM OF S&P DEFEASANCE CERTIFICATION
FOR LOANS HAVING BALANCE OF (A) $5,000,000 OR LESS, OR (B) LESS THAN 1% OF
OUTSTANDING POOL BALANCE, WHICHEVER IS LESS
To: Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: _______________________, in its capacity
as Servicer (the "Servicer") under the Pooling and Servicing Agreement
dated as of _______________ (the "Pooling and Servicing Agreement"),
among the Servicer, ________________________________ as Trustee, and
others.
Date: _________, 20___
Re: _______________________________________
Commercial Mortgage Pass-Through Certificates
Series ___________
Mortgage Loan (the "Mortgage Loan") identified by loan number _____ on
the Mortgage Loan Schedule attached to the Pooling and Servicing
Agreement and heretofore secured by the Mortgaged Properties
identified on the Mortgage Loan Schedule by the following
names:____________________
____________________
Reference is made to the Pooling and Servicing Agreement described above.
Capitalized terms used but not defined herein have the meanings assigned to such
terms in the Pooling and Servicing Agreement. [NOTE: ALL TERMS IN THIS
CERTIFICATION MUST BE CONFORMED TO TERMS USED IN THE POOLING AND SERVICING
AGREEMENT]
As Servicer under the Pooling and Servicing Agreement, we hereby:
1. Notify you that the Mortgagor has consummated a defeasance of the
Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type
checked below:
____ a full defeasance of the payments scheduled to be due in respect
of the entire principal balance of the Mortgage Loan; or
____ a partial defeasance of the payments scheduled to be due in
respect of a portion of the principal balance of the Mortgage
Loan that represents ___% of the entire principal balance of the
Mortgage Loan and, under the Mortgage, has an allocated loan
amount of $____________ or _______% of the entire principal
balance;
N-1
2. Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A hereto, which
exceptions the Servicer has determined, consistent with the Servicing
Standard, will have no material adverse effect on the Mortgage Loan or
the defeasance transaction:
a. The Mortgage Loan Documents permit the defeasance, and the terms
and conditions for defeasance specified therein were satisfied in
all material respects in completing the defeasance.
b. The defeasance was consummated on __________, 20__.
c. The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section 2(a)(16)
of the Investment Company Act of 1940 as amended (15 U.S.C.
80A1), (ii) are listed as "Qualified Investments for `AAA'
Financings" under Paragraphs 1, 2 or 3 of "Cash Flow Approach" in
Standard & Poor's Public Finance Criteria 2000, as amended to the
date of the defeasance, (iii) are rated `AAA' by Standard &
Poor's, (iv) if they include a principal obligation, the
principal due at maturity cannot vary or change, and (v) are not
subject to prepayment, call or early redemption. Such securities
have the characteristics set forth below:
CUSIP RATE MAT PAY DATES ISSUED
----------------------------------------------
d. The Servicer received an opinion of counsel (from counsel
approved by Servicer in accordance with the Servicing Standard)
that the defeasance will not result in an adverse REMIC event.
e. The Servicer determined that the defeasance collateral will be
owned by an entity (the "Defeasance Obligor") as to which one of
the statements checked below is true:
____ the related Mortgagor was a Single-Purpose Entity (as
defined in Standard & Poor's Structured Finance Ratings Real
Estate Finance Criteria, as amended to the date of the
defeasance (the "S&P Criteria")) as of the date of the
defeasance, and after the defeasance owns no assets other
than the defeasance collateral and real property securing
Mortgage Loans included in the pool.
____ the related Mortgagor designated a Single-Purpose Entity (as
defined in the S&P Criteria) to own the defeasance
collateral; or
____ the Servicer designated a Single-Purpose Entity (as defined
in the S&P Criteria) established for the benefit of the
Trust to own the defeasance collateral.
f. The Servicer received a broker or similar confirmation of the
credit, or the accountant's letter described below contained
statements that it reviewed a
N-2
broker or similar confirmation of the credit, of the defeasance
collateral to an Eligible Account (as defined in the S&P
Criteria) in the name of the Defeasance Obligor, which account is
maintained as a securities account by the Trustee acting as a
securities intermediary.
g. As securities intermediary, Trustee is obligated to make the
scheduled payments on the Mortgage Loan from the proceeds of the
defeasance collateral directly to the Servicer's collection
account in the amounts and on the dates specified in the Mortgage
Loan Documents or, in a partial defeasance, the portion of such
scheduled payments attributed to the allocated loan amount for
the real property defeased, increased by any defeasance premium
specified in the Mortgage Loan Documents (the "Scheduled
Payments").
h. The Servicer received from the Mortgagor written confirmation
from a firm of independent certified public accountants, who were
approved by Servicer in accordance with Accepted Master Servicing
Practices or Accepted Special Servicing Practices, as applicable,
stating that (i) revenues from principal and interest payments
made on the defeasance collateral (without taking into account
any earnings on reinvestment of such revenues) will be sufficient
to timely pay each of the Scheduled Payments after the defeasance
including the payment in full of the Mortgage Loan (or the
allocated portion thereof in connection with a partial
defeasance) on its Maturity Date (or, in the case of an ARD Loan,
on its Anticipated Repayment Date), (ii) the revenues received in
any month from the defeasance collateral will be applied to make
Scheduled Payments within four (4) months after the date of
receipt, and (iii) interest income from the defeasance collateral
to the Defeasance Obligor in any calendar or fiscal year will not
exceed such Defeasance Obligor's interest expense for the
Mortgage Loan (or the allocated portion thereof in a partial
defeasance) for such year.
i. The Servicer received opinions from counsel, who were approved by
Servicer in accordance with Accepted Master Servicing Practices
or Accepted Special Servicing Practices, as applicable, that (i)
the agreements executed by the Mortgagor and/or the Defeasance
Obligor in connection with the defeasance are enforceable against
them in accordance with their terms, and (ii) the Trustee will
have a perfected, first priority security interest in the
defeasance collateral described above.
j. The agreements executed in connection with the defeasance (i)
permit reinvestment of proceeds of the defeasance collateral only
in Permitted Investments (as defined in the S&P Criteria), (ii)
permit release of surplus defeasance collateral and earnings on
reinvestment to the Defeasance Obligor or the Mortgagor only
after the Mortgage Loan has been paid in full, if any such
release is permitted, (iii) prohibit any subordinate liens
against the defeasance collateral, and (iv) provide for payment
from
N-3
sources other than the defeasance collateral or other assets of
the Defeasance Obligor of all fees and expenses of the securities
intermediary for administering the defeasance and the securities
account and all fees and expenses of maintaining the existence of
the Defeasance Obligor.
k. The entire principal balance of the Mortgage Loan as of the date
of defeasance was $___________ [$5,000,000 or less or less than
one percent of pool balance, whichever is less] which is less
than 1% of the aggregate Certificate Balance of the Certificates
as of the date of the most recent Paying Agent's Monthly
Certificateholder Report received by us (the "Current Report").
l. The defeasance described herein, together with all prior and
simultaneous defeasances of Mortgage Loans, brings the total of
all fully and partially defeased Mortgage Loans to
$__________________, which is _____% of the Aggregate Certificate
Balance of the Certificates as of the date of the Current Report.
3. Certify that, in addition to the foregoing, Servicer has imposed such
additional conditions to the defeasance, subject to the limitations
imposed by the Mortgage Loan Documents, as are consistent with
Accepted Master Servicing Practices or Accepted Special Servicing
Practices, as applicable.
4. Certify that Exhibit B hereto is a list of the material agreements,
instruments, organizational documents for the Defeasance Obligor, and
opinions of counsel and independent accountants executed and delivered
in connection with the defeasance described above and that originals
or copies of such agreements, instruments and opinions have been
transmitted to the Trustee for placement in the related Mortgage File
or, to the extent not required to be part of the related Mortgage
File, are in the possession of the Servicer as part of the Servicer's
Mortgage File.
5. Certify and confirm that the determinations and certifications
described above were rendered in accordance with Accepted Master
Servicing Practices or Accepted Special Servicing Practices, as
applicable, set forth in, and the other applicable terms and
conditions of, the Pooling and Servicing Agreement.
6. Certify that the individual under whose hand the Servicer has caused
this Notice and Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance described above.
7. Agree to provide copies of all items listed in Exhibit B to you upon
request.
N-4
IN WITNESS WHEREOF, the Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
SERVICER:_______________________________
By:_____________________________________
Name:
Title:
N-5
